Three meandering points that I had hoped to make over the weekend, but, due to a burgeoning addiction to Halo 2 (as well as some "real" work), I didn’t.
1. First, a tautology: wrong is wrong. The so-called Groningen protocol, which permits doctors to euthanize children (up to age twelve) who, among other things are deemed to be premature, have brain damage, or have "diseases where a child could only survive on life support for the rest of its life" (presumably, this would have included the "bubble boy" of the 80s and similar cases). Whatever your feelings regarding abortion or the culture of life, it don’t take much to know that empowering doctors to kill at their discretion is a step beyond a step too far. More on this later, I hope.
2. Although I’m happy to see that we’re sending more troops to Iraq (indeed, I’ve advocated as much since nearly the beginning of the war), twelve thousand ain’t nearly enough. But we’re already stretched, so, cross your fingers.
3. Paul Cella has an excellent post on gay marriage, which I can very nearly endorse. The sticking point? Well, he opposes gay marriage (and, I believe, civil unions as well). I favor gay marriage. But he has the process down right: a move so radical as this can and should only be accomplished by legislative action.
(Incidentally, the oft-made comparison to African-American civil rights is horribly inapt. Such rights were provided for in the U.S. Constitution and its Amendments, and were therefore the lawful province of the Courts. With gay marriage, we’re talking about a truly radical, unanticipated, unprovided for change in the law of marriage. It’s one that I agree with, but one that I do not undertake lightly — and would not undertake judicially.)
With gay marriage, we’re talking about a truly radical, unanticipated, unprovided for change in the law of marriage.
Well, except that the change has already happened in several other countries, and even a couple of states within the US, and has proven to be almost anti-climatic. Marriage still stands.
von: (Incidentally, the oft-made comparison to African-American civil rights is horribly inapt. Such were provided for in the U.S. Constitution and its Amendments, and therefore the lawful province of the Courts. With gay marriage, we’re talking about a truly radical, unanticipated, unprovided for change in the law of marriage — one that I agree with, but, still, do not undertake lightly.)
I’m no lawyer, but it seems to me that this is more than incidental to the subject, and I’d like for you to elaborate, please. How does equal protection not apply to marriage laws that discriminate based on the sex of the subjects?
And doesn’t arguing that this is nothing like the last major civil rights struggle let gay rights opponents off the hook for failing to learn the lessons of history?
Well, except that the change has already happened in several other countries, and even a couple of states within the US, and has proven to be almost anti-climatic. Marriage still stands.
Sure, Jes. But my comment stands — it is a radical change. We’ve gone from Stonewall to seriously debating gay marriage in 30-some years. It’s a tremenduous shift, and one that occurred because persistant pressure convinced a number of folk that it was the right thing to do. Don’t distrust that the same won’t occur if we leave it to the legislature.
Gromit, I’ll try to epound on this in a moment (possibly a follow-up post). Your question is a good one, but I’m bit taxed for time.
“African-American civil rights is horribly inapt.”
The civil rights analogy is of course not voting, but interracial marriage. Although accomodations might also be in dispute. The aptness is arguable:
a) A case might be made that technological developments have “discovered” a new natural protected class. It is pertinent that a subset of the arguments by the right is precisely whether homosexuality is inherent or biologically determined.
b) For the sake of argument, presume homosexuality is a behavioral choice. We do protect some classes based on behavioral choice, including religion and political affiliation, with IIRC varying degrees of scrutiny. Could a state or Federal agency deny benefits to wife-swappers or S-M couples based on their disapproved yet legal behavior? I suspect Scalia would say yes, but would bet on his being a minority opinion.
For a brief answer on 14th Amendment/gay marriage, see my comments to McDuff on the linked piece at Cella’s Review. It’s too short to satisfy, but it’s a start.
“With gay marriage, we’re talking about a truly radical, unanticipated, unprovided for change in the law of marriage.”
We’re talking about allowing any two consenting adults who are not currently married to anyone else to marry. What’s so radical about that? It’s just another long overdue civil rights measure to eliminate one of the remaining bastions of sexism in our society. Really, I’m suprised that it’s even controversial. Then again, the proposal to remove the laws mandating segregation in Alabama turned out to be controversial, so perhaps I shouldn’t be suprised.
Re: the Grongingen protocol: While I essentially agree with you that allowing non-voluntary euthanasia is a bad idea, I would point out that “bubble babies” (children with severe combined immunodeficiency or SCID) would not be included under the criteria listed: babies with this disease can undergo hematopoietic stem cell transplant and live more or less normal lives, no need for bubbles. Even for those with no potential donors, gene therapy is very promising and provides a way for these children to live if not completely normal lives, at least to live to adulthood and possibly have normal life spans (no one knows yet as the technology is not that old.)
I’ll just want to point out a rather silly misconception about the Groningen protocol. You seem to think that it “empowers doctors to kill at their discretion”.
From what I can gather from Dutch websites (the protocol has barely gotten any attention in Holland), this is simply not the case.
The entire medical team (nurses and doctors) has to agree that the situation is never, ever going to improve and can’t be made bearable by medication or otherwise. The parents have to agree. The independent doctors doing the mandatory review of the request have to agree.
In fact, your own link admits that elsewhere doctors do take matters into their own hands, if only for fear of prosecution.
However, experts acknowledge that doctors euthanize routinely in the United States and elsewhere, but that the practice is hidden.
“Measures that might marginally extend a child’s life by minutes or hours or days or weeks are stopped. This happens routinely, namely, every day,” said Lance Stell, professor of medical ethics at Davidson College in Davidson, N.C., and staff ethicist at Carolinas Medical Center in Charlotte, N.C. “Everybody knows that it happens, but there’s a lot of hypocrisy. Instead, people talk about things they’re not going to do.”
More than half of all deaths occur under medical supervision, so it’s really about management and method of death, Stell said.
You’re begging the question with this post, in the strict definition of the term. You say that “the oft-made comparison to African-American civil rights is horribly inapt. Such rights were provided for in the U.S. Constitution and its Amendments, and were therefore the lawful province of the Courts.”
