I am offering my observations now that a week has passed since US v. Windsor and Hollingsworth v. Perry were decided. In the first (“Windsor”), the Court struck down the Defense of Marriage Act (“DOMA”) in its definition of marriage as unconstitutional. In the second, the Court denied standing of the original proponents of Proposition 8 in California to defend that ballot initiative in Federal court.
What were the grounds of these decisions? For those who have not read them, here are encapsulations:
Windsor: “DOMA’s definition marriage is unconstitutional because its sole purpose was to demean and humiliate same-sex couples, which is a deprivation of the liberty of the person guaranteed by the Fifth Amendment.”
Hollingsworth: “Once a ballot initiative is passed, it becomes part of the law of the state and no longer in any sense represents the interests of those who initially promoted it. They have no standing, then, to defend it in appellate court.”
First, I urge everyone to set aside a couple of hours and study those opinions. They are not as difficult as they may appear; an educated citizen today must read Supreme Court opinions and form a good judgment about them; and finally, if you actually read the opinions they will be demystified for you, and you will arrive at an appreciation of their actual soundness and force.
If you get into this business of reading Court opinions, as you should, then as homework also read Lawrence v. Texas, Bowers v. Hardwick, Planned Parenthood v. Casey, Roe v. Wade, Eisenstadt v. Baird, and Griswold v. Connecticut. This is the line of “privacy” cases on which Windsor ultimately depends. Of these, if you lack time, read first Casey and Lawrence, being sure to read Justice Scalia’s dissents.
In this post I will discuss (1) the immediate upshot of these decisions; (2) the nature of the argument in Windsor; (3) differences between these cases and Roe v. Wade; and (4) possible longer term consequences. As a blog post is not a treatise, I will make my points briefly and simply, without distortions but without also many refinements, qualifications, or digressions.
(1) The immediate upshot of these decisions
The immediate upshot of Windsor is that any law or constitutional amendment of any state, aiming to restrict marriage to one man and one woman, will be found unconstitutional if tested in Federal court and will be nullified.
I believe that commentators who do not accept this (e.g. the WSJ editors) are either engaging in wishful thinking, or they are trying to hide the radical nature of those decisions, or they are engaged in a political game, thinking that if they say enough times out loud that the states still have the capacity to define marriage as applying to only one man and one woman, then some kind of “public opinion” on that point will be formed, which might serve as a bulwark against the implementation of Windsor by lower courts. (Chief Justice Roberts, I think, falls in the first group — wishful thinking.)
I am not convinced by those who point to the purported Federalism of the majority opinion. That is, people say that Windsor supports a state’s ability to define marriage, or is at least conflicted about it, because it seems to argue that DOMA was unconstitutional because it was a case of the Federal government encroaching on legal territory that states in the first instance have responsibility for. In reply, I would say that although the language of Federalism is certainly in the decision, considerations of Federalism do not serve as the basis of the opinion, but rather a purported liberty guarantee of the Fifth Amendment and equal protection consideration of the Fourteenth Amendment. Also, I believe that Justice Kennedy thinks that states have the power to define marriage, only so long as they define it in (what he regards as) the right way. (See also my remarks below about conventionalism.)
I suspect that if Hollingsworth had been decided differently, and the Supreme Court had turned to an examination of Proposition 8 on its merits, then it would have determined that Proposition 8 was unconstitutional, and done so in such a sweeping way as to overturn all similar laws and amendments in the various states. This would have been merely the application to Prop 8 of the logic that was used to overturn DOMA. (Note that the author of Windsor, Justice Kennedy, also dissented strongly from the decision in Hollingsworth, which prevented the Court from similarly addressing Prop 8 on the merits.)
(2) The nature of the argument in Windsor
Here I shall make three points about the nature of the majority opinion in Windsor.
First, it is a classic example of what logic professors call the ad hominem fallacy. Justice Kennedy in his opinion does not reply to or even so much as address any of the dozens of reasons, offered in testimony and in print, by those who proposed, sponsored, voted for, or signed DOMA. Rather, he simply impugns their motives, claiming that they (i.e. Congress and the President) were motivated solely by a spiteful desire to humiliate and demean. But to attack someone’s motives rather than his or her reasons is simply the ad hominem fallacy. (I find it rich that now Professor Tribe is saying that Justice Scalia’s dissenting opinion is a mere ad hominem — a classic case of the pot calling the kettle black.)
Yes, of course, it is ridiculous that the highest Court in the land engages in ad hominem attacks, considers that sort of thing to constitute legal reasoning, and then seems proud of itself for proceeding in that way.
