Strengthening Constitutional Self-Government

No Left Turns

The Inalienable Right to Same-Sex Marriage?

Steve Chapman has a sensible analysis of the current dispute in California. Can a high court of a state use "inalienable rights" as a way of declaring part of a state constitution unconstitutional, as the attorney general of that great state (Jerry Brown) claims? Chapman’s democratic view is that the war over marriage in California and throughout our country should be political, not judicial. Advocates of same-sex marriage want to short-circuit the democratic process, even though the trend of public opinion is clearly on their side. Chapman reports that the California court is not, for now, likely to accept the invitation to declare the constitution unconstitutional.

Anyone reflecting on what’s going on in California can’t help but think that our national high court might soon be tempted--based on what’s actually said in LAWRENCE v. TEXAS--to use "inalienable rights" (as embodied in the Constitution through the word "liberty" [which has become equivalent to autonomy] in the Fourteenth Amendment) to declare a right to same-sex marriage. And of course the Supreme Court can, it seems, declare parts of states constitutions unconstitutional with that amendment in mind. The possibility of that new birth of freedom, of course, excites libertarian judicial scholars such as Randy Barnett--who of course rightly discerned the radical implications of the Court’s opinion on LAWRENCE. Surely that’s not the "natural rights jurisprudence" that we believe in(?), if we do believe in it (which, for Scalia reasons, I tend not to in most cases).

This is an issue that America needs to be discussing now.

Discussions - 16 Comments

Really nice piece. The interesting judicial question here is the extent to which constitutional interpretation is limited by naturally endowed and therefore extra-constitutional rights; the weird logic of Lawrence seems to be that the Constitution must protect our natural rights as its primary function but that our catalogue of rights is constantly expanding by convention. The impatience and anger that comes with technocratic interpretation of democracy is never more obvious than with the marriage issue--for all the populist rhetoric the same sex marriage folks clearly have no time for popular deliberation and its results. As Chapman points out, their choice to ignore popular democratic process and go the judicial route might very well hurt their cause politically even though the practical legislative gains this risk might win are negligible.

Gay marriage will likely make inroads on the federal level via the equal protections clause, rather than due process liberty. The right to sodomy may be a natural liberty, but its pretty hard to see the court ever saying its a natural liberty to marry whoever. Rather, the equal protections clause and not allowing any distinctions based on sex would provide a less radical ruling while reaching the same result. The EPC would also have the practical advantage of merely saying any two people may marry and gov't can't look at their gender, whereas bigamy/polygamy is the natual consequence of a gay marriage right based on due process libery.

Natural rights jurisprudence should be inherently suspect to persons of any political persuasion. Natural rights, if they exist, should be the interpreted by our elected branches, not the under the control of judges. The judiciary ought to focus on regulating the political process/access/structure and stay out of creating (or taking) substantive rights that are created by a fair democratic process.

One place I think Chapman goes astray, the more I think of it, is in seeing the potential gain, while practically unspectacular, as purely a matter of nomenclature. This is a good example of technocratic means in the service of something other than benign technocratic ends--the question of nomenclature is really an issue of honor. And part of the problem, as one might learn from Act I of Lear, is that honor, like love, is a difficult thing to simply demand from others.

i>"As Chapman points out, their choice to ignore popular democratic process and go the judicial route might very well hurt their cause politically even though the practical legislative gains this risk might win are negligible."

If I may contingently disagree with Ivan (contingent upon what precisely means by the section quoted above), if the same-sex marriage movement attains success through the courts, the game is over. As with abortion, once the proverbial horse has left the stable, it will be impossible to get him back in. And in short order, a whole generation will learn to depend on same-sex marriage (as the court said about abortion in Casey) and thus it shall ever be. But Ivan is certainly correct that if they go to the courts and lose, then there is temporary political set back. But only temporary as contemporary America has no argument against same-sex marriage.

I think Jon S. makes sense. So here's an issue: If we have no argument against same-sex marriage (because of of our Lockeanization or individualization or denaturalization of of the institution of marriage), does that mean there's z right to it? Or is it still left up to the political process in the state to choose for or against it?

I think I agree with Jon too--laws come and go but there's a much greater permanence to judicial fiat. And Peter: the marriage issue here is really instructive because while the same sex folks are usually very skeptical about arguments based on either nature or tradition, the vehemence with which they stake their claim is hard to account for on purely conventional grounds....also, arguments for rights by convention are usually made on the basis of the evolving public view vs against the grain of it.