But of course, the argument of many gay marriage supporters is precisely that marriage rights for gay couples are provided for in the equal protection clause of a U.S. or state Constitution. No one says “well of course it’s not in the Constitution, but judges can require it if they want.” Literally, I have never heard that argument.
Now, I think the “rational basis” scrutiny applied in Goodridge is somewhat unconvincing. I would call a spade a spade, and say that there should be heightened scrutiny for discrimination based on sexual orientation.
Read that famous Carolene products footnote, and tell me how the factors don’t apply to sexual orientation at least as much as gender.
I know you may reject the Supreme Court’s view of the equal protection clause as it applies to gender–you may even go with the “originalist” argument that it only applies to race, though the word race is never mentioned–but that is a minority view. Tell me why, if one accepts that gender discrimination should get intermediate scrutiny, sexual orientation should not get it.
Hypo for all those who say that the equal protection clause doesn’t apply to sexual orientation: would it be constitutional for Congress to pass a statute saying that gay people cannot vote?
Finally: everyone please get it through your heads. Just because the civil rights movement is not a perfect analogy, does not mean that you can draw no valid comparison. The civil rights cases argue very strongly against these specific arguments about gay marriage:
1. Cella’s notion that regardless of the constitutional merits, “unelected judges” should not just make big changes if they are too unpopular. (From Brown to Bolling to Loving, the civil rights cases were denounced as the work of “activist judges” and they polled every bit as badly as the Goodridge decision–worse, in most cases. Yet today we consider them correct and legitimate and too long in coming.)
2. “There is no right to marry.” (In Loving v. Virginia, the Supreme Court specifically says there is a right to marry.
Moreover, other civil rights cases also show that even if there is no affirmative right to a marriage license, there IS a right not to face invidious discrimination in receiving a marriage license. There is no constitutional right to bus service, but a whites-only bus service would be unconstitutional. There is no federal constitutional right to public education, but Brown v. Board of Ed. say that if public education is provided, it cannot be segregated.)
3. “The marriage laws don’t discriminate against gay people–they’re perfectly free to marry someone of the opposite sex, just like straight people.” (In Loving v. Virginia, the state made a very similar argument: The law doesn’t discriminate against black people–they’re perfectly free to marry someone of the same race, just like white people are. The court didn’t buy it for a moment.
Also keep in mind that if you want to be formalistic about how the statute does and does not discriminate against, you’re opening yourself up to the claim that it discriminates on the basis of gender–which is an easier constitutional argument to win than an argument about discrimination based on sexual orientation, though I think a less honest one.)
4. “They never would have allowed this when the Fourteenth Amendment passed.” (First of all, Scalia-type originalists should not make this argument, you guys are supposed to be concerned with the text, not legislative or ratification history–original meaning, not original intent. You’re supposed to make an argument based on the 1860s-70s meaning of one of the following words:
“nor deny to any person within its jurisdiction the equal protection of the laws.” Good luck with that.
Second of all, if you do think original intent matters as well as original meaning–be aware that there are credible arguments that the original intent of the fourteenth amendment was to allow legal segregation and forbid interracial marriage. There is a very good case that the original intent of the fourteenth amendment was to allow any discrimination at all against women. There is also a good case–based on the text and history–that the original intent of the fourteenth amendment was for it not to apply to voting rights. Please distinguish these cases. Also, do you think the 14th amendment allows Congress to deny gay people the right to vote?))
If you want to argue that it’s bad and/or unconstitutional to discriminate on the basis of race, but fine and/or constitutional to discriminate on the basis of sexual orientation, then fine. But please make that argument. Hearing the constant, unembarrassed repetition of arguments that could be equally applied to defend segregation and anti-miscenegation laws–that, were in fact, used for that purpose–is really depressing. con and not on the basis
out damned italics.
In particular, von argues that the need for the 19th amendment proves that the equal protection clause doesn’t protect women or anything but race–even though the clause never mentions race.
According to this logic, if the Court makes a decision, no matter how appalling, and the people pass an amendment effectively reversing that decision, it proves that the Court was right as a matter of Constitutional interpretation.
According to this logic, if the Constitution were amended after Plessy and before Brown to clearly forbid segregation, it would prove that Plessy was right all along.
According to this logic, if the Constitution were amended now to outlaw abortion, it would prove that Roe v. Wade was right all along. Somehow I don’t think pro-life people believe this.
It is nonsensical–especially for someone who claims that the meaning of the Constitution is fixed at ratification and does not change after that. It would get me laughed out of a Con Law class.
If a decision is wrong, it is wrong. It does not magically become right because people decided to fix it through a constitutional amendment instead of waiting 75 years for the court to come to its senses.
It’s interesting also, in that you can argue that in its original historical context, the equal protection clause only protects racial minorities, or only protects black people. Yet somehow it’s not controversial to argue that it protects white people and Asians and hispanics too.
“the judicial usurpation of politics.” What is at stake here is not merely the question of homosexual marriage; it is the question of the nature America as a people and a nation. It is, in short, the question of whether we will continue to be a self-governing republic, or decay into a judicial despotism.”
With all due respect, this is simply hysteria. Mr Cella I think well understands the actual role of the judiciary in America, and does not like it. It is not what he is here claiming.
The Judicial Branch has little or no enforcement or implementation power. An Example:Brown vs Board. Ike decided to send the National Guard(or whatever) into Arkansas(or wherever). It took twenty years for BvB to be even partially enforced, and to a large degree the spirit of BvB is still not seriously implemented in most of the country. Certainly should the nation seriously have wished to to eliminate segregated education, there are many steps against private schools, boundaries and districts, funding that could have been taked but were not. The Texas deadlock on school funding, the recent Alabama referendum indicate that we are still in the process or resistance and acceptance, and after fifty years the Warren Court decision has not totally destroyed all sovereignty of the people.
The Supreme Court is the conscience of the nation.
And just as an individual may ignore the promptings of his conscience, so the nation may simply ignore the Supreme. It does not make law, if law has any relation to people’s actual behavior. It simply explicates what the meanings and implications of our professed ideals logically are (yecch on that phrase,sorry) and leaves the nation utterly free as to what they will do with that interpretation.
