The Court and Marriage II: The Pretenses of Judicial RestraintHADLEY ARKES
In his book What I Saw in America, G.K. Chesterton recounted his experience in seeing Broadway at night in New York.
The same thing could have been said by those of us who were there in the courtroom of the Supreme Court this week, as the decisions on marriage were read from the bench. The dignity of the place, the rules of civility and decorum, were so evidently in the air, and so firmly respected. And yet the reasoning in the cases offered a parody of the principles of law that this building was designed to frame and enhance.
In the aftermath of the decisions this week, I wrote in this space on one of the decisions, U.S. v. Windsor, where the Court struck down Section 3 of the Defense of Marriage Act (1996). In Section 3 the Congress had stipulated that every reference to marriage in the federal code would refer only to the legal union of a man and a woman.
Justice Kennedy wrote for the Court in striking down a law that, he claimed, demeaned and "humiliated" gays and lesbians by implicitly refusing to accord, to their relations, the dignity of a marital union. Kennedy affected to offer a judgment limited in its reach: he would not reach Section 2 of the Act, which sought to shore up the authority of a State to refuse to recognize same-sex marriages coming in from other States.
But if it were judged to be morally wrong, unjustified, to bar gay and lesbian couples from marriage, the same understanding would have to spill over to the cases sure to arise in challenging Section 2. Surely it had to be quite as wrong then for a State to cast an adverse moral judgment and refuse to recognize the legitimacy of homosexual unions.
In the companion case of Hollingsworth v. Perry, the majority affected there too that it was acting with the refined sense of limitation, offering a virtual model of judicial restraint. For the Court was deciding here not to decide.
The case involved the famous Proposition 8 in California. The voters of California brought forth a referendum to amend their constitution to affirm marriage solely as the union of a man and woman. But of course that measure (Proposition 8) was challenged in a federal court, and a friendly judge, openly gay, struck down that amendment to the constitution.
The Supreme Court of California agreed that, when the Executive refused, the proponents would have standing to defend the measure they had helped to frame and pass. For otherwise, the process of "initiative and referendum" would become a nullity.
But that is essentially what has happened now as the Supreme Court refused to accept the standing of the proponents to defend their own measure. Chief Justice Roberts insisted that the federal courts had to be governed by their own, distinct rules, and those rules sought to limit the power of the courts by confining them to a "case in controversy." The litigants would have to show a direct material and "personal" stake in the outcome.
The proponents of Proposition 8 had invested themselves deeply in the cause with the concern of "citizens," but they would not be deprived of anything in their own lives if the Court failed to sustain their policy.
There was now a new asymmetry: The governor of any State now could overturn a part of his own constitution — or indeed any part of the laws of his State — by refusing to defend them if they were successfully challenged in a federal court.
All it requires now is a gay or lesbian couple to come forward to challenge the constitution in a State in which the constitution does not accept same-sex marriage. If the State now has a liberal governor who refuses to defend that part of the constitution, that will be enough to make it into a nullity.
The Supreme Court decided that the Windsor case then was not "justiciable." All decisions would be swept away, leaving possibly only that first decision in the District Court. In that case, the judgment would apply only to the litigants in the case, with no authority binding any other court.
But Governor Brown made it known right away that he would direct registrars to accept same-sex marriages all over the State, and couples have already come forward to marry.
Beyond the tragedies of this week, then, there is a further lesson for our friends doing conservative jurisprudence. They wish to believe that the judges take seriously the limits in positive law — that Kennedy is striking down only Section 3, not Section 2; that Roberts is leaving the issue to be contested in the separate States.
But they do not see that the moral judgment at the core of these decisions has a dynamic of its own, which will sweep past all of these barriers of the positive law.
Hadley Arkes. "The Court and Marriage II: The Pretenses of Judicial Restraint." The Catholic Thing (July 2, 2013).
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