Law, Feelings, and Religion at the Bar in IowaMATTHEW J. FRANCK
What happens when judicial arrogance becomes so habitual as to become second nature?
This past Friday, April 3, the Supreme Court of Iowa provided an answer: judicial arrogance transforms into smug self-deception. This is not the question the court thought it was answering. It claimed to be addressing the question of whether "exclusion of a class of Iowans from civil marriage" -- namely the "class" of "gay and lesbian people" who wish to marry others of the same sex -- can be justified by the state. But the opinion for a unanimous court in Varnum v. Brien, written by Justice Mark Cady, actually says very little about matters of such justification. By contrast, it speaks volumes about the extent to which American judicial power, having burst free of all constraints, is now in the grip of a banal routinization of tyranny so complete that the tyrants do not recognize their own character as they blandly overturn many centuries of civilization in a day's work.
The evidence of this "banality of tyranny" (to paraphrase Hannah Arendt) is littered throughout Justice Cady's opinion. We might point to the court's blithe unconcern for the actual words of the Iowa constitution, which receive no real analysis at all. We might note, as has legal scholar Robert F. Nagel, that the opinion is full of "clunking vocabulary" and "painfully labored analysis" about whether the statute under challenge is subject to the "rational basis test" or to "strict scrutiny" or to something in between called "intermediate scrutiny." We might remark on the relentless question-begging and the abrupt ipse dixits that drive the court's choice of the third of these "levels of analysis" and create a simulacrum of reasoning on the part of judges whose minds were clearly made up before any "analysis" was undertaken. We might say something about the bad faith the judges show their fellow Iowans, whose tolerant attitudes about homosexuality, expressed in previous public policy decisions, are exploited to push their state into a brave new world they continue to resist. Or we might join others who have gasped incredulously at the court's rejection of any argument for the natural family as the best setting for child-rearing as a mere "stereotype" (and this in a dismissive footnote, no less).
We could broaden the discussion to consider the Iowa supreme court's general impression of its relationship to its state constitution and to the people for whom and by whom it was made. More than once, Justice Cady's opinion actually cites the undoubted prospect of failure for the cause of same-sex marriage in Iowa's democratic institutions as a justification for the court's intervention on the cause's behalf on allegedly constitutional grounds. The judges, you see, are "free from the influences that tend to make society's understanding of equal protection resistant to change." And so when he follows the lead of the U.S. Supreme Court's 2003 Lawrence v. Texas ruling (overturning a state law criminalizing sodomy), claiming that "the standards of each generation" are the touchstone for understanding what the Constitution says about equality, we know perfectly well that Cady does not mean that democratic majorities will be consulted for discerning what those standards are. No, "a new understanding of equal protection is achieved" whenever the judges say a new thing on the subject. Adorning the opinion with the standard insincere pledge of a "keen and respectful understanding" of separation of powers that is employed by all judicial activists, Cady all but admits that the Iowa supreme court has just amended the state constitution. This is easily done illegitimately by the judiciary, but is a very hard thing for Iowans themselves to do legitimately through the prescribed amendment process. Cady knows this too, remarking that the people can "shape it over time," while silently passing over the fact that the judiciary can do it in a few minutes on a Friday morning.
We could talk about all these matters at length, but let us instead consider something else in this "legal astonisher" (to borrow Abraham Lincoln's description of the Dred Scott case). Let us examine the state supreme court's peculiar view of the role of moral reasoning in legal decision-making, and of the sources of moral principles.
Choosing, as it does, the standard of "intermediate scrutiny" to test the validity of Iowa's 1998 marriage-protective statute, the court puts the burden of justification on the state. This maneuver masks the essential weakness of the argument for same-sex marriage, which comes finally to this: because some persons are "sexually and romantically attracted to members of their own sex," and because some of those persons have entered into "committed and loving relationships" with each other, they are entitled to "the personal and public affirmation that accompanies marriage."
From this vantage point, the feelings individuals have for one another are the authoritative wellspring of moral principle. Now, only a great fool would deny the connection of love and marriage -- they go together like a horse and carriage, as Frank Sinatra famously sang. But emotion and desire, without more, are a treacherous foundation for law and public policy. As Pascal remarked, the heart has its reasons of which reason knows nothing. From society's vantage point, that's not good enough. Marriage and family are a moral institution -- the teacher of right conduct between the sexes, the school of morality for the young, the founding scene of our moral obligations, the refuge from a wider world where respect for those obligations is a much chancier proposition. These may sound like lofty ideals often unrealized, but that both is the point and is beside the point. Society has an interest -- none of its interests is higher -- in encouraging the successful formation of marriages and families that point by their nature toward the achievement of these ideals. Within the metes and bounds of the law that expresses society's conclusions about these matters, the rest is up to us.