I am of course guilty here of anthropomorhic fallacies, tho I expect Mr Cella is guilty of a few. This nation, or majorities of this nation, does not always live up to its ideals, and it is useful to have people around to remind us of it. Mr Cella is the arrogant Protestant rebelling, “No one has the right to tell me I have sinned.”
Mr Cella is not really frightened of the Courts, and a pro-gay decision, but with Massachusetts as an example, Cella is frightened that certain portions of the nation, that the people will actually accept and implement any court decision.
He is antimajoritarian.
1) Groningen Protocol — I’m persuaded by slippery slope arguments in many areas, including this one. So I agree with Von. However, Jasper, Diane, and others elsewhere point out a few of the subtleties of the issue not detected by the primary lens we use in our society. The fact is that decisions not precisely like these but close enough are made every day in our society by doctors, families, insurance companies and, yup, taxpayers. And let me tell you, as we move (I hope we don’t) further toward health insurance pools wherein the healthy and the wealthy segregate via the market away from the unhealthy and the not wealthy, we will find plenty of rationalizations to relieve us of the tremendous expense of caring for terminal infants, the terminal elderly, and the terminally ill among the rest of us. It’s called triage. Happens every day in emergency rooms and nursing homes across the country if you don’t have insurance, or not enough insurance. Yes, I generalize. And I know governments, on behalf of balky taxpayers, make the same types of decisions.
2. More troops in Iraq — Yup, I guess I (we) have no choice now, do we? But those troops with brain and spinal cord injuries and the armless and legless in hospitals in Europe? They get to come home to draconian budgets (pleasing to the taxpayer) and the “market” for health insurance (pleasing to a certain kind of ideology.) Hello American-style Groningen.
3. Gay marriage — Agree with Von here on the principle and the idea that legislatures may be friendly to change. But I would add that the abject failure of legislative bodies (reflecting public opinion) in the area of race for way too many decades was what spoiled everyone’s appetite for waiting around for action on other issues. Thank God for the judiciary, finally, because it could have been settled in the streets long before. Original sin, said William Faulkner.
A quick response to Katherine, then I’ll be out for a few more hours.
If a decision is wrong, it is wrong. It does not magically become right because people decided to fix it through a constitutional amendment instead of waiting 75 years for the court to come to its senses.
Re-read what I wrote: “The clause cannot be divorced from its context — nor has it generally been assumed to be so divorceable (see, e.g., the need for legislation to grant the disable/elderly/etc. “equal protection”; and for the 19th to grant women the right to vote.)” As should be clear, I’m not basing my interpretation of the Fourteenth on the fact that others have interpreted the Fourteenth in the same way. My reading, like theirs, is based upon the primary source — the text itself. And, yes, courts and people can interprete the text incorrectly. But, as you will concede, in deciding the proper interpretation of any test, the prior interpretations of that same text by others is relevant evidence as to the text’s meaning. After all, words are artificial — they mean what we (collectively) say that they mean.
Accordingly, your parade of horribles (by that logic ….), while impressive as an exercise in rhetoric, is based on a faulty premise. It is but air.
It’s interesting also, in that you can argue that in its original historical context, the equal protection clause only protects racial minorities, or only protects black people. Yet somehow it’s not controversial to argue that it protects white people and Asians and hispanics too.
I did not (and would not) argue that the “equal protection clause only protects racial minorities.” I’ll try to set out my (admittedly layperson’s) views on the subject in a subsequent post. ‘Till then, try to avoid the innuendo-based-upon-assumption-based-upon-speed-reading.
(It’s also interesting how so many people so devoted to rule by the elected branches are so completely unconcerned with the almost complete lack of competitive elections in the House.
Ironically, unelected, activist judges may be the only way for voters to choose their representatives again instead of representatives choosing their voters.
They also don’t seem too worried about unlimited executive secrecy.
75-90% of arguments about federalism and “activist judges” are completely outcome driven and worthless.)
“It’s also interesting how so many people so devoted to rule by the elected branches are so completely unconcerned with the almost complete lack of competitive elections in the House.”
At the very least I don’t think that is true here. Both von and I have repeatedly suggested great concern about the issue. I have posted repeatedly on the subject of gerrymandering and have proposed a solution to it.
It’s not speed reading. It’s previous arguments in which you refuse to acknowledge the implications of your argument, the atrocious job the courts did interpreting the clause until that nasty Earl Warren came along, current case law, or basic logic.
I’m sorry I get a little snippy, but you seem to be arguing that the equal protection clause doesn’t include me.
You have argued previously that without the 19th amendment it would be perfectly constitutional to deny me the vote. I can’t figure out, then, why you do not think it is constitutional to deny gay people the right to vote. I really can’t.
I know it’s not likely to HAPPEN. But if you’re arguing that the constitution allows it, well, that matters. And you should admit it, and not dismiss it as part of a “parade of horribles” that you don’t have to address. As hypotheticals go, it is a lot more plausible and follows a lot more closely from your argument than 3/4 of the hypos professors ask in class.
Sebastian–absolutely, didn’t mean to imply otherwise. I was thinking more of the House leadership, andthe various socially conservative organizations with “Family” in their names.
I wish Edward was around.
von’s “parade of horribles” possibly derives from his perception that whatever the law is or the correct and strict interpretation might be, he has difficulty believing that the people will actally deny gays the right to vote.
I like lawyers. But lawyers and judges in the real world do not make or interpret or implement law. Individuals, juries, and elected officials use lawyers as advocates to promote their interests.
All the civil rights were obvious and evident in our first founding documents. But for a hundred years there was not the will or intensity required to put the ideals of the Declaration or Constitution into practice, and then we had a Civil War.
The post-Civil War Amendments were passed, and their interpretation was not that difficult. But the intensity to put them into effect was only partially there(slavery). It is important to understand why, tho they were largely ignored, they were not overturned. Gradually their meaning was put into effect, with the intensity peaking after WWII. The “correct” interpretation was much less important than what the people were willing to actually do.
Anti-sodomy laws were rarely enforced, and did not really become important until the people, with a wider agenda found that those laws got in the way. SCOTUS did not actually get a lot smarter in ten years.
The problem many conservatives actually have with Roe versus Wade is not with the decision or the reasoning, but that too many Americans found RvW a tolerable or acceptable decision. For if even a sizeable plurality of American were opposed, first term abortions would be illegal.
