As we began this conversation I was not sure what direction it would take. How would we agree? How would we disagree? One of my former teachers used to say that we have to rise to the level of argument. That is, we have to so clarify our terms and our meanings such that our claims and counter-claims can actually engage each other. I think we’ve achieved some degree of that, and I want to again express my appreciation for this project and to Kathy Lee for pressing me to think harder about justice and our constitutional order. While there is no doubt we will not have exhausted our exploration of this issue, I think we’ve clarified some things and done so with more light than heat.
Kathy’s last entry posed several incisive questions. In this final contribution to this month’s conversation, I’ve organized my response as answers to a series of questions. I’ll conclude by posing a question for Kathy and myself, and the readers.
Do courts have a role in securing justice in our constitutional system?
Kathy understandably presses me on my preference for legislatures when it comes to representing the people’s vision of the common good. The people, after all, can authorize their representatives to pass unjust legislation. Isn’t it the case that our Constitutional system, and the 14th Amendment in particular, empowers the courts to police the excesses and injustices of our legislatures?
Kathy seems to frame the issue as if it is a case of the Court watching over the people’s decisions and in some cases intervening to save the people from their bad decisions. I’ve already pointed out that this is no guarantee of a substantively just outcome, as courts can get it wrong as often or more than legislature. I think Kathy has agreed to this in principle. There’s also a strong case to be made that even when the Court gets it right, it lacks the substantive power to enforce a good decision. Kathy doesn’t mention Brown v. Board of Education, the landmark 1954 case that struck down segregation (upheld by another Court decision, Plessy v. Ferguson). As Gerald Rosenberg outlines in his book, The Hollow Hope? Can Courts Bring About Social Change?, the Court’s power to enact social change is very limited.
We both seem to agree that the Court and courts can have some role in striking down popularly enacted legislation. The question is what do the judges understand themselves to be doing when they review ordinary legislation. On whose authority do they overturn the popularly enacted laws of state legislatures and Congress? Many people, conservative and progressive, seem to think that the judges should look at the policy or law in question and determine, based on their own sense of what justice requires, whether the law is constitutional or should be struck down.
I don’t think of it this way. When courts intervene they (should) act on behalf of the extraordinary politics that have already been enacted and which supersede the ordinary politics that have resulted in an unconstitutional and possibly unjust situation. The Court should be acting on what the people have already established as constitutional.
Should the Court have told the Lovings to wait until the American people came around in Loving v. Virginia? Should the Court have told women in Idaho to wait in Reed v. Reed?
No. The Court did not need to tell people to wait around for some future moment but instead declared what We the People had already spoken in the 14th Amendment, and that a straightforward application of the democratically enacted principles in that super-legislation trumps the ordinary legislation that had denied Americans their rights. The Court did not rely on the individual and personal views of its nine members in either of those cases but did what judges are trained to do: interpret the people’s law and apply it to these particular circumstances. It is also telling that both of these cases, like Brown, were unanimous 9-0 decisions. In short, the Court struck down the decisions of the people of Idaho and Virginia on behalf of the People of the United States by appealing to the 14th Amendment, which in turn was ratified by the legislatures of the states.
Why Can’t Obergefell be described similarly?
There are several differences between the result reached in Obergefell and Loving, Reed, Brown, and a host of other cases. First, Obergefell overturned a social institution older than the Constitution itself by a mere 5-4 decision. Moreover, as mentioned in a previous entry, and acknowledged by honest scholars like Kathy who approve the result of the decision, the connection between Justice Kennedy’s opinion and existing constitutional doctrine or text is—to try to remain respectful—fanciful. There is no plausible way to understand the Court as speaking on behalf of We the People. There is no doubt that the Court spoke on behalf of some of the people, but in doing so it shifted in its role from interpreting Constitutional law to creating it. It is more accurate to describe the Court as speaking for “we the people as we the court would like them to be.”
