Come now, Mr. Drum. You can’t be serious:
The American people need to be reminded of the source of their rights and persuaded that limited government is good; that the principles of the Constitution — which are the natural-law principles of the Declaration of Independence — are timeless, not time-bound; that without those principles, the noble ends set forth in the Constitution’s preamble can never be achieved.
(Thomas Krannawitter, writing in the L.A. Times in praise of Justice Clarence Thomas.)
Coming from a priest or a preacher, this would be fine. Coming from a Supreme Court justice who’s supposed to interpret the constitution on secular grounds, it’s an embarrassment.
(Mr. Drum, critizing Mr. Krannawitter in the Washington Monthly.)
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
(The Declaration of Independence.)
The United States of America was constituted on the dream that there are self-evident, inalienable rights — lines which no man (personally, or in guise of government) may cross. Whether you think those rights to have been expressly endowed by God, given by nature, or merely made self-evident through reason — well, that’s your choice. But it’s no knock against Justice Thomas for recognizing that the rights exist as stars in our "Constitutional constellation" (as Justice Jackson once memorably put it). On this sacred matter, the State is a Church.
UPDATE: I find much to endorse in Pejman’s take on the above Drum post. The notion that "natural" or "self-evident" rights (such as those expressed so eloquently in the Declaration of Independence, above) are part and parcel of the Constitution is hardly new or shocking. And the natural right view has a storied and not wholly illiberal history — See Brown v. The Board of Education, for instance.
I mostly agree with this, von, but as today’s designated ignoramus, it’s incumbent on me to point out that you’ve quoted the Declaration of Independence, which is a separate document from the Constitution.
Is it a Supreme Court Justice’s place to “remind” people of where their rights come from? Isn’t that a bit more preaching than the job decription suggests is appropriate?
I mostly agree with this, von, but as today’s designated ignoramus, it’s incumbent on me to point out that you’ve quoted the Declaration of Independence, which is a separate document from the Constitution.
Slarti, I id’d the Declaration as the source, so I won’t back down on this one. If you’re making the meta-point that the Declaration ain’t a Constitutional document, well then, I disagree. One cannot read the Constitution without reading it in view of the Declaration — the true founding document of this nation.
Is it a Supreme Court Justice’s place to “remind” people of where their rights come from? Isn’t that a bit more preaching than the job decription suggests is appropriate?
Absolutely it is. Think of the truly stirring Supreme Court opinions — like Brown v. Board of Education (which was, incidentally, founded on a notion of inalienable rights). They remind us that the rights written down in the Constitution did not merely appear through happenstance or the stroke of the pen; but, rather, these are rights that all humankind has — and we are fortunate enough in this day and age to live under a government that (mostly) respects them.
“One cannot read the Constitution without reading it in view of the Declaration — the true founding document of this nation.”
Or, to descent to the metaphorical, the Declaration is the “dream” referenced in the following passage (reprinted from above):
“The United States of America was constituted on the dream that ….”
In the snippage of what Drum was responding to: “Thomas is one of the few jurists today, conservative or otherwise, who understands and defends the principle that our rights come not from government but from a “creator” and “the laws of nature and of nature’s God,” as our Declaration of Independence says, and that the purpose and power of government should therefore be limited to protecting our natural, God-given rights.”
Don’t forget the rest of the Declaration sentence: “…that governments are instituted among men to secure these rights, deriving their just powers from the consent of the governed.”
The right to life, liberty, and the pursuit of happiness may be God-given; the powers to secure those rights belong to the people.
What rilkefan said. Drum is quite obviously referring to that paragraph, and he’s right. “The purpose and power of government should therefore be limited to protecting our natural, God-given rights?” So presumably the preamble to the Declararation of Independence trumps the commerce clause and the ability to provide for the general welfare? And how, exactly, is a judge to determine which rights are natural and God-given and which are not?
Also, the idea that Clarence “Unitary Executive” Thomas–the one who thinks the President can imprison anyone he wants for as long he wants if he calls them an enemy combatant–is the only real defender of natural rights? Is downright comical.
The notion of natural rights as expressed by Jefferson in the DOI is a classic example of sloppy thinking. It’s no different than saying, ‘it’s true because…well, it’s true.’
And, in Jefferson’s defense, Jefferson pretty much admitted so. In a letter to Adams, Jefferson claimed the DOI reflected the current mood of the populace–at that time–and not some loftier ideal.
von: Told you it was my turn in the barrel. I don’t disagree; I was just pointing out that this is going to be a bone of contention.
I’ll go a step further: I propose that the rights to life, liberty, etc are given by our mutual agreement that they’re God-given (or otherwise inalienable). These are our rights because we say so. Whether they’re God-given or not is immaterial; the minute enough of us naysay these rights, it’ll be as if they never existed.
Rilkefan, that’s not a very unusual view — although most lawyers would make the point that any right should be linked to the actual language in the Constitution.
Vapor, the rights belong to the people; power to secure the rights is delagated to the government. But for that quibble, I agrre.
“Thomas is one of the few jurists today, conservative or otherwise, who understands and defends the principle that our rights come not from government but from a “creator” and “the laws of nature and of nature’s God,” as our Declaration of Independence says, and that the purpose and power of government should therefore be limited to protecting our natural, God-given rights.”
The ‘and’ is of course the big deal. First I’m not sure this is an accurate representation of Thomas’ views, the fact that it is mentioned by an admirer is evidence but not completely deciding. I’ve never read anything by Thomas that would take it that far, though there are a wealth of Thomas opinions that I have not read.
Furthermore even if that were an accurate representation, there are non-shocking interpretations of the phrase “and that the purpose and power of government should therefore be limited to protecting our natural, God-given rights.” Is this a statement of his understanding of Constitutional jurisprudence, or a more philosophical understanding of how government would ideally work? The latter would be an explanation from a “God-given rights” libertarian type and would not be all that shocking.
In fact I am sure that the summary of Thomas’ views is not correct in other particulars. It suggests that he believes that all God-given rights are protected by the Constitution. Thomas definitely does not believe that.
[Snide lawyer mode, on.]
What rilkefan said. Drum is quite obviously referring to that paragraph, and he’s right. “The purpose and power of government should therefore be limited to protecting our natural, God-given rights?”
Katherine, please. If Drum intended a narrow criticism of a single line in the Krannewitter article, as you claim, he sure went about it a funny way — by, for instance, quoting two full paragraphs of the article and generally discussing the entire article. Your defense by revision, though admirable, is unconvincing.
So presumably the preamble to the Declararation of Independence trumps the commerce clause and the ability to provide for the general welfare? And how, exactly, is a judge to determine which rights are natural and God-given and which are not?
If you read the article (or even the line that you quote), you’ll see that Krannewitter is discussing government generally, and not the particular government enshrined in the Constitution. Could he have expressed the distinction better? Sure. But that doesn’t mean the distinction ain’t there.
[Snide lawyer mode, off]
My personal view is that, in giving effect to the Constitutional provisions, you keep in mind the purpose of the document — a purpose that is reflected, at least in rough form, in the Declaration. Indeed, although I agree to a original-textualist interpretation of the Constitution, part of any process of interpretation is determining what the document is, and how the document should be read. Even the plain language of a document is susceptible to multiple interpretations.* The Declaration tells us, in part, how the Constitution should be read.
Jadegold, a cite in support of your relatively-radical view would be appreciated.
von
*See, e.g., nearly every patent ever litigated — and most disputed contracts, too.
Von, please, are you seriously criticizing me because I quoted two paragraphs instead of one? The first paragraph is the critical one and makes the point that (a) our rights come from God, not ourselves, and (b) government power should be limited to protecting these God-granted rights. The second quoted paragraph is just a further confirmation of all this.
Now, I don’t know if this accuractely reflect Thomas’s jurisprudence either, but if it does, it’s an embarrassment.
I’d submit that a) is unknowable, yet irrelevant to b).
Was framing my thoughts for comment, and saw Slarti doing a very good job already. Saying, for instance, that the Iraqis have a “natural right” to a free press does little to help them get one, and I think increases the difficulty of keeping it after it is achieved.
Does this make me a “contractarian”? The important interest of each citizen in influencing the opinions of his fellows is undercut by anything that disguises the provisional nature of contractural rights.
You know, I have no idea what y’all are talking about. Will the real enemy of the Constitution please stand up, so I can fulfill my oath and duty to defend it against you?
🙂
Seriously, can someone sum up what this argument is about in layman’s terms?
Being the ideal layman (in other words, speaking from near-complete ignorance on the subject at hand) I’m guessing it’s whether Justice Thomas is a doofus for saying the government’s sole function is protecting the rights of its citizens.
Crooked Timber
Kieran Healy jumps in with a related post that I found disturbing in that I felt it gave short schrift to a conservative viewpoint. “Human society is an artifact, period, conversation over.” is not a position I am completely comfortable with. I want a second opinion. The update helped a little.
Kevin —
Von, please, are you seriously criticizing me because I quoted two paragraphs instead of one?
No. I’m criticizing your post* because it’s wrong. Incidentally, it’s your post’s assumption (not mine) that Mr. Krannewitter’s article reflects Justice Thomas’s views — and renders Thomas an “embarrassment.”
If you intended to take issue solely with a single, inartfully-put line in Mr. Krannewitter’s article — as you now suggest was your intent — have at it. But that’d be a far different post from the post you drafted.
von
*It’s a small point (and frequently lost in blog-putes), but I’m criticizing your post, not “you.”
Damn, I’m going to have to remember that one.
Crooked Timber
Sorry for the bad link
” government’s sole function is protecting the rights of its citizens.”
I thought it was about which rights, whether the only “protected rights” are those expressly written in the Constitution and found in Natural Law.
I also realize that this is an area where professionals have labored for centuries, but in humility, I suspect I need to have an opinion as a citizen, and humbly request guidance and correction.