The people actually do rule. None of us like it.
Surely it matters whether or not the Constitution protects you from some “horrible.” That’s the whole point of having a Constitution. A “horrible” might be unlikely now, but unless you’re psychic you can’t know that it’s always impossible.
Also, that an interpretation of the Constitution that would allow such “horribles” is a signal that it contains some gaping holes in its protections of individual rights, and even if the particular “horrible” never comes true, other ones could.
Katherine, you know better than most of us that the Constitution, or the law, domestic and international, does not actually protect us from the people.
Politics is hard.
Ay, euthanasia’s a tough subject. My thoughts on it are somewhere between “First do no harm” and “Judge not, that ye not be judged”. So, I’m going to pass on that.
On marriage, however, I’ve no legal expertise at all, but it’s a fairly simple issue for me. I don’t want the government saying that certain groups of people can or cannot marry each other.
(Ok, amend people with adults. Ok, mentally competent adults)
Balkin recently summarized the role of theories of constitutional interpretation as follows– “one important function of normative constitutional theory may not be giving advice to judges but rather offering professional legitimation for the work of the Supreme Court.”
IMO, it’s an obvious statement for anyone who’s spent any time reading Supreme Court decisions, but it’s still a somewhat radical notion.
His post/article on what Brown v. Board of Education says about constitutional theories is worth looking at.
(And pleease don’t try to tell me that Scalia or other
“conservative” justices are more principled in their interpretations than “liberal” justices).
Re Groningen protocol: In the argument Von makes he leaves out the deciding factor: great pain and no hope for relief. I think the point might not even register with him, seeing his example. The crucial text in the article he links to is:
Three years ago, the Dutch parliament made it legal for doctors to inject a sedative and a lethal dose of muscle relaxant at the request of adult patients suffering great pain with no hope of relief.
The Groningen Protocol, as the hospital’s guidelines have come to be known, would create a legal framework for permitting doctors to actively end the life of newborns deemed to be in similar pain from incurable disease or extreme deformities.
The guideline says euthanasia is acceptable when the child’s medical team and independent doctors agree the pain cannot be eased and there is no prospect for improvement, and when parents think it’s best.
Examples include extremely premature births, where children suffer brain damage from bleeding and convulsions; and diseases where a child could only survive on life support for the rest of its life, such as severe cases of spina bifida and epidermosis bullosa, a rare blistering illness.
This is not an economic issue, this is about babies who are born and know nothing but pain *and* will never get any better. Legal euthanasia is all about people who suffer incurable and intolerable pain. In effect that mostly is people dying from cancer (90% of euthanasia). I have lost people to that horrible disease and have seen how much they sometimes have to suffer – and both for those who did NOT choose for euthanasia and the ones who DID choose for euthanasia the fact that the option existed was a great relief.
No Von, the bubble boy would not be included. Because in our country he would be able to get the treatment available and necessary without bancrupting his parents. These laws are not intended for society to chicken out on giving the necessary care to people, they do not have their basis in economy; these laws are to allow people to die dignified instead of after days or weeks of intolerable suffering.
Your “12 year old’s” are not mentioned in the article you link to, but are part of this discussion only because it is a legal marking point. In the Netherlands you can decide about your medical treatment for yourself as from 18 – and thus also about euthanasia. 16 and 17 year olds can take decisions about medical treatment, but the parents have to be involved. 12 to 15 year olds can *ask* for a specific treatment, but the parents decide. The discussion is about what to do when f.i. a 14 year old is dying from cancer, in cruciating pain, wants euthanasia since its remaining few days will only be filled with more pain (and no, the pain can NOT always be sedated) and the parents do not want it.
Up to 12 there is no discussion, people under that age can never decide themselves and the legal guardians take all medical decisions.
Sometimes that causes conflict. People can decide that their child cannot have a bloodtransfusion f.i., because that is against their religion. Do you, as a doctor, let a child die even if it can be saved quit easily? Or do you feel that the interests of the child outweight the interests of the parents and do you give blood to the child? That is why there are discussions about who can ultimately decide what, and about legal age limits.
Von: Don’t distrust that the same won’t occur if we leave it to the legislature.
Can you give me a reason to trust that the legislature will do the right thing? Seriously, I can’t think of a single civil rights case in the US where the courts didn’t lead in doing the right thing, and the legislature lagged way behind. When I say “I can’t think” I admit ignorance: I’m quite prepared to believe you can show me multiple examples where the US legislature took the lead and passed civil rights legislation without needing to be prodded on by the courts. But show me: give me a reason to trust that it will happen again.
FWIW, IANAHistorian but I think Congress took the lead against discrimination based on age, disability and pregnancy. In addition, there were a lot of times when Congress may not have “led” but it at least did a pretty good job (e.g. the civil rights act of 1964, and the overturning of some bad supreme court precedents ca. 1990 IIRC).
“Can you give me a reason to trust that the legislature will do the right thing? Seriously, I can’t think of a single civil rights case in the US where the courts didn’t lead in doing the right thing, and the legislature lagged way behind. When I say “I can’t think” I admit ignorance: I’m quite prepared to believe you can show me multiple examples where the US legislature took the lead and passed civil rights legislation without needing to be prodded on by the courts. But show me: give me a reason to trust that it will happen again.”
During reconstruction, the Congress was dominated by Radical Republicans–I believe they had a 2/3 majority for a little while–and they were waaaaayyy more pro-civil rights than the Supreme Court.
I don’t think there was a court case behind Truman’s desegregation of the military.
The idea that legislatures will or would do the right thing on gay marriage on anything even resembling the same time scale is just patently silly. Change doesn’t happen on its own and it doesn’t always happen in the right direction. Public opinion doesn’t just mysteriously move on it’s own–it is pushed.
Congress says it’s especially blameworthy to harm someone for being black, but not for being gay. There’s no federal employment anti-discrimination act on sexual orientation. In Massachusetts, where majorities have supported civil unions for some years, the legislature would not allow a vote on it. The only reason civil unions exist at all is because of the Vermont Supreme Court’s decision. Back then, they weren’t considered the moderate, majority position. Dean got serious death threats, had good reason to believe he was signing away his career–and this was in Vermont, that latte sipping, Volvo driving, body piercing, birkenstock wearing, Ben & Jerry’s eating left wing freak show of a state.
