Sunday, July 12, 2015

Fundamental Rights

A Facebook friend of mine posted on her Facebook wall a link to a web site in which a conservative commentator blasts the Supreme Court for eroding American freedom in its ruling on same-sex marriage. The friend, a fellow Bloggernacle author, protested that she supports marriage equality, though she is concerned about the way in which it has been achieved with this Supreme Court ruling. Her claim is credible, since she's been a very public supporter of marriage equality on her blog. I engaged in a discussion with a friend of hers about the ruling. He insisted that the court had invented whole cloth a new "right to dignity" that had no constitutional basis. I pointed out that from what I had read, the ruling did not rely on a "right to dignity" but on equal protection. He countered that the ruling only claims an equal protection basis, but doesn't actually make the case for it. At that point, there was nothing more I could really argue without reading the ruling for myself.

The ruling makes for very interesting reading. If anything, to read a Supreme Court ruling for oneself dispels the myth of some abstract "objective" working of the law. The voices of each justice, their perspectives, values and beliefs, likes and dislikes are there, on display, preserved for posterity, reminding any who care to read for themselves of the human element in the workings of the judicial branch of our government, no less than in our executive or legislative branches.

Having read the majority opinion now, it seems clear to me that while the opinion does use language about "dignity" -- language that is likely to appeal to gay and lesbian people who have been subjected to our share of indignities in the whole debate over marriage equality -- the majority opinion does not in fact hinge on some mythical "right to dignity." That argument is a red herring. The majority acknowledges that the central problems in the debate over marriage for gay and lesbian couples are whether marriage is a "fundamental right" and, if it is, whether gay and lesbian couples can be reasonably excluded from that right. The latter question is important, if we are to explain why, for instance, adults shouldn't be allowed to marry children. If there are any circumstances at all under which it would be reasonable to deny marriage, it's reasonable to require explanation as to why a previously existing restriction ought to be lifted.

The majority and dissenting opinions alike agree that marriage is a fundamental right that deserves protection under the constitution. But there are core differences of opinion on the question of what, precisely, about marriage is fundamental. Majority and dissenters agree that marriage has evolved over time, citing, for example, the modern-day abandonment of the law of coverture, which subsumed a woman's rights in marriage under those of her husband. If you acknowledge that marriage has changed at all in its history (which is pretty much impossible to deny), you can no longer seriously assert that no change ever can be allowed. You instead have to determine what is the core or central idea in marriage, and make a determination as to whether a proposed change harms or strengthens that core idea.

Dissenting justices insist that regardless of changes in the institution of marriage, the "core" concept in marriage is related to the gender of the individuals entering into it. The majority, on the other hand, sees the core concept in marriage being the voluntary union of two people. The majority offered corollary arguments that marriage is best defined in legal terms by what it accomplishes socially: the creation and protection of a viable social unit that includes two loving adults and is capable of protecting and nurturing children. And they don't see how or why gay and lesbian couples could/should be excluded from such an institution. The dissenting justices accuse the majority of creating "new" rights or of making fundamental changes to the institution of marriage. The majority insist that they are not creating new rights at all, but simply allowing gay and lesbian couples access to ancient rights from which they can't reasonably be excluded.

There is a fundamental philosophical problem related to the accusation of changing the definition of marriage. In order to determine whether marriage is being changed or preserved, it is necessary to agree on a definition of marriage, and that is precisely what we have never, through the entire course of this debate, been able to do. Conservatives are incensed that the court's majority have defined marriage. This, they argue, no court should do. But conservatives themselves are defining marriage. It is impossible in a decision such as this not to define marriage. The question before the court is whether or not gays or lesbians should be granted access to marriage. And in arguing why they can reasonably be excluded from marriage, you must define it (as a union of a man and a woman), which is precisely what conservative dissenting justices did in their opinions. Dissenting conservative justices have defined marriage. What piques them is that a majority on the court disagree with their definition.