Second, Justice Kennedy sets down an objectionably conventionalist understanding of marriage law. By ‘conventionalist’ I mean that he asserts that the state has the power and authority to define what marriage is. He does not accept that marriage is a ‘natural institution’ which antedates the state, and which, therefore, the state is charged merely with identifying and endorsing, rather than creating or effecting. For Justice Kennedy–and he has now made it part of the US Constitution itself– marriage is a free creation of the human will. For Justice Kennedy, it is obviously a possible exercise of “state power and authority over marriage” that it define marriage in such a way that it need not involve fundamentally procreative acts. Indeed, according to Kennedy, states may “confer” the title of marriage upon any relationship they wish, “in the exercise of their sovereign power.”
It is a disputed question whether the Constitution should be interpreted as presupposing any controversial philosophical view, and therefore ruling out others by implication. Some philosophers, such as my teacher, John Rawls, held that no law should ever be based on a reasonably contested philosophical view. If so, then presumably even conventionalism ought not be the basis of any law or Court ruling.
If on the other hand one believed that the Constitution did endorse, or must necessarily endorse, some philosophical views–and therefore, again, by implication it ruled out others– then surely it would be conventionalism which the Constitution ruled out, as this view is completely at odds with the Constitution’s 18th c. origin, where the priority of natural law and natural institutions over human convention was taken for granted. (Recall the language of the Declaration of Independence about “laws of Nature and of Nature’s God.’) To be told now that the Constitution in fact compels its citizens to accept conventionalism on foundational matters such as marriage and the family is outrageous and almost unbelievable–almost as outrageous as Windsor‘s ad hominem attack which is offered as legal reasoning.
It is this conventionalism of Kennedy which (as I indicated above) vitiates any affirmation of Federalism which his opinion might seem to contain. Why? Because the essence of Federalism is to hold that in some matters human authority is consequent to something else and comes “from the ground up” — for example, from antecedent claims based in nature, longstanding custom, or the original authority of the people. Federalism holds that these claims that antedate even the formation of the individual states perdure also when a Federal government is accepted. True Federalism, then, must acknowledge that the states too are checked in what they can do, by antecedent norms and realities, just as the Federal government is checked in what it can do, by the antecedent authority of the states. But the conventionalism which Kennedy espouses in Windsor is incompatible with this understanding of Federalism: it reduces the division of power between the Federal government and the states to a merely administrative decision, according to which the states have, in principle, only the “power” to define marriage in the manner and to the degree that the Supreme Court assigns this “power”. The Federalism of Windsor provides absolutely no barrier to a Federal Court’s finding that a state’s marriage law is contrary to the US Constitution as interpreted by Windsor.
A third, minor difficulty in the Windsor decision is that it has no clear basis in the Constitution, or even in received Constitutional law. Windsor does not rely on substantive due process or strict scrutiny. It refers to “liberty” guaranteed by the Fifth Amendment, but that turns out to be “liberty” as glossed by the magical mystery passage of Casey and Justice Kennedy’s prior decision in Lawrence v. Texas. As mentioned, the main argument of Windsor is that DOMA was motivated purely by a spiteful desire to demean and humiliate. I agree that that, if true, would be horrific, and I agree that all merely spiteful laws should be opposed and, if enacted, immediately be reversed, but I cannot seem to remember what article in the Constitution or which Amendment rules out spiteful laws. Also, if spiteful laws are bad and unconstitutional, why stop there? Why should only that particular bad motive be subject to constitutional scrutiny and judicial review? What about, for example, partisan laws, or special interest laws, or overly optimistic laws, or unrealistically pessimistic laws, or excessively controlling laws, or paranoid laws, or silly laws? If you say that these laws can and should be scrutinized, if they lead to gross injustices and inequalities — then you shift the argument from the motive for the law to its holding and outcome, and then, as regards DOMA, we would be drawn precisely into the debates that Justice Kennedy avoided and clearly wished to avoid– as to whether same-sex relationships and traditional marriage really are equal cases that must be treated equally. Only equal cases need in justice to be treated equally.
(3) The differences between these cases and Roe v. Wade
Some commentators have said that last week’s marriage cases are “this generation’s Roe v Wade,” and I agree that there is some truth to that, but to my mind the disanalogies are more important, and so I wish to point some of them out.