In New York state, if the courts don’t act I bet you could get majority support for gay marriage in public opinion polls long before it has a chance in the legislature–Pataki won’t sign it, and even if Spitzer’s elected there’s little chance that Bruno will allow his little Senate fiefdom to vote on it. I’m not sure Silver would be so big on it either.
If there had been no court cases maybe you’d see civil unions by 2010 and gay marriage in a liberal state or two by 2025. I doubt even that much, though.
That said, you have to allow public opinion time to catch up. I think the Supreme Court would be legally correct to rule that the federal equal protection clause requires the states to allow gay marriage, but I would not dream of bringing that case right now if I worked for Human Rights Campaign.
(Doh is also correct. And the 1964 civil rights act could never have been imposed by the courts, as the Constitution does not deal with private discrimination. In that sense Congress led.)
Thanks for the link, Von.
Let it be noted that, though the Court did play some role, civil rights for blacks were really achieved by the Civil Rights and Voting Rights Acts; that is, by the people’s representatives, deliberating and compromising within the confines of a republican (small “r”) institution.
The Civil Rights Act was an immeasurably superior act of democratic statesmanship than, say, the Brown decision, which produced a state of near-rebellion in the South (which in turn radicalized the civil rights movement). When both groups were brought into the process of debate, discussion, and compromise, the whole thing slowly quieted down at the same time that a blow for justice was struck. It was an admirably bold and impressive act of a self-governing people, in the face of difficult and explosive circumstances. In short, a truly American achievement.
This transformation of marriage, by the sharpest contrast, if it is accomplished by the Court, will be the act of (at best) veiled aristocracy or (at worst) simple tyranny.
Perhaps many around here (and across the country) would prefer the rule of Platonic philosopher-kings, but let us not fool ourselves and call it self-government.
PS — I am certainly with Mr. Holsclaw and Katherine in my dismay about gerrymandering. Atlanta (where I live), is two districts of blue surrounded by a bunch of red districts. Let us have instead a quadrant of simple districts — each competitive in each election. Our politics would be much healthier if gerrymandering were eliminated or weakened.
“This transformation of marriage, by the sharpest contrast, if it is accomplished by the Court, will be the act of (at best) veiled aristocracy or (at worst) simple tyranny.”
Silliness aside, do you have an opinion on Loving?
You have argued previously that without the 19th amendment it would be perfectly constitutional to deny me the vote. I can’t figure out, then, why you do not think it is constitutional to deny gay people the right to vote. I really can’t.
Katherine, as I mentioned on Cella’s blog, the EPC may not guarantee gays the right to vote. But other parts of the Constitution do.
On whether the EPC protects women, note the attempt to pass the Equal Rights Amendment* during the Warren court era. Again, all of this suggests a common understanding of the EPC. Not necessarily the correct understanding, of course — but, since language is largely a coordination game (you understand what I mean by tacit agreement), certainly some evidence as to the correct understanding.
Jes —
Can you give me a reason to trust that the legislature will do the right thing? Seriously, I can’t think of a single civil rights case in the US where the courts didn’t lead in doing the right thing, and the legislature lagged way behind.
Well, the first thing that came to mind was the (admittedly, out of the US) British Parliament’s abolition of slavery in the 1830s. (Most of the Northern States of the U.S. followed suit, if they did not already have laws against slavery on the books.) For modern examples, see the ADA, Title IX, virtually every woman’s right (as I remarked to Katherine, above, the Equal Rights Amendment did not pass), etc., etc.
I’ll put together a post on this, hopefully this evening (but, given my work schedule, more likely tomorrow). ‘Till then, file this under: I shouldn’t have started what I couldn’t finish.
von
*The ERA provides:
“Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.”
Rilkefan:
Not much of one, because I don’t know the case all that well. In general I object to comparisons between homosexual marriage and miscegenation because the definition of marriage has never in principle excluded unions between those of different races.
Von, I just saw a post of yours on the 14th elsewhere )RedState), and may have misunderstood you.
But if you consider the Supreme Court justices of that era “racist lackwits”, how do you know they weren’t also “sexist lackwits”?
For instance, take Justice Bradley’s concurrence in the 1872 case Bradwell v. State*, which sounds much more like a Promise Keepers’ manifesto** than a serious attempt to interpret the Fourteenth Amendment:
*it’s actually a privileges and immunities clause case.
**that may be unfair to the Promise Keepers.
“the definition of marriage has never in principle excluded unions between those of different races.”
Is there some platonic definition of marriage we’re discussing here? If not, can I put into evidence versions from the dictionaries of my choice a) excluding interracial couplings and b) including same-sex couplings?
Katherine, you mention that civil unions would not have come into being without a court order as an example of not wanting to wait for the legislature. I wonder if that isn’t an effect more than a cause.
At various times in my life I have been affiliated with various gay groups and studied the history of others. Almost always they attempt to make change through the courts.
If an equally strong effort had been made in legislatures instead of courts, are you so certain that change could not have come about in that political arena?
This has strong parallels to abortion. This is politics.
1. There is a strong affection for a traditional use of the word “marriage” among a majority of Americans.
2. There a probable majority in America, and a clear majority in certain states for extending the practical benefits of marriage, including hospital visitation, inheritance, and social acceptance of gay couples. Try breaking the benefits down on a poll.
3. There is a small minority in America who do not want those particular benefits extended to gays, especially social acceptance.
4. The members of #3 are using #1 to prevent #2. They realize they are a minority, but are experienced thru the politics of abortion in using their energy to control the discourse and legislative process. They are disingenuous in calling for majority rule.
Sebastian: Almost always they attempt to make change through the courts.
Perhaps because, realistically, they expect that they have a better chance of accomplishing what they need to do that way?
In the UK, gay groups mostly attempt to make change through the legislature these days: but these days, the government of the UK is dominated by the Labour party, who are far more pro-civil rights than their predecessors, the Conservative party (who are politically roughly equivalent to the Democrats): under the Conservatives, change was more likely to be accomplished through the courts than through the legislature. Campaigning groups tend to go with what works.
