Strengthening Constitutional Self-Government

No Left Turns

Meese on Marriage

Former Attorney General, Ed Meese, has these thoughts on gay marriage and the legal strategies involved. He looks at the recent Supreme Court decisions likely to impact Congress’s Defense of Marriage Act (DOMA), and seems to support a constitutional amendment (currently being debated in the Senate) to thwart "a few radical judges [who will] redefine marriage by legal fiat, according to their notions of social progress." Meese concludes that "Nothing less than the future of our society, and the course of constitutional government in the United States, are at stake."

Discussions - 8 Comments

Isn’t Meese the one who recommended Ginsburg for the Supreme Court?

I had not heard that, but it would not surprise me if he recommended Judge Douglas Ginsburg. I fail to see the relevance to the post, however.

As I recall, this is true. After the Bork disaster, Reagan asked Meese to recommend someone else. Meese came up with the brilliant choice of Ginsburg. That humorous episode lasted just a few days before Ginsburg stepped aside and Kennedy was nominated. Kennedy wasn’t as medieval as some conservatives would have liked, but his hearings went smoothly.

Addendum. I didn’t want to comment on the issue of gay marriage until I could find a little more information. For naught.
I couldn’t find the relevant statistics from the last US census but, as my memory serves me, the percentage of US households operating under the framework of a traditional marriage was somewhere around 30%. So, whatever Meese thinks doesn’t take into account the reality of what’s going on in society. There’s no doubt though, that the objections of Meese are not motivated by legal considerations.

Correction: I was wrong in my recollection of the percentage I cited above. It should be 52%(thanks to an unnamed colleague who was nice enough to help me out). On the other hand, the long term trend over the last 50 years has definitely been downward.

Forgive me, but I still fail to see the relevance of the original post about Ginsburg to the substance of the question. And despite the characterization, Ginsburg stepped aside not because he was too conservative, but because he was pilloried after admitting to smoking marijuana. After Clinton and Bush, such activity is almost expected from public servants.

You state that there is no doubt that Meese is not motivated by legal considerations. Then perhaps you can explain what legal basis there is to distinguish an equal protection argument which claims discrimination on the basis of sexual orientation in marriage from one which raises a claim on the basis of discrimination against polyamory or polygamy? Whether you agree or disagree with gay marriage, there may be reason to disagree with the legal arguments being used to promote the public policy. This is why simple results oriented jurisprudence is dangerous. Legal principles are broader than the cases to which they are applied. Legal rules are designed to create generally applicable rules ex ante. If you want to change the ex post allocation, the proper legal avenue is the legislature.

Mr. Alt: You said "but I still fail to see the relevance of the original post about Ginsburg to the substance of the question." Besides repeating yourself, you fail to realise that not all posts on weblogs have to conform to the guidelines or strictures of any particular poster. Nevertheless, I did not pursue the historical tidbit about Ginsburg, but moved on to comment on Meese and his views of marriage and how they are not consistent with what has been going on in society.
As far as your particular legal philosophy is concerned, I disagree, but then so do many jurists, some of which are quite conservative. If you seek any legal justification for those viewpoints, you’d be well advised to act on the suggestion I’ve given you before.

A convenient evasion, Mr. Gordon, but answer the question. You have tacitly endorsed a position by criticizing the position of Meese--now I recommend that you actually defend it. If the courts are right to declare gay marriage a right based on equal protection, then why are they not also required to find a right to polygamy? Do you actually have a principle you are applying, or are you going to say that the courts should forget about that whole silly consistency thing and simply impose your enlightened views?

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