Strengthening Constitutional Self-Government

No Left Turns

Politics, adjudication, and same-sex marriage

I thought a little more about Jonathan Rauch’s recent column, first discussed here, and put the result, for what it’s worth, in this week’s TAE Online column.

Discussions - 20 Comments


You write:

Rauch speculates that California, New York, New Jersey, and Washington could see judicially-imposed gay marriage. Why not preempt them with a constitutional amendment?

The question is: if there is preemption, who should do it? Californians can surely deal with the issue just as well as Georgians, while giving expression to their own political preferences. The FMA goes beyond giving effect to preferences in GA - it imposes GA’s preferences on California. That’s partly the point, no?

Joe’s point or argument is pretty straightforward: the civil institution of marriage should be a matter for the sovereign democratic people in each state to decide (if we lived in a better constitutional order than the current one); egalitarian-autonomy jurisprudence and judges (e.g., Kennedy, Margaret Marshall of the Mass SJC, etc., etc.) make that difficult-to-impossible; the only remaining course for those of us who argue for the rational desirability of male-female-open to procreation marriage for explicit social purposes is such a Federal Amendment.
In my view egalitarian-autonomy jurisprudence of the Casey/Lawrence sort is the real enemy, not, I repeat: not, gays or even same-sex couples. In my view egalitarian-autonomy jurisprudence 1) has to be combatted at the legal or jurisprudential level, by promoting thoughtful law schools and legal education (what I mean by that would take more than a comment, of course) and by appointing better - much better - judges; and 2) in the interim, given today’s political and legal environment, by FMA.
The same-sex marriage question has been judicialized and could be federalized by a Supreme Court taking the next step after Lawrence. That’s the environment within which decisions have to be taken. I’m a big federalism guy, but it’s not the sole or supreme constitutional value or good.

We seem to be very quite these days .... not enough controversial headlines available? Slow news day?

Whoops - Brett’s comment raises the specter of the Lincoln-Douglas debates in which Douglas supports the idea of popular sovereignty and the right of local people to own slaves if that is their choice.


But Douglas’position is within the federalist spirit. Its flaw is the failure to recognize the limits of natural, inalienable rights. Is the FMA about that? I don’t think it is. Does the Fed. Govt. have an interest in regulating marriage? Sure. Can it do it in this manner without in fact harming those natural, inalienable rights as established in the Declaration? Probably not.

I agree with Paul--some kind of amendment is needed, although one other option is an amendment that is an amendment that disables federal courts on the "contents" of marriage and constitutionalizes the Defense of Marriage Act. Any genuine defender of "federalism" has to recognize that its enemy in matters of this kind is the Supreme Court.

Paul and Peter don’t really agree, I think. Let’s be honest: the more that you really think that gay marriage is a bad idea, the more you’re willing to curtail it in any format (see comment 5 above). I disagree with this position; I think that same-sex marriage is a good idea that will grant recognition to the very concrete (not abstract) relationships of real people. But I also think that FMA is a red herring. Its prohibition would apply to those states that amend their constitution to permit same-sex marriage. Pace Joseph’s attempts, there is simply no justification for that on federalism grounds, only on substantive policy grounds.