(BTW: Doh, Katherine, Von, thank you for your informative comments.)
Every time I see people referring to a lack of enumeration in regards a right I wonder… when did the Constitution become prescriptive, instead of prohibitive?
And I keep thinking about the ninth amendment, The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
A right is a right, only if it isn’t subjective to legislative whim. This is an issue wherein the interpretation of a law (to wit the Constitution of the Commonwealth of Mass.) by the court empowered to so interpret it, is being told they are wrong.
So wrong that the seminal document of our nation has to have a new bit put in, one which, for the first time, is inhibiting a right of the people, not the powers of the gov’t.
That bothers me. Because I happen to like states’ having rights, I also happen to like having my rights (of which choice is the only one that can’t be completely taken away, but I digress) not limited to those few so precious as to require the Federal Gov’t to publically protect them.
I am, actually, ashamed that the amendments which protect non-white rights had to be written, because they seem implicit to me (and that, as I recall, is the argument being made against an ERA, those rights already exist, both in the Constituion, and the coverage of the later amendments) but we know they aren’t, not really.
TK
“The Civil Rights Act was an immeasurably superior act of democratic statesmanship …etc”
Is this indeed the history? Lester Maddox and MLK sat at a table and compromised, shaking hands afterwards?
In the South, that the right to vote needed to be “discussed” at all, that the actual results after fifty years of redistricting is that blacks are only allowed to represent blacks in the South, and that a Black Governor or Senator is simply inconceivable in most of Dixie to this day (ref Jindrich here) would lead one to the realization that Civil Rights were imposed by the North at the point of a gun, particularly Federal Marshalls and the National Guard.
This description of the Sixties as a triumph of comity might be less than comforting to the families of Medger Evers or the three kids buried in a swamp.
I happen to like state’s rights too. But I’m not a fan of runaway judicial interpretation. The two ideas are not contradictory.
The Civil Rights Act was an immeasurably superior act of democratic statesmanship than, say, the Brown decision, which produced a state of near-rebellion in the South (which in turn radicalized the civil rights movement).
Let me ask you, then, the same questions I ask of everyone who makes this argument:
1) Do you believe that the Civil Rights Act would have been passed had Brown not been decided? Had Brown been decided the other way?
2) Do you believe that the Supreme Court should refuse to recognize liberties on the grounds that they are not the legislature and thus do not speak from a statesman’s perspective?
Bah. This is all a smokescreen. It’s an attempt by the Paul Cellas of the world to force homosexual men and women to prostrate themselves before him and his ilk and beg, “Please, sir, please vote for me to have an equal share in the bounties of the America to which I already contribute my taxes, work, blood, sweat, toil, and tears, and an equal chance at happiness.” So he can then sit back and tell them, at the voting booth, “No,” on the basis that it would offend Jesus and he would “withhold” his “blessings” from our nation. Sorry, but I have no time for that nonsense.
Cella would blanch at the thought of having to beg his fellow citizens to allow him the same rights as everyone else. And well he should.
I grow weary of this “judicial activism” crap, too. They didn’t concern themselves overly with the activism of a judge plopping a giant statue of the Ten Commandments down in the statehouse, after all.
People are already “forced” to “accept” all kinds of marriages they don’t like. Britney Spears’ hope-she-has-a-good-prenup marriage is just as legal and as equal as mine. Donald Trump’s serial marriages were all equal to mine. I don’t see any good reason why any two gay people’s shouldn’t be also, and I really don’t give a hoot what the Founding Fathers would have thought of it or what Paul Cella thinks of it.
Katherine — Sorry, I’m completely out of time this morning. On the Bradley concurrence, though, it doesn’t surprise me that (1) it’s idiotic and (2) it’s interpreting the P&I clause. The two tended to run together in the late 80s.
On the other issues, yes, I’m quite fond of the incorporate doctrine — though I believe, as most of us do, that the P&I clause would have been a better route. But, by the same brand of “reading the Constitution strictly (but in context),” I don’t see support for an ever increasing expansion of the “equal protection clause” to encompass any kind of group we might imagine. The disabled? The mentally ill (ignore questions of capacity for the moment)? If we discover tomorrow that alcoholism is genetically based, is that another protected class?
It’s a slippery slope argument, sure — but one to which I’ve not yet heard a convincing retort.*
Now, many of the foregoing folks are worthy of protection — and they have been protected, by means far more supple and responsive than the continual re-interpretation of a Constitutional phrase. They’ve been protected by legislative action.
von
*Incidentally (I really do hope to follow-up on this later), I suspect that it was concern over the extent of the due process clause that led Justice Kennedy to ground his decision in Lawrence in the privacy prenumbra.
in the late 80s
Erm, the 1800s. Speed typing is not my friend. (I suspect that some will find agreement to the original phrase, though.)
The disabled? The mentally ill (ignore questions of capacity for the moment)? If we discover tomorrow that alcoholism is genetically based, is that another protected class?
Maybe you mean something different by “equal protections” than I do, but why are these groups not covered by the 14th?
McDuff —
The question is, where will it end? Does the EPC trump every piece of civil rights litigation, making civil rights the exclusive province of the courts and not the legislature?
“Sorry, I’m completely out of time this morning.”
Because, I’m happy to say now, I woke up late.
Quoth Von: Incidentally, the oft-made comparison to African-American civil rights is horribly inapt. Such rights were provided for in the U.S. Constitution and its Amendments, and were therefore the lawful province of the Courts. With gay marriage, we’re talking about a truly radical, unanticipated, unprovided for change in the law of marriage.
I have to disagree with you here – the case for gay marriage is working from the same Constitutional basis as that for interracial marriage. The 14th amendment guarantees every US citizen the same rights. That was upheld as including Marriage rights in Loving v. Virginia. The same argument of yours I quoted about gay marriage could (and I expect almost certainly was) made about interracial marriages in the 1960s.
Quoth Anarch: Do you believe that the Civil Rights Act would have been passed had Brown not been decided? Had Brown been decided the other way?