Manent has pointed out this oddity in the same sex marriage position: on the one hand their program seems to be a complete subversion of the traditional interpretation of marriage but on the other hand wants to be included in its fold, recognized by the traditionalists, given the same name, etc. They seem to reject the institution while they simultaneously pine for it. In a weird way this is a reflection of the constitutional predicament: they demand rights to be legally recognized as a matter of natural justice, but largely go the Rorty inspired route of interpreting those rights as a matter of conventionally constructed myth.

Years ago Stanley Kurtz argued that same-sex marriage was the stepping stone to the eradication of marriage, meaning this was the actual goal of same-sex proponents. I wonder if this solves Ivan's puzzle. The goal is not to be included in a long standing covenant, but to subvert it.

Jon--that's a line of argument often adopted by conservatives and I'm not unsympathetic to it--I'm just pointing out that there's a bunch of evidence that their view of marriage, which in many ways mimics the traditional one, often comes across as more complicated than that. If the same sex marriage folks really wanted to play out their logic to its conclusion, they should be rejecting the institution en toto and calling for any government regulation/affirmation on this score (including the affirmation of monogamous coupling) as obsolete....I'm really not sure if this is a covert strategy to insinuate themselves into the institution for the sake of destroying it or if its a reflection on the limitations of their adherence to a doctrine of "polymorphous sexuality" (or some not entirely consistent combination of the two). Either way, the strange juridical argument made here looks like a "natural rights jurisprudence" approach to constitutional argument without the nature. The other oddity I pointed out, however clumsily above, is that their demand for honor ( a political demand) is pursued by non-political means (juridical), which is a sort of template for technocratic governance.

Ivan, might I suggest that many supporters of ssm are basing their opinions (and vehemence)on neither tradition nor some transhistorical natural right (redundant I know)but on a view of morality in which morality evolves and the most recent version of morality that is held by the enlightened is the true morality - for the moment. The person holding this view of morality relativizes the opinions of those he disagrees with while absolutizing their own current opinions... and their next opinions. It might also be a mistake to assume that the people who think of morality this way view their own opinions as social creations in the moment. Maybe later, when they are more advanced, they can think of their old opinions as social creations, but only while they are admiring themselves for their current up-to-date opinions. You can say alot of things about the more zealous social liberals, but not that they have much ironic detachment from their own current views of morality (on ssm or abortion for instance).

So how does this relate to the judicial imposition of ssm or any other liberal social policy that was not willed by the writers of the Constitution or relevant Amendments? This brings us to Herbert Croly. Like alot of other Progressives, Croly disliked the Constitution for its limited government structure (which came from the natural rights assumptions of its writers), and its difficulty in formally amending. He also disliked that much of the public revered both the Constitution and other nonprogressive ideas. But Croly understood that judicial review (which had so often been used to frustrate policies supported by Progressives)could in the hands of enlightened judges be used to change the Constitution in Progressive directions. This way you can subvert the Constitution's structure, get around the democratic parts of the Constitution (which place these issues with the elected branches)and impose one's favored Progressive policies. All in the name of the Constitution and Progress. This strategy was originally a way of getting around a regretable Constitution, but I think that most people who are not very interested in the history of ideas have lost this. This Progressive school of Constitutional interpretation has for many become normative and is actually the true form of fidelity to the Constitution. The old hostility to the Constitution (in the emotional sense) has been lost.

There is of course the problem of identifying what the new morality is and who gets to decide. A wiseguy would say that it seems to have alot to do with the New York Times Editorial Page. Maybe it is better to say that in practice, the definition of the up-to-date morality is formed by the consensus of the people who believe that morality is evolving and that the form of morality currently held by the enlightened is the best one... for the moment.

Well, of course you're right, Pete, that's about what they would say but the point I was making, or at least part of it, was that doesn't make sense on moral/phenomenological grounds (let alone theoretical): if you take your moral position to be one point on an evolutioanry trajectory that will inevitably be eclipsed by another then the proper epistemic comportment would be one of cautious skepticism versus angry and dogmatic attachment. In fact,it 's often the case that the primary thrust against arguments based on nature is that they're in some fundamental sense politically hegemonic and forestalll the possibility of genuine tolerance. The ssm marriage folks demand as if there position was "self-evident" and as if "it were based on a natural vs contingent sense of justice---that's why I said juridically speaking it often seems like a ferocious caricature of a natural rights jurisprudence sans nature.

