Peter Robinson and the Constitutional Complexities of Gay Marriage

 

Peter Robinson’s post yesterday cites Robert George’s passionate attack on claims for the constitutionality of gay marriage, wherein George argues that this weighty issue should be decided analytically at the wholesale level. He looks at what he, and many others, think to be bad decisions by an activist Supreme Court and urges that Republicans, both in and out of government, should treat the decision “as an anti-constitutional and illegitimate ruling in which the judiciary has attempted to usurp the authority of the people and their elected representatives.”

This is a very radical claim and the effort to upset the doctrine of judicial supremacy, far from being confined to this decision, could easily be extended to any other ruling that is subject to extensive political disputation. Professor George seeks to make this argument by analogizing the situation with gay marriage to earlier cases. Here’s the relevant section that Peter quoted:

Dred Scott v. Sandford was the infamous case in which the Supreme Court of the United States, usurping the constitutional authority of the people acting through their elected representatives in Congress, purported to deny the power of the United States to prohibit slavery in the federal territories. It is very much worth recalling that Dred Scott was not just a case about slavery. It was a case about the scope and limits of judicial power. It was a case in which judges, lacking any warrant in the text, structure, logic, or historical understanding of the Constitution, attempted to impose their own favored resolution of a morally charged debate about public policy on the entire nation.

The Supreme Court did it again in 1905 in the case of Lochner v. New York (invalidating a worker protection statute enacted by the state legislature), and then several more times in the Warren Court era, culminating in Roe v. Wade—the Dred Scott decision of our own time. Now we face the prospect of yet another Dred Scott-type decision—this time on the question of marriage. I say that, not because same-sex relationships are the moral equivalent of slavery—they are not—but because five justices seem to be signaling that they will once again legislate from the bench by imposing, without constitutional warrant, their own beliefs about the nature and proper definition of marriage on the entire country.

I think that argument misfires.

The lesson that we should take away from this discussion is that constitutionality has to be decided one case at a time. We do not have a pure popular democracy, for that would obviate the entire institution of judicial review. Yet, by the same token, we do not wish for courts to take over all the political decisions in the country. Deciding what belongs to the courts and what belongs to the legislature is like deciding what belongs to God and what belongs to Rome. There is a lot of play in the joints. So let’s go over the cases one at a time.

Dred Scott v. Sandford resolved two questions: the first was that it denied that Congress had the power to enact legislation on slavery that governed the territories, which clearly seems wrong given that the Constitution provides that “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;” That language surely seems large enough to cover this issue.

The other point was a technical one. The jurisdiction of federal courts extends to “diversity jurisdiction” (i.e., disputes between citizens of different states). Chief Justice Taney ruled that a former slave could not become a citizen, and thus could not sue in federal court. The outrage in response to this proposition was enormous, but the law of slavery was very complex (as well as very odious), and this issue was only resolved by the first clause of the Fourteenth Amendment, which said “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” No one wanted to wait for the Supreme Court to get back into the fray, and everyone agrees that the decision was, without question, the most disastrous issued by the Supreme Court.

It is not clear, however, that judicial deference to the legislature is the answer. What happens if the Congress, on the eve of Dred Scott, passes a statute declaring that no slave could ever become a citizen of the United States? The glory of democratic institutions is less apparent now. That was also the case with the notorious 1896 decision in Plessy v. Ferguson, in which judicial deference to state legislatures was used to support anti-miscegenation laws, forced segregation on common carriers, and segregated schools, thereby undoing the protections that the Fourteenth Amendment provided to the newly freed slaves.

But does the decision in Plessy foreshadow the 1905 decision in Lochner v New York? The tangled history of constitutional law makes this a hard call, but I have long been of the view that the Fourteenth Amendment did limit the power of states to impose maximum hours legislation in an effort to favor union workers over their non-union rivals. David Bernstein has written a powerful book, Rehabilitating Lochner, which shows the hidden strength of the Lochner decision, which can be justified on the simple grounds that no state legislature should be able to tell competent individuals of full age how to run their own affairs. The regulation was therefore not a bona fide provision to protect the health of workers who could protect themselves. The conflict between liberty and democracy is sharp enough. It is far from self-evident that Robert George’s blanket denunciation of the case is correct.

