Note: I came to disagree with myself profoundly on marriage equality. NC Amendment 1 would have written discrimination into the state constitution by banning marriage equality. Support for Amendment 1 is why I left the GOP. More broadly, I now reject the view I used to hold regarding the role of the Judiciary. I was wrong across the board on this one. GG 2020
On August 4, Judge Vaughn Walker, a George H.W. Bush appointee, declared that California’s Proposition 8 violates the United States Constitution under the Due Process and Equal Protection clauses of the fourteenth amendment.
My initial reaction was instinctive and emotional. I immediately posted on facebook: "Glad to see a proper constitutional argument knock down another openly discriminatory law!"
I’ve had a week and a half to reflect on it, and in retrospect, I think that I was wrong. I don’t know that I was wrong (the way that I know that I love my children, for example), but I think that I was wrong (the way, say, that I think that forced wealth redistribution is immoral).
Upon reflection, I think that it was judicial overreach, even though I the outcome, gay marriage, is something that I support.
I keep getting this unsettling feeling. It’s partially worry that the decision will set back gay rights in the long run, but more than that, it’s a growing concern about the mutability of existing, written law and Ben Franklin’s warning about a “republic, if you can keep it”. When one branch of government regularly oversteps its bounds, it endangers the system of government itself. It just, well, feels off-kilter.
Since the title of this blog is “The Joy of Reason”, allow me to explain why I’m letting an emotional response—feeling like something is off-kilter—to help guide my thinking. Our feelings are often our brain’s version of shorthand, a way of adding up a lot of experiences, memories, and automatic, instinctive calculations and communicating them chemically or unconsciously (See the excellent book How We Decide by Jonah Lehrer). This unpleasant feeling somewhere in my gut helped to alert me that there may be more here than I initially saw, and so I began rethinking my reflexive response.
At this point, I should be pretty direct: I’m in favor of totally equal rights between people regardless of sexual orientation, just like we have regardless of race, religion, etc. Any legal advantages granted to a straight couple should be granted to a gay one as well. I think that this is in line with the Enlightenment ideals upon which America was founded, and increasing levels of equality are a natural outcome of increasing prosperity, which is a good thing for individuals and, I would argue, for society.
If I ruled the world (or a small corner of it), then we would have civil unions for any pair of appropriately-arranged adults, whether heterosexual or homosexual (with certain restrictions like no incest, consensual relationships only, monogamy only, since the prevalence of monogamy is important to the health of a liberal democracy, etc). Any legal benefits would be awarded to civil unions regardless of their makeup.
Marriage, however, is largely a religious function and a way for a religious organization or society to confer its blessing on a union; a secular state has no business conferring theological sanction. Again, if I ruled the world, it would be purely extralegal, an optional religious ceremony that is not sanctioned or regulated by the government at all (except for obvious things like incest that are illegal anyway). Jonathan Turley has written a great article on the subject.
Society has been moving in an increasingly egalitarian direction for a generation. Homosexuality has become a part of the American (indeed, the Western) mainstream, and this has been a natural, organic form of social change. If allowed to continue without judicial intervention or undemocratic law by fiat, then eventually, we would likely have gay marriage by ballot initiative across the country. Women’s rights have increased without the equal rights amendment, and considering how contentious it was in the 1970s, if it had been pushed through, then I imagine that there would now be a good deal of resentment about women’s rights.
As things stand, because sexual equality evolved due to changing market conditions, women's rights are accepted by most individuals as good, moral, and just.
I think that Proposition 8 was wrongheaded. If I had lived in California, I would have donated money to defeat it, and I would have voted against it. It’s important to remember, however, that Prop 8 was itself a response to a ruling by the California Supreme Court. It was a signal that the people of California (or a majority of them) were not ready for marriage to be redefined by the judiciary.
And that’s what this is: a judicial redefinition that uses precedent and innovation to change the meaning of the Fourteenth Amendment and, by extension, extend the power of the federal government. That, perhaps, is what bothers me. I understand that the meaning of laws changes over time; that’s just part of an evolving society. But when a judge uses a case to advance a philosophical position, s/he oversteps the bounds of the law.
This is a decision that voters should decide. Given enough time, they will decide in favor of it, if allowed, but if enough are angry because of judicial overreach (real or perceived), voters and lawmakers well go in the opposite direction and amend the U.S. Constitution to abolish it. This would be bad for society and our ideals.
Judicial decisions often have unintended consequences. If Roe v Wade had been decided differently, for example, abortion would almost certainly have been legalized, because society was already moving in that direction. An unintended consequence of the (bizarrely-reasoned) majority decision in Roe v Wade was the modern pro-life movement, which used to be a relatively small, Catholic-only movement. An unintended consequence of Judge Walker’s decision (especially if the Supreme Court upholds it) could easily be an enlivened anti-gay-rights movement (A recent ruling overturning parts of the Defense of Marriage Act is a different story, as I think that it's a pretty clear violation of the full faith and credit clause and the equal protection clause, but that's another thought for another day).
Both the nature of judicial overreach and the tone of how people debate culture-war issues are dangerous to the stability of the republic. Ironically, they also seem to limit the acceptance of the very social changes that the judicial decisions enact, many of which would be healthy and constructive if they were allowed to evolve naturally.
This seems to me like a lose-lose outcome, which is why—glad as I am about the fact that gay people can, at least at the moment, get married in California—I'm rethinking my reflexes.
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