The possibility of that new birth of freedom, of course, excites libertarian judicial scholars such as Randy Barnett--

I don't think it's appreciated just how radial and subversive the libertarian movement is. Barnett and other libertarian theorists frankly call for the end of representative government and rule by "judges". But their "judges" are what the Greeks called tyrants, and would assume the powers currently vested in three different branches of government.

Perhaps when the courts discover a right to universal health care a little lightbulb will go on in the libertarians heads. I doubt it though. Like all ideologues they are missing any sort of feedback loop.

Great stuff, Pete and Ivan. Pete is spot-on about the new progressive love of the "Constitution."

But can I just say that the latest argument being presented to the CA Supreme Court is the most absurd argument ever heard in such a venue. A total embarrassment, yet taken seriously! The Constitution is Unconstitutional? An amendment is to be declared null and void?

Apparently, some progressives cannot get it straight, with this new line of Constitution-loving that Pete details. They are results-oriented all the way down, and nothing else is comprehensible to their dimmed minds. They couldn't read or understand Croly in a thousand years. Truly an incredible embarrassment to any liberal with a brain in their head. Goodridge and Lawrence and even the CA Marriage Cases all rely on constitutional REASONING--flawed, yes, but acknowleging in words the rule of reason and constitutions, and making a sort of sense. The arguments now being presented are nothing short of democratic mental suicide. True liberals, speak up!

That is, the three cases I mention anchor their authority and argument in the 14th amendments' protection of liberty. It is in our understanding of liberty that the evolution occurs. But that understanding only is authoritative, only gives judges the power to overturn democratically adopted laws, because it is in the Constitution. Without this, the rationale (I would less diplomatically say pretense) of "interpretating" a "living constitution" is 100% GONE, 100% INCOHERENT.

Of course, this just makes the case that the likes of Brennan, Dworkin, and Rawls gave us nothing but idiocy-producing pretences in the first place all the easier to make.

Fine thread. Natural rights jurisprudence without nature is not so farfetched to me. We have the right to conquer nature to maximize our pesonal freedom so long as we don't violate the rights of others. So we have the right to detach marriage from biology on behalf of autonomy. The scope of natural rights expands as technology progresses and our individualistic self-understanding becomes more consistent. The word "liberty" doesn't have definite content, becuase it describes an indefinitely expanding "freedom from."

What does form the consensus of Americans on morality? My dad, at 83, and an avid and perpetual TV watcher (as many old people are) insists, (actually, has insisted since I was a child) that television has more to do with shaping American morality than anything else. Something informs the culture about goodness. This brave, new "goodness" you guys are discussing and sometimes complaining about has an air of ultimate liberty that sounds weirdly oppressive. What were unnatural acts are now natural rights? Claiming that position does not make those acts any healthier, never mind the morality of them, though that surely glances back at whether or not they are healthy and natural.

Peter, I would agree that such a natural rights jurisprudence is possible but it is not the one that the more liberal ssm advocates would give us - though that Instapundit fellow might. Many of the same liberals who would use the language of autonomy to establish ssm would also rejoice in rulings that forced government subsidies of abortion, that forced the Boy Scouts to admit gays, and that found a "right" to government provided healthcare regardless of the ruinous cost to others. One can frame arguments for any of those policies based on expanding autonomy, but also arguments agaist them based on the same grounds. One could frame a pretty strong argument against abortion or embryo destroying stem cell research on the grounds that it violates the rights of others and many have. The arguments from autonomy as framed by Progressives are too oppurtunistic and haphazzard to be a continuing expansion of individualism per se. They want you to choose until they don't want you to choose. They want your rights protected until they decide they aren't really rights anymore. As Jonah Goldberg pointed out, while Progressives and Libertarians might have some overlapping policy preferences on social issues, Progressives are very willing to use state power in social policy to get their preferred outcome rather than the one that free choice might produce. Libertarians might well me said to be Lockeans on steroids, but is it crazy to suggest that our Progressives are Left Hegelians who have forgotten their intellectual pedigree?

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