Roberts indignantly asserted that marriage can't be changed:
[T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? 
But he, inconsistently I think, suggests that it would be OK if marriage were redefined by legislative or electoral processes. He states that this is happening -- has already happened in many nations throughout the world -- and was on the verge of happening throughout the United States before the ruling. He acknowledges that supporters of marriage equality are winning the debate, that "the winds of change are freshening at their backs." But you can't simultaneously be galled by the fact that marriage is changing at all, and congratulatory of the fact that it is changing through legislative processes.

The argument that the United States and many other countries throughout the world are committing some massive blunder by fundamentally altering an institution that predates human history is belied by the ease and swiftness with which this "fundamental change" is taking place. I think that if allowing gays and lesbians to marry were such an earth-shattering change, it simply wouldn't be happening. People wouldn't accept it. Human beings are notoriously conservative when it comes to things intimately connected to their personal lives. What -- this ruling correctly points out -- is more intimate than marriage?

I think the reason people are accepting the notion of letting gay and lesbian couples marry is precisely because allowing gay and lesbian people to marry changes the core idea of marriage not one iota. The majority opinion alludes to this when it states that the argument that allowing gay and lesbian couples to marry will harm the institution of marriage "rests on a counterintuitive view of opposite-sex couple’s decision making processes regarding marriage and parenthood." What matters most to the typical heterosexual making a decision about marriage is that they be allowed to choose to enter into a lasting union with someone they love. Allowing gays and lesbians to do the same does not undermine that concept, it reinforces it.

Roberts also appeals to the supposed knowledge of the "person on the street" -- according to him, that marriage is a union of a man and a woman. But that "knowledge" only became necessary when the gay rights movement made it possible to suggest that a man and a man or a woman and a woman should be allowed to get married. That suggestion created initial homophobic revulsion. It was only at that moment in history that it became necessary to pass laws banning same-sex unions. The heterosexual majority simply didn't think in those terms prior to the 1980s. (There is evidence going back centuries, however, that gay people have always aspired to be able to marry the person they freely chose.) For the vast majority of human beings, marriage has been a loving union of two people who in some sense choose each other. That "core definition," that understanding, is not being changed at all by this ruling.

Another element of this ruling has to do with the conditions under which -- through precedent established by the Supreme Court -- the court can overrule state laws on equal protection grounds. Laws granting rights like marriage are, by their very nature, discriminatory. They establish criteria under which the rights can be granted, and then necessarily exclude those who don't meet the criteria. The 14th Amendment guaranteeing equal protection requires justices to determine if laws unnecessarily exclude individuals who are in similar circumstances to others who are granted rights under the law. Conservatives argue that precedent requires the court to establish that the groups being protected under an "equal protection" ruling are part of a protected class. Gays and lesbians, they argue, don't meet that criterion.

I'm not familiar with the more arcane aspects of jurisprudence that guide the determination of what constitutes a "protected class." The majority opinion does give a brief account of the history of homophobia in the United States. It discusses the fact that gay relationships were -- until Lawrence v. Texas (2006) -- criminalized, and explains why that criminalization was wrong, why the ruling in Bowers v. Hardwick (1986) that Lawrence reversed was wrong, and why the type of discrimination that made such criminalization possible is unjustifiable in the American legal system. The opinion is a very eloquent critique of American homophobia. And it makes the case that you have to find a better reason for excluding gay and lesbian couples from marriage than that it's always been that way.
History and tradition guide this inquiry, but do not set its outer boundaries. See Lawrence, supra, at 572. That method respects our history and learns from it without allowing the past alone to rule the present.
Conservatives and liberals will continue to debate this ruling. Echoes of the debate that has raged around this issue for the last couple of decades appeared in the ruling. The majority responded to the arguments of same-sex marriage opponents that allowing gays and lesbians to marry will harm marriage, by pointing out that no convincing evidence of actual harm has yet been produced, and by showing how inclusion of gays and lesbians in the institution of marriage will be good for society. Dissenting justices accused the majority of trying to make policy through the ruling. But the majority ruling was not about why same-sex marriage constitutes wise policy. It addressed the policy implications because they had been raised by the opposition as reasons to oppose same-sex marriage. The LGBT community and their supporters were electrified by the ruling precisely because it addressed something far more fundamental than social policy.

