Senate Republicans are ready to bring up same-sex marriage as an issue for Supreme Court nominees. Sen. Orrin Hatch says conservatives want to avoid another Roe v. Wade, which is unobjectionable in my mind. I'd like to avoid that, too.
But what does that mean when it comes to the judicial philosophy of a Supreme Court justice? Roe v. Wade is controversial as a matter of politics in large part because it was controversial as a matter of constitutional law. It rests on the right to privacy, something not mentioned in the text of the constitution. That is something that could give reasonable people pause about how judges do their job.
But gay rights would not need to rely on any unarticulated language in the constitution. The equal protection clause is right there in black and white. There is certainly a legitimate question about its precise meaning. State court judges across the country have come to differing conclusions about how to apply it to particular cases. But it is wrong to argue that a ruling in favor of gay rights under the equal protection clause is the same kind of constitutional overreach as a ruling in favor of a right to abortion under the right to privacy.
That would be a fair discussion for the Senate to have. But I'm skeptical that there is much desire to have a fair discussion of equal protection when we're so used to the pedestrian discussion of "judicial activism" that Roe has carved into the landscape. Equal protection was not invented by judges, it was created by constitutional amendment. Gay equality is not controversial because of a flawed constitutional theory - after all, there is no Supreme Court ruling on gay relationships yet.
Any preemptive (and, in my opinion, distracting) confirmation arguments about homosexuality should be redirected to the genuine issue - not marriage but the constitution's command of equal treatment for all citizens. That, after all, is exactly what we have a Supreme Court for, if you take seriously the words carved into its front entrance: "Equal Justice Under Law."
9 Comments for “Equal Time”
posted by esurience on
They forgot about Vermont! From the article:
Same-sex marriage gained national resonance in the wake of last month’s Iowa Supreme Court ruling that legalized the practice in that state. And in the two weeks since Justice David H. Souter announced his retirement, Maine also legalized same-sex marriage, becoming the fifth state to do so; the New Hampshire legislature sent a marriage-equality bill to the governor; the New York State Assembly approved gay-marriage legislation; and the District of Columbia voted to recognize same-sex marriages performed elsewhere.
posted by John Howard on
Equal protection means we all should be allowed to marry and procreate with someone of the other sex, it doesn’t mean we have to allow people to marry or procreate with someone of their own sex. Procreating with someone of the same sex would require genetic modification, which would be unethical and wasteful. There is no right to attempt to conceive a child with someone of the same sex.
I agree it would be good to ask the nominee about this. do they think there is a right to create people using genetically modified gametes, or, do they think that cloning and genetic engineering and same-sex conception can be prohibited, by states or by the federal government?
posted by Regan DuCasse on
If the IA state supreme court judges can come up with a unanimous vote on marriage equality, would SCOTUS look over WHY they came to their decision and look at is as a template or reject it as ‘judicial activism?’
Now THAT is what I’d like to have the present SCOTUS try and deliberate.
posted by LeBain on
The right to privacy is mentioned in the 9th Amendment.
posted by BobN on
I suspect any discussion of gay rights during the confirmation hearings will be directed more by the content of the California Supreme Court decision on Prop 8 than by any other factor, whichever way the Court rules.
posted by Jorge on
The right to privacy is mentioned in the 9th Amendment.
Actually, and this is not very well known, the right to privacy is not mentioned in the 9th Amendment. The word doesn’t even appear in the 9th Amendment. It also doesn’t appear in whichever Amendment covers unreasonable searches and seizures. But this information is not normally accessible without a high school history textbook. Anyway, the 9th Amendment is really about the unmentioned rights. It says essentially there are some basic constitutional rights that are not mentioned in the Constitution. This is a very obvious statement. The problem is that it’s difficult for mankind to agree on what those unmentioned rights are. This is why some justices are “conservative” and some justices are “liberal.”
Sorry, I have nothing productive to say.
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