IANAL, but Publius is and he kicks the ever-loving stuffing out of Thomas here. Drum’s point is less valid, IMHO. I think there is a tension between natural rights derived from reason and those derived from an imaginary man in the sky, but it’s no big deal at the end of the day.
Didn’t Margaret Thatcher once say that there is no such thing as society?
That’s crazy talk, man!
I’m guessing it’s whether Justice Thomas is a doofus for saying the government’s sole function is protecting the rights of its citizens
Hm. Well, I support everyone’s right to call any public official, elected or appointed, a doofus, so, carry on.
“It’s a small point (and frequently lost in blog-putes), but I’m criticizing your post, not ‘you.'”
It’s an even smaller point, but the practice of endlessly creating new words by merging “blog” into a perfectly fine english words strikes me as only a half step above using IM abbreviations.
Slarti–sort of.
The reasons liberal distrust natural law arguments are:
1) they were used by the Supreme Court to strike down all economic legislation, for years and years and years. Krannawitter sounds like he wants to go back to the mystical magical world of Lochner, though he won’t come out and say it: “Thomas’ natural-law jurisprudence represents the greatest threat to the liberal desire to replace limited, constitutional government with a regulatory-welfare state of unlimited powers.”
and von–sure, read the text in light of the Declaration of Independence, but also read it in light of the failure of the Articles of Confederation.
2) if rights come from God, they are often seen as guarding freedom OF religion but not freedom from religion. Thomas believes the Establishment clause does not deal with a fundamental right, for example, and does not think it applies to the states. I find this very dangerous and very disturbing.
3) Also, the argument that the Constitution has its basis in “natural law” opens you up to the idea if something is against the law of nature or the law of God, it can receive no Constitutional protection.
I am thinking of gay rights here–sodomy if you prefer.
4) another problem with this article is that it completely mischaracterizes liberal & legal realist arguments.
For example, take this quote from William Brennan:
“We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
Here is how Kranawritter quotes Brennan:
“By 1986, liberal Justice William Brennan could easily dismiss the Constitution out of hand because it belonged “to a world that is dead and gone.””
This makes one distrust everything he writes.
IAANAL, but I decided to go read what publius had to say that was crap-kicking. This caught my eye:
I interpret this to mean that publius’ definition of “good” decisions are those that are politically agreeable to him, which places his analysis at the other end of the spectrum from “objective”. Also, he’s noted that he regards Thomas as a “brilliant jurist”, which, hey, I thought the official word was that Thomas is an idiot.
Clearly, you didn’t read his post very carefully, Slart.
Katherine: I was under the impression that economic legislation was struck down not on the basis of natural law but on the basis of the enumerated powers doctrine: the idea that the Constitution gives the federal government certain narrowly described powers and *those are all it has*. So if the feds try and do something that isn’t obviously within the narrowly construed scope of those powers, it’s unconstitutional on its face. The Constitution was, in particular, not intended to give the federal government any sort of broad plenary regulatory powers, and should not be so interpreted.
For instance, the interstate commerce clause (according to this doctrine, anyway) cannot logically be construed to give the feds plenary power to regulate the economy, because if the Framers had meant it that way they would have said something like “the Congress shall have power to regulate all economic activity within and among the several States”, and they didn’t.
I agree, BTW, that Krannawitter is incoherent and uses quotations misleadingly. My point is just that it’s not necessary to appeal to God or nature to defend the view that the Constitution strictly circumscribes federal powers.
Not really. He’s saying that Thomas and Scalia are not unprincipled, but they are substantively wrong–legally as well as factually:
“Remember that sound legal analysis can usually be applied to reach mutually opposing conclusions depending on your starting premises and assumptions (and that’s where political preferences often enter the process). You can have a principled castle built upon a pile of crap (e.g., originalism – it’s principled, coherent, and premised upon crap).”
There is nothing in the Constitution itself and very little in the history of its drafting or ratification that mandates an “originalist” theory of interpretation. The arguments made for originalism are mainly consequentialist. So it’s legitimate to argue that the consequences of a judges’ originalist opinions would actually be quite awful.
If you think the Constitution is there to protect people’s rights while allowing the effective government through the will of the majority–and most people agree on that–and you think a judges’ opinions would destroy both individual rights and effective government through the will of the majority, well, that’s pretty relevant.
I also disagree with him about Scalia and Thomas’ basic integrity. They are less results driven than O’Connor, I think, and probably Kennedy too but they are pretty freaking results driven. In Scalia’s case, I can think of opinions where he voted against his personal preferences, but I can also think of opinions where he blatantly mischaracterizes facts or precedent, and he still has not figured out whether he’s an “original intent” or “original meaning” originalist. In Thomas’ case, I actually can’t think of an opinion where he voted against his personal preferences, though they probably do exist.
I think Thomas and Scalia’s opinions are more likely to use defensible legal reasoning than O’Connor’s or Kennedy’s, but I also think they are more likely to reach the wrong legal result (and most likely of all to reach the wrong political result.)
I’m a Souter girl, myself.
Nicholas–that explains the Commerce Clause cases but not the Due Process Clause cases striking down state regulations. Lochner is the most famous of these, by far. Also, the Commerce Clause cases are pretty ridiculous even if you believe in strong limits on the enumerated powers–Hammer v. Dagenheart is in a way a much worse decision than Lochner.
Clearly. There’s no way that he could have meant what I thought he said.
I thought Justice Thomas’ little concurrence in today’s standing opinion was pretty good. I don’t know who calls him an “idiot,” but I think the more usual knock is that he’s got some ideas that some people really strongly disagree with. One can shorten that to “idiot” for purposes of argument, but then it’s hardly fair that say that the critic isn’t giving the Justice a fair shake.
On the whole natural rights thing, it would be pretty embarrassing if a Justice was going around saying that courts should only protect natural rights with divine sanction. Did the Statute of Frauds [which deals with when oral contracts may be enforced] come down from a mountaintop engraved on stone tablets? If not, does a Court have no business applying it?
It’s an even smaller point, but the practice of endlessly creating new words by merging “blog” into a perfectly fine english words strikes me as only a half step above using IM abbreviations.
You blo-point is taken, Doh. Sort of.
I think you could fairly call Thomas an idiot in the sense that if everyone on the bench thought like him, we’d have a hell of a mess on our hands. So his jurisprudence is wholly impractical. Again, IANAFL, but I think that Supreme Court justices do have an obligation to take the real world into account.
Krannawitter sounds like he wants to go back to the mystical magical world of Lochner, though he won’t come out and say it:
Not if he understands the theory behind Lochner (and he probably doesn’t). If you accept Lochner, you implicitly accept the theoretical underpinings of Griswald, Roe, and Lawrence.
and von–sure, read the text in light of the Declaration of Independence, but also read it in light of the failure of the Articles of Confederation.
Sure. And read it in light of the Northwest Ordindance and Blackstone, because those were both points of reference for the founders. I stay pretty close and tight to the Constitutional language, myself, but that don’t mean I read the language in a vaccuum.
The arguments made for originalism are mainly consequentialist.
What about the argument that originalism reflects the way the law works — i.e., argument from history (precedent) and the notion that documents (e.g., contracts) are generally interpreted to effect the intent of the drafters — if that is possible. (In common law countries, at least; and, no, I’m not an “originalist” in the narrow sense.)
How do these various judges feel about stare decisis?
Did the Statute of Frauds [which deals with when oral contracts may be enforced] come down from a mountaintop engraved on stone tablets?
Yes. And the Rule Against Perpetuities is oft-forgotten Commandment Number 11. (Intriguingly, the backside of the Tablet-In-Question contains an extended hypothetical of the fertile octogenarian — which, apparently, wasn’t so hypothetical in those days.)
[/Lawyer nerd jokes.]
I believe Thomas and Scalia both say that stare decisis should not have any weight in Constitutional cases.
Though IIRC Scalia has said that he would uphold Bolling v. Sharpe because of stare decisis, even though he spends a very long time making fun of O’Connor for using stare decisis as an argument for not overturning Roe in Planned Parenthood v. Casey.
To be fair to them, it’s very hard to figure out a theory about which incorrect constitutional decisions should remain, and which are so bad that they must be overturned right away. It’s about impossible not to let considerations about the practical effects of such decisions influence your view.
But. It is still a very dangerous idea.
“they were used by the Supreme Court to strike down all economic legislation, for years and years and years. Krannawitter sounds like he wants to go back to the mystical magical world of Lochner, though he won’t come out and say it”
And since the most obvious modern progeny is Griswold which you strongly support, it is tough to tell which direction you are arguing.
Hey stare decisis is another great example for my latest post. Liberals believe in stare decisis to protect their cases but feel free to overrule ones they don’t like. Conservatives of course believe that you can’t rely on stare decisis to protect silly rulings like Roe, but that they obviously protect more important and correct rulings. And the basic method for discerning between good stare decisis and bad appears to be “I like/don’t like the case in question”. Hooray for objective analysis.
Okay, I just read the concurrence in Casey and I’m wrong about Scalia. He is just objecting to:
1) the idea that stare decisis applies to the “central holding of Roe” but leaves the court perfectly free to change other parts of Roe.
2) the idea that stare decisis applies no matter how wrong an opinion is.
3) the idea that stare decisis has particular force with regard to Roe because the court has resolved a very controversial issue, and to overturn that ruling in the face of political pressure would undercut the court’s legitimacy.
(and if you read O’Connor’s opinion, he really has a point.)
So Scalia believes in stare decisis in constitutional cases, but not when he thinks the law is really out of wack with the original text–which he thinks a whole lot of the time. And according to Scalia, Thomas would completely jettison stare decisis:
“Specifically, Scalia told Foskett that Thomas “doesn’t believe in stare decisis, period.” Clarifying his remark, Scalia added that “if a constitutional line of authority is wrong, he would say let’s get it right. I wouldn’t do that.'”
a cite in support of your relatively-radical view would be appreciated.