On a side note, originally Brown was decided the other way, by a 6-3 margin. It was only after Chief Justice Warren read the majority decision that the reality of what he had chosen to support truly sank in, and he decided to change his vote. It was only when he was done persuading the other 5 justices to change their votes that we got the 9-0 decision in favor of Brown which was released to the public.
(Just an interesting historical anecdote I encountered recently, and thought I would share. ;>)
Coupla comments:
1. Von, you know very well that the EPC only reaches state action, while the Civil Rights laws are far broader. You also know that the EPC, like the rest of the bill of rights, is not self-executing. Gotta have the Tucker Act, section 1983, and the rest, to affirmatively assert civil rights.
2. The Loving opinion is very short, and very thin on the legalese. I really think everyone who reads this blog ought to take the 3 minutes required to read it. Really. Especially Part III. http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html Now tell me again how important it is that courts refrain from overruling statutes because they, the courts, think the statutes are unconstitutional. If we were forced to wait for legislatures, interracial marriage would still be illegal in some states.
[I know that some folks feel very strongly about the difference between classifications based on race and classifications based on sexual orientation. This is completely irrelevant to my point, and to the argument about whether a court can or should strike down statutes it finds unconstitutional. You want to make a merits argument, fine. But don’t go dressing it up as a separation of powers argument, unless you really want to go down that road: a court that cannot review whether a marriage license restriction based on the genders of the parties violates the EPC cannot review whether a marriage license restriction based on the races of the parties also violates the EPC].
3. Loving involved a criminal statute. The other way these cases come up is fairly simple. A state denies some right to one human being that it willingly grants to another. It provides a reason that the person denied the right thinks is unconstitutional. Human files a suit, and now the court has to decide whether or not the denial of the right, or benefit, is constitutional. The court does not get to duck because it doesn’t like the politics, or thinks that other advocates of the same position ought to be more patient, or not have wild parades, or support losing candidates, or wait for legislation. No, the court has to either say that the state’s conduct is consistent with the constitution, or strike it down. (Or find some kind of procedural dodge, like that the plaintiff is a non-custodial parent). Whine all you want about how you don’t like courts deciding cases, but that’s what they do. [The court can say that the state’s conduct is constitutional, and that if the plaintiff doesn’t like it, he/she ought to go to the legislature. That’s all very well, but is only an acceptable response when dealing with constitutional state actions.]
4. You’ll notice that the whole strict scrutiny/rational basis business is conspicuously absent from the text of the EPC. Indeed, it seems to me that the text more strongly supports a strict scrutiny standard. (Really more of an absolutre standard). I don’t have a problem with the current interpreative methodology, but folks shouldn’t be acting as if the Constitution mandates rational basis analysis, and that any time a court applies strict scrutiny it’s legislating from the bench.
If we were forced to wait for legislatures, interracial marriage would still be illegal in some states.
It was still in the Alabama state Constitution until 2000, IIRC. Near 30 years of an unforceable constitutional provision; I shudder to think what would have happened without Loving.
Perhaps people thought there were more important things to do in Alabama than fight a defunct piece of the state constitution.
Sebastian: Given that a) CNN reports that vote on the amendment was 59-41 (with, quoth the Grauniad, a majority of whites voting against the change) and that b) Alabama voted against changing the segregationist language in its state Constitution* in the most recent election, I find your implication to be touchingly naive.
* Yes, I know that there was a big hullaballoo about how the change would allow the Evil Trial Lawyers (hi, von!) to sue the state; I find those who feel that was the true motivating force to be touchingly naive as well.
CharlieCarp, with respect to comment 1, I don’t see your point. Jes asked if U.S. legislative bodies have acted in the past to protect civil rights; the answer is, yes, they have, and I provided examples. The question of a private right of action/state action/the 11th amendment issues that follow/etc. significantly increases the complexity level, and I’m trying to avoid doing that.
I do recommend that everyone read the Loving case, however.
Incidentally, I think CharlieCarp meant to direct y’all to the end of Part I, rather than Part III, of the Loving case. Among other things, there is no Part III of the Loving case, and Part II deals with the due process clause, not the equal protection clause.
Lots of things are still illegal in some states. For instance, while co-habitating with my girlfriend here in the late ’80s, I was in violation of a Florida state statute prohibiting “lewd and lascivious cohabitation”. von may correct me, but I think it’s much, much easier to get laws put on the books than to remove them. I’ve got no suggestions on how to remedy this, though.
Lots of things are still illegal in some states.
I am sorry, I have to link to “dumblaws” again, since it is the perfect illustration.
As you can see from the international section the problem is widely spread 😉
Oops, forgot an = in the html. But “dumblaws” should work.
Indiana:
Always wondered about that one. Last time I was there, you still couldn’t buy cold beer at the grocery store. They did sell it warm, I think, but who drinks warm beer?
Slarti, Indiana has cross-bred the blue laws of Connecticut and Kentucky, and has come up with laws that are truly, umm, unique. The no cold beer in supermarket law is still in effect as is the no liquor on Sunday (save at restaurants) law — and coming from Chicago, where I found the 11 a.m. on Sunday law occasionally overbearing, this latter restriction required significant adjustment.
Let’s back up. First of all, under current case law, the equal protection clause applies to any kind of government discrimination you can think of. There are equal protection cases where the class claiming discrimination against people with signs painted onto their trucks, people who got their eyeglass prescriptions before or after a certain date…all sorts of those things.
But obviously, some of these “discriminations” are justified, harmless, even necessary if the government is going to work properly. Some are not.
The level of scrutiny is asking: how suspicious should we be about a certain type of discrimination?
In answering this question, the court looks to these factors:
1) Is there a history of wrongful discrimination against people like the appellant?
2) Is this discrimination based on an immutable characteristic, or a characteristic that a person can change?
3) If it is a characteristic they can change, should they be forced to change it to avoid discrimination, or is a characteristic so fundamental to the identity that it’s not legitimate for the government to try to make them change it?
4) Is the discrimination against members of a “discrete and insular minority”, such that they cannot count on the political process to protect them?
5) Is the discrimination based on a “real difference” that the law is justified in recognizing?
(#5 should arguably come into play only when applying the appropriate level of scrutiny, not deciding on the appropriate level of scrutiny. But there you are.)
