I didn’t write about the Iowa gay marriage decision – largely because my tentative post seemed inappropriate. I was happy for people and didn’t want to rain on their parade.
But the decision did pose a dilemma for me. On the one hand, I’ve generally been skeptical of using the judiciary to bring about this much-needed change. On the other hand, my grand theories seemed to pale in comparison to the moving pictures of tear-streaked smiling faces. It just felt wrong to disagree.
So after much thought, I’ve come around to the idea of using courts to legalize gay marriage. Admittedly, the idea runs against my general jurisprudence. But at some point, if my theories justify cruel and dehumanizing discrimination, well… maybe it’s time for new theories.
To step back, I think the judicial debates about gay marriage have a lot of parallels with the debates over race and the Warren Court. I’m summarizing (briefly) a ton of literature, so bear with me. But the upshot is that, at some point, neutral abstract principles can lose sight of reality.
The legal debate about race goes something like this: In the 1950s and 60s, federal courts became much more aggressive in striking down racial discrimination. Brown v. Board is the most famous example of this development.
The problem, though, is that it was very difficult to justify Brown (and some of its progeny) under existing precedent and methodologies. Critics argued (correctly, I think) that the courts often valued real-world consequences over “neutral principles.”
The split was part of a larger fight between the so-called “Legal Process” camp and its pro-Warren Court critics. (For a good background, see Barry Friedman, Neutral Principles: A Retrospective, 50 Vand. L. Rev. 503, on whom I’m relying for some of this post).
As Friedman explains, the “Process” camp believed strongly in so-called neutral principles to help assure judicial legitimacy. Its critics – i.e., the Warren Court defenders – were more concerned with “the substantive correctness of decisions.”
Over the past 20 years, Legal Process has enjoyed a revival with the rise of legal conservatism. I’d even argue that it’s the dominant paradigm or narrative at the moment about how interpretation should work. (It's not necessarily the best description of how courts work, but of how people think the courts should work).
And so from today’s perspective, there’s something vaguely icky-sounding about the Warren Court’s result-oriented jurisprudence. Indeed, Bush v. Gore is a strong warning to those who seek “substantive correctness” over neutral principles.
And while I generally agree with those sentiments in almost all contexts, race was different. It was a unique problem, and it demanded a more unique response. Most obviously, the “legal process” surrounding race was itself flawed given that blacks were systematically excluded from the ballot boxes.
But more generally, the Warren Court defenders saw all too clearly the realities of violent state-sanctioned discrimination. And they chose not to validate it – that is, they chose not to facilitate this regime by blessing it with constitutional approval. Neutral theories or no – people were getting lynched; people couldn’t vote. In short, they chose not to be on the wrong side of history.
And for all the critiques of the Warren Court, it’s important to see the world as they saw it – through the lens of Jim Crow and George Wallace. The tragic reality of American racial discrimination overwhelmed the abstract logic of the Process camp. Once again, if your theories justify poll taxes, disenfranchisement, and anti-miscegenation laws, then maybe you need new theories.
The bottom line, then, is that the Warren Court’s race decisions were admittedly a departure from traditional precedent and methodology. But the injustice of American racial discrimination demanded a more aggressive response. The courts acted – and scholars later supplied these principles (things like anti-subordination, which called for scrutiny of laws discriminating against racial minorities).
And that brings us to gay marriage. The fundamental issue is whether discrimination against gay couples is so fundamentally unjust – so self-evidently repugnant to basic human dignity – that it justifies a more aggressive judicial response. In other words, is today’s discrimination in the same category as the racial discrimination that led to Brown and its progeny? That's the million dollar question.
And I say yes.
That’s the reason I’m now comfortable with using courts. I’m not going to be on the wrong side of history on this. I don’t have so much faith in my own theoretical principles that I trust them more than my overwhelming sense of the justice of the decision.
Indeed, with each passing year, the denial of this most basic of human dignities seems more inexcusable. As a straight person, it’s obviously hard to internalize the depths of these injustices. But when you see the photographs of couples celebrating following the court’s announcement, it really hits you right across the sternum. It’s not just the joy in these pictures that gets to you, it’s the knowledge of what they went through to get there. Of what past generations went through to get there.
And it's not just the joy -- it's the practical benefits. Divorcees in Iowa no longer have to fear being permanently barred from their children (take a second to reflect on that). Partners no longer have to fear losing benefits, or being denied in hospital rooms. And on and on.
At this point, it’s pretty easy to object and accuse me of abandoning the very idea of ex ante principles. For instance, what if I think that felons in possession of guns are discriminated against? What if they cry after a favorable decision? Should that alter my Second Amendment jurisprudence? The critics’ point would be that sentimentality shouldn’t drive one’s views of constitutional interpretation – the law is supposed to be coldly neutral after all.
And to that, I respond: Yes, I mostly agree with you. But anti-gay discrimination is different. It’s simply one of those issues that can no longer be tolerated – much like racial discrimination in the past. And if today’s neutral principles and methodologies don’t recognize that, then they’re wrong – and we need new ones.
I don’t think of it so much as abandoning neutral principles – it’s more like forcing us to reconceptualize them. Societies evolve. We evolved from our past racial views – and interpreted the Constitution accordingly. Last I checked, those new interpretations didn’t destroy the country – just the opposite, actually.
In the same way, I think the Republic will survive if we choose to end this discrimination as well.