Hence it is essential that public policy on marriage turn from love, and from lovers' felt need for "affirmation," to consider what reasons can be given for this or that way of arranging the family that makes a claim on our attention. Are all "relationships" created equal? Are all of them equally conducive to human flourishing? Is every way of bringing children into the world, or of rearing them, equally deserving of "affirmation"? How many men and/or women does it take to make a marriage that will perform the functions we want marriage to perform? Are children best prepared for healthy, responsible adult lives with both a mother and a father? Natural or "step-" or adopted? With a mother and a father or with "parents"? How many of each?
The laws of marriage and family, of divorce and custody, are efforts to address such questions rationally, if necessarily imperfectly, with the moral health of each party concerned being something to be optimized to the greatest extent possible. In the nature of things, someone's preferred notion of a "relationship" that needs "affirming" is always going to be left outside the moral pale, or so one would have thought until now. But on the Iowa court, all such questions, answered slowly and haltingly by G.K. Chesterton's democracy of the dead, the living, and the yet-unborn -- otherwise known as "tradition" -- are swept aside by the judges' solicitude for the "excluded" whose self-esteem is wounded. When desire becomes the foundation for a right, beware. Nothing in what passes for reasoning in Justice Cady's opinion can stand against the next claimant -- perhaps the polygamist -- who presents himself as needing affirmation for his relationships. This is not a slippery slope we have before us. It is the sight of a levee breaking in a spring flood.
The Iowa court itself presents an alternative to a feelings-based moral reasoning in the final pages of the Varnum opinion. But it presents that alternative in the most thuggish and intellectually dishonest way. Turning to an argument that was not even made by the county officials defending their duty under Iowa law (and thus should not have been discussed by the court at all), Justice Cady imputes to the state legislature a covert motive behind its marriage-protective statute of 1998: "religious opposition to same-sex marriage." This is what's really going on: "religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage." But this, Cady argues, is constitutionally objectionable for the following reasons: first, there are different religious opinions, some opposing but others approving of same-sex marriage; second, the state government is forbidden to choose between rival religious beliefs; and third, "[s]tate government can have no religious views, either directly or indirectly, expressed through its legislation. . . . This proposition is the essence of the separation of church and state."
Justice Cady seems not to notice that, by ruling in favor of same-sex marriage, he and his fellow judges, by his own reasoning, have placed the state in the position of endorsing those religious views that approve of same-sex marriage. But that observation only scratches the surface of an argument that is -- well, come to think of it -- all surface. For the unanimous Iowa court appears incapable of entertaining the most elementary distinction between matters of theology, faith, and worship, on the one hand, and matters of moral reasoning springing from religious conviction on the other. What the opinion calls "religious opposition to same-sex marriage" would more accurately be described as "moral opposition to same-sex marriage springing from religious sources." It would not go too far to say that religion is the true wellspring of moral thought and action in our civilization. Our own Declaration of Independence -- source of what Lincoln called "our ancient faith" -- calls upon the Creator as the giver of all our fundamental rights.
Because of the diversity of religious commitments in our society -- and because it violates our constitutional morality, and no little part of our dominant religious morality, for anyone to be coerced in matters of faith and practice -- we must express our moral opinions to one another in a shared language of reasons and arguments. This does not and cannot mean that the connection of our moral arguments to our religious sentiments is severed when we meet in the public square. But when all the arguments have been aired out, the moral view that prevails at the ballot box and in the legislative halls is entitled to have its way in public policy, barring any explicit constitutional obstacles to its enactment. The "separation of church and state" is not one of those obstacles. If it were, no law with any moral purpose that happened to coincide with the view of any religious community could ever be upheld.
All of this escapes the Iowa justices, whose view seems to be that if a moral argument finds support in any religious commitment, then the promulgation of that argument in law is a violation of the principle of religious disestablishment. This is logically fallacious, historically illiterate, and politically brutish. Recall that juxtaposed with this unremitting hostility to religiously-supported morality is an embrace of the morality of desire. Yet in the Iowa court's view, religion is itself reduced to mere "feeling," and so the justices wind up incoherently privileging one kind of feeling over another. Those who desire to marry win out over those who desire to "exclude" them from marrying, and that's that.
Lost from view is the true ground of our common public morality: reasoned judgment about the natures of things and the good of human persons, families, and communities. About such matters, religion can be instructive (to say the least), while a mere desire to "affirm" our "relationships" cannot be. And so, in both its reductive approach to religion and its empty invocations of feelings, the Iowa Supreme Court has done an injustice to religion, to the possibility of lawful public morality, and -- yes -- to our relationships themselves.
Matthew J. Franck. "Law, Feelings, and Religion at the Bar in Iowa." The Public Discourse (April 7, 2009).
This article is reprinted and republished with the explicit permission of the Withersoon Institute. Public Discourse: Ethics, Law, and the Common Good is an online publication of the Witherspoon Institute that seeks to enhance the public understanding of the moral foundations of free societies by making the scholarship of the fellows and affiliated scholars of the Institute available and accessible to a general audience.
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