Posted: February 23, 2016
f that decision from the Supreme Court on same-sex marriage, that decision we were long bracing for this past year in Obergefell v. Hodges, many things could be said, drawing on the depths of political and moral philosophy (to say nothing of Shakespeare and Tin Pan Alley). But from the voices of “conservative jurisprudence” came the thinnest clichés, as though sprung from the same script, and supplying the only thing that conservatives in the law could offer up as serious commentary in the face of this deep crisis in our law. And so we would hear it said, again and again, that the decision written by Justice Anthony Kennedy was a “lawless decision,” for there is “nothing in the text of the Constitution that mentions marriage.” And we’ve been told at the same time that of course there were no precedents for changing an institution grounded in the natural order of things: in the inescapable fact that it takes a man and a woman to conceive a child; that marriage has its most evident rationale as a framework of commitment to envelop the only sexual relations that have a natural tendency to bring forth future members of society.
As the argument has played out in this vein, the Constitution itself says nothing about marriage, and therefore judges have no constitutional ground on which to proclaim any “constitutional right” bearing on marriage. Therefore, the only rightful course for the judges is to return the matter to the political arena, where a self-governing people can decide the laws they impose on themselves. The inclination of judges to take this matter away from the voters and claim it exclusively for their own hands is taken as a flexing of “raw judicial power.” As the late Justice Antonin Scalia put in in his dissenting opinion in Obergefell, the decree handed down on same-sex marriage “says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
After the Loving
And yet, the text of the Constitution contained no mention of marriage when the Court decided Loving v. Virginia (1967) and struck down the laws that barred marriage across racial lines. Nor did the Constitution say anything about schools when the Court struck down racial segregation in the public schools in Brown v. Board of Education (1954). Marriage and schools have become the business of the federal courts over the years as they supplied instances in which personal freedoms were restricted by the states in ways that could be judged as wrongful or unjustified. Those earlier decisions were reached through the Due Process and Equal Protection Clauses of the 14th Amendment. And it was that amendment, coming after the Civil War, that fleshed out the meaning of nationhood as a source of rights that could be enforced against the policies of the separate states.
The hard fact is that there is no conservative member of the Supreme Court today who is prepared to say that the Court got it wrong in Loving v. Virginia, or that the Court should never have taken the case because the text of the Constitution does not say anything about “marriage.” Yes, the “equal protection of the laws” did refer to race, but it was understood rather clearly, at the time the 14th Amendment was drafted and passed, that nothing in the amendment barred those laws that imposed racial segregation in schools or forbade marriage across racial lines. It should carry some weight, too, for those who defend “originalist” jurisprudence that Senator Lyman Trumbull of Illinois, who guided the passage of the 14th Amendment, assured his colleagues that nothing in that amendment would challenge those laws in Illinois, or any state, that barred marriage across racial lines. It was firmly understood at the time that if Trumbull could not offer those assurances, the 14th Amendment had no ghost of a chance of passing.
But the Court in Loving struck down the laws barring marriage across racial lines as just another one of those cases in which the law was drawing adverse inferences about people on the basis of race, and creating then disabilities based on race. Race was quite irrelevant to the capacity of any person to understand the kind of commitment entailed in a marriage, or to engage in the sexual act that was taken as one of the defining marks of a marriage “consummated.” But in the most unaccountable way, the passion seems to have swept through the leading law schools and law firms that the refusal to accept the marriage of two men or two women offers instances of the same wrong in principle that marked the laws that forbade interracial marriage. That is where the argument had to be met.
Heart of the Matter
But that is not where it has been met by the conservative Justices or most of the conservative commentators. During the oral argument over Obergefell, Chief Justice John Roberts pressed the question of whether the advocates of same-sex marriage were arguing for a more just definition of “marriage,” opening the institution to gay and lesbian couples, or whether they were redefining the very nature of that institution, built around the notion of begetting. As Roberts put it later in his dissent, “removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was.”
That question led to the heart of the issue, and Roberts caught it when he made the telling point that “[t]he real question in these cases is what constitutes ‘marriage.’” But then he muddied the waters in a manner all too familiar: it was either the matter of what constitutes marriage “or—more precisely—who decides what constitutes ‘marriage’?” The substantive question was quickly converted into the question of procedure, of judges taking things out of the hands of the voters and the legislators they elect. Sure enough, Roberts went on to inveigh against the notion of “substantive due process” with the familiar boilerplate. Conservatives often profess the haunting fear that judges may go beyond some procedural tests of fairness and challenge the ground of justification for the “substance” of any policy, whether abortion or compulsory sterilization.