Roe v. Wade, in my view, is distinguishable from Lochner on the simple grounds that the police power of the government does deal with matters of health and safety, and that includes the protection of unborn life inside the womb. If this line of authority is correct, then lo and behold: Lochner is right and Roe is wrong. No general theory of judicial deference to the legislature can explain the difference.

So where does same-sex marriage come out? Historically, it was something that the legislature could regulate on the grounds that all questions of “morals” — marriage and sexuality foremost — were matters for state regulation. The argument here is historical and depends on an unbroken line of case authority that lasted until the 1960s, when Griswold v. Connecticut struck down a state law that banned the sale of contraceptives to married persons. After that point, it was off to the races, as sexual activity became a preferred freedom and a transcendent right.

At this point, the line between decriminalization (which was at stake in the 2003 case of Lawrence v. Texas) and the legitimation of same-sex marriages is not a huge leap. In my own view, Lawrence is wrong on historical grounds, in which case the argument for same-sex marriage on constitutional terms fails (even though that position attracts a lot of support from libertarians for the simple reason that they believe individuals should be able to choose their own sexual partners). Even the liberals on the Supreme Court don’t quite believe that, however, because I doubt that any of them would say that there is a constitutional right to polygamist marriages.

All this complexity throws a monkey wrench into George’s theory of full-time political supremacy. And with all the talk of the living constitution, I would not be surprised if the Supreme Court reversed course yet again and struck down the ban on same-sex marriage. But before they do so, they should read Jeffrey Sutton’s opinion in DeBour v. Snyder in the Sixth Circuit, which asks this question: why does the Equal Protection Clause strike down statutory prohibitions that were universally observed everywhere? I think that Sutton asked the right question. It is the disdain for tradition, rather than the appeal to political supremacy, that may afford the stronger grounds for decision.

There are 6 comments.

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  1. user_517406 Inactive
    user_517406
    @MerinaSmith

    I was correct when  I predicted in the second comment on Peter’s post what Yoo and Epstein would say, given their support for redefining marriage.  I’d like to hear some other opinions.  Peter, could you call on some other legal authorities please?  The comparison with Dred Scott is absolutely apt IMHO, as Gerry Bradley explained on Public Discourse a few days ago.  I urge everyone to go read that excellent analysis.  The Supremes are way beyond their pay grade here.

    • #1
  2. user_86050 Inactive
    user_86050
    @KCMulville

    My argument against Professor Epstein’s position is this: the judicial power is inherently derivative. It does not have power to decide issues according to its own lights. It is obligated to decide cases according to the Constitution and legislation.

    This is not a case of two equal branches, and we should deny that one branch has “supremacy” over the other. A better way to describe it is to say that since the judiciary’s power is to interpret existing law, the Constitution and legislature have “logical priority.” The judicial power is entirely derived from existing law, and they’re not entitled to decide cases without the warrant that existing law gives them.

    The turning point was Griswold v. Connecticut, where the Court made a decision not based on existing law, but on what they deemed to be “emanations and penumbras” of Constitutional principles. But since those emanations and penumbras have nothing tangible or textual to define them, it unleashes the imagination of justices, and leaves opponents with no weapons to rebut them.

    It’s curious that an institution that demands that the litigants who come before the Court to only make claims that are demonstrable and provable with evidence … feels entitled to make decisions without demonstration and without proof. If they can make their decisions based on extrapolations that have no proof, why can’t prosecutors make charges based on evidence that (of course, everyone knows …) they can just assume exists?

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  3. user_836033 Member
    user_836033
    @WBob

    they should read Jeffrey Sutton’s opinion in DeBour v. Snyder in the Sixth Circuit, which asks this question: why does the Equal Protection Clause strike down statutory prohibitions that were universally observed everywhere? I think that Sutton asked the right question. It is the disdain for tradition, rather than the appeal to political supremacy, that may afford the stronger grounds for decision.”

