I can't disagree with Dale Carpenter's thoughts about the Prop. 8 trial. But I think they ultimately just reiterate the problem: we can't rely on the constitution when it promises equal protection, and that's mostly because of politics.
I know Dale has reasons he believes a court could find rational enough to support inequal marriage laws, and as a professor of constitutional law, he speaks with some authority on that point. But here, his concerns are almost all political ones: about liberal and conservative justices; the mercurial Justice Kennedy; the filibuster rule on a possible replacement for Justice Stevens (should he ultimately need replacing; he's proven to have some kind of stamina).
Dale's not kidding about any of that. But the constitution does make a promise, and the courts were established as the branch most immunized from politics so that such constitutional promises would be reviewed by cooler heads.
The equal protection clause in particular doesn't need to mean a lot to mean something. It obviously isn't necessary for political majorities. It must protect minorities from something. The questions are (a) which minorities, and (b) what somethings? As an extremely small minority, and one that has a long history of quite vivid discrimination, both in the law, itself, and in the culture, I think lesbians and gay men have to qualify somehow under (a). Perhaps marriage isn't one of (b)'s somethings, but all of the court cases declaring marriage as a fundamental right tell me that state recognition of marriages has to be one of the laws that ought to be applied equally to all citizens, not just the majority.
As we learned with Bowers v. Hardwick, politics and pretty offensive notions about homosexuals still color the opinions of some judges at even the highest level. I have no doubt that the uglier language and insinuations in that case would not appear so publicly in an opinion upholding unequal marriage rights today. But the opinion would have to use the highest level of deference to the political will of the majority (which in the case of Prop. 8 is the voters themselves), and would have to accept reasons I think are little more than other ways of saying "Because we said so."
And that is taking it for granted that laws discriminating based on sexual orientation should be given no special regard at all. Sexual orientation doesn't need to be entitled to the highest level of scrutiny in order to fit into the middle tier of review, where laws have to be supported by something more than wink-and-a-nod rationality. There is more than adequate evidence already in the record that the proponents of Prop. 8 knew the value of misinformation and untruths in courting the votes they needed.
That's hardly unusual in politics, but there's a difference between when a politician loses an election because of unfair - and even unethical - reasons, and when a constitution is being altered to take away a right from a minority that had been specifically recognized. One person is affected unfairly in the former, but a whole group of people bears the burden of the latter.
This will be a hard case for any court. Same-sex marriage is acutely political. But that's exactly the reason we need courts - to tell us, every now and then, that politics has prevailed over justice, not achieved it. In those uncommon cases, if courts, too, bow to politics, we have little need for them.
3 Comments for “Worse to Bad”
posted by DragonScorpion on
~”The equal protection clause in particular doesnât need to mean a lot to mean something. It obviously isnât necessary for political majorities. It must protect minorities from something. The questions are (a) which minorities, and (b) what somethings?” ~ David Link
Yep, that pretty much sums a lot of it up. And when it comes to arguing for discrimination against homosexuals; treating same-sex couples as in some way inferior to opposite-sex couples and therefore justifiably barred from the same legal protections as opposite-sex couples â there is no legitimacy to be made for this.
Quite right to point out, Mr. Link, that you don’t leave it to those who write the law to determine what is constitutional and what is not. This has to be determined by an independent branch of government that is more concerned with upholding constitutional freedoms and established rights, rather than appeasing majorities.
We should not forget that some very draconian laws have been struck down by our courts, and were it not for them we’d likely still be living under them to one degree or another. Two in particular that apply to the marriage issue come to mind: anti-miscegenation and anti-sodomy laws.
posted by Jorge on
I think you confuse or refuse to recognize the distinction between politics with ideology.
All judges must be ideological: they must be committed to upholding the Constitution of the United States and its values.
Most of the Justices are also colored in some way by notions of justice and fairness, and are conscious of how their decisions as the highest court in the land influence justice across the country. On this you see the differences we call “liberal” and “conservative”, but each justice speaks with a different voice. But that is not politics. That’s ideology.
The Supreme Court tells us fundamental things about who we are and what we believe as a country. If we had even a superficial interest in the welfare of black children, then the Warren Court called us on it, by finding that segregation harms them powerfully, and they kept going with that finding, seeing no way to remedy it except banning segregation. In politics we hide from truths like that. But there also was a time when the “truth” was inescapable that blacks are not people, or that blacks and whites are fundamentally different.
In this time, an almost antiquated truth that marriage is between a man and a woman is made to clash with an unproven truth that restricting legal marriage to straights is an acute harm and injustice to gays. It takes a certain integrity and detachment to get to the bottom of this. Yet to hear this blog discuss the matter, none of the Justices have it. Eight are blind yes-men and the other is mentally unstable.
posted by Amicus on
Ginsberg wasn’t filibustered, and she’s no conservative.
If I were Justice Kennedy, I’d be looking for ways to let the social dialogue continue, rather than close it either way.
I think that means I’d try to pull a Romer, if I could, i.e. take aim at referenda of the Prop8 sort, rather than make some grand statement about homosexuality.
We’ll see.