Legislation by Litigation

If coverage of the California Proposition 8 litigation hasn’t left you a little crazed, you’re either (a) a space alien or (b) not paying attention. Or maybe (c) the “bloodless lobotomy” of law school truly has left me unlike other humans (i.e., I’m the space alien).

It is irritating, first, to hear the mainstream media consistently refer to some state or other having “banned gay marriage.” Believe it or not, I’m old enough to remember when — hold onto your hats; this will astonish you — there not only was no such thing as gay marriage, but nobody was suggesting there should be. Nobody considered it “banned.”

Nobody considered it at all. And when it was raised, it was viewed less as an evil than as an impossibility — the sort of thing so absurd that only an intellectual could believe it.

From a combination of compassion and libertarian impulses, I was supportive when the laws against gay sex were generally abolished during my teens and twenties (a few states held out, like Georgia and Texas, until the Supreme Court decreed that it was unconstitutional to swim against the stream). Maybe I’m mis-remembering, but I think I recall “all we want is to be left alone” as the sentiment coming from gays (lesbians didn’t seem to be quite so prone to cruising public restrooms where “public servants” would lurk to catch people grabbing an anonymous quickie — the sort of thing that, while well short of entrapment, tended to offend the libertarian impulse).

I still think decriminalization was the right thing to do, and I don’t even consider it a “close call.” But now the demand is not “just to be left alone,” but to have relationships intended to last somewhat longer than the public restroom encounters recognized as “marriages,” on account of the oft-cited 1,000+ federal benefits of marriage. And the “banning gay marriage” mantra makes it sound as if such a seal of approval and subsidy were the status quo, which atavistic sorts are trying to undo.

Activities that get that label could more accurately be described as democratic efforts to prevent courts from creating gay marriage by judicial fiat. Indeed, the democratic efforts to make it exceedingly difficult for courts to create gay marriage, by not just passing a law, but amending state constitutions, have the collateral effect of making it more difficult for democratic majorities of the future to create gay marriage even by democratic means.

But I might as well “out myself” this issue as long as I’m on a tirade anyway:  I think changing the definition of marriage is quite a big deal, and that it has been happening with far too little thought about the unintended consequences down the line (see this frank acknowledgement, for instance).

So even though you can characterize constitutional amendments as “constitutional tinkering,” and can characterize embedding a definition of marriage into a state Constitution as “enshrining discrimination,” I don’t think that requiring future democratic tinkerers-with-marriage to bear a heavy burden of democratic persuasion is a bad thing.

I personally have thrown down the gauntlet of “what interest does the state have in recognizing same-sex unions with the benefits of marriage” (you cannot say that equality requires recognition of the same-sex variety without reckoning on the interests that got the state involved in the more traditional version in the first place), and in my estimation I’ve not gotten a persuasive pro-SSM answer. I’d sooner see the whole notion of state involvement in “marriage” rethought (though I don’t reflexively support civil unions, either) than to experience some of the unintended consequences of indiscriminately extending that institution to these pairings, or those menáges, on so thin a thread as mere clamorous demands.

Second, it appalls me that the courtroom titans leading the charge against Proposition 8 — the odd couple of David Boies and Ted Olson, Bush v. Gore adversaries — have the audacity to argue that if Jerry Brown and Arnold Schwarzenegger don’t like Proposition 8 and won’t defend it, ain’t nobody can defend Proposition 8. They must have howled with glee and swapped high fives when they came up with that one.

I even heard one California politician argue that it would be improper for the state to defend Proposition 8 on appeal because a judge had said it was unconstitutional. So much for the thought that “we lost round one, but there’s more to come.”

Au contraire: Jerry Brown and Arnold Schwartznegger should be impeached, tarred, feathered, rode out of town on a rail and — imagination fails me. They are Executive Branch officials. Their job is to execute (carry out) the law. If there’s a court challenge, their job is to defend a democratically-enacted law, and if they have no taste for doing that properly, they should get the best lawyers available to do it for them to avoid this “standing” argument.

I am not arguing, as so many constitutionally uninformed people seem to, that there is something inherently wrong with courts striking down democratically  enacted legislation. With some trepidation (because of how often it seems to me that courts have abused that role), I support judicial review, and have never raised my voice against Marbury v. Madison (whence judicial review comes, it apparently having not been taken for granted by some of the Founders).

But, third, it increasingly seems to me that our politicians are punting on the difficult and controversial issues, leaving them to be decided by the courts.  Apparently all they think we elected them to do is to spread around the pork and go on junkets; deciding the broad contours of our cultural life is for unelected guys in black robes. That deeply disturbs me.

So I was intrigued to read this from the Volokh Conspiracy blog:

Justice Scalia notes (in a Matter of Interpretation if I recall correctly) that what is striking about the 19th Amendment is how quaint it seems that in order to give women the right to vote it was thought that you actually had to amend the Constitution in order to bring that result about.  Today, of course, someone would just file a lawsuit and have the judges order that result.

I actually believe that it is probably too difficult to amend the Constitution, which has led to greater “amendment” by judicial interpretation.  I think we’d probably be better off if it was marginally easier to formally amend the constitution through democratic processes then we’d have less pressure and excuse for judges to amend it through anti-democratic processes.  I wouldn’t want to allow amendment to be simply majoritarian processes, but perhaps something in between.

As I have already indicated, I don’t think that amendment by judicial interpretation has come about only because it is too difficult to amend the Constitution, but that it has come about in part by the pusillanimity of our politicians.  But I appreciate the Volokh Conspiracy writer’s  suggestion that we need to do something to restore our right of self governance in the face of increasingly aggressive judicial governance.

About readerjohn

I am a retired lawyer and an Orthodox Christian, living in a collapsing civilization, the modern West. There are things I'll miss when it's gone. There are others I won't. That it is collapsing is partly due to calculated subversion, summarized by the moniker "deathworks." This blog is now dedicated to exposing and warring against those deathwork - without ceasing to spread a little light.
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