John Adams, in 1822, on the DOI:
Jefferson responds:
One also has to realize the DOI underwent tortuous review and editing by the Congress; as such, it was certainly subject to the political whims and posturing of the time.
“Liberals believe in stare decisis to protect their cases but feel free to overrule ones they don’t like. Conservatives of course believe that you can’t rely on stare decisis to protect silly rulings like Roe, but that they obviously protect more important and correct rulings.”
I could just as easily say conservatives believe in stare decisis to protect decisions they like and overrule decisions they don’t, while liberals realize that you can’t use stare decisis to protect silly rulings, but it obviously protects more imporptant and correct rulings. Do you realize that? I’m not sure if you do or not.
Even if you do realize it, you’ve got it wrong. Because if you think a ruling is “correct”, of course you uphold it, but that isn’t stare decisis–stare decisis is about not overturning precedent, not because the precedent is correct, but for continuity’s sake.
And I’m not sure what you mean about a ruling’s “importance” being a good reason not to overturn it for reasons of stare decisis. If you mean, it underlies a whole section of the case law and we’d have to rewrite all of that from scratch, then yes, that’s an argument for stare decisis. But if you mean, this decision gets an important constitutional question wrong or has important practical effects, that’s a very bad argument for stare decesis. I mean, Roe surely is “important.” Plessy surely was “important.” Dredd Scott surely was “important.” That’s an argument for overturning them, not against it.
As for Griswold, I added a post to the judicial activism thread today. If you want to discuss the issue further please give answers to some of the questions there. But I’m uninterested in a further discussion where only one side has to defend her views.
Katherine: good point on Lochner and due process. Though even there I’d say that one need not necessarily refer to natural rights to justify the decision, and certainly not to God-given rights; you also have the sanctity of traditional institutions of property and contract as embedded in common law, and as such unenumerated but still recognized via the Ninth Amendment. But the line here blurs, perhaps.
And I think Hammer v. Dagenhart was (like Lochner) rightly decided, so evidently we have different ideas of what a narrow construction means. But then I’m a hardcore laissez-faire libertarian, so we’re unlikely to agree much on any such issues. To give you an idea of what I think a legally proper application of the interstate commerce power would be, I’d cite the recent wine-shipping case– forget the name– clearly IMHO the feds can strike down state laws that impair interstate commerce as the wine shipping laws do.
I’m somewhat surprised that you took my most recent post as an attack on liberals vis-a-vis stare decisis. To be absolutely clear I’m suggesting that stare decisis is pretty much a political football used to protect sketchy decisions that people like and abandoned when it is used to defend cases that they don’t like. It appears it has gotten to the point where you are so eager to find offense that you will do so no matter what I actually write.
debold?
Just now, in stumbling around on the internet, I came across what’s supposed to be the first draft of the DOI, as drawn up by Jefferson. I have no idea whether this is accurate or not, though.
Actually, I really wasn’t sure what your point was. You did use language that portrayed liberals’ arguments as completely arbitrary and conservatives’ language as completely not arbitrary.
Since you have said, over and over and over again, without ever budging or apologizing, that people who disagree with you about certain Constitutional decisions are not basing their decisions on any good faith interpretation of the Constitution but are simply making them up, I thought you might be saying it one more time. But I wasn’t sure–you could also have been arguing that both sides were making an arbitrary decision about how to apply stare decisis.
When you argue repeatedly and without apology “no offense or disrespect, but your views about the Constitution are unprincipled, stupid, and arbitrary, and you really are just using them to push your political agenda”–I get offended. Just as I get would get offended if people told me “no offense but you’re really dumb” or “no offense but you’re really ugly.” Especially after I have provided far more detailed justification of my views, and answered more of your questions about them, than you ever have of yours.
“Actually, I really wasn’t sure what your point was. You did use language that portrayed liberals’ arguments as completely arbitrary and conservatives’ language as completely not arbitrary.”
FWIW, I thought SH was clearly saying both sides use s.d. in a completely result-driven way.
well, I get that now.
Whatever. Basically Sebastian’s driven me up a tree in these arguments because I’ve let him ask all the questions, even though there are no conceivable answers I could give that he would find acceptable. Which was stupid of me–I should have asked some questions of my own instead or in addition, because there is no way to interpret the constitution that leaves you invulnerable to ambiguities and slippery slope arguments and lousy judges imposing their political views.
That is the approach I will take from now on. Look at how I didn’t rise to the bait about Griswold and Lochner.
Since you’re in a good mood, Katherine, did you read today’s WSJ?
Wow, this is quite a thread!
Von: I’m still not sure I’m getting it. Are you saying (a) that Krannawitter is full of shit and has misrepresented Thomas’ views, and I fell for it, or (b) that Krannawitter is right but this is a perfectly legitimate way to interpret the constitution. If it’s (a), that’s one thing, but if it’s (b) then I think I’ll stick to my guns on this. That initial paragraph is just scary.
my two bits for the day:
what are the natural rights? [exhaustive list please]
what do the natural rights tell us about the limits of state power on liberty? and about the obligation of the state to provide benefits equally?
[or, to return to the details of the long-running dispute between Sebastian and Katherine, does a state have the power to criminalize abortion and sodomy? once a state provides benefits to married couples, may the state limit who may get married?]
Francis
“once a state provides benefits to married couples, may the state limit who may get married”
This question is both good and bad. It is the key question, but it is revealing in what it does not say. The answer to the second clause must be ‘yes’. If the state grants benefits to some particular group and not to another particular group, it must necessarily define what constitutes the group. You suggest that the answer is no, but I don’t think you really mean it. I think you really mean: ‘yes, but it must of course include homosexuals in the definition of acceptable marriages’ as opposed to ‘no, the state has no right to define marriage therefore anyone at anytime for any reason can declare that they are married’.
Sebastian: The answer to the second clause must be ‘yes’. If the state grants benefits to some particular group and not to another particular group, it must necessarily define what constitutes the group.
Indeed.
So, you disagree with Loving vs. Virginia? You feel that the state of Virginia should have been allowed to continue to refuse to recognize interracial couples as legally married, just as they should now be allowed to refuse to recognize same-sex couples as legally married.
Logically, if a state is allowed to define the groups to whom it will award the benefits of marriage, and any pesky restriction on the state’s right to define amounts to “therefore anyone at anytime for any reason can declare that they are married” you would support a state’s right to define that non-Christians can’t get married: that racially-mixed couples can’t get married: that redheaded people can’t get married: that left-handers can’t get married: that people who have a blog can’t get married: that anyone with the initials SH can’t get married…. the list of definable groups is virtually endless, isn’t it.
Alternatively, if the state agrees to award benefits to any two people who enter into a marriage contract together, it could be argued (and was successfully argued in Loving v. Virginia) that the state has no right to decide that two people of legal age to get married shan’t be allowed to.
thought foul, Sebastian. i posted the question in pure innocence, a tabula rasa, my mind awhirl with . . .
[umm, never mind {but can anyone complete the Blazing Saddles quote?}]
i can sense some of Katherine’s frustration; not only are you committing a thought foul, you are stretching my question from what i asked to what you want to answer.
here’s my view: I believe that states, as governmental agencies of general jurisdiction with broad police (as in polis — the polity) has the power to promote marriage. I believe that a state can, but is not required, to provide a series of benefits to individuals who assert that they are married. I believe that a state has the power to impose CERTAIN limitations on who may claim married status — like denying it to minors and incompetents and non-humans.
but i think the interesting question remains: once the state decides, in the exercise of its police power, to regulate marriage, what federal constitutional limits on that regulation exist. I think that the Equal Protection clause does impose limits.
Now it gets harder — let’s say we can agree that an originalist interpretation of the EP clause would limit state power to regulate marriage. (For example, had the 14th Amendment Founders considered it, the EP clause would prevent a state from barring a marriage between Catholics and Protestants.)
Now, very few would argue that the original Intent of the EP clause was to force a state to recognize state marriage. homosexuality was, after all, the love that dared not speak its name.
but here’s the hard question for originalists: assuming, arguendo, that an orginal construction of the EP clause would limit state power to regulate marriage (in, say, the context of religion), should the EP clause NOW be applied to limit state power to regulate marriage between same sex couples?
this is not just posed to Sebastian. Von and non-lawyers are encouraged to jump in.
Francis
“assuming, arguendo, that an orginal construction of the EP clause would limit state power to regulate marriage (in, say, the context of religion), should the EP clause NOW be applied to limit state power to regulate marriage between same sex couples?”
No it should not. If you want to expand the definition of the word ‘marriage’ to include two people of the same sex, you ought to go through the proper democratic channels. It isn’t a matter of discriminating against two people of the same sex. It isn’t a matter of denying gay people the right to marry. (And I would like to remind that I am one of those gay people, though unfortunately at the moment I have no one whom I would be getting married to) It is a matter of changing the idea of marriage. It can be done. Just do it throught the proper legislative channels or through the Constitutional amendment process.
“Since you’re in a good mood, Katherine, did you read today’s WSJ?”
Heh. That was deserved. No, I didn’t.
One of the reason I get so cranky on these threads is that I have made these arguments with the very same people at very great length, they’ve even conceded some points, and then a month later it’s like the whole thing never happened.
So here are the relevant arguments about gay marriage from a thread just last week.
“The civil rights cases argue very strongly against these specific arguments about gay marriage:
1. the 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.)”
“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.”
Finally, the idea that changing the definition of marriage can simply never be done by judges is one of the very silliest, and Sebastian is too smart to be making it.