Another difference between Obergefell and the other cases is that it is difficult to characterize gays and lesbians as a “discreet and insular” minority. Even if we could speak of a monolithic LGBT community when it comes to this policy issue, many of the cases that rely on that famous footnote number four pertained to underrepresented groups which faced significant obstacles to participating in the ordinary legislative process. Surely this was not the case with gays and lesbians engaging in democratic politics to have their vision of the good life with regard to marriage enacted in law. They had succeeded in many states and failed in others. The campaign had the support of several Fortune 500 companies, the overwhelming majority of cultural elites, and several powerful politicians attempting to catch up with the wave of history. The American people were debating this issue and that healthy debate should have been allowed to continue. Unless . . .
Why care about how justice is achieved so long as it is achieved?
The political debate about same-sex marriage should have continued unless, one could argue, the stakes for justice are so high that achieving the desired result is worth breaking the social contract—the Constitution—that not only expresses our aspirations but guides how we settle our differences. To return to my first essay, the Constitution assumes that we the people will differ on fundamental issues about justice and the common good. It is better to agree on how to adjudicate those differences than to stomp out those differences from above. But if an issue is so paramount to our convictions that we cannot compromise in good faith, then we may be tempted to forgo our common bonds and either force the issue or break apart. The latter, of course, is what happened in 1861.
Given the lack of Obergefell’s connection to constitutional text and history, I’m suggesting that one rationale to support a judicial override of the democratically enacted decisions of the people of Michigan and elsewhere is to think that such citizens are not merely mistaken but so egregiously wrong that they no longer should be considered bona fide members of the republic. That this is so can be ascertained by a simple question that I posed in the beginning of this series.
If we conceive of our shared polity as having room for conservatives and progressives, and if progressive judges should rely on their own sense of justice to keep Americans from having to wait for their due, do conservatives judges have warrant to do the same? If a progressive judge wants to protect the children of the two lesbian plaintiffs in Michigan, can a conservative judge decide differently in representing those children of same-sex couples who do not support same-sex marriage? I don’t think judges drawing on their own political philosophy is a great way to go, for progressives or conservatives, but if we decided as a political community that it should be judicial activism all the way down, then that at least would have the virtue of a straightforward power struggle in which our representatives nominated and confirmed our Platonic guardians for life terms.
That unlikely scenario, however, is not my primary concern. Much more troubling is the prospect of citizens who support traditional positions on marriage and sexuality being deemed the equivalent of racists who supported segregation or sexists who opposed women’s suffrage. Indeed, this is already happening. While Loving v. Virginia was rightly decided, we do well to note how it is being used by some in the current debate. The aftermath of Loving and the Civil Rights Movement generally included the social ostracization of racists and legal and policy marginalization of racist institutions, and rightly so. In a conflux of events involving legislatures, courts, and citizen activism, We the People attempted to further enshrine the ideal of racial equality so that we could better realize that ideal, albeit in fits and starts and imperfectly.
Obviously I do not find the analogy between that movement and the current campaign for same-sex marriage persuasive. But given our warrant for this conversation I will stick with the constitutional questions raised by our divided views on not only the policy question but the procedural ones.
My closing question for our readers of this conversation steals shamelessly from liberal political theorist John Rawls. If you had no idea of the ideological commitments, favored jurisprudence, or political philosophy of any of the Supreme Court justices, what principles would you want them to rely on in making a constitutional decision about an issue you care deeply about? That is, what “rules of the game” would you want to apply to both “liberal” and “conservative” justices? To what would you want them to appeal in making their decision?
My closing questions for my more progressive brothers and sisters are these. Do you see your more traditional Christian neighbors as the contemporary equivalent of George Wallace? Do you think our position is necessarily motivated by irrational animus? Or do you agree with President Obama that we can approach this issue in good faith? Will you defend the rights of Christian churches, colleges, and businesses to operate according to the dictates of their consciences, even if you would decide differently? Can Christians in good faith seek to promote their vision of what marriage is in the public square? Can we still share this public space? Can progressives and conservatives still meaningfully speak of our Constitution?