First, the Court did not last week overturn, in one fell swoop, all state laws which recognize as marriages only commitments between one man and one woman. We must remind ourselves, shockingly, that that is what Roe did: without any clear or sound constitutional basis, it overturned the abortion laws of 47 states which restricted abortion. Now, as I said, perhaps it is only because of how Hollingsworth was decided, and the Court never got to address Prop 8 on the merits, that it showed this relative “restraint.” But it is equally possible that in the 40 years since Roe the Court has gotten more savvy about how it can effectively achieve its radical purposes, when it formulates them. Consider, as I said, that the language of Windsor provides the basis for other entities besides the Supreme Court to erode, attack or even overturn state laws on marriage. Justice Scalia demonstrates this in his dissent, when he shows how by light editing the majority opinion can be adapted to overturning state laws. He hints that the language was written precisely with this purpose in mind. What this would mean is that the Supreme Court intends that state marriage laws be dismantled by a kind of collaboration of other like-minded agents, which it is empowering to act for this purpose by its decision.
Second, it is important to grasp that Windsor and Hollingsworth are decisive “victories” for certain contestants in a culture war but — here is the disanalogy with Roe–there is no attempt on the part of the “victors” to show or extend magnanimity to the “losers.” In a way this is helpful because it makes it clear that in no sense does one side in the past contest gain or preserve anything. In Roe, all state laws regulating abortion were nullified. It was a complete and utter rout of the culture of life, as the decision abolished all law concerning abortion and put into place — as a matter of irreversible, putatively constitutional law– abortion on demand through all nine months of pregnancy. However, the opinion dealt with the “losers” with magnanimity — it granted implicitly that they were noble for defending the right to life; their efforts may have been misguided, because they did not quite get right (in the Court’s opinion) the dividing line between public and private, but, still (whatever the provenance of abortion laws originally, in the opinion of the Court), their intentions were good, because they had sympathy for “potential life” (as the Court described it).
In contrast, Windsor allows no good motives whatsoever for those who defend traditional conceptions of the family. They are motivated purely by spite. Moreover, they always have been: note that the Court’s opinion requires that we go back almost 25 years, to when a law like DOMA was first being proposed and contemplated, and read back into that entire history nothing but spite. Furthermore, it is obviously implied by the opinion that if a “pro-traditional marriage” movement ever rose up in response to Windsor, like the pro-life movement which arose after Roe, the Court would regard this movement, and would instruct and urge others to regard this movement, as nothing but a spiteful and hateful reaction of bitter “losers.” In that sense the Windsor majority already “has its back up” and has already accused in advance anyone who disagrees with them of being merely spiteful.
A third disanalogy is that because the opinion is unreasoned, and simply impugns motives, it fails to invite reasoning. Here is a clear disanalogy with Roe. A naive person who with simplicity reads the opening lines of Roe, about how scientists, philosophers, and theologians have not yet agreed on when human life begins, and so on, will naturally react by thinking, “well, that was before such-and-such medical knowledge about fetal development was discovered,” or “that surely can’t take into account this argument, which is compelling to me,” and so on. That is, it takes a while for someone in the “abortion debate game” to realize that the “pro-choice” side never was contingent on arguments or facts and therefore cannot be swayed by arguments or facts. But at first glance, as I said, the opinion in Roe invites rather than discourages debate. But, again, it is likely that judicial activists have learned something in the last 40 years, and therefore it cannot be too surprising that this “new Roe” is written in such a way as to make it clear that no arguments are pertinent and that in no way will the Court ever be open to a reconsideration of its finding (as it was with Roe, re-examining it multiple times and almost reversing it in Casey). There is no better way to signal that no further reasoning should be undertaken than (i) ignore all past reasoning, as though it were irrelevant, and (ii) imply that anyone who even engages in reasoning to question the Court’s opinion is already in the grips of a hateful spite.
A fourth and final disanalogy is the extent to which someone who disagrees with the decision must endorse it. It is at least true, as the bumper sticker states, that if a woman opposes abortion, then she is free not to have one. (We grant, though, that many people have to suffer the abortion of someone they do care about — say, a husband who cannot stop his wife from aborting his baby, or parents who cannot keep their minor daughter from aborting.) Also, if someone does not like abortion, then, in ordinary life he or she in no way needs to cooperate with an abortion, express agreement with Roe v Wade, or act as though an abortion is a positive good. But it will not be so with Windsor (that is, I mean after that decision leads as I expect to the overturning of all state laws restricting marriage to a man and a woman): there will be many occasions on which people will be in effect coerced into saying that, or acting as though they believed that, two members of the same sex are married or can be married (or, alternatively, that the State has the power to define marriage as it will). Equally, there will be many occasions on which they could be entrapped by enemies, or betrayed for what they say in private, or be subject to “tests” by those who for some other reason want to injure or get revenge against them.
