As someone who has taught courses related to American governmental institutions, including constitution law, for more than years than I like to think about, I appreciated very much Micah’s overview of the functions of a constitution. In fact, I may ask his permission to use a section of his essay in a future class. In my presidency class the other day I posed the question, “What is constitutionalism?” and was taken aback by the few who had an answer readily at hand. Obviously, I need to say more about constitutionalism in lower level courses, and Micah’s overview is invaluable. As Micah points out, a constitution expresses aspirations of a people, allocates and limits powers, and provides structure through which a polity can make more laws.And I could not help but think that Dr. Martin Luther King, Jr. would have said a hearty amen to Micah’s statement: “To the extent that the ideals are misguided and even antithetical to human flourishing, Christians should not be informed by but attempt to transform (witness to, change) a constitutional system through both ordinary and extraordinary politics.”
Before turning to questions I have about Micah’s essay let me state my views on the Obergefell decision. Given my previous essay, it will not come as a surprise that I rejoiced in the Court’s decision. In fact, I was in Washington, DC, outside the Supreme Court, when the decision was announced and celebrated with the hundreds of people there. I do not agree with the traditionalist view of marriage and think that there is room within the Christian church for both gay, lesbian, and straight married couples. Although I celebrated the Obergefell outcome, I do think that the majority’s opinion could have had a different analysis that would have placed the decision on stronger grounds, but that question is for the next participants in this conversation to discuss.
While I wholeheartedly agree with Micah’s comment about a Christian’s obligation to try to effect change when the constitutional system opposes “human flourishing,” I did wonder what Dr. King would have thought about Micah’s views on the Tenth Amendment and reliance on the political process, namely his reliance on state legislatures “to come to principled compromises.” At different times in American history certain groups have not had access to the process. While the Tenth Amendment reserved to the states those powers not delegated to the federal government, the Fourteenth Amendment, when passed, was specifically aimed at the actions of states. It seems to me that in order to understand how the Constitution might inform a Christian’s views on political issues that the Fourteenth Amendment should be part of the conversation, a place where the Court has pegged its role to protect minority rights from being violated by legislative majorities. It is the role of the Fourteenth Amendment in the constitutional system and the role of the Court in that system on which I would like to reflect.
In this discussion, I cannot help but think of Mildred and Richard Loving whose case regarding interracial marriage reached the U. S. Supreme Court in 1967. The Lovings were an interracial, married couple (she was of African-American and Native American descent; he was white). While in bed, in the early morning, they were arrested in Virginia for violating the state law prohibiting interracial marriage. They were convicted, sentenced to prison for one year; however, the court stated that if they left Virginia for twenty-five years they would not have to go to jail. At the trial, the judge noted that Virginia’s anti-miscegenation law rested on the fact that God had placed “the races . . . on separate continents,” a fact that reflected that God “did not intend for the races to mix.” With the help of the ACLU, the Lovings sued the state of Virginia, claiming the law violated the Fourteenth Amendment. In its decision, the U. S. Supreme Court noted that the state court had pointed out that the regulation of marriage should be left to the states under the Tenth Amendment. But the Supreme Court ruled that states did not have complete power over the regulation of marriage and that state anti-miscegenation laws violated the equal protection clause of the Fourteenth Amendment. This despite the fact that the state police power gives states power over marriage law. At the time, polls indicated that 70 percent of the American population was opposed to interracial marriage. Should the Court have told the Lovings, “You need to wait until the American people come around”?
When the Fourteenth Amendment was passed in 1868 the contours of federalism changed forever; now the Tenth Amendment would have to be looked at in conjunction with the Fourteenth. States were to treat freed slaves equally and state laws that appeared to infringe the rights of freed slaves were now subject to review by federal courts. What is important is that the language of the Fourteenth Amendment is general; it speaks of citizens and their rights to due process and equal protection under the law. Section one states:
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 State [emphasis added] shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State [emphasis added]deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The federal government could now reach state action which traditionally had been out of bounds. The coverage of the Fourteenth Amendment expanded under the doctrine of selective incorporation. The Court, through the due process clause of the Fourteenth Amendment, over the years applied the majority of rights in the Bill of Rights to the states under the concept of “ordered liberty.” If legislative majorities in the South were in fact protecting the rights of freed slaves then the Fourteenth would not have been necessary; they were not. The political process did not protect social outcasts; now federal courts could be places where oppressed and marginalized voices could be heard. I agree with Micah that federal judges do not have a corner on discerning what a society should look like. That said, I am not as optimistic as he is about elective bodies. There is indeed something called the “tyranny of the majority.” Segregation laws demonstrated that fact.
