by publius
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.
"I suggest that Sebastian is only claiming to be gay to avoid a charge of homophobia. Because his lack of reasoning on this issue does not flow from living as a gay person in this country. Or else they tortured him in some ex-gay re-education camp until he was so miserable that now he can't stand to see other gay people living happily"
I wish you had told that to the gay bashers who chased me down the streets in Hillcrest when I was coming home from a bar about ten years ago. I would have felt much safer.
A commitment to the rule of law sometimes means that you don't get exactly what you want when you want it. But it has other benefits.
As for seeing other gay people living happily, I love it. I get teary eyed at every marriage at commitment ceremony, and one of my favorite things is hearing couples who have been in love with each other a long time talk about their history together.
You know where I got this from? What does that even mean? Is there some Rush talking point on it?
The point I'm making is one of the same points I've been making for the entire history of this blog: that it isn't legitimate to abandon the proper political process just because you think you are right on the merits. Pretty much everyone thinks they are right on the merits, and the whole point of the political process is to let people hash that out. Trying to avoid the process just because you think you are right, isn’t the rule of law. The reason the rule of law exists is to legitimate the decision-making process. The reason minority protections continue in rule-of-law states is because the majority buys into the overall rule-making system. Undermining the rule of law hurts the trust in the system, and undermines the ultimate effectiveness of minority protections by causing the majority to think the the system’s decision making process isn’t worth it. I have always argued this, and I'm pretty sure that Rush never has.
Huh? I’m pretty much done with the Republican party as it is currently constituted, and at the moment I’m not in the mood to try to reconstitute it into something else either. And furthermore there aren’t many Republicans around here anyway. So I have no idea why you think this is better than actually engaging my argument.
First it isn’t the company I keep. I support gay marriage. I just don’t support illegitimate means to get everything I want. Would you support killing millions of children in Africa in a trade to get gay marriage legalized? Of course not, because you value things other than gay marriage. One of the things that I value, and that I think other people should see value in, is the rule of law. One of the reasons I value it is because I think that minority protections are safer when there is a wide-spread respect for the rule of law. Second, you are confusing means and ends constantly in this conversation. And in doing so you are illustrating exactly what I mean about the torture memos.
Contra to what you and Lady Vetinari think, most people do things because they think they are right. And the argument for why someone would think torture might be the right decision under certain circumstances is apparently pretty convincing to just under a majority of people in the US.
Yes your righteousness on the torture issue is apparent. Yes your righteousness on gay marriage is apparent. But some people are just as convinced of the righteousness of their positions. On the torture case you happen to be in a narrow majority. On the gay marriage case you happen to be in a narrow minority. And guess what? We have a political system to deal with strongly held opposing beliefs. On the gay marriage position, you and publius say “Screw the political process (which won’t get me what I know is right), I’m so darned right that it doesn’t matter”. That is EXACTLY the position of the Bush Administration on torture. “Screw the political process (which won’t get me what I know is right), I’m so darned right that it doesn’t matter”.
Now I think that you really can get away with that quite a few times before trust in the rule of law collapses. But I don’t think that goes on forever. Using it as a major tool to get what you want isn’t good in the long run any more than living off twinkies as your main food source is good in the long run even if you can get away with it for a while.
Posted by: Sebastian | April 30, 2009 at 11:59 AM
Thank you, Brett, for making it so very clear to Sebastian where he's chosen to take his stand.
Posted by: Jesurgislac | May 01, 2009 at 03:19 AM
I missed Sebastian's long comment when I posted mine. I know that's hard to believe - but I swear: Typepad seemed to have eated several comments, not just the one I responded to.
Sebastian, for a lawyer, you really don't seem to have a clear idea that the rule of law includes the right to go to court and see justice done you. (Von seemed to think that, too, which makes me wonder: what kind of lawyers are you, either of you, that you don't see the judiciary as a necessary part of the rule of law?)
Nor do you seem to realize that the US's legal system is common law. Under a common law system, the legislature writes the laws, the judges interpret them, and a decision made by a judge until overturned by due process (which could include a decision by a higher court, or new legislation) is the law of the land.
It's slightly weird, isn't it, that neither you nor Von seem to get this. Perhaps it's your obsession with Roe vs. Wade, your refusal to believe that judges had a right to make common law.
One of the reasons I value it is because I think that minority protections are safer when there is a wide-spread respect for the rule of law.
But you are arguing that the minority should not have the right to resort to their best protection under a legislative system: the courts. Your notion that minorities are "safer" if they can't use the judiciary system to get their legal rights is just pure nonsense.
I seriously can't deal with your repeated assertion that torture and gay marriage are just the same kind of moral decision as each other.
First it isn’t the company I keep.
Wait, did you make this comment after mine? *stares at Typepad*
Well, never mind. Your persistent assertions that torture and gay marriage can be lumped together, that minorities shouldn't be able to access the courts to get equal rights - those put you right into the middle of your chosen company, the social conservatives of the Republican Party and Sebastian, while that company may tolerate you - a nice fawning gay man who won't cause trouble but will wait nicely to be given what the majority decide will be good for him to have - they are not your friends, and they are not on your side, and it genuinely worries me to see you there clinging to them as if you thought they were a life-raft instead of a stone.
Posted by: Jesurgislac | May 01, 2009 at 09:20 AM
I suggest that someone hasn't been paying attention.
Posted by: Slartibartfast | May 01, 2009 at 09:29 AM