Brett, I 1) think that defining marriage as a civil institution is basically a legislative prerogative; 2) that some contemporary judges, employing egalitarian-autonomy jurisprudence, have usurped/are usurping that legislative prerogative in mandating same-sex marriage; 3) that the aforementioned egalitarian-autonomy jurisprudence is constitutionally false (among other things, it was merely asserted/planted by Kennedy et al. in Casey, then reaffirmed in Lawrence, without any warrant in constitutional text or history), is democratically wrong, and morally relativistic and nihilistic; and 4) that deliberating about the issue of the civil institution of marriage in our constitutional order as it currently is has to take these and other factors into consideration. To be a bit plain spoken: I do not think that judges who mandate same-sex marriage in the name of "personal autonomy" and a particular view of "equal dignity" should only or simply be deferred to, they should be stoutly resisted, by all legal and educational and (many, not all!) political means as are available.
So, to conclude: My concerns are both for a certain view of marriage and about a gross anti-constitutional, anti-democratic judicial imbalance in our country. It’s not motivated by anti-gay animus and as my earlier post indicated it’s based on a positive view of the purposes and character of the traditional civil institution of marriage. It doesn’t appeal to, nor is based on, any particular religious teaching. If you want the basics of my view of the traditional civil understanding of marriage, read Justice Robert Cordy’s fine dissent in the Massachusetts Supreme Judicial Court decision, Goodridge (2003). Similarly, Maggie Gallagher has a good statement in a 2004 law review article (the exact reference escapes me at this time).
I don’t know what you meant by "curtail it in any format" but that’s not how I would characterize my views; nor do I propose or endorse FMA as a "red herring".
As for Joe’s statement, I see nothing fundamentally anti-federal[ism] or anti-democratic in the position that, given (ex hypothesi) the above-mentioned judicial usurpations and overruling of democratically expressed endorsements of traditional marriage, and given the logical likelihood of a Supreme Court decision extending Lawrence’s autonomy/equal dignity principle to same-sex marriage, then why not let the judicially beseiged states, i.e., the democratic peoples/people of the US, state their solemn will in the formal process of constitutional amendment? Federalism has also been more than "let Georgia go its way." Our federal order is more complicated - and complicatedly democratic - than that.

As I stated in my op-ed piece, I’d prefer to let states settle matters, though I worry that the Supreme Court, as currently constituted, won’t let that happen. In addition, I’m not convinced that advocates of gay marriage sincerely want that to happen, for they present their position as a matter of right and of equal protection of the law (that is, in language that invites federal judicial intervention).

I agree with Paul that the "egalitarian-autonomy jurisprudence" is, at bottom, the threat and poses problems extending far beyond the issue of same-sex marriage. I don’t object to providing certain kinds of contractual economic security to domestic partners, but I’d still want to reserve the label "marriage" for something else.

Paul and Joseph:

FMA completely prohibits states from entrenching same-sex marriage in their state constitutions. Just because FMA targets a certain kind of judging that doesn’t respect federalism doesn’t mean that the FMA itself respects federalism. Far from it.

We can have an interesting argument about judicial approaches. FMA is still a blunderbuss. And we haven’t even talked about the effects of the definitional clause, or what FMA would do to attempts to legislate or constitutionally entrench civil unions.

FMA doesn’t empower legislatures; it restricts them. There is no way around that. And it’s also what most FMA supporters probably want.

I’d prefer to let states settle matters

In general, me too, but on this issue, I don’t. What will happen 20 years from now, after President Clinton (not Bill, not Hillary, but Chelsea) appoints a couple hundred federal appeals court justices and

a) after years of marriage and accumulation of property, the couple splits up and one takes all of the property to a state that does not recognize gay marriage?

b) The non-employed partner enjoys benefits provided by the employer of the employed partner; the employed partner gets transfered to a state that does not allow gay marriage and the employer cuts off benefits to the non-employed partner?

c) How ’bout this one? A bi-sexual man marries another man in a state that allows gay marriages; later, he marries a woman, who knows nothing of the gay marriage, in a state that does not recognize gay marriage; he then dies, leaving a huge estate in the gay marriage state and a modest home, 8 kids, a wife and not much else in the non-gay marriage state; how would the federal courts deal with the conflict of laws then? Who knows?

Granted, the third example is extreme, but it has happened before with men who have had multiple families in several states, none of the families knowing about any of the others. In any event, for reasons such as the ones suggested by the hypos above, I believe one rule for all on this issue would be best.

I worry that the Supreme Court, as currently constituted, won’t let that happen.