Loving involved criminal penalties, not the civil laws about what did and did not consist of a marriage. But. Does anyone here think that the outcome would have or should have been different if the law had said “Marriage in Virginia shall consist of the legal union of two persons of the same race”? Would that be discrimination? (hint: yes.) Would it have been illegitimate for the Supreme Court to strike down that law? (hint: no.)
Sorry for being away. Big (and some medium) business doesn’t defend itself, you know.
First, thanks to Jadegold for the cites. I think you’re reading far too much into two passages you cite. More importantly perhaps, it doesn’t really matter whether Jefferson believed in the Declaration. (a) It’s a negotiated document and (b) once a document written, it what it is — all the intent in the world doesn’t change what’s printed on the page. Jefferson coulda written the damn thing drunk; once the Declaration was executed, its importance was established.
Kevin — Two responses to your two options.
(a) that Krannawitter is full of shit and has misrepresented Thomas’ views, and I fell for it,
Krannawitter ain’t a model of clarity; certainly, the line that you’ve focused on here can be read in two ways — one that’s frighteningly wrong, and one that’s merely wrong. However it’s read, however, that single line probably doesn’t reflect any thinking Judge’s view of the Constitution (a category into which Thomas falls — accepting, of course, that you may have a different view).
or (b) that Krannawitter is right but this is a perfectly legitimate way to interpret the constitution.
This elides the question in my view. Your post’s criticism was foremost of Thomas, not Krannawitter, and it was based upon the fact that Thomas supposedly interpreted the Constitution on less-than-secular grounds (Natural Rights and the like). At least, that’s how I read your brief post — and, though I may have misread you, I note that at least Pejman came to the same conclusion.
My point, perhaps obscurely expressed above, is that it’s perfectly legitimate to interpret the Constitution as providing for sacred or natural rights — rights that do not exist merely because someone decided to write them down. Thomas fits into that tradition (as do I, albeit with my own quirks). To the extent that you suggest that it’s an “embarrassment” to belong to such a tradition, you imply that each of the signers of the Declaration of Independence and even (I daresay) most of the Supreme Court Justices over the course of history have been “embarrassments.” You’re entitled to have that view, of course, but, as I noted, I don’t think it’s a very good view to have. And I’m not sure if you intended to express it.
von
Katherine —
From what I remember of current EPC caselaw (erm, current as of five-and-a-half years ago, when I graduated law school), your analysis seems reasonable. Let’s assume it’s right. Doesn’t the gay marriage debate take us into realm of Mormons-practicing-polygamy-in-Utah — thus suggesting that gay marriage proponents will lose under the Equal Protection Clause?
No offense meant to gays, Mormans, polygamists, married folks, or Utahians by the above. It’s an example.
Doesn’t the gay marriage debate take us into realm of Mormons-practicing-polygamy-in-Utah — thus suggesting that gay marriage proponents will lose under the Equal Protection Clause?
Von, this is doubtless of shining clarity to those with greater familiarity with the history of marriage in the US: can you elucidate?
FWIW, I think state criminal statutes banning polygamy are on shaky constitutional ground, especially as applied to Moslems. Maybe not so with Mormons. As I understand it, the LDS banned polygamy many years ago. Under state pressure, to be sure, but I think there is some hint of divine sanction for the current position. Anyway, it seems to me that in the wake of Loving, restrictions on marriage face strict scrutiny, and I can’t see that a complete and total ban is the least restrictive means to accomplish the compelling state interest of preventing exploitation. (I don’t think there’s a compelling state interest in preserving citizen intolerance — that the state’s interest in protecting my marrieage to a woman justifies the ban of a union with all the civil attributes the marriage of a man down the block to another man.)
Katherine, I tried to send you an email offline, to suggest that you might enjoy Judge Clevenger’s concurring opinion in Abrahim-Youri v US (Fed Cir. 1997) in connection with your coming course on foreign policy powers. Email bounced.
Jes, you might take a look at part 5 of Reynolds v. US from 1878. This is a question of federal law, so the 14th amendment, and EPC, wasn’t a factor. I doubt, though, the result would have been any different back then. I’m not sure that even now this case would come out differently, under current Free Exercise jurisprudence, but as noted above think it should.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=98&invol=145
And how about that part 6?
Von: That the DOI is an important document isn’t debatable. Whether its importance is historical or legal is.
Natural rights don’t exist. That a SC Justice would cite ‘natural rights’ is the equivalent of a physician prescribing prayer.
Von, this is doubtless of shining clarity to those with greater familiarity with the history of marriage in the US: can you elucidate?
I’m sorry, Jes. I’m in shorthand mode today. And, please, this is all IIRC — I haven’t really had a look at these issues for a good long while. Also, there are potential First Amendment issues at play in the following, which I’m not going to address.
Certain* sects in the Mormon religion permit — even go so far as strongly encourage (perhaps even require in some sense) — polygamy. Religion is a protected class under Equal Protection Clause jurisprudence. (I don’t recall whether discrimination based on religion is subject to intermediate scrutiny or strict scrunity under current jurisprudence, but it’s immaterial for the present point.) Yet, polygamy is illegal — even for Mormons who believe that it is desireable or even necessary under their faith. Though the Equal Protection concerns are recognized, they do not control because a state has a compelling interest in preserving the character of marriage as being between one man and one woman. A compelling state interest trumps equal protection concerns. (The lingo is a bit off — again, I’m rusty — but I don’t think it disturbs my point.)
Compare this to the gay marriage debate. I think most folks will accept — if not today, then soon — Katherine’s premise that gay people are a protected class. But the next step — that the Equal Protection Clause requires states to recognize gay marriage — is far from a gimme. Indeed, one could compare the case of gay marriage to the case of Mormons practicing polygamy for, in both cases, a recognized, protected minority is lawfully prevented from entering into a particular form of marriage (even though other, unwanted forms of marriage are available).
Now, quickly note the following: I see significant distinctions between gay marriage and polygamy (or any form of polyamory, gay, bi, or straight). I also support gay marriage.* But that does not mean that the blunt instrument of the equal protection clause is well-suited to extending the definition of marriage to include it.
von
*Albeit by legislative, not judicial, means.
Natural rights don’t exist.
Enter: Positivism.
once a document written, it what it is — all the intent in the world doesn’t change what’s printed on the page.
Correct me if I’m wrong, von, but that’s inherently contradictory with what I understood your interpretative stance to be. This is, in many respects, the core argument for a living Constitution and for what might be termed anti-originalism, yet I don’t think that’s your position. Could you elaborate on the distinction?
CharlieCarp, as I understand it, challenges to polygamy laws are currently underway on First Amendment and Equal Protection grounds. I’m somewhat sympathetic to the First Amendment argument, but not very sympathetic to the Equal Protection argument — for a variety of reasons. E.g., if polygamy is OK, what about marriage between a 16-year old girl and 35 year old man?
(Before you state compelling interest of the child, note that some states allow just such a marriage. Should the minority rule in those states be forced upon every state via the EPC?)
Anarch —
Very briefly (for I’m pressed for time):
What I’ll call “extrinsic” intent matters to those who want to look outside the four corners of the document — originalists, living constitution folks, etc. I’m interested only in what’s inside the document — what the words plainly say.
I acknowledge, however, that the term “plain language” is horribly deceptive. Plain language is actually usually unclear, because so much meaning depends on context. (Trust me: I’ve argued the meaning of the terms “potential,” “open” and “gap” in the context of patent litigation; others have had the fun of arguing the meaning of the word “above.”) Thus, to understand what is meant by the Constitution, I look to contemporaneous dictionaries and documents that may shed light on how the words of the Constitution should be read — which include, among other things, the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, Blackstone on the English common law, etc. These sources not only help to define terms of art (“establishment of religion”; “due process”; “privileges and immunities”; etc.), but they also give you a sense of how the Constitution and Bill of Rights should be read. Do I construe their commands narrowly or broadly? If I can read a Constitutional provision in a way that eliminates all distinctions between the states, do I do it — particular if a contrary reading is possible? Etc.
Hope that helps.
Von: I’m sorry, Jes. I’m in shorthand mode today.
Understood! And I do feel faintly guilty asking, since it fixes it in my mind much better when I do my own research.
Should the minority rule in those states be forced upon every state via the EPC?
If a 16 year old boy and a 35 year old woman are legally married in Alabama, even if they’d have to wait two years before they could be married in California, shouldn’t California be compelled to recognise their marriage as a legal marriage, entitled to the same state and federal benefits as any other?
IOW, when I say, the “intent expressed in the document,” I mean that all the intent that matters is the intent evident from the written words themselves. I try not to look for secret intents that are not evident from the words themselves (when they said X, they really meant X-prime, etc.).
shouldn’t California be compelled to recognise their marriage as a legal marriage, entitled to the same state and federal benefits as any other?
Tentatively, no. My gut reaction is to argue that California has a compelling state interest to deny such recognition, and therefore that the full faith & credit clause should not apply (which generally would require such recognition — but is subject to a public policy acception).
“acception”
Erm, exception. I really have to get to work.
I know the Supreme Court never really bothers with it, but anyone want to tackle “substantially related” and “important government interest”? And I mean by that, how do you differentiate between “pretty darn related” and “something worth government attention but not important”.
“Natural rights don’t exist. That a SC Justice would cite ‘natural rights’ is the equivalent of a physician prescribing prayer.”
I hear this all the time from people who are perfectly willing to accept the ‘fundamental rights’ decisions. As if there was some huge difference between the two.
As a layman, I find the whole natural law argument to be total muddle. It is easy to write, in the quoted sections of the DOI, that rights are granted by the creator, etc. But those statements, whether token pieties or sincerely held beliefs, don’t seem to contribute much to actual lawmaking. The principles are admirable (though not fully honored in the Constitution), but whether the rights named are granted by a creator or simply agreed to by human lawmakers does not seem relevant to me.
