Andrew Sullivan does a good job of showing how Robert George's WSJ piece about same-sex marriage seems to leave no reasonable option for lesbians and gay men in our society. But George illustrates something else that's at least as important: He wants us to view court decisions about same-sex marriage through the same lens as those regarding abortion. That's his preference, but it's not at all necessary.
It all started with Roe v. Wade, as you know, which was the "judicial usurpation of authority." If a future court were to rule in favor of same-sex marriage as a constitutional matter, George argues it would amount to judges trying to "peddle a strained and contentious reading of the Constitution-one whose dubiousness would undermine any ruling's legitimacy." Judges should not resolve morally charged policy issues "according to their personal lights."
Who couldn't agree with that? But does George's constitution really have nothing to say about all people being treated equally? It is true that Roe (and far more important, its predecessor, Griswold v. Connecticut) had to stretch to find constitutional penumbras and emanations. But no such ephemera are necessary to conclude that lesbians and gay men, too, are citizens, and that laws must apply equally to them. At the very least, whether and how equality might apply to marriage laws needs a radically different kind of constitutional analysis than Roe demanded.
This focus on Roe is magician's misdirection. Gay equality is certainly controversial enough, and it is true that court decisions about marriage equality reverberate through the culture. But that is not necessarily because the judges have exercised any usurpation of their authority, it is because the prejudice about homosexuality is still deeply rooted. Judges ruling in favor of gay equality are caricatured as acting on personal prejudices, but it may not be their prejudices that are at issue.
6 Comments for “No Roe”
posted by Ray Eckhart on
Anytime someone tries to conflate the Lawrence decision with Roe, I send them to this definitive NRO piece by Randy Barnett.
posted by jpeckjr on
David, I haven’t read the Robert George piece. Maybe as a lawyer you can comment on whether or not the right to marry is a fundamental right under the US Constitution. It is not enumerated, so I’m assuming it falls under some other construct. I know the UN Declaration includes it as a fundamental right. I certainly know that courts have ruled it is a fundamental right, specifically those rulings related to same gender couples. I suppose my underlying question is that, since a right to privacy is not enumerated but formed the basis (at least part of the basis) for Griswold and Roe, and objections to using that unenumerated right are part of the argument against them, could that argument be turned against the right to marry?
posted by David Link on
Jpeckjr, I think Ray answers your question reasonably well. The constitution doesn’t say anything about marriage, or even fundamental rights, but it is inconceivable without the word that animates the entire document: liberty. The right to privacy got us off on the wrong foot in the 60s, I think, because it was phrased in the negative: the right to be left alone. But liberty has positive aspects as well, which the Lawrence case articulates, but also waffles on.
The fundamental right to marry illustrates the problem. If you start from the premise that marriage is between a man and a woman — which is certainly a historic premise — its fundamentalness doesn’t help you much. Is the fundamental right the one where your decision is protected if you decide to marry someone of the opposite sex, or should the fundamentalness be phrased more broadly as the right to marry the person of your choosing? Nearly all of the court decisions that deal with this play a good volley over that net.
But liberty is a bit less muzzy. As Barnett explains, Lawrence can be read to say that the constitution’s protection of liberty is a first principle. Rather than us having to defend the specificity of some fundamental right, Lawrence can be read to flip the orthodox constitutional analysis so that it is the government which has the burden of showing a reason to preempt someone’s liberty, rather than the citizen having the burden of showing some entitlement to privacy, or a right to marry or anything else.
You should definitely read Barnett’s article, which I have always found both enlightening and compelling. I think he may have done a better job articulating what Justice Kennedy was writing about than Kennedy himself did.
posted by The Gay Species on
Students of Natural Law Theory, the Roman Catholic moral tradition, may wish to consult my repudiation of it on Positive Liberty. http://www.positiveliberty.com/2009/08/sullivan-v-george-on-gay-marriage-the-power-of-governments-symbolic-endorsements.html. The Fact/Value Divide is assaulted, but I show it stands.
posted by SKS on
Robert George’s argument is interesting in as much as it is a half argument.
The “historic” aspect of marriage is indeed about child rearing, but not for the sake of child rearing and he has sought to muddy the waters by his comments around permanence, monogamy and non-consummation.
The true reason for marriage is protection. Protection of property. Without consummation there is no security of heritance, without monogamy you cannot prevent your wealth being diluted amongst another’s offspring.
Surely by seeking to enter a same sex marriage one is only seeking the same protection of wealth.
posted by Hijo Tito on
visit our just created community and see know Oaxaca, a world to explore…
http://www.oaxacagay.com.mx