Many thanks to the Washington Times for publishing my op-ed under the title Homosexual Marriage, Judicial Activism. (The use of the term “homosexual” marriage is apparently dictated by the paper’s style guide.) It is difficult to lay out a major constitutional argument in the short space of an op-ed, so I will try here to elaborate the full argument. I believe it is an important argument, for it goes to the very core of how we govern ourselves as a democratic republic.
First, the argument is not about the merits of allowing persons of the same gender to enter into the legally defined relationship called “marriage.” In fact, the heart of the argument is that those merits, pro or con, should have no bearing on how the Supreme Court decides the “gay marriage” cases before it this term. Their place is in the democratic political arena, before a state legislature or in a popular referendum, not in the courts. To argue that the courts should take such merits into account in deciding that the United States Constitution overrides such democratic decision-making is to place the judiciary above the People, and moves us further down a path toward rule by the elites over rule by our Nation’s citizens.
In his first inaugural address in 1861, Abraham Lincoln spoke of the Supreme Court’s then recent Dred Scott decision, where the Court had thought to resolve sectional conflicts over slavery by upholding the right to own slaves throughout the United States. If the Supreme Court were allowed to be the final arbiter of the Constitution’s meaning, Lincoln said, and extend its decrees beyond the parties to the specific cases before it, “the people will have ceased, to be their own rulers, having … resigned their government, into the hands of that eminent tribunal.” How can we call our system of government democratic when five unelected, life-tenured and unaccountable judges can irreversibly change the meaning of our Constitution?
Now, does this mean that the courts should never enforce the Constitution, or act to protect citizens’ constitutional rights? Of course not. The question is on what basis the courts decide such cases. There are two contending schools of judicial interpretation today on this question. One holds that the Constitution should be seen as a fluid, “living” document for which the meaning can shift with the times. Thus, if society comes to accept gay marriage, the old language of the Constitution should be interpreted to require the recognition of gay marriage even though such an outcome would have been inconceivable to the original authors of that constitutional language. Now this philosophy is a lovely sentiment. Who wants a “dead” Constitution?
The problem comes in the implementation. Federal judges are appointed, not elected, and serve for life. It is true that they must be appointed by the President and approved by the Senate, but that happens only once. After that, in the case of Supreme Court justices there is no appeal from their decisions, no reversal of their decisions (unless they do it themselves), and no limit to their power to read their personal legal, political, economic or social views into the language of our 225 year old Constitution. When the Supreme Court is allowed to assume the task of adjusting the Constitution, rule by the people is negated, and replaced by the rule of a few elite lawyers.
The second school of interpretation holds that the courts are not superior to the people or their elected representatives. This school contends that the Constitution says what it means and means what it says. In order to prevent judges from twisting constitutional language to read their own personal legal, political, economic or social views into it, the language of the Constitution and other laws must be considered to have their meaning fixed at the time the language was first enacted. If a law is deemed to be inappropriate for the times, the way to change it is to democratically have the relevant legislature change the law. If the legislature will not change the law, the people can change the legislators at regular elections and in many states can also change laws by popular referenda. It is not the judiciary’s place to change a law of which a judge or judges disapprove. This approach, sometimes called “originalism,” preserves rule by the people and secures it against usurpation by the judiciary.
This argument runs up against a difficulty, however, when one comes to the Constitution. One can not change the Constitution by a simple vote in a legislature or a referendum. How does one adjust the Constitution for changing times? The Framers’ solution was clear. It was not to allow the Supreme Court to rewrite the Constitution to the justices’ liking. The Framers’ solution was Article Five, the amendment process. As Lincoln further explained in his first inaugural, our “country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it.” The recent Steven Spielberg movie Lincoln dramatically portrays what Lincoln went through to follow his own precepts and initiate a constitutional amendment to reverse the Supreme Court’s Dred Scott decision and abolish slavery.
