PrintIn a major setback for gay marriage advocates, California voters passed Proposition 8 last Tuesday. And since then, TNR's managing editor Richard Just and TNR's legal affairs editor Jeffrey Rosen have been debating the appropriate lessons to draw from the defeat. Read Rosen's opening argument here and Just's first reply here.
Dear Richard,
Many thanks for your thoughtful response. But just to be clear: I’m not arguing that judges should crudely follow the polls, or that courts are supposed to do nothing more than predict and ratify public opinion. Instead, the argument--developed here--is that, when the constitutional arguments for judicial intervention are ambiguous, uncertain, and intensely contested, judges should defer to the political branches.
In my view, gay marriage, like abortion, is one of those areas. The Supreme Court was right to strike down bans on interracial marriage in 1967 because the only plausible social meaning of those bans was to degrade black people and to promote white supremacy. By contrast, the arguments on behalf of gay marriage are less clear. Although bans on gay marriage are (literally) a kind of sex discrimination, it’s not intuitively obvious to most people that the bans should be viewed as an effort to promote male supremacy. Nor has the immutability of a trait, which you emphasize, ever been necessary or sufficient for heightened constitutional protection: Religion isn’t immutable, even though it’s considered a suspect classification, while height is immutable, but short people aren’t a protected class. Finally, some people--including some prominent gay commentators--support civil unions as a separate but genuinely equal alternative to gay marriage. They’re not motivated by animus, they insist, but instead by a desire to preserve a traditional definition of marriage--hardly an argument that would pass the laugh test if race were involved. For all these reasons, I haven’t been convinced by the constitutional analysis of three state Supreme Court decisions imposing gay marriage by judicial fiat. But I acknowledge that the arguments are close (like all constitutional arguments in tough cases), and for that reason, if the California justices’ vision of equality had been endorsed, rather than repudiated, by the people, I would have viewed the decisions as legally shaky but constitutionally prophetic.
On strategy: Given the fact that the California legislature had already tried to recognize gay marriage (despite the Governor’s veto), I suspect that that gay people in California as a whole would have had the right to marry more quickly if the political process had taken its course. Repealing Prop 8 will be more difficult, given the mobilization of well-funded anti-gay marriage forces from around the country. (The pro-choice movement learned the same lesson after Roe v. Wade.) I wonder, for example, whether 70 percent of African American voters would have turned out to oppose a legislative, rather than a judicial, declaration of gay marriage: It’s the undemocratic character of judicial activism that provides such a rallying cry for opponents. For the same reason, think about the difficulty of repealing the various initiatives, laws, and state constitutional amendments that were passed in response to the Massachusetts and California Supreme Court decisions--from the state bans on gay marriage to the Arkansas initiative, passed last week, that forbids adoption by unmarried couples. Once again, the difficulty will be compounded by the mobilization of national anti-gay rights forces, such as the Church of the Latter Day Saints--social conservatives who have otherwise been marginalized in the age of Obama but now are focusing their political energies on a single issue.
What’s the best way for gay marriage supporters to build political support for their cause? That answer is above my pay grade, but as the social conservatism of blacks and Hispanic voters suggests, it wasn’t enough for California voters to see the reality of gay couples in meaningful marriages. This suggests the challenge, in the short term, is greater that many gay marriage supporters hoped. At a Yale Law School conference on the future of reproductive rights in October, Pam Karlan of Stanford predicted optimistically that the gay rights movement was doing better than the pro-choice movement because “gays have come out of the closet” while “women who’ve had abortions have gone back in the closet.” The third of American women who have had abortions, she suggested, should consider discussing their experiences for the good of the movement as a whole.
It seems unsettling and illiberal for a political movement built on the right to privacy--which was never a good metaphor for abortion rights--to demand that women sacrifice their privacy for the cause of ideological solidarity. But more broadly, Karlan exaggerated the current backlash against Roe and understated the backlash to the gay marriage decisions. When Roe was decided, two thirds of the country supported the right to choose abortion early in pregnancy--a percentage that remains virtually unchanged today. Most of the backlash against Roe focused on restrictions on later term pregnancy, which national majorities supported and the Supreme Court eventually permitted. By contrast, national majorities still oppose gay marriage--at least until the next generation of more tolerant voters come of age. In other words, the pro-choice movement is actually doing better than the pro-gay marriage movement at the moment because relevant majorities support choice early in pregnancy but oppose gay marriage. This political reality reflects deeply felt moral views that can’t be changed, at least in the short term, by demanding that gays and lesbians--or women who have had abortions--testify about their personal experiences. And it suggests that the future of gay marriage will be determined not by judicial activism but by demography.
Last word to you, with many thanks for another fine discussion.
Best regards,
Jeff
Jeffrey Rosen is the legal affairs editor for The New Republic.
Click here for Jeffrey Rosen's original argument.
Click here for Richard Just's rebuttal.
COMMENTS (10)
When people refer to "the social conservatism of black and hispanic voters" discussing the vote on Prop 8, does anybody really think that it's because black and hispanic voters have some kind of strong committment to an idea (however vague) of "traditional marriage"? Let me put it this way. If Prop 8 had been a more straightforward Nuremberg Law, denying the right of Jews to marry Gentiles, does anybody doubt that a majority of the black community, despite the earnest outreach efforts of Michael Lerner et al., would have voted in equal numbers to deny rights to a smaller, and overall whiter, minority? Nobody seems to compare the homophobia of those minority voters to anti-Semitism, but it ... view full comment
When people refer to "the social conservatism of black and hispanic voters" discussing the vote on Prop 8, does anybody really think that it's because black and hispanic voters have some kind of strong committment to an idea (however vague) of "traditional marriage"? Let me put it this way. If Prop 8 had been a more straightforward Nuremberg Law, denying the right of Jews to marry Gentiles, does anybody doubt that a majority of the black community, despite the earnest outreach efforts of Michael Lerner et al., would have voted in equal numbers to deny rights to a smaller, and overall whiter, minority? Nobody seems to compare the homophobia of those minority voters to anti-Semitism, but it seems to me rather plausible that it is perhaps a form of spilled or displaced anti-Semitic sentiment. In which case, what recourse to gays have OTHER THAN the enlightenment of the courts? If there were a gay Abe Foxman, he would be called "shrill". And if there were a gay Holocaust to offer the moral high ground....oh wait, there was such a tragic event, it was called the AIDS epidemic, and it doesn't seem to have raised public consciousness in favor of gays, any more than the pogroms and Dreyfusards of the 1890s were able to forestall the events in Germany some 30-40 years later.