That is to say, it might have looked as though, according to Roe, everyone got what they want, and pro-life people were free to be pro-life, and “pro-choice” people “pro-choice,” and there is some truth in this (although it is mainly false, because pro-life people have an ideal for all of the human race, not just their personal behavior–in a sense, the main difference between those who are pro-life and those who are “pro-choice” is that former affirm an objective value and the latter a subjective value), but in contrast there is no “space” in which those who reject the possibility of same-sex marriage are free to act and live on that presupposition. (Note that attempts to carve out such a “space” on the grounds of religious liberty, if they prove successful, which may be doubted, would carve out only a “subjective value.”)
(4) Possible longer term consequence
The future is so unpredictable and human affairs are so changeable that one must hesitate to say what will surely happen as a result of the Court’s decisions. Yes, a serious person must confess that it looks dire when that institution which Rawls used to describe as giving us paradigm examples of “public reason” is now re-engineering fundamental social institutions based on unworkable and essentially adolescent ideas of liberty (for that is what the Casey mystery passage is), while hurling insults at the other two branches of government, half of the American electorate, major world religions, and in effect our own history and heritage.
In doing so the Court is clearly not an impartial observer, deciding fairly a difficult question, but rather, without the requisite impartiality, it has obviously made itself a partisan player in a culture war, and is reveling in that. Its irresponsibility is objectively so patent, that maybe it has overplayed its hand.
The three main, worrisome consequences of the marriage decisions, which seem to me likely to develop, unless something intervenes or serves to impede, have already been stated implicitly and seem to be these:
1. Persecution of those who disagree with what the Court holds or implies (for example, that a same-sex relationship can be marriage; that it can be equal in dignity with Holy Matrimony; that children can be just as well cared for by a same-sex couple; etc.) or of those who disagree with the conventionalism which the Court’s opinion presupposes. As mentioned, one might fear that people will lose jobs or not gain them on this basis, be entrapped or tested by enemies, or be coerced to assent or consent to matters which in conscience they cannot agree with. (This already happens in some areas of our society, and therefore the fear is that this will become generalized to cover all of American society.) Alternatively, it is possible that there will develop a massive hypocrisy and absence of truthfulness in public contexts, analogous to that which used to exist in communist societies, where no one really believed in collectivism, yet everyone was vulnerable to being “turned in to the authorities” for expressing scepticism about collectivism.
2. Induced civil strife. I wonder if it is too much to say that Windsor risks turning implicit civil strife (“the culture war”) into manifested civil strife. What seems to me crucial is whether there is a high correlation between being “pro-choice” and supporting the equal standing of same-sex marriage; also, whether the group which holds those two views represents roughly half (40-60%) of the populace. If so, then about half of the population believes that the other half is disposed to kill their own children, while that half believes of the first group that they are bigots who need to be put down. Anyone must concede that, if correct, this would be a distressing description of the American polity. Now I believe, and experience proves, that in this divide the pro-life half is basically peaceable — that is, they carry on with their lives even though they believe that, down the street in their home town, their fellow citizens are paying medical technicians to dispatch their own children. But suppose that this “other half” now begins to persecute what we are calling the “pro-life side” and treats them as bigots, etc., for simply holding to what, for example, Presidents Obama and Clinton supported only a brief time ago and what Western civilization has ever endorsed. Then it is not incredible that some kind of movement toward separation or secession becomes a lively possibility — since who wants to put up with false accusations of bigotry, or underwrite what they consider to be unsustainable patterns of social life?
3. Loss of respect for the Court. I already suggested how the Court in Windsor obviously has forsaken impartiality and taken the role of a partisan player.
One might add that if the Court is regarded as having overplayed its hand, then it risks exposing itself in its privacy jurisprudence as simply a cheerleader for the sexual revolution: promiscuity requires access to birth control (Griswold, Eisenstadt); promiscuity with birth control requires abortion as a back up (Roe, Casey); sex with procreation deliberatively foreclosed is tantamount to sex with procreation impossible (Lawrence); and if it’s sexual intimacy which makes a marriage rather than marriage the conditions for intimacy (Griswold), and intimacy may be essentially infertile (Lawrence), then bonds for life between same-sex couples can have the same standing as those which are potentially procreative (Windsor).
Let me be clear: if you love the sexual revolution, then by all means go ahead and support it (and if you would take responsibility for paying for it too, I would appreciate that), but there is nothing in the Constitution which the states ratified and which you or I ever affirmed which requires that a free society have the sexual revolution of the 1960s built into it. Now, if people actually studied these privacy decisions, they might come to see them as motivated as (I believe) they actually are, not by the Constitution, but by the societal movement called the “sexual revolution”. If so, a large swath of the Court’s jurisprudence would be revealed as what I regard it as actually being: special pleading for the sexual revolution. And perhaps after Windsor people will actually start studying those opinions, or at least become more curious about what is in them.