Notes From Babel

Conservatives Can Disagree Over Gay Marriage; They Cannot Disagree that Perry Is a Disaster

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There are lots of conservatives who don’t think same-sex marriage is any big deal, that Prop 8 was at best a justifiable reaction to the California Supreme Court’s detour from its judicial wits in In re Marriage Cases.  But Perry is not a valid part of our system of “checks and balances,” it is not a proper exercise of our counter-majoritarian constitutional structure, and it is not an exemplar of sound judicial reasoning.

With this in mind, I responded to this blog post by a self-described “conservative” as follows (with minor edits for clarity and to fix typos):  [UPDATE: As it turns out, Michael did not claim to be a “conservative”; instead, the title of his post, “A Conservative to the Rescue!” referred to Judge Walker, the author of the Perry decision.  At any rate, this does nothing to change the relevancy of my interrogatories concerning how a conservative, whether Michael or Judge Walker, could possibly defend the decision.]


I did not downplay the extent to which gay people are “injured by the law.” In point of fact, they are not injured. The state of California merely decided to maintain the definition of marriage—and thus retain the state’s established system of family welfare and entitlements—to that which has defined that social institution for thousands of years, and which to its citizens most plainly supports a valid state interest in seeing that children and born to and raised by their biological progenitors in a family structure firmly entrenched in our culture. As I mentioned in my article, I am familiar with the work of at least one of the “social scientists” repeatedly cited in the ruling, M.V. Lee Badgett. The “injuries” cited in the ruling, and which I repeated in my post, typify the argument Badgett makes: that gay people want, most of all, a badge of social and psychological acceptance, rather than remediation for any actual concrete harm. This sort of social agitation should not be entertained in our court system.

Anti-miscegenation laws are also inapposite here. Racial classifications in the law are subject to strict scrutiny by the courts. And rightly so, given the established history of racial discrimination in this country. But homosexuality is not a suspect class that has been entitled to heightened scrutiny in our courts. Moreover, plaintiffs (to my knowledge) did not argue that the seven million Californians who ratified Prop 8 had any animus toward homosexuals, or that the state of California exhibited any pattern or practice of invidious discrimination against homosexuals. Thus, the state may make classifications with respect to sexual orientation by the same standard as it makes any other classifications—that is, as long as it has a rational basis for doing so.

And the seven million Californians who voted for Prop 8 did have a rational basis. That a group of social “scientists” (they just don’t make scare quotes big enough) disagree does not transform seven million people into irrational bigots.

For example, as to the proffered basis that the people of California are entitled to tread carefully in effecting profound shifts in their bedrock social institution, Judge Walker ruled: “Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change.” That’s an extraordinary statement. That social “scientists” have the ability to “rebut any claim” that radically changing the institution of marriage—in direct contravention to the will of the majority of the members of that institution—would amount to “a sweeping social change” is going to be a surprising bit of news to a lot of people—including the Ninth Circuit and, eventually, the Supreme Court. Orin Kerr at Volokh explained this well here:

Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.

Second, Judge Walker’s reliance on his factual findings to defeat the argument about the pace of social change seems to miss the point. The claim about sweeping social change is an an ex ante argument about uncertainty. Predicting the future is tricky business, the argument runs. Views of enlightened social policy can change, and our perspective today may or may not seem right tomorrow. For that reason, we should proceed cautiously in changing social institutions to avoid errors that may be hard to correct. Whether this is a valid constitutional argument or not, it seems odd to respond to it by making a factual finding about what the future will be like and then saying that the announced factual findings make the concern irrational. It misses the entire argument, which is about our knowledge-uncertainty, by trying to make it a matter of the judge’s power to find facts.

Suffice it to say, the legal reasoning in the ruling is really quite problematic.

The more interesting question, however, has to do with the judicial activism in the decision. In Lawrence v. Texas, Justice Kennedy writing for the Court struck down a Texas law criminalizing homosexual sodomy, and in so doing, providing the germ that grew into the legal rule underlying Perry. That is, that all moral legislation is unconstitutional as a violation of liberty under the Fourteenth Amendment. This was a radical holding, and although Kennedy sought to limit it in Lawrence (by stating but not explaining that it only applied to private sexual activity [and even then, that the holding may be limited to laws criminalizing such conduct]), Justice Scalia observed that judicial rulings (as opposed to legislatures) are governed by strict adherence to logic and rationality.  (Perhaps the specter of Scalia’s dissent was lurking in the back of my mind when I wrote this post last November.)  Thus, by striking down the justification for Texas’s anti-sodomy law, the Lawrence court had likewise taken the first step toward dismantling all moral legislation concerning marriage, adult incest, polygamy, obscenity, animal cruelty, prostitution, bestiality, etc.

As I have implored another blogger here and here, I would likewise ask you: if the people are not sovereign over the courts in matters such as marriage, what of their sovereignty is left?


3 Responses

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  1. “As I have implored another blogger here and here, I would likewise ask you: if the people are not sovereign over the courts in matters such as marriage, what of their sovereignty is left?”

    Honestly, I don’t think there is any social agenda that cannot be advanced in the courts after being rejected by the democratic process. I bet you dinner that we will see serious chipping away at under-age sex/molestation laws (“18 is an arbitrary number that has nothing to do with physical maturity or brain development”) and polygamy (“if marrying the person you love is a basic human right, they why can’t a person who loves two people marry both of them?”) laws in the next 5 years.

  2. […] Republicans are.  But then, I get worked up over my fair share of other sorts of things, like the travesty of judicial (non)reasoning in Perry v. Schwarzenegger, the passage of perhaps the most offensive […]

  3. […] At the DallasNews story, one of the parties’ attorneys repeats the grating line, “I believe all people should have the same rights to do what they want with their private lives.”  The same-sex marriage question is not about personal freedom or libertarianism or equal rights.  It is about obtaining the state’s imprimatur of social acceptance. […]

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