    In the same way, how do we know that laws against slander don’t violate the First Amendment?  The answer: because such laws were always considered valid, going  back long before the Constitution.

    How do we know that the equal protection clause doesn’t guarantee non-citizens and even illegal immigrants the right to vote?  After all it says “nor deny to any person within its jurisdiction the equal protection of the laws.”  Person, not citizen. The answer: because that would be crazy.

    And how do we know that it doesn’t force states to allow men to marry men?  Because, well, men don’t marry men.  But apparently  it’s too much today to ask judges to be aware of something so obvious.

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  4. Ricochet Inactive
    Ricochet
    @MattEdwards

    It may be way above my pay grade to comment on this thread, considering my point is simple: get government out of the marriage business. If two (or three, four, ten) people want to contract with each other based on what a state marriage license offers them as far as benefits, then hire a lawyer and uphold your own part of the agreement. Why do you need a government stamp, or the “power vested by the great state of…” to say you are married.  Marriage was always a religious institution and if a gay couple found a religion that would marry them, they signed up. If they weren’t religious, they found someway else to do it. There is no need for the state to be involved.

    Unfortunately we are way past these arguments for it to be of any help. So I merely type this out for future builders of freer societies.

    • #4
  5. x Inactive
    x
    @CatoRand

    Matt Edwards:It may be way above my pay grade to comment on this thread, considering my point is simple: get government out of the marriage business. If two (or three, four, ten) people want to contract with each other based on what a state marriage license offers them as far as benefits, then hire a lawyer and uphold your own part of the agreement. Why do you need a government stamp, or the “power vested by the great state of…” to say you are married. Marriage was always a religious institution and if a gay couple found a religion that would marry them, they signed up. If they weren’t religious, they found someway else to do it. There is no need for the state to be involved.

    Unfortunately we are way past these arguments for it to be of any help. So I merely type this out for future builders of freer societies.

    Nothing is above your pay grade on Ricochet.  Just be warned, not uncommonly you’ll run into a genuine expert on a subject here.  I try to de-escalate when I discover that I might be talking to someone who can run circles around me on a subject.  When that happens, I try to listen and learn instead.

    • #5
  6. Ricochet Member
    Ricochet
    @ArizonaPatriot

    I don’t think that Prof. George was advocating full-time political supremacy in the cited post (though he may elsewhere; I’m not familiar with his other work).

    I took his point to be that, in theory, the USSC could make constitutional decisions that are so far removed from any reasonable reading of our constitutional text and structure, and from the history and traditions of our country that provide the context for understanding such text and structure, as to amount to “judicial tyranny.”  He then proposed that Dred Scott, Lochner and Roe v. Wade are decisions of this type, and that a USSC decision mandating gay marriage nationwide under the 14th Amendment would be in this category.

    I’m inclined to agree with Prof. George on these particular cases, except Lochner.  (I’m ambivalent on Lochner, but even if wrongly decided, I don’t think it rises to the level of “judicial tyranny” implied by the others.)  On the other hand, regarding the Griswold case discussed by Prof. Epstein, while I think it was wrongly decided and introduced a dreadful new type of analysis into constitutional jurisprudence, I don’t think that it was significant enough to rise to the level of “judicial tyranny” that would justify the type of political opposition that Prof. George suggests.

    Similarly, on the other side, I don’t think that Citizens United comes even close to this standard, even for those who think it wrongly decided.  I may, however, be biased in this view, because I think that those who (thoughtfully) disagree with Citizens United have a very wrong-headed understanding of freedom of speech.

    On an aside, I say “thoughtfully” disagree with Citizens United because I’ve seen many people, including some lawyers (who should know better), oppose Citizens United on the grounds that “corporations don’t have first amendment rights.”  I always point out to them that the New York Times is a corporation, and they surely don’t disagree with NYT v. Sullivan on this basis, do they?  Or do they think it is OK to censor the Times or MSNBC because they are corporations?

    • #6

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