I disagree. I believe this Supreme Court is not a conservative court, it is a strict constructionist court. A conservative court would be just as activist as a liberal court, but it would be activist in a conservative direction. A strict constructionist court would, on the other hand, be just as opposed to activism that benefits conservatives as it would be to activism that benefits liberals. In other words, if a state were to enact legislation to the effect that gay marriage were legal in that state, a strict constructionist court, absent a federal constitutional amendment, would conclude that there is nothing in the U.S. Constitution prohibiting such a law, much to the shock and dismay of conservatives, who would, wrongly, feel betrayed.

1. Amendments sometimes have to trump federalism to make points that should have been obvious--slavery shoould be illegal, women should get to vote, marriage is between a man and a woman.

2. But it’s true that the FMA can’t be understood to expand individual rights, but to keep the rights-based logic from further deconstructing an indispensable social institution. That’s why it won’t pass, although it doesn’t mean it shouldn’t

3. I diagree with Paul by facing up to the fact the FMA has no chance of being adopted, but not on what marriage should be or on the evils of autonomy extemism as a principle of const. law.

Change hypo c) in my comment 13 above:

Bi-sexual man marries another man in a gay marriage state, then moves to a non-gay marriage state, marries a woman and they have 8 kids; he accumulates vast wealth in the non-gay marriage state; his gay partner finds out about the second marriage, sues for divorce and bigamy and seeks not just community property but also punitive damages, in effect everything the family of 10 owns; what result?

...not enough controversial headlines available? Slow news day? I think Brian may be right. I’m having too much fun with this. Idle minds and the devil’s playground, etc.

Nobody denies that states can now pass laws allowing same-sex marriage or even polygamy (Utah was denied the latter as a condition for becoming a state--I think we’re in the strange situation where every state but Utah could choose polygamy with no const. problem.) The problem is the likelihood of the "strict constructionist" (meaning autonomy- or evolutionary-indiviualist-driven) activist Court saying that laws limiting marriage to between a man and a woman violate individual rights. (With the theory being that marriage is not between a man and a woman but between any two individuals, and even the word two could be construed as a violation of individual liberty.)

An addendum to Peter’s "FMA, no way" claim. Sometimes we simply have to act and do our duty in the face of discouraging odds. I’d be happy for a realistic alternative that would deny the Supreme Court and state courts the power/authority to redefine marriage. How can that be done short of a constitutional amendment? It would be a good step if Congress legislated and took that authority from the Supreme Court, but what would that do about judicial interventions in the states? And aren’t there thorny issues connected with "full faith and credit"?
Just asking.

I’m for doing making what Paul calls the realistic alternative a constitutional amendment. The full faith and credit might be dealt with by constitutionalizing, in that amendment, the Defense of Marriage Act. Finally, it’s the job of the people of Mass. to rise up against their tyrannical Court. I really do think that the amendment that states the obvious would be fine--marriage is between a man and a woman, but it’s not a realistic alternative right now.

Jonathon Rauch writes:
"Defining and regulating marriage has been within states’ purview since colonial times. (Utah was required to ban polygamy while it was still a federal territory. On the few occasions when the U.S. Supreme Court has intervened, it has curtailed states’ powers to restrict marriage rights, not imposed a definition."

How disingenuous. First, the Supreme Court has not imposed a definition because up until now, no one thought that it was necessary. States didn’t ’define’ marriage in the past because they didn’t have to (everyone know what it meant), they just imposed rules on who could exercise the right to marry (e.g. in Wisconsin, no male under 18 or female under 16 - at least that’s the way it used to be). Secondly, the whole argument of the gay marriage crowd is that of rights, not definitions. If the Supreme Court imposes gay marriage on America it will not be by imposing a definition but by creating new ’rights’ as it did with Roe v. Wade. None of the gay marriage activists are going to courts with arguments about the definition of marriage and asking that a new one be applied, they are arguing that they have an inherent right to marry and that the courts should enforce that right. In fact, there argument is that the existing definition of marriage is broad enough to include them and they just want in on the existing institution.