Unfortunately, today the amendment process set forth in the United States Constitution is moribund. At the time the Constitution was adopted, it was the first written national constitution in the world. The Framers had no history to go by in determining the right balance of difficulty and ease for amendment. One wants constitutional amendment to be more difficult than simple legislation in order to preserve basic stability in our governmental system, but not so difficult that no meaningful amendment can ever be passed. It turns out that since Article Five was written, every other constitution of the states of the United States and of every democratic nation have made amendment easier than it is in the United States Constitution, which is now the most difficult in the world to amend. In fact, the last time constitutional amendment was used in the United States to resolve a major national issue was almost a century ago, in 1920, when the 19th Amendment gave all women the vote.
This difficulty in changing the Constitution through the democratic process of amendment has provided much of the impetus to the first school of judicial interpretation. If the Constitution can not be amended formally, it must fall to the judges to amend it informally through strained judicial interpretations which stretch the language’s meaning beyond any possible original intent. The prime example of this is what I call the “four-word” Constitution (see the chapter by that name in Timely Renewed for more detail on this point). Two two-word phrases in the 14th Amendment, “equal protection” and “due process,” have been stretched by Supreme Court decisions to create legal doctrines which encompass literally thousands of words. The 14th Amendment was meant to supplement the 13th Amendment (subject of the movie Lincoln) in assuring the rights of the newly freed African-Americans. However, it has instead been invoked to grant personhood to corporations (which underlies the Citizens United decision) and to decree that unborn babies are not persons whose rights supersede their mothers’ vague right to privacy (which underlies Roe v. Wade). In earlier times these little phrases were held to forbid states from passing wage and hour laws (in a famous, or infamous, case called Lochner v. New York) and more recently to argue that all of the states must marry couples of the same gender.
Which brings us to the gay marriage cases now before the Supreme Court. There are two sets of cases. In one, the plaintiffs challenged the right of a majority of Californians to vote for a referendum measure in 2008 called Proposition 8 which limited marriage in California to heterosexual couples. In the other the plaintiffs challenged a law enacted by overwhelming majorities in Congress and signed by President Bill Clinton in 1996 called the Defense of Marriage Act (DOMA), which provides that federal spousal benefits are only payable to opposite-sex spouses. In both cases lower courts have overturned the vote of the people of California and the act of the democratically elected United States Congress and President Clinton on supposed constitutional grounds.
The 2-1 anti-DOMA decision from the Second Circuit is a confusing morass which flits from rationale to rationale. At one point it argues that marriage has been traditionally defined by the states, and therefore the federal government is bound by state marriage laws. This argument might hold if Congress enacted a law either forbidding or requiring states to pass laws regarding gay marriage. However, DOMA only applies to the payment of federal benefits under federal programs funded by federal taxes. Here clearly the federal government has a right to establish a uniform rule. In the end the decision really argues that refusing to recognize gay marriages violates the “equal protection” language of the Constitution (although in the case of the federal government that is in the 5th Amendment rather than the 14th) – but only sort of. Because the phrase “equal protection” is so vague, judges driven by their desire to write their personal policy views into the Constitution can not resist the temptation to twist that little phrase to benefit some favored class. In the late 1800s and early 1900s Supreme Courts did this to protect big business corporations, and similarly today judges want to do the same for a powerful and popular modern constituency. However, the judges of the Second Circuit did not want to argue that gays have suffered like the enslaved African-Americans, because that would be ludicrous. Therefore, they invented a watered down category just for gays, a category that has no basis in constitutional language or history, but which permitted the Second Circuit judges to write their personal pro-gay marriage social views into the Constitution without making the ridiculous argument that not recognizing gay marriages was equivalent to the horrible oppressions endured by African-Americans in our history.
In the Proposition 8 case, also decided 2-1, a notoriously left-wing Ninth Circuit Court judge used a bizarre interpretation of a case called Romer v Evans to rule essentially that a state can never repeal a law if a judge feels that that law grants a right. This is patent nonsense, and most observers agree that the judge only used this approach in an effort to appeal to the vanity of Justice Anthony Kennedy, the author of the Romer decision who many feel will be the swing vote in deciding the gay marriage cases. (That a single judge may decide such a major issue for over 300 million Americans now and for generations to come also illustrates the profoundly anti-democratic nature of our present system of judicial supremacy.)