The Fourteenth Amendment has been a tremendously important source for my rights as a woman to be secure against the action of states. Should women have waited for state legislatures to come around to a more progressive view regarding the role of women in society? In 1971, in Reed v. Reed, the Supreme Court, for the first time, used the equal protection clause of the Fourteenth Amendment to strike down an Idaho law that automatically named men to be appointed executors of wills. That law was based on traditional views of women’s roles, expressed through a male-majority state legislature. It was a duly enacted law, but was it fair? Should the women of Idaho have just waited for views to change? How long?
This brings me to the most famous footnote in constitutional law—footnote four in Justice Harlan Stone’s opinion in U. S. v Carolene Products (1938). The decision in that case upholding a federal law regulating the milk industry during the New Deal has proven to be less important over time than footnote four. While the actual outcome reflected judicial deference to Congress in the area of economic regulation, Justice Harlan Stone, author of the opinion, noted in footnote four that judicial restraint in other types of cases might not be appropriate. The Court should scrutinize more carefully laws that “restrict those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” and laws “directed at particular religious, or national, or racial minorities . . . against discrete and insular minorities” that are victims of “prejudice.” The impact of the Carolene footnote can be seen in Baker v. Carr (1962) in which the Court said that legislative redistricting was subject to judicial review and in Reynolds v. Sims where the Court said the equal protection clause of the Fourteenth Amendment required that the population of state legislative districts be equal, thereby securing the one person, one vote rule. Yes, federal judges are unelected, but a constitutional democracy is not simply about resolving disputes through voting in legislatures. There are fundamental rights which should be protected from being limited by legislative majorities.
The Obergefell dissenters charged the majority with judicial activism, which is one of Micah’s major criticisms of the opinion. As I have mentioned, I think the majority opinion could have been stronger, deflecting some of the criticism, particularly the judicial activism critique. However, what is ironic is that the Obergefell dissenters themselves engaged in judicial activism in gutting sections of the Voting Rights Act in Shelby County v. Holder (2013) and in striking down sections of the Bipartisan Campaign Reform Act in Citizens United v. F.E.C (2010). Now, with states passing voter id laws that would have been automatically reviewed under the VRA, certain segments of the population will find it more difficult to access the political process. In a post-Citizens United political regime, those with more money have more access to the political process. For these reasons, I am not as optimistic about the political process protecting rights of marginalized groups.
Micah mentioned that the Obergefell decision overturned duly enacted laws in several states, among them Michigan. The case from Michigan, consolidated in Obergefell, involved two lesbians, each of whom on her own had adopted special needs children, but as a same-sex couple they could not, under Michigan law, jointly adopt their children nor could they marry. This situation raises several questions: Should their children not receive all the benefits that children in straight marriages do? What about equal protection claims for their children under the Fourteenth Amendment? Should children be second class citizens whose parents are the same-sex? Permitting these children to be second class citizens does not contribute to human flourishing.
In the end, Micah and I both agree that government should be about creating conditions where humans can flourish. And our view stems from our faith commitments. Obviously, we perceive marriage and role of the Court in protecting stigmatized groups differently. I still think about Mildred and Richard Loving and how radical a change it was for many in this country to think about people of different races being married. In 2007, on the fortieth anniversary of the Loving decision, Mildred Loving issued this statement about same-sex marriage:
My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God's plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry.
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.
I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.
To conclude, while it is always wise to think about the role of courts and judges in a constitutional democracy, it is just as important to think about the limits of the political process to protect the rights of those who historically have not been the ‘winners’ in that arena.