How, except through our own reason, are we to understand what rights are granted? And how are we to deal with different answers to that question? Do atheists have no standing to participate in the discussion?
It seems to me that if we ultimately rely, as we should, on our own reason to formulate our constitutional arrangements, the natural law point of view is simply an attempt to grant a spurious authority to religious claims. I am not saying that the arguments of religious thinkers ought to be ignored, just that they must stand on equal footing with others.
Polygamy is SOOOOO EASY to distinguish.
Treating people differently based on how numerous they are is either not a suspect classification, or the equal protection clause facially does not apply.
Treating people differently based on age or familial relationship also does not get heightened scrutiny, nor should it.
Forbidding same sex marriage is not neutral. Depending on the interpretation treats people differently based on gender, or based on sexual orientation. Take your pick, but it’s one or the other. That is undeniable. All discriminate means is “treat people differently.”
As a matter of form, it discriminates based on gender. As a matter of function, it discriminates based on sexual orientation. I believe it is more honest to say it discriminates based on sexual orientation, but if you prefer to go with the formal approach that’s fine. The thing is, that makes this an easier case for supporters of gay marriage.
Note that I am making an equal protection argument, not a full faith and credit argument. I know much less about full faith and credit, but my understanding is that if a state could legally not marry people for whatever reason, it also need not accept their marriages if performed in another state. Since it is legally acceptable not to allow people under 18 to marry, a state does not have to accept those marriages performed elsewhere. But I do not believe it is legally acceptable not to allow gay people to marry. Equal protection, not full faith and credit.
I DO NOT want the Supreme Court to reach this conclusion–not for another two decades at least–because it would be a political disaster for gay marriage. But as far as Constitutional law, I think it’s the correct conclusion.
“I DO NOT want the Supreme Court to reach this conclusion–not for another two decades at least–because it would be a political disaster for gay marriage. But as far as Constitutional law, I think it’s the correct conclusion.”
I understand the sentiment, and agree with the politics. The law though is not based on this kind of thing. Someone comes into your office and says, ‘Hey I think the state refusing to grant my beloved and I a marriage license,’ and you respond, ‘Sorry, you need to wait 20 or maybe 30 years. Come back then.’
The Consitution isn’t our (lawyers’ and policy wonks’) plaything. If people have rights, they have a right to try to vindicate them.
‘Ms. Parks, you should just get up and go on to the back off the bus. The South isn’t ready for that kind of integration yet.’
Errata:
Someone comes into your office and says, ‘Hey I think the state refusing to grant my beloved and I a marriage license,’
should be
Someone comes into your office and says, ‘Hey I think the state refusing to grant my beloved and I a marriage license is unfair and unconstitutional,’
I hear this all the time from people who are perfectly willing to accept the ‘fundamental rights’ decisions. As if there was some huge difference between the two.
Yes, Sebastian, there is a huge difference between ‘natural rights’ and ‘fundamental rights.’
Brief explanation as I’m headed out the door to the gym: ‘natural rights’ assumes some deity has stipulated we are endowed with some right or rights *and* we mortals presume to understand the intent and will of this deity. ‘Fundamental rights’ are based upon the wants and beliefs of society.
In the case of ‘fundamental rights’–subjective, to be sure–the wants and beliefs of society can be weighed and balanced as society’s needs and circumstances change.
OTOH, ‘natural rights’ is a polemic showstopper; after all, one presumes knowledge of and assent from God. Further discussion or debate is forbidden.
The distinction makes sense in theory but the application is with respect to the judiciary overruling the society’s need and wants as already expressed by the legislature and replacing them with their own understanding of rights. Fundamental rights are precisely as much of a showstopper in that context as they would be if they ‘came from God’.
I’m not arguing against them, I’m arguing that they are the same game played by different people. Invoking bedrock principles that I think ought to be part of law but which are nevertheless against the will of the people and are not expressly found in the Constitution is no worse than invoking bedrock principles that I think came from God which are nevertheless against the will of the people and not expressly found in the Constitution. In fact the second theory has far more historical justification as being part of the understanding of our republic than the former.
Treating people differently based on how numerous they are is either not a suspect classification, or the equal protection clause facially does not apply.
Ahh. So the reason for the particular act in question — in this case, the reason why some folks may engage in polygamy — no longer matters. So, presumably, the equal protection clause (or free extercise clause) does not prohibit treating people differently based upon which building they enter on Sunday, “the building that one decides to enter on Sunday” is not a suspect classification.
I don’t disagree that you can easily distinguish gay marriage from polygamy, but I don’t think I want to follw you down this particular rabbit hole.
” So, presumably, the equal protection clause (or free extercise clause) does not prohibit treating people differently based upon which building they enter on Sunday, “the building that one decides to enter on Sunday” is not a suspect classification.”
Actually, that kind of super-formalism is exactly how I would characterize YOUR view of whether banning gay marriage discriminates against gay people.
Whereas I think polygamy laws really are neutral laws of general applicability–though perhaps there is historical evidence that they weren’t always. And if you say that Mormons can practice polygamy and other people can’t, you start to edge towards establishment.
This is pretty standard First Amendment case law (these cases tend to be argued on First Amendment rather than 14th amendment grounds, but the outcome is identical). I might prefer something closer to, but not all the way towards, Shebert v. Varner’s approach over Scalia’s super-strict & formalistic application of “the neutral laws of general applicability” test, but that’s no longer how the court approaches it. And you certainly have to have some exception for some neutral laws with an incidental effect on religion, because you can claim that anything–literally anything–is religiously required, and the court has wisely chosen not to decide whether religions are “real” or not based on their content.
Now, to decide whether it’s religiously neutral or not, you have four options. You can decide that anything facially religiously neutral passes. (Of course, I doubt “what building you go into on Sunday” still would not cut it for even Scalia, but something like saying “to be eligible for this job you must eat pork”–that might work.) Or you can inquire into the legislature’s actual, subjective motivation–but this is a tricky business, since there are 535 members of Congress with different motivations and one President involved in the passage of a law (or however many state legislators). Or you can look at whether there is some reasonable basis for the law other than discriminating against religion–but this is awfully substantive due-process-y–I’m okay with that, but you shouldn’t be based on other stuff you’ve written. Or you can look at all these factors–which is the most sensible approach if you trust judges’ good faith and, er, judgment, but multipart tests do give judges more discretion.
my problem with Sebastian’s theory of jurisprudence (actually, with all theories of jurisprudence) is that i have YET to see a clear statement of guiding principles as to the Constitutional limits of state power on the exercise of personal liberty, and about the obligation of the state to provide benefits equally.
Natural law == God told me so. umm, ok. Which God? Are you sure that the line was clear? Should we be reading the heterodox gospels as part of the Bible, in case Bishop [can’t remember] wasn’t hearing God too clearly when he selected the orthodox books of the bible?
So what are the limits on a State’s police power? Clearly the 5th Amendment means that there is some limit, so what tools do we use to decide whether a particular statute goes beyond the scope of legitimate state authority?
fire away.
Francis
or to put it another way: The Supreme Court says that a law can still be valid even if a person opposes it, or feels she can not obey it, for religious reasons. But a law is NOT valid if the government passes it only for religious reasons–whether to benefit or harm a religion. It’s the government motivation that matters, not the individual’s.
In the case of gay marriage, refusing to recognize same sex marriage as marriage clearly denies gay people any meaningful ability to marry. The government may argue that it has other purposes–protecting marriage as the center of procreation, preventing a change in the definition of marriage, making sure children are raised by two parents of opposite dangers–but those are reasons that attempt to explain WHY gay people are denied any meaningful right to marry, and the only action the government is taking to further these goals is denying gay people a meaningful right to marry. They don’t have any separate existence. It’s the difference between saying to Catholics, “you can’t take communion” and saying to Catholics “you must be willing to dispense the birth control pill to be licensed as a pharmacist.” You could trump up some other explanation for why you need to deny priests the right serve communion wafers or wine on Sundays–“it encourages loyalty to the pope instead of America” or “it’s bad for public health” or “it encourages drunkenness”–but it doesn’t take a rocket scientist or Oliver Wendell Holmes to realize that such a law is really directed against Catholics, whereas there are decent secular reasons for requiring licensed pharmacists to dispense the birth control pill.
Treating people differently based on how numerous they are
Forgive a layman’s intrusion, but isn’t polygamy a set of separate two-party contracts, rather than one multi-party contract? So prohibiting it is not really treating people differently at all, just saying that any person can have only one legal marriage contract active at a given point in time. No?
well you could structure in it different ways, but yes, that’s kind of what I meant about “facially the equal protection clause does not apply at all.”
Whereas I think polygamy laws really are neutral laws of general applicability–though perhaps there is historical evidence that they weren’t always. And if you say that Mormons can practice polygamy and other people can’t, you start to edge towards establishment.
This is pretty standard First Amendment case law (these cases tend to be argued on First Amendment rather than 14th amendment grounds, but the outcome is identical).
Hold on a moment. I agree that the EPC and 1A analyses tend to collapse when we’re dealing with religion, but I don’t think you mean what you’ve just written. Take a topical example: I am a Presbyterian. It is illegal for me to take peyote. Assuming law hasn’t whiplashed in the last year (and it may have), the same rule does not apply if I am a Native American who takes peyote as part of a religious service.
The law against taking peyote is a “neutral law[] of general applicability.” The application of the law to Native Americans who take peyote as part of their religious practices, however, violates the 1A. (I don’t believe the EPC was implicated in the peyote cases — possible for the reasons I set forth above as to why the EPC shouldn’t be implicated in the polygamy cases.)
Why doesn’t this rule favor Mormons who practice polygamy for religious reasons? (I’m not suggesting that it should control the polygamy cases, only that a reasonable comparison can be drawn. And I don’t pretend to know the answer — as a law student, you’re a helluva lot closer to the cool Constitutional issues of the day, ’cause you spend a lot of time reading and arguing about them with classmates, teachers, etc.)