In contrast, the lower court decision that the Ninth Circuit Court was upholding did not shirk from openly rewriting the Constitution. There San Francisco based Judge Vaughan Walker ruled that gay marriage is required by the “equal protection” clause of the 14th Amendment everywhere the 14th Amendment applies, that is the entire United States. Mandating gay marriage throughout the United States is the honest and straight-forward objective of all gay marriage advocates. Now, calling Judge Walker’s decision honest does not mean that it is correct, or that he is an honest man. In fact, there is considerable controversy over his decision not to disclose to the parties in the case that he was partnered gay man who might therefore have had a direct personal interest in its outcome. Whether he should have been legally required to take himself off the case can be argued either way, but there can be no question that in keeping his personal stake in the case secret he blatantly violated the spirit of judicial openness and disinterestedness which is fundamental to maintaining public faith in the integrity of our judicial system.
Be that as it may, Judge Walker boldly went where the other judges dared not to go, even though they clearly would have liked to go there, and forthrightly elevated gays to the protected status intended by the 14th Amendment for the former African-American slaves. While the Ninth Circuit judges dared not go there, their Proposition 8 decision is just a clever cover to try to keep Judge Walker’s ruling in place in our most populous state. (The Ninth Circuit’s rationale would supposedly only apply to California, but its reasoning would assure that no state could ever repeal a law again without a federal court battle.)
Why did the Second and Ninth Circuit judges resort to such legal ruses to implement their personal pro-gay marriage social policy preferences? One reason is that the Supreme Court has already unanimously ruled that the United States Constitution does not mandate gay marriage in a 1971 case called Nelson v. Baker. However, the larger problem is that there is simply no basis in the United States Constitution to require that either the state or federal governments recognize gay marriages. If the members of Congress and the state legislators who enacted the 14th Amendment in the late 1860s had been told that it would require that states allow two men (or women) to marry, it would not have received a single vote anywhere. And that would be equally true when the 5th Amendment was enacted in the 1790s. There is simply no argument from original meaning to find the recognition of gay marriage mandated by the United States Constitution.
(Ironically, in the same December 21 edition of the Washington Times where my op-ed appeared, there was a tribute to the late and much missed Judge Robert Bork by Washington DC attorney Theodore Olson. Judge Bork was one of the great authors and champions of the modern originalist school of constitutional interpretation. The irony is that Mr. Olson, in a complete betrayal of Judge Bork’s principles, is one of the lead attorneys in the Proposition 8 cases advocating that the Supreme Court force gay marriage on the entire United States by judicial dictate.)
So what do we do if times and people change? Reacting to news that the Supreme Court would hear the gay marriage cases, gay advocates were cautiously optimistic. As one told the New York Times, “we’ve made enormous progress and built irrefutable momentum, winning the freedom to marry in state after state and winning over a solid majority of support in this country,” and another declared that “there is no doubt that the wind is at our backs.” Such arguments would raise the old joke that the Supreme Court follows the election returns to a principle of constitutional adjudication. They reflect the school of fluid judicial interpretation which would make the Supreme Court simply one more law-making body, except one that does not have to face elections or any other democratic restraint.
The first solution to changing times and circumstances is just that – democracy. As the gay marriage advocates noted, more and more states are adopting gay marriage, and Congress can repeal DOMA at any time that its opponents succeed in making the political case against it. Why abandon the democratic process when one is winning the democratic argument? But beyond that, what if we want everyone in the United States to have access to gay marriage, or otherwise update our old Constitution? With the current amendment process moribund, how do we achieve that if we do not want the judges to usurp the People’s control over their Constitution?
The answer is to re-invigorate the amendment process through some modest reforms which would open it to greater participation and feasibility, all while maintaining the principle that amendments must be approved by super-majorities. Such an Amendment Amendment proposal is laid out in more detail elsewhere in this blog and in my book Are We the People? With this reform, control of our Constitution (which begins after all with the words We the People) can be restored to the democratic process and the judiciary’s usurpation of the amending power will be delegitimized. However, even before such a reform is passed, the Supreme Court can begin the restoration of the People’s right to control their Constitution by leaving this contentious social issue to the democratic process, rather than cutting short the people’s deliberations by decreeing that they must resign their voice to the dictates of that high tribunal.