Strengthening Constitutional Self-Government

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Same-sex marriage on the march in April

Last week, the Iowa Supreme Court affirmed a state constitutional right to same-sex marriage. Our friend Matt Franck takes the ruling apart here. There are so many good arguments in Matt’s piece that I can’t decide on which one to quote, so I’ll just tell you to read the whole thing.

And then today, for the first time, same-sex marriage was established legislatively, with Vermont’s legislature overriding a gubernatorial veto. The decisive vote came from a state legislator who switched his vote based on moral reasoning that consisted in toting up constituent contacts for and against. But for want of a few phone calls and emails, traditional marriage "might could" have been saved.

Discussions - 12 Comments

An interesting side note to the fact is Vermont's small republic form of government. Its population is 621,254. There are 149 members in its state house. That means each member only represents 4,169 people (children included), so I wouldn't sneer too much at a legislator who followed his constituents so closely. He problably knows and trusts many of them.

Well Vermont isn't too much of a surprise. And, it's finally done democraticly.

But a unanimous decision in Iowa? A bad, bad omen, saying volumes about the legal profession and about the heartland.

BTW, for those familiar with the privacy and marriage cases and the jargon they typically use, the fact that the Iowa justices saw fit to introduce a new concept into their opinion, that of an "intermediate level of scrutiny" instead of the usual reference to "strict scrutiny" is just absolutely stinkin' hilarious. What an outright joke these justices are.

I agree that the Iowa case was wrongfully decided, but intermediate scrutiny has been around for awhile. Then JUSTICE REHNQUIST used it in his majority opinion in CITY OF RENTON v. PLAYTIME THEATRES, INC.475 U.S. 41 (1986) allowing time, place, and manner restrictions on adult movie theaters.

I can't think it's a good concept, even with Rehnquist using it, but I'm simply guessing, so I will now retire to my soft bed of ignorance, tail between legs. But thanks for the schooling, Jamie.

Intermediate scrutiny is also used in gender cases--beginning with CRAIG V. BOREN and maybe most notably in ROSTKER V. GOLDBERG and U.S. V. VIRGINIA. It's a position that it's impossible to find and opinions that officially use it are always tending in the direction of either rational basis or strict scrutiny. In LAWRENCE V. TEXAS, the S.C. officially uses rational basis, but any fool can see that they've already gone to something like intermediate basis as a prelude to making homosexuality/heterosexuality distinctions a suspect category. I agree with the qualified praise of Vermont by Carl for going the democratic route. We're not going to be able to keep Locke in the Locke box on this one--we're not going to be able to not have this resolved in terms of anything other than the dignified choices of denatured individuals--as the SC says, their autonomy.

I too prefer the legislative route to achieving this result by badly reasoned judicial fiat. But a representative who totes up contacts and votes with the "majority" is a potential or actual tool either of a tyrannical majority or of an intense minority. In neither case is he doing his job, which is to deliberate.

I actually prefer the majority to even a well reasoned judicial fiat. There's a nontrivial case for the view that the 14th amendment empowered the court to Lockeanize (via the Declaration) the social institutions originally reserved to the states (see, for example, Michael Zuckert or Randy Barnett) I reject the reasoning that leads to tht conclusion, but I don't it the best proponents of that case or bad reasoners.

The article comes across as your standard conservative outrage card being played. Beware the 'tyrannical' state supreme court. The decision overturns 'centuries of civilization'. The natural family relegated to a footnote. Cue the Dred Scott references. Marriage is a moral institution, and since 'moral' to conservatives means only what conservatives say it means, the levee is breaking and all our families are under attack. Run - run for your lives! So the article reads like Glenn Beck, but with Pascal and Arendt quotes.

As far as gender cases go, the turn to intermediate scrutiny came after the Equal Rights Amendment of 1972 was defeated (I think Boren was 76 0r 77, too lazy to look it up right now) so strict scrutiny wasn't going to do it for those folks after that. Peter is right in comment #7 that there is a growing body of liberal constitutional scholarship that aggressively declares itself to be as faithful to the text as Scalia but argues that Scalia misses the groundbreaking change of the 14th Amm. This seems to be a response to the real suspicion a lot of ordinary folks have for brazen judicial activism of the most undemocratic variety.

Peter, despite your continual references, I haven't read the Barnett stuff. (And could you indicate which Zuckert pieces are the key one's on this? I have a pretty good idea...but here's a place where citation would be helpful!)

But what I wanted to ask was: how does Barnett's reasoning compare to Brennan's in his Georgetown address on Const. Interp.?

And your fatalism here, Peter, is discouraging. The non-theory-based case for it ("it" being I assume national acceptance of gay marriage and [worse] a menu of marriage-like contract options) is...what?

I think Professor Lawler unfairly implicates Locke in the latest judicial imperial edict. Politically, Locke is firmly on the side of constitutionalism and the rule of law -- general rules, not decrees, and issued by the legislature, which is strictly accountable to the governed, and the representative character of which reconciles the people to the laws. He'd roundly condemn legislating from the bench as tyrannical and practically revolution-worthy: when those in power remove or alter the lawmaking power from where the people placed it (e.g., when judges usurp it), that's reason #1 to grab your pitchforks.

Now, I recognize that Professor Lawler cites Locke on the culture-war theme. And Locke does indeed loosen the metaphysics of the family by arguing that -- inter alia -- father is as father does (not as father sires). But what father (and mother) does is the vital work of education -- educating the child, which they naturally produced, to be useful to himself and others, and generally to recognize and follow the moral Law of Nature. In Ch. 6 of the Second Treatise Locke argues that a child bereft of parental education is -- contra to some ideal of personal autonomy or absolute freedom -- going to live a subhuman, brutish life (and be bad for society too).

This is only a brief citation, but I'd say that Locke comes down quite clearly on the side of mother-father marriage -- and stands on both the Bible, tradition, and nature to do it.

Iowa and Vermont are side-shows. Here's the real story. The out of wedlock birth rate, after a plateau in the 90s, is again on the march ever-upward.

Social conservatives are not worried about homosexuals.

We are worried about heterosexuals and raising the children they produce.

HOW can it be wise to experiment one more time with the marriage laws for marginally different benefits and symbolic recognition for the tiny minority of our population (usually lesbian couples) in such a situation? I understand the craving for that symbolic recognition of equal dignity. I know it is more intensely felt than the rapidly approaching future of fatherless children.

But if that rate continues to march upward, civilization will collapse. PERIOD. A despotism will pick up the pieces. Almost no social conservative says the enactment of gay marriage would make more than a small contribution to this trend. But when the damn creaks, cracks, and looks ready to buckle, why should anyone insist on putting just a bit more water behind the damn? "Oh, letting this wee little stream run into the resevoir doesn't harm anyone! Why should anyone object, unless it is because they have a hateful animus against this particular stream?"

Advocates of gay marriage, get real.

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