Justice Roberts did issue a warning that resonated for me. He wrote:
By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. 
Though I disagree with him that this ruling is not "the sort of thing" that the Supreme Court is supposed to decide (i.e., issues of fundamental rights, freedoms and equality), I recognize that not everybody sees it this way, and this ruling may, indeed, have some of the negative effects he warns against. It is precisely because Americans tend to prefer to make decisions through the electoral and legislative processes that OutFront, the leading state-wide LGBT rights organization in Minnesota, discouraged marriage equality law suits and chose instead a strategy aimed at convincing the public that allowing gay and lesbian couples to marry was a good idea, and then seeking to address this through the legislature (which was how Minnesota legalized same-sex marriage in 2012).

But the Supreme Court could not make this decision based on what tactics they felt were appropriate. A question was brought before the court, and the court had to make a decision. One of the main reasons courts exist within our constitutional, democratic system is as a resort for those who have been harmed by unjust laws enacted by majoritarian rule. If you read the stories of the individuals involved in these cases, you will see that they were harmed and they had good cause to bring their cases to the Supreme Court. And the fact of the matter is that majorities in the states involved refused to make legal provisions that would have prevented the injuries that occurred. In the system of American constitutional democracy, individuals who have been unjustly harmed are not obliged to wait for legislatures to get it right.

Whichever way the court had ruled, it would have required some working definition of marriage -- as the minority arguments themselves show. It required a determination as to whether gay and lesbian individuals deserve equal protection. And whichever way the court ruled, it would have had profound implications for the destiny of LGBT people in America. Had the court ruled against us, it would have embedded anti-gay prejudice in the body of legal interpretation of the highest court in the land. It would effectively have ruled us second class citizens. We would have been harmed by such a ruling. Thank God it didn't do that.

Those who say this ruling represents an arrogation of power by the courts are perhaps insensitive to the power that has been used to disadvantage and harm LGBT people in this country. The court has power, power granted it by our constitution. Thank God, in this case, it used its power to protect the rights of the weak -- something the Supreme Court has occasionally famously failed to do, as in the Dred Scott decision or as in Plessy v. Ferguson or as in Bowers v. Hardwick. Isn't protecting the rights of the weak, of minorities, against the overweening power of majorities precisely what the Supreme Court is supposed to do? You can argue that gays shouldn't be protected. But don't argue that gays deserve protection, and then criticize the court for doing its job.


Armando Bravo said...

Excelente comentario, muy bien fundado. Se ve que tienes capacidad para entender las complejidades jurĂ­dicas. Espero que tu escrito ilumine a muchos y colabore a un entendimiento comĂșn. Saludos

Brenda said...

As usual, John, well thought out and well written.
I had a question about this:
"It discusses the fact that gay relationships were -- until Lawrence v. Texas (2006) -- criminalized, ..."
As I understand it, the relationship between 2 individuals was not criminalized, it was sodomy; an act, action, or behavior, that was criminalized.
It's probably what you meant, and I'm just being a picky grandma editor. Maybe you were trying to use more family friendly language?

John Gustav-Wrathall said...

Armando: Gracias, Armando! Lo espero yo tambien!

Brenda - You're right that sodomy laws generally proscribed only certain acts, not relationships. However, since gay relationships were presumed to involve sodomy, sodomy laws cast a pall of illegality over all gay relationships.

Years ago, when there was an epidemic of assaults on gay men in Minneapolis, the gay community asked for heightened policing of areas where gay men were most often attacked. The police department refused, and cited the sodomy laws, ominously warning that gay community that the might have to enforce the sodomy statutes if they were aware of "illegal behavior" on the part of the bashing victims.

Similarly, in the state-wide debate over passing an anti-discrimination ordinance in Minnesota, and in attempting to pass laws that would recognize "domestic partnerships," the sodomy statute was cited as a reason why any legal protection of gay people would potentially be in conflict with the law, and therefore could not be passed.

Even though sodomy statutes were rarely enforced, there's no question that they put individuals in gay relationships in second class legal status.