IIRC, if you look at the polling in Massachusetts pre- and post-gay marriage it IS enough for some people to see the reality of gay couples in meaningful marriages. I also suspect that many of the black and Hispanic voters you mention WEREN'T able to see this very often; maybe I'm buying into stereotypes too easily but I suspect most gay couples in healthy, happy relationships occupy a completely different socio-economic strata than socially conservative minorities do.
I share your unease about demanding public testimonials from gay couples, but I think the weight of evidence is still points to that strategy's efficacy.
IIRC, if you look at the polling in Massachusetts pre- and post-gay marriage it IS enough for some people to see the reality of gay couples in meaningful marriages. I also suspect that many of the black and Hispanic voters you mention WEREN'T able to see this very often; maybe I'm buying into stereotypes too easily but I suspect most gay couples in healthy, happy relationships occupy a completely different socio-economic strata than socially conservative minorities do.
I share your unease about demanding public testimonials from gay couples, but I think the weight of evidence is still points to that strategy's efficacy.
So, does this mean both of you now concede, that there is no equal protection under republican laws? Jeffrey Rosen slights judicial activism because it angers the majority. Richard Just asks for a better informed public. So, what branch protects minorities in the meantime?
So, does this mean both of you now concede, that there is no equal protection under republican laws? Jeffrey Rosen slights judicial activism because it angers the majority. Richard Just asks for a better informed public. So, what branch protects minorities in the meantime?
Rosen's legal argument here is very weak. He strangely argues that immutability is not the only factor in considering whether to grant heightened constitutional scrutiny to a legal classification, but fails to mention the *other factors* and that they counsel, even more strongly than immutability, in favor of heightened protection. Those factors are (1) that the trait has been the basis of widespread historical discrimination, and (2) that the trait bears no relationship to the individual's ability to function within and contribute to society. Immutability, in the sense of race, is actually the toughest factor to satisfy, which is why Rosen's point that it's not always necessary is actual ... view full comment
Rosen's legal argument here is very weak. He strangely argues that immutability is not the only factor in considering whether to grant heightened constitutional scrutiny to a legal classification, but fails to mention the *other factors* and that they counsel, even more strongly than immutability, in favor of heightened protection. Those factors are (1) that the trait has been the basis of widespread historical discrimination, and (2) that the trait bears no relationship to the individual's ability to function within and contribute to society. Immutability, in the sense of race, is actually the toughest factor to satisfy, which is why Rosen's point that it's not always necessary is actually an argument against his position, and not in favor of it. The California Supreme Court made just Rosen's point, and held, basically, that homosexuality is either unchangeable or changeable only at great personal cost -- a recognition of the realities of sexual orientation with which only an ignoramus could disagree. ***** Rosen further digs a hole by analogizing to interracial marriage -- a comparison that, once again, counsels in favor of requiring gay marriage and not against it. Rosen suggests that lawmakers are not motivated by discriminatory animus because they have offered civil unions. He suggests that if any lawmaker did something similar with respect to interracial marriage, it wouldn't "pass the laugh test" as not motivated by racial animus. But why not? Suppose that interracial marriage were politically touchy and the country was not ready to embrace it fully. Suppose further that well-meaning lawmkers, recognizing that political reality, proposed non-"marriage" civil unions for interracial couples as a way to deliver the concrete benefits of marriage without upsetting their constituents who are personally invested in keeping this traditional institution to themselves. Those lawmakers would not be motivated by racial animus, as I am sure that many of California's lawmakers are not motivated by animus based on sexual orientation. But, in the case of interracial marriage, *that wouldn't matter.* Courts are not psychologists, and they don't probe the personal motivations of legislators. One must look at what the law does to determine whether it inappropriately discriminates, not at what's in lawmakers' hearts. ***** In this case, the law withholds legal "marriage" on the basis of sexual orientation. It says to gay couples, you are not one of us, you are not fully members of the political community, you are odd, and your existence, as a committed couple, does not merit the same level of legal recognition that everyone else's does. This is symbolic, largely, but potent -- and both sides are invested in the symbolism. Gays want legal recognition on the same basis that others enjoy it, and their opponents want to deprive that same recognition. It does all those things necessarily. There is no other interpretation. Whether lawmakers are themselves animated by negative attitudes about gays or whether they are merely deferring to such attitudes among the electorate, there would be no controversy if some large portion of Americans did not view homosexuality as deviant and wrong and not to be endorsed in any way by the state. It's an istance of bigotry that our constitutional values straightforwardly prohibit. The fact that it is controversial is not a sufficient reason for a court to avoid saying so.
I will defer to others regarding strategy (courts vs. legislative/public advocacy). Regarding constitutional interpretation, however, I find strange the notion that courts should defer to public opinion in construing a constitutional bill of rights. As other commenters have noted, the purpose of a bill of rights is to protect certain individual choices and actions from majoritarian tyranny. By definition, then, a court must endeavor to construe constitutional provisions without regard to public opinion or public consensus. And where the meaning of a