"strict constructionist" (meaning autonomy- or evolutionary-indiviualist-driven) activist Court Comment 15 by Peter Lawler

That’s certainly not what I meant by "strict constructionist." As I understand the definition, a strict constructionist court strictly construes the constitution with no agenda whatsoever. By that definition, a strict constructionist activist court would be a contradiction in terms. An activist court, either liberal or conservative, starts with a desired result and fills in the rationale to fit that result.Your definition of a strict constructionist court would be my definition of an activist conservative court. Splitting hairs? I suppose so.

I’d be happy for a realistic alternative that would deny the Supreme Court and state courts the power/authority to redefine marriage. How can that be done short of a constitutional amendment? It would be a good step if Congress legislated and took that authority from the Supreme Court Comment 16 by paul seaton

They can’t, absent an amendment to the constitution. The legislature can no more take away court constitutional power by legislation than it can take away executive (the president’s) constitutional power by legislation. It can only be done by constitutional amendment.

Finally, it’s the job of the people of Mass. to rise up against their tyrannical Court.There are only 2 ways they can do that. Either they can pass an amendment to the state constitution or they can, as we did here in CA in the ’80s, vote the state supreme court justices out of office. (Talk about a tyrannical court, our supremes were so set against the death penalty, that they would state in one opinion overturning a death verdict that the prosecutor DID xy and z. In the next opinion, they’d overturn the verdict because the prosecutor DID NOT do xy and z.)

A few comments apropos to #18:
Margaret Marshall (the Massachusetts Supreme Judicial Court chief justice who wrote the Goodridge majority decision) made her decision mandating same-sex marriage hinge both on the equal dignity and rights of the autonomous individual and upon a certain definition of marriage. She said the latter, marriage, is a matter of 1) "intimate" or "personal" choice and 2) a bundle of state-conferred benefits (and obligations). So, she cast the argument in both terms. The minority judges (there were three) all decried her redefinition of marriage against clear Massachusetts statutes.
However, in his own way, the great dissenter in the case, Justice Cordy, agreed that there are (at least) two aspects to the matter of civil marriage, one its "social purposes," the other "the personal interests" involved. In his magisterial dissent he clearly articulated the traditional understanding of marriage as a civil institution: it’s about the need to provide some socially-established and encouraged institution for the coming-into-being and care of new citizens (it has other purposes as well, but that’s its essential one; he also addressed the "what about sterile couples?" and related common objections); but he also showed that the right to marry (which the Mass and US Supreme Courts have recognized) is predicated upon "the right to procreate" which same-sex couples by definition do not share.
To repeat myself: reading the majority opinion (Justice Greaney’s concurrence) and the three dissents, including Cordy’s is a great way to get clear about the stakes and sorts of arguments offered by differing sides.
One more thing: many proponents of same-sex marriage - not all, including not J. Rausch - are advocating same-sex marriage in order, ultimately, to destroy marriage as a distinct legal and moral institution. That sort of ulterior agenda factors somewhat into my consideration of these matters. I want to repeat, though: my arguments for a traditional understanding of marriage as a civil institution are wholly based on reason, not any sectarian faith, and they are advanced in terms of what’s best for social policy and upon my views of constitutional jurisprudence, as it is currently, and as it should be.

The autonomy argument for same-sex marriage deconstructs marriage altogether, as the more astute gay activists know. They don’t want the law in any way privileging the married over the non-married. People should be equally free to do what they want, and that tyrant Rauch wants to privilege married gays over non-married ones. He does say, quite judgmentally, that everyone, gay or straight, should be expected to get married. But of course, most gay men don’t want to be stigmatized because marriage is not for them. They’re ok with the right to marry, but only if it’s not connected with any corresponding duties or expectations. So the dignity the 14th A. protects is autonomy--meaning not being degraded for doing whatever you want, and Kennedy did say something like all intimate relationships are dignified, even one-night stands. Paul is right, of course, that this line of thought is deeply unreasonable for social beings.

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