That fixation on “substantive due process” offers one of the venerable illusions that has distracted some of our best minds, and it marks a serious, emerging divide among lawyers and judges who have counted themselves as conservatives. It may also explain, more than anything else, the tendency among conservative judges to veer from the moral substance of the cases before them. In his dissenting opinion in U.S. v. Windsor two years earlier, Justice Samuel Alito made his own protest against the argument made by Justice Kennedy since the mid-’90s, that the laws reflecting an aversion to homosexuality could be explained only by an irrational “animus.” That was not only a breathtaking characterization of the moral teaching of Kennedy’s own Church. It reflected the most unwarranted refusal to notice a substantial body of arguments and evidence about marriage that depended not at all on religious conviction. And so, as Alito pointed out, there were plausible arguments on both sides. In defense of marriage he could cite the fine book written by Robert George and his two students Ryan Anderson and Sherif Girgis, What Is Marriage? Man and Woman: A Defense (2012; reviewed in the Summer 2013 CRB). On the other side he could cite Jonathan Rauch’s Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America (2004).
But in composing his own arguments Alito never drew on George, Anderson, and Girgis’s book to fill out the moral defense of marriage as the union of one man and one woman. Nor has any of his conservative colleagues drawn on that book, or on arguments of that kind offered elsewhere. For again the reigning assumption has been that the Constitution says nothing about marriage, and therefore the only plausible response of the judges is to return the issue to the political arena. But curiously, none of the judges has come closer to stating the rationale for marriage as we have known it—and doing it in a more compressed way—than Chief Justice Roberts in these passages from his dissenting opinion in Obergefell:
The premises supporting this concept of marriage [as a commitment, firmed in law, between a man and a woman] are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond….
[And, citing the late social scientist James Q. Wilson:] “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.”
And yet, Roberts went on to undercut the force of his own argument—and the argument made so compellingly by George, Anderson, and Girgis—when he remarked that “our Constitution does not enact any one theory of marriage.” A theory? One among several plausible versions? Justice Scalia deepened the sense of moral detachment when he remarked even more emphatically in his own opinion that “it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me.” Personally, of course, Scalia was hardly indifferent to what constitutes marriage. As a judge, though, as an officer of the law, he professed to be indifferent to the substance of what is enacted as long as it is enacted in a democratic way, through the votes of a majority. But Robert George and his co-authors have not made the case for marriage as one among a number of plausible theories, each equally legitimate to enact. They have made the case for one form of marriage as the most morally defensible form; the form of marriage that is most in accord with the nature of a moral being, and with the natural telos or purpose of sex as directed to the end of begetting.
In the case of Gonzales v. Oregon (2005), in which the Court upheld the use of drugs in assisted suicide, Justice Scalia had invoked, in dissent, the Hippocratic Oath: that the rightful end of medicine, and of drugs, is to restore or preserve the health of the patient, not to dispatch him more quickly to his death. Justice Kennedy acknowledged that this was a venerable and familiar view, but only “one reasonable understanding of medical practice.” One “theory” in an inventory of several plausible theories? Scalia was outraged by the stylish relativism. Not once, but three times, he insisted that the interpretation offered by U.S. Attorney General Alberto Gonzales, holding to the older view of the rightful ends of medicine, was “the most natural interpretation.”
John Baker, who has taught with Justice Scalia, rails against people who refer to marriage merely as “traditional marriage”—as though this form of marriage takes on its goodness from the fact that it has been around for a long while. He refers rather to “natural marriage.” But none of the conservative judges has drawn on the best arguments to make the case for natural marriage as the only defensible definition of marriage. And it’s a reasonable hunch that none ever will. For the tendency among conservatives has been to invoke “tradition” as a convenient way of avoiding a moral argument on the substance of any question. Some of the judges really doubt that there are truths that justify moral conclusions. They may also have a conservative’s skepticism that people are really moved and persuaded by reasons.
Those judges prefer to appeal to history, as a test more likely to elicit concurrence across the ideological lines. But then they find that their view of the historical record (as on the right to bear arms) simply elicits a contentious, rival account from the other side. And finally they have nothing to say when they are challenged by colleagues invoking that old line of Justice Oliver Wendell Holmes: that something more needs to be said in defense of any law than that it’s been around since the days of Henry IV. Slavery was one of the oldest institutions in the world, meeting any test of the “traditional,” before the moral arguments summoned the political force that would bring this traditional institution to an abrupt end.
What we’ve had, then, in Obergefell, is this: One side, for all of its faults, made a moral argument on the commanding rightness of same-sex marriage and the wrongness of opposing it. It was a bad, specious argument, but it deserved to be met with a powerful rebuttal showing precisely what was specious and wrong in it. Instead, on the other side, we heard the familiar complaint about five lawyers taking this matter out of the hands of the American people. And we were treated yet again to the evils of “substantive due process,” when a Court goes beyond a test of the fairness of a procedure and actually judges the substance of the law itself. One side, in short, was making a moral argument, and the other side was simply retreating to mechanistic tests of what is contained in the text of the Constitution, or complaining about lapses of procedural correctness.
Those complaints on procedure dissolve into mere grumbling unless it could be shown that the other side was indeed wrong. For if the argument in favor of same-sex “marriage” were in fact valid and justified, the complaint about removing this issue from the political arena would be no more plausible than the complaint that the Court, in Loving, had removed the issue of interracial marriage from the hands of the public in the same way. Chief Justice Roberts observed that “the fundamental right to marry does not include a right to make a State change its definition of marriage.” Quite right, I’d say, except that Roberts doesn’t seem to see that the same line could have been offered in the defense of those laws in the past that barred interracial marriage.