I’m not a family lawyer (I guess this must have been what praktike meant by IANAFL) but I really don’t think marriage is fairly called a contract — recognizing that there has been some usage of the term at various times in the past.
I say this because marriage confers rights upon the couple beyond what they could confer upon themselves/eachother. Tenancy by the entirety, for one example. Spousal privilege for another.
FDL —
Look, on Constutional law theories, I’ll be the first to admit that folks tend to find interpretative theories that (shockingly!) fit their ideological preferences and, as a result, it’s pretty much turtles all the way down. IOW, all judges “legislate from the bench” in the sense that each exercises power beyond that of a blind clerk.
I do think that there’s merit in choosing an interpretive theory that’s primarily text-based — at the very least, the judge will be somewhat restrained in how she legislates. This leads to greater predictability, a clearer distinction between judiciary and legislature, lower transaction costs (multi-part tests are wonderful for law firms, not so good for companies who are trying to obey the law or litigants who pay the bills), etc. My preferred way of reading the text is to read with the assumption that the ideals of the Declaration — which includes the notion of natural (or “self-evident,” if you prefer) rights — continue to have life and influence. That doesn’t mean finding a “right to liberty” in the Constitution — there’s no such right expressed in the Constitutional text. But it does mean that, in reading the prohibition against searches and seizures in the Fourth Amendment and applying it to a present-day event, for example, I try to keep in mind that, to the extent that there is a gap in the Constitutional structure, “liberty” is a guiding principle of the nation.
Nah. In response to Employment Division v. Smith, Congress passed a law called the Religious Freedom Restoration Act, “which requires the United States to grant an exemption to one of its laws when the law substantially burdens the exercise of religion, unless denial of the religious exemption would be a narrowly tailored way of advancing a compelling governmental interest.” The Supreme Court held in City of Boerne v. Flores that the RFRA was not constitutional as applied to the states–it was a 14th amendment enforcement/sovereign immunity decision. But it remains in force as against the federal government, and the U.S. Code of regulations also includes a specific exception for the use of peyote in religious ceremonies:
“Sec. 1307.31 Native American Church.
The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law.” That’s from Section 21 of the Code of Federal Regulations. All other quotes are from SCOTUS blog.
Today I’m pretty sure Mormons that practiced polygamy would be ineligible for an exemption even if RFRA applied to the states, because the LDS church does not require or even condone polygamy. I don’t know if it was ever thought to be required.
There could certainly be another religion or another case where someone argued that not being allowed to practice polygamy burdened their religious beliefs. But I don’t know that a court would necessarily buy the argument that their religion required (as opposed to permitted) marriage to multiple partners under the laws of the state of Nevada (as opposed to in a religious ceremony). And it would certainly have to be required–reform Judaism officially permits and supports gay marriage, but you don’t see them suing 49 states for violation of the free exercise clause.
But say you could convince the court of that–and remember, this is all assuming that RFRA applied to the states, which it doesn’t–you still might persuade the court that restricting marriage to an exclusive commitment between two people was narrowly tailored to serving a compelling state interest. I’m not sure how that case would come out.
I would now request that everyone admire my geekery and lack of Bernie Kerik jokes.
(Employment Div. v. Smith was actually about peyote, btw.)
The distinction makes sense in theory but the application is with respect to the judiciary overruling the society’s need and wants as already expressed by the legislature and replacing them with their own understanding of rights.
By your own account, the distinction makes sense in practice. Or are you suggesting the judiciary is never influenced by the legislature and/or the public?
Fundamental rights are debated constantly in this country. OTOH, natural rights are presumed.
Fundamental rights are debated constantly in this country
If they need to be debated, what makes them “fundamental”?
“. . . nor shall any State deprive any person of . . . liberty . . . ”
OK, so it had to added later, but I kind of like to think of this as bringing the DOI into the Const., sort of a legal manifestation of Lincoln’s transformative speech at Gettysburg. (I’m kind of thinking about Gary Wills’ book on Lincoln at Gettysburg, read many years ago . . .)
Of course, there was an older version, that applied only to the Feds:
“No person shall . . . be deprived of . . . liberty . . .”
Ahh, thanks Katherine. I got that one a bit screwed up.
If they need to be debated, what makes them “fundamental”?
‘Fundamental’ is interpreted subjectively. F’rinstance, freedom of speech is usually deemed a ‘fundamental right.’ Yet, freedom of speech issues are continuously debated.
von, about the need to interpret even the plainest language: I was once on a jury that hung because we couldn’t agree on the meaning of the word ‘trunk’ (as in, the trunk of a car.) Was it (as I and some others maintained) the case that a Chevy Suburban has no trunk? Or (as others maintained) that ‘trunk’ means, basically, ‘the place in back where you put the stuff’, in which case it does? This mattered, since the defendant had been carrying a loaded weapon behind the very back seat of his Suburban, and the law required that it be in the ‘trunk’ if it wasn’t to be illegally carrying a concealed weapon..
Actually, that was really only the nominal cause of our hung jury. The underlying one was that the police officers were jerks, who felt they had to charge this perfectly nice guy (who was returning from a weekend hunting and fishing) (and it’s relevant that he was poor and black, I think) with something after they mistook his limp for a drunken stagger and took him downtown for DUI, only to discover that his blood alcohol level was 0. I, being a literalist about these things, voted to convict, even though I completely agreed that this guy would never have been charged with anything in a sane world.
And by the way, a question: all academics believe that we tend to get knocked off juries in voir dire. But I, who not only have a PhD but work on, of all things, responsibility and guilt, have never, ever been knocked off, though in the most interesting case I only got to be an alternate because both sides were scared that if I got onto the jury, the other side would knock me off, and since it was a longish trial they both gambled that someone else would get sick and I would end up there. Do academics tend to be knocked off during voir dire? (Just asking.)
“By your own account, the distinction makes sense in practice. Or are you suggesting the judiciary is never influenced by the legislature and/or the public?
Fundamental rights are debated constantly in this country. OTOH, natural rights are presumed.”
We are talking about the judiciary overruling the legislature/public aren’t we?
Questions about the proper scope of natural rights are debated just like fundamental rights.
thank you Von for a very thoughtful and honest post.
i AGREE that there need to be limits on the interpretation of the constitution. i guess i disagree with Randy Barnett — I don’t think the constitution has been lost, though there are plenty of poorly-reasoned decisions.
“My preferred way of reading the text is to read with the assumption that the ideals of the Declaration — which includes the notion of natural (or “self-evident,” if you prefer) rights — continue to have life and influence.” — A powerful and thoughtful argument.
So, can a state prevent a pharmacist from selling birth control? a vibrator? porn? cocaine? marijuana?
Can a state regulate sex? can it ban, for example, pre-marital sex? inter-racial sex? homosexual sex? sex with juveniles? sex with animals?
whee; fun with hypotheticals!
to return to the post, Kevin Drum was chastized for criticizing an op-ed which stated (a) limited govt is good; and (b) natural-law principles should inform the interpretation of the constitution.
i’m still not sure what “natural law” is. but i agree that limited government is good. And that means that the Supreme Court MUST be willing to invalidate SOME state laws.
So, what are the stopping points? Sebastian draws the line at homosexual marriage. I disagree; I don’t think that he has made a persuasive argument that the state may discriminate on the basis of sexual orientation in the recognition of marriage status. If a state cannot discriminate in the recognition of marriage status on the basis of race — if Loving v. Virginia was correctly decided — then the arguments which support that decision TO ME apply equally to mandate state recognition of homosexual marriage.
i look forward to posts from conservatives arguing in favor of limited government which can distinguish wrongful race-based discrimination from appropriate gender-based discrimination in marriage status.
kids? No — millions of couples (like me and my wife) are voluntarily childless. And I don’t see much support for the argument that only married couples may adopt/foster.
cheers,
Francis
Incidentally, Katherine — and ignoring the bit where I got us off track with a misremembered account of peyote/NA rites/etc. — I’m still not getting your point. (It’s entirely possible that it’s because I’m not remember some crucial bit of Constitutional law — again, a lot slides out of the brain in five years.)
A law defines marriage as between “one woman and one man.” By implication, it prohibits both polygamy and gay marriage. By definition, my members of my hypothetical “religion that requires polygamy” (“RTRP”) is a protected class; let’s further assume that gay people are a protected class (I happen to agree that they are under controlling law, but it’s not been decided). As I understand you, when this law is applied to RTRP’ers, it’s a “neutral laws of general applicability”; when it’s applied to gay people, however, it’s a Constitutional violation. Why?
Again, I’m not playing mental games here; I’m really trying to understand your argument.
Do academics tend to be knocked off during voir dire?
It depends on the case, and it depends on the type of academic. From my perspective (patent law), more education — of whatever kind — is usually a plus. (RICO, OTOH, is kind of a mixed bag.)
FDL —
I have some real conceptual difficulties with the so-called “right to privacy” (which is, essentially, the right that would protect the various activities you list). In some ways, I like the purity of Justice Black’s dissent in Griswald: (essentially) This law against birth control is the most idiotic, wrong-headed law I’ve ever seen, but it doesn’t violate any Constitutional provision that I can see and therefore it must stand. In other ways, that particular law was idiotic and wrong-headed, and contrary to both the language and spirit of the founding documents.
see the 4:04 pm comment. That’s as clear as I can be right now.
actually, let me give it one more go. Say there are three kinds of statutes:
1) A statute that you can tell just by reading it directly discriminates against a protected class, because it names that class & explicitly denies them some right or benefit.
e.g. “gay people cannot marry.” “women cannot vote.” “black people cannot vote.” “Catholics cannot vote.”