Race and nationality is the easiest case: the longest, worst history of wrongful discrimination; the most immutable characteristic; a “discrete and insular” minority excluded from the political process for centuries; not a real difference at all. So that gets strict scrutiny.
But it’s not only race that gets heightened scrutiny. Religion, gender, immigration status to some extent, whether you’re a legitimate child or a bastard–all of these get heightened scrutiny in some form, even though religion is not an immutable characteristic, and women are actually a majority and aren’t insular at all, and immigration status is a real difference and you have some power to change it. Except religion, which has an additional layer of protection because of the first amendment, most of these forms of discrimination do not get the nearly-fatal “strict scrutiny” that race and nationality get, where the state must show that a law is necessary to a compelling state interest. Nor do they get rational basis scrutiny, where the state must show that a law is reasonably related to a legitimate state interest. Instead they get “intermediate scrutiny”: the state must prove that the discrimination is substantially related to an important government interest.
There is a long, long history of discrimination against people for their sexual orientation. I assume I don’t need to argue this point here.
The discrimination is based on a characteristic that is probably immutable. Less so than race or gender, perhaps, but certainly much more so than religion.
Now, even if sexual orientation is not something you can make a choice about, a gay person’s sexual behavior is–he could be celibate, he could pretend to be straight. But I would argue that it is so fundamental to the identity that a person should not be compelled to change it. The person as you love is as fundamental to who you are as the God you pray to. In my case, and many cases, it’s more fundamental.
A discrete and insular minority that the political process fails? Yes. Absolutely. Much more insular, and more of a minority, than women are, and today failed worse by the political process than perhaps any other group.
A “real difference”? More so than race & legitimacy? Yeah, probably so. But probably less so than gender. Certainly less so than alcoholism, mental illness, mental retardation, disability, age, past criminal behavior (that’s how you distinguish those cases–you said it yourself: capacity.) Less so than immigration status, Perhaps less so than religion.
So. I think there is an excellent case for intermediate scrutiny for sexual orientation. Better, actually, than the case for intermediate scrutiny for gender.
And I think it is stupid and ridiculous to treat discrimination against gay people as no more suspicious than discrimination against people who want to advertise other people’s business on their trucks instead of their own, or got their Medicare coverage after a certain date, or…those are the examples from the famous cases but you could pick anything. Any itemized tax deduction you can think of discriminates against people ineligible for that deduction.
Now, as to your slippery slope argument: you could distinguish it easily enough on the grounds of capacity. But I’m not sure you should. There is a history of discrimination against the mentally ill, the handicapped, that goes far beyond what was justified by the difference in capacity. States once had laws requiring sterilization–back when this meant castration or hysterectomy, not a relatively innocuois operation where one tube or another is tied. Today we would never do such a thing, and I’m not sure there’s a judge in the country who would allow it, but perhaps we should be a little suspicious of discrimination against such groups. The Court itself was suspicious, in Cleburn–they said they were applying rational basis scrutiny, and then proceeded not to. A law that says people with a certain gene, or with a history of mental illness or alcoholism in their family, had to list their names on the internet, or could not get government jobs–I think the court should be suspicious of such a law. Whether that’s better done by applying rational basis with teeth, or by putting these groups in the category of intermediate scrutiny, I don’t know.
But because there is a real difference in capacity in these cases, whatever the test, many more laws would pass it. A law allowing involuntary treatment of the mentally ill, or allowing family members to make financial decisions for someone found to be incompetent, or deciding not to hire someone for a job because they are a non-recovered alcoholic or have an untreated mental illness, or prohibiting the execution of the insane and the mentally retarded….these all pass intermediate scrutiny pretty easily, in my eyes. Whereas any kind of discrimination against gay people I can think of–adoption, marriage, employment–fails with flying colors.
side note:
they use very similar criteria, quote the same footnote(#4) to the same case (Carolene Products) in asylum law, to decide whether an applicant has been persecuted for belonging to a “particular social group” deserving of protection.
Immigration judges–a group not noted for their liberal activism–have decided that sexual orientation qualifies. Does anyone here disagree?
(Oddly enough, they’ve also decided that gender does not qualify, but I think they’re wrong about that, and it’s a story for another time.)
Re: Loving, sorry about the misprint. I meant part II, the DPC section, because it is a fine and uplifting statement of the law. And a statement that anyone who contends against the judicial power to review statutes for compliance with the Constitution (or a state constitution) has to say they would be happy to see excised.
Von, I was responding to yours of 2:44: “Does the EPC trump every piece of civil rights litigation, making civil rights the exclusive province of the courts and not the legislature?”
My answer is that both have a role to play, but that one should not take the existence of statutes as conclusive evidence of the reach of the Constitution.
I have no quibble with Katherine’s post, but to reiterate that I don’t see anything in the Constitution that says that some “protection of the laws” is be more equal than others. But then I lean towards Mr. Justice Black’s position on the First Amendment, and other absolutisms where the rights of “any person” vis-a-vis the state are concerned.
It’s funny you mention Justice Black, who wrote these words:
“It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”
It’s the first appearance of “strict scrutiny” for racial classifications in the case law. It appears in Korematsu, of all places.
Your view of equal protection sounds closes to Stevens’, that the categories of scrutiny are not justified at all by the text. I don’t know. As they exist now, they are deeply flawed. But I think having some system of sorting through these cases can be a guide to better decisions, based more on justice and less on the judges’ personal feelings about the group affected.
I don’t know. I used to be a big fan of open ended tests like Matthews v. Eldridge. But there’s something to be said for bright line rules, or at least brighter-line rules.
First, Katherine —
Thanks very much for your cogent post on the EPC. I was getting pretty damn sloppy in my shorthand, and probably introducing all kinds of confusion. I agree — because it’s damn easy to — that the law of the EPC is an absolute mess. I’d only note that it’s a mess because the EPC, on its face, is written so damn broadly that its virtually impossible to apply broadly and literally (the way I like to read the Constitution; yes, Justice Black fan here as well). We’d be banning all kinds of state action — you (state government) can’t favor that men’s professional basketball team by helping them build a stadium because you’re not giving that female basketball team equal (economic) protection under your laws … or maybe the football team … or maybe (et al.) …