We may readily forget that in the middle of the 19th century, spilling into the 20th, those laws seemed as grounded in nature as the laws that barred humans from lying down with—or marrying—their horses or dogs. Abraham Lincoln, with a proper wariness, didn’t think he could whisper a word of reservation against those laws. Roberts could surmount this challenge only by making the kind of argument made by George, Anderson, Girgis, and others, that the marriage of one man and one woman is not merely one plausible theory, but the only defensible form of marriage for those creatures we call “moral agents.” (My own contribution making this case was “The Family and the Laws,” in The Meaning of Marriage, edited by Robert George and Jean Bethke Elshtain .)
Going on Record
My good friend and ally Michael Paulsen seemed to fall into the same conceptual trap in his commentary on “The Wreckage of Obergefell” in the journal First Things. He remarked, aptly enough, that the argument for “equal treatment” of gays and lesbians was off the mark, for they had as much freedom to enter a marriage as anyone else. It was just that they were denied the freedom to change the meaning of marriage to allow them to marry people of the same sex. As Paulsen put it, the argument here was not for “equal protection,” but rather that “we need to change the institution itself, in order to accommodate same-sex couples.” Precisely.
That was the question, and that was the question that had to be met. It couldn’t be met by saying that this natural form of marriage, which Paulsen takes for granted, was the form taken for granted in the Constitution, for as the argument has gone, the Constitution says nothing about marriage. And if the very nature of marriage becomes an open question, there is nothing in the text of the Constitution either that says an argument of constitutional significance about marriage can be addressed only in legislatures, that it can never become a plausible question before a court. The uncomfortable state of affairs is that the conservative judges would have to brace themselves and engage their considerable arts in addressing the substantive rightness or wrongness of changing the meaning of “marriage.”
Putting on record those substantive arguments could compel Justice Kennedy and his colleagues to set their clerks to work trying to muster the most arresting arguments they could find in an effort to counter the case made for natural marriage. The conservative judges might tell us, pessimistically, that such an exchange would merely enlarge the number of pages in the record written by the judges and their clerks without affecting the outcome of the case. But the judges know that reasons, not just outcomes, matter in shaping the meaning of the law. That is why they set themselves and their clerks ferociously to work in crafting those opinions in the first place. But the ultimate reason, I suspect, is something simpler: conservative judges really are stuck in this box of positive law and mechanistic formulas—they are caught in the trap of invoking the text of the Constitution, sola scriptura, even when they find themselves persistently moving outside the text to explain what they purport to find implied in it.
On that point there is surely no recent example more striking than Justice Scalia’s emphatic dissent last spring in Williams-Yulee v. Florida Bar, which upheld restraints on the speech of judicial candidates. As he set things in place, Scalia announced that “The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content.” We can put aside for the moment the question whether we really have here the properties of an “axiom” or a necessary truth, for as I’ve sought to show over the years, there is a quite plausible case to be made for judging the content of speech.
But putting that aside, where is this axiom found in the First Amendment or the text of the Constitution? Whatever else Justice Scalia is saying, I take it that he is not invoking here “textualism” (the disposition to be guided and governed solely by the words enacted in the text of the Constitution or a statute, and not by supporting commentaries that were never actually voted upon and enacted).
And it’s hard to claim that this reading reflects the “original” understanding of the document held by the American Founders. As John Marshall remarked, before he became a judge, anyone who published a libel in this country could be “sued or indicted.” The founders never imagined that the First Amendment would rule out the laws concerning libel or the speech that stirred tumults and riots in the local community. That was the line attributed to Marshall as he defended the constitutionality—though not the prudence—of the Alien and Sedition Acts. And it’s worth recalling in that vein that Thomas Jefferson opposed only a federal law on sedition, while he urged the active use of the laws on sedition to prosecute his political adversaries in Pennsylvania.
Marshall understood that “axioms” could be grasped per se nota, as true in themselves and true of necessity. When Justice Scalia invoked axioms, was he backing into that same understanding of certain axioms of reason, beginning with the law of contradiction, that two contradictory propositions cannot both be true? Or: that we may not hold people blameworthy and punishable for acts they were powerless to affect. These axioms of reason command our respect—and our judgment—even though they aren’t set down in the text of the Constitution. Of course that is exactly what some of us take to be the ground of the natural law. Was Scalia revealing, yet again, that he had been “speaking prose” all his life—that he had been offering us handsome examples of natural law reasoning for many years, while insisting to us that it couldn’t be done?
The simple, melancholy point is that the conservative jurists seem to be caught in a conceptual trap. They genuinely seem to fear that they would be doing something eminently wrong if they sought to contest the moral arguments of the Left by showing—as they are amply equipped to do—the emptiness of those arguments on the matters of substance in these cases.
To this we can only respond: how has all of that been working out for us?