2) A statute that you can tell just by reading it discriminates against a protected class, though it does not directly name that class.
e.g. “no one who has an X chromosome or a uterus can vote.” “you can only vote if your grandfather was a free citizen.” “You cannot drink wine as part of a religious sacrament.” “marriage shall be defined only as the union of one man and women” falls in this category as to gay people.
3) A statute that is really neutral as to what group people belong to, but has a worse effect on some groups than on others:
“Convicted felons canot vote”–facially neutral as to race, but in practice affects black people more than white people.
“To be a firefighter, you must be able to run a 7 minute mile and bench press 200 pounds”–facially neutral as to gender, but in practice afffects both men and women, but in practice affects women more.
“Marriage shall be defined only as the union of one man and women”–facially neutral as to religion, but in practice disproportionately affects those belonging to hypothetical RTRP.
Thanks, Katherine. I had missed your 4:04 post, and, though I don’t think it resolves the issue, it does go a long way to explaining your view.
(“marriage shall be defined only as the union of one man and women” falls in category 2 as far as polygamists, but “polygamists” are not a protected class.)
Two questions? I’m not making an argument here, just trying to understand.
1) What does “facially” mean here? Is it some sort of legal shorthand for “on its face”?
2) What is a protected class? Does this imply there are people who are less protected than others?
Just to clarify for the non-lawyers, what Katherine has described in point 3) is typically allowed while laws under points 1) and 2) often are not.
Traditional marriage laws certainly fall under group 3, they were certainly not made as disguised attempts to say anything about gay people one way or another. The only reason recent clarification laws fall under suspicion under group 2 is because of the way the traditional laws have been challenged in court.
In other words you are setting up a structure that operates as follows. (And please, please, please understand I am not attacking your scruples. I am pointing out how your structure could easily operate by people who do not share your scruples.)
A) Identify a neutral-aimed law that you don’t like which has worse effects on a group you favor.
B) Repeatedly challenge it in court until you find a set of friendly judges somewhere, forcing a response from the legislature.
C) Since this legislative response is NOW related to your protected group, you have successfully changed a class 3 law into a class 1 or 2 law.
This strikes me as illegtimate if you believe in neutral laws which sometimes have different effects on different groups.
You are also amazingly quick to judge that polygamists are not a protected class. Let’s analyze under your tests:
Remember that our not-so hypothetical polygamists are religiously polygamist. Let us say they belong to certain sects of Islam for instance.
1) Is there a history of wrongful discrimination against polygamists? Absolutely. How about Muslims? Quite likely.
2) Is not invoked in religious questions, so this test is passed.
3) Nope, can’t change unless we force them to make changes in their religion.
4) Is the discrimination against members of a “discrete and insular minority”, such that they cannot count on the political process to protect them? Definitely. under either polygamists or Muslims.
5) Is the discrimination based on a “real difference” that the law is justified in recognizing? Of I’m going to argue it isn’t based on a real difference. It is based on a wholly arbitrary decision to limit marriage to ONE person instead of multiple people. Just like choosing that marriage is between one man and one woman. That isn’t a difference like a weight limit or a carrying test. That is a purely arbitrary social judgment.
Muslim polygamists should easily pass your protected class criteria.
Slartibartfast, as you suspected, facially neutral means ‘appearing neutral on its face’.
Yes ‘protected class’ suggests different levels of interest on the part of judges. Since all laws sort people into different groups, or have different effects on different groups, the idea is the only thing which keeps judges from inserting their preferences on all possible laws through an equal protection analysis. They only do so for ‘protected classes’ which get special scrutiny. It would be a perfectly serviceable idea if there weren’t an ever-broadening definition of ‘protected class’.
Hmmm…so, equal protection isn’t quite as much of a universal guideline as I’d thought? Sounds as if it isn’t, or that some people are more equal than others.
(“marriage shall be defined only as the union of one man and women” falls in category 2 as far as polygamists, but “polygamists” are not a protected class.)
As Sebastian points out, this begs the question (as does your 4:04 analysis).
Slartibartfast, as I indicated in a prior thread, the EPC is so overbroad on its face that Judges have imposed structures to try and keep it from overwhelming everything in society.
you guys really need your free exercise and equal protection case law–and especially your free exercise case law–and leave me the heck alone until you do.
Thanks, von.
Is the discrimination based on a “real difference” that the law is justified in recognizing? Of I’m going to argue it isn’t based on a real difference. It is based on a wholly arbitrary decision to limit marriage to ONE person instead of multiple people.
Hmm… I’d say that there is a “real difference” — wouldn’t there be legal complications in the case of multiple valid current marriages, regarding tax law, inheritance, etc.? Although I suppose the govt could come up with a system to determine which marriage is “preferred” for a given domain.
“marriage shall be defined only as the union of one man and women” falls in category 2 as far as polygamists, but “polygamists” are not a protected class.)”
The first clause is incorrect. Older marriage laws should almost certainly be classified as category 3. Typical marriage laws ought not be analyzed as if they were drawn to discriminate against polygamists. In order to do that you have to ignore that they were ratifications or clarifications on traditional understandings of a concept with a history much longer than the history of the United States. In the Western world, polygamy had dropped out (or been driven out) of the traditional understanding of marriage at least 1000 years before the US came into being. That is one of the reasons the Mormons were seen as so strange. Polygamy was not a part of the normal understanding of marriage. Formalizing that standard history into law could hardly be seen as as a facially neutral attempt to bring the hammer down on polygamy. It was a legal ratification of the typical Western understanding of the term. You need to get over the hurdle of intent if you want to use a disparate analysis to get you into anything other than a rational basis test (and we all know that the rational basis test gets almost any law a pass by the judiciary). You can’t do that without unseemly amounts of stretching in the polygamy instance, but you have to go even further to get that in the gay marriage question. These marriage laws weren’t aimed at gay people when ratified. I’m fairly confident that they weren’t thinking about gay people at all. The current clarifications are facially neutral and can only be suggested as targeted at gay people in direct response to judical innovations. And unless you are willing to allow for my easy three-step strategy of making absolutely everything a protected class (see my 1:09 post) that can’t be a legitimate way to shoe-horn into category 2 of your analysis. And if we do allow for that, we are straight into the polygamy case which you think is so obviously not implicated.
The problem is that by unmooring the boundaries from historical context you get pseudo-rules that don’t even have to stretch very far to encompass everything.
1) Is there a history of wrongful discrimination against polygamists? Absolutely. How about Muslims? Quite likely.
I can believe it, but you would actually have to prove this, rather than simply asserting it.
2) Is not invoked in religious questions, so this test is passed.
ah, but you are not arguing a religious question. You are arguing that “polygamists” is the protected class, not “Muslims” or even “members of the hypothetical RTRP”.
Whether or not you marry multiple partners is very much a mutable characteristic. Whether or not you wish to be with multiple partners is also probably mutable…I know a lot more people who went from wanting multiple sexual partners to being satisfied with one partner than people who went from being gay to being straight.
3) Nope, can’t change unless we force them to make changes in their religion.
First of all, this assumes that the religion not only allows, but actually requires polygamy–and that their religion requires that the state of Connecticut (or wherever) marry them multiple times, not only that they have multiple religious ceremonies. I don’t know of anywhere this is true. In mainstream Islam or Mormonism, polygamy is not required and sometimes not even allowed. I do believe that some West African sects of Islam still argue that polygamy is “required”–but in West Africa most polygamous marriages involve only a religious ceremony, and are not registered with the state at all. So to argue from the broad category of “Muslims” or “Mormons” is quite misleading, and even to argue from a specific West African Islamic sect is misleading–you have to make up a hypothetical religion.
More importantly, this evaluation demonstrates complete ignorance of free exercise case law. The free exercise clause does not say, “if you say your religion requires it, anything goes.” You could argue that ANY practice is religiously compelled–beating a disobedient wife, honor killings, discriminating against African Americans, sacrificing a virgin to the volcano, refusing to give your child lifesaving medical treatment, female genital mutilation. But all of those things are illegal, and the laws outlawing them are constitutional, because they are what is known as “neutral laws of general applicability” that have an incidental effect on religion.
You can see why we need to do this–for the sake of public order, and for the sake of NOT discriminating against people who do not practice any religion. It’s discriminatory to say that you can break certain laws if you belong to religion X, but not if you don’t.
It does opens the door somewhat for unscrupulous legislators to pass neutral-sounding laws whose real purpose is religious discrimination. But the courts can usually identify those cases. It also opens the door for laws that burden religion for no good reason even if there is no malice in it. Under the Warren Court the courts did try to say that you had to accomodate people’s religious practices unless you had a strong reason not to–but the Rehnquist Court says otherwise.
There is a very good argument that a law against polygamy is a neutral law of general applicability that has an incidental effect on religion.
4) Is the discrimination against members of a “discrete and insular minority”, such that they cannot count on the political process to protect them? Definitely. under either polygamists or Muslims.
let’s leave this one for now.
5) Is the discrimination based on a “real difference” that the law is justified in recognizing? Of I’m going to argue it isn’t based on a real difference. It is based on a wholly arbitrary decision to limit marriage to ONE person instead of multiple people. Just like choosing that marriage is between one man and one woman. That isn’t a difference like a weight limit or a carrying test. That is a purely arbitrary social judgment.
Well, you could make that argument, but you would be laughed out of court. As a matter of mathematics “one person” is different from “more than one”. The law treats different sized groups of people differently all the time.
The state would probably also introduce studies that argue that polygamy leads to domestic violence & various other forms of mistreatment of women. I don’t know how good the empirical evidence for this is, but it’s better than the pseudoscience crap about homosexuality.
——-
Conclusion: “Polygamists” is not a protected class and no judge that ever served on the Supreme Court would find it to be such. “Members of hypothetical RTRP” are a protected class, but the state could easily demonstrate that this law was a neutral law of general applicability that placed no burden on their religion. Even if the court overturned Employment Division v. Smith or City of Boerne v. Flores, the state could probably show that this law was not a burden on free exercise.
“The current clarifications are facially neutral and can only be suggested as targeted at gay people in direct response to judical innovations.”
It is Margaret Marshall’s fantasy that the current marriage laws let me marry any partner I would conceivably choose, and let you and Edward marry no partner you could conceivably choose?
COME ON.
Discrimination is not the same thing as animus. To say that a law facially discriminates against someone is not the same thing as saying that a law was written by a legislator thinking “Ha! I’ll get those gay people.”
If Virginia wrote a law in 1792 saying that “all free white men shall be eligible for the franchise” in the 1800s, you could equally say they were not motivated by any animus against women or black people or slaves–it would simply not have occurred to them that slaves or blacks or women would be allowed to vote. You could equally argue that they were “simply ratifying the tradition Western idea of citizenship.” The subjective motivation of the law might very well have been to expand the right to vote to white men who did not own property, not to keep denying it to women and blacks.
For all that, the law is discriminatory. And it wouldn’t have to explicitly mention race or gender to be discriminatory. Some states’ marriage laws just say that marriage shall be the union of two adults–which if you read it literally allow gay marriage, but in practice never did. Similarly, I would bet you that there are states that had laws saying that “all citizens have the right to vote”, and did not define citizenship in a way that excluded black people or women–so if you read it it literally it should’ve allowed everyone to vote, but in practice it never did.
And as I have said, if you want to be hyperformalistic about it and insist that any law that doesn’t say “homosexual” is neutral as to gay people, then you also have to be formalistic enough to realize that they do classify people by gender.
“More importantly, this evaluation demonstrates complete ignorance of free exercise case law. The free exercise clause does not say, “if you say your religion requires it, anything goes.” You could argue that ANY practice is religiously compelled–beating a disobedient wife, honor killings, discriminating against African Americans, sacrificing a virgin to the volcano, refusing to give your child lifesaving medical treatment, female genital mutilation. But all of those things are illegal, and the laws outlawing them are constitutional, because they are what is known as “neutral laws of general applicability” that have an incidental effect on religion. ”
Oh good heavens, I’m not ignorant of it but the arbitrarily complicated case law on the free exercise clause does nothing to help. It is certainly a fact that IN THE PAST polygamy has not been protected. It is certainly also a fact that IN THE PAST gay marriages have not been protected. I am suggesting that the loosening of boundaries from their historical moorings gets you into serious trouble here. And it does.
You are asking a court to find that traditional marriage laws were either intentionally aimed at excluding gay people–which while we are speaking of arguments that ought to get you laughed out of court seems quite appropriate, or that being gay is a protected class.
The problem with your protected class analysis is that they were never the super-general tests that you pretend. They have always been about acknowledging the very special cases–especially questions having to do with race and religion, that have a horrific past in the US.
And frankly you are engaged in wholesale question begging here:
“Well, you could make that argument, but you would be laughed out of court. As a matter of mathematics “one person” is different from “more than one”. The law treats different sized groups of people differently all the time.”
Of course the law has never treated one man and one woman as marriage. Let us by all means hang our entire argument on how the law has historically acted when it suits us and ignore them when it does not. Let us by all means also ignore the fact that the law does not treat gay people as a protected class. Does that fact have as much weight as ‘the law treats different sized groups of people differently all the time’. I’m sure for you it does not. The law treats marriage as “a man and a woman” all the time too. I don’t think you worry about the historical understanding all that much in that case. Heaven knows that you aren’t asking for changes in the law through the judicial process.
I think we all understand that the law does not at this very moment protect polygamy. It does not at this very moment protect gay marriages either.
“the state could easily demonstrate that this law was a neutral law of general applicability that placed no burden on their religion.”
If you say so, I rather doubt the case is any stronger the idea that current marriage laws are other than neutral laws with unintentional disparate impact with respect to gay people. Therefore, rational basis test, therefore you lose. Unless, once again you want to ratify the idea that challenging a law and provoking a clarification gets you into type 2). I think it is clearly ridiculous, not to mention the fact that such an interpretation is going to destroy the idea of neutral classifications.
Am I wrong, does disparate impact no longer require evidence of intent? It has been years since I deeply studied equal protection, but I’m pretty sure that was there. The original marriage laws were absolutely not worried about gay people. No intent. You have a serious problem.
you guys really need your free exercise and equal protection case law–and especially your free exercise case law–and leave me the heck alone until you do.
Granted, Katherine, but it’s not the law that I’m necessarily having trouble with. (Or, at least, not only the law — like I said, I haven’t looked at any of this in a very long time.) My main problem with your analysis is the assumptions that underlie it — I just don’t find them all that logical. Or, perhaps better put, they seem completely arbitrary.
Anyway, a three-way-fight ain’t no fun. I’m bowing out. My best.
The classification by gender doesn’t help you either. Are marriage laws discriminatory by gender? We get to play level of abstraction games again. Also, was the intent of the requirement to discriminate against women? But let us leave that aside for a moment. Let me predict:
Your level of abstraction:
Women are the protected class. Women can’t marry other women. This is discrimination. Via intermediate scrutiny analysis (and I won’t bore everyone else but suffice to say this is currently the proper scrutiny for discrimination on the basis of gender.) this is illegal.
My level of abstraction:
Women are the protected class. The alleged discrimination is on the basis of gender (the court isn’t super careful about the gender/sex organ distinction). Both women and men are required to marry members of the opposite gender. There is no discrimination. Both sides of the alleged discrimination are held to exactly the same standard.
Which level of abstraction has historical justification? Mine.
Do I wish that weren’t true? Absolutely. But my personal wishes ought not have much to do with Constitutional law unless I vote for an amendment. Would I be willing to vote for such an amendment? Sure. Would I vote for a legislator who wanted to make gay marriage legal. Sure. Would I say that the Constitution requires it? No.
Ok, after eating I decided that I really should have reined in the sarcasm.
The problem here is closely related to the issue I wrote about in my “How We Think” post. In this discussion there seems to be some extreme arbitrariness in line drawing.
In an interesting reflection of political philosophy, Katherine seems (to me at least) willing to throw away all sorts of previous understandings on the subject, only to cling to it when the ramifications go too far. Which is to say that Katherine is temperamentally liberal but not crazy. I, on the other hand want to preserve original understandings, to abandon them only when I think the ramifications become unbearable (see for example the fundamental right to vote, which I think ought to be obvious, but which many originalists apparently disagree about). Which is to say I am temperamentally conservative.
Sigh.
Both of us act as if the law is almost wholly in tune with our temperamental natures. I suspect that is making things difficult when we have to deal with the problem areas for our temperaments–things stagnating for me, dissolving necessary boundaries along with the unnecessary ones for Katherine.
On that note, I’m taking a breath. Not abandoning the discussion. Not giving up. Not thinking that Katherine just can’t be reasoned with.
Just taking a breath.
Besides, I have Form 4s to file with the SEC. 🙂
(No not my own, just because I am a conservative doesn’t mean I am in the control group of my company).
“The problem is that by unmooring the boundaries from historical context you get pseudo-rules that don’t even have to stretch very far to encompass everything.”
AND WE HAVE A WINNER!
Katherine and I largely argue from logic — to examine the steps taken by the Court, for example, to invalidate a state law banning interracial marriage. We then find that these same logical steps apply equally to, for example, state laws banning homosexual marriage.
Sebastian argues largely from history — This country fought a war over slavery, so state laws about race are essentially presumed to be invalid. There has been no similar fight about homosexuality, so the same presumption of unconstitutionality does not apply. [Whether he’s right about this country’s history regarding homosexuality is a different point.]
We all agree, at some level, that the Supreme Court must be willing to invalidate two kinds of state laws: (a) those that interfere with rights granted under the Bill of Rights (included in this list are those problematic laws interfering with “liberty”); and (b) those that treat similarly situated groups of people differently (anti-miscegenation laws being the classic example).
But every law on the books interferes with some liberty right; and every law draws lines. So the essential question is ON WHAT BASIS the Sup Ct is to decide that a law goes “too far” [to cite a famous decision on regulatory takings].
Answer: there is NO principled basis; we are, at some level, doomed to the tyranny of five votes. But even liberals like to have some predictability in the law, so the question is how to LIMIT the tyranny of five votes.
One way is logic and precedent — the reasoning which supported the decision in anti-miscegenation should be equally applicable in the context of gay marriage. Principal Flaw — no effective stopping point. Virtually anyone, with enough stretching of precedent, can claim that a law violates their liberty and/or equal protection rights.
Another way is history and context — race really is different, due to our history. Otherwise governments should be free to pass dumb laws. Principal flaw — largely reads out of the constitution the profound anti-majoritarian component of the bill of rights and 14th amendment. Ever since Marbury v. Madison, the tyranny of five votes exists to serve as a check and balance on the tyranny of the majority. Also, the framers were, by modern standards, racist sexist bigots, so their view of the meaning of words like “liberty” “equal protection” and “due process” should not control.
You know, we’re both right. If the Sup Ct goes too far afield in interpreting precedent to resolve current disputes, the court can lose credibility. [Of course, I think that the Republican Party should be ASHAMED of its corrosive attack on “activist” judges. Holding a major branch of government up for contempt is a terrible idea. And I don’t remember any great outcry over the “activism” of the Sup. Ct. overruling a state court on a matter of state law in Bush v. Gore.]
But if the Sup Ct is unwilling to strike down state laws that violate the Bill of Rights, then the Court has abdicated its duty to serve as a check on the tyranny of the majority.
so we’re doomed, i’m afraid, to muddle along — with major decisions upholding or striking down divise state laws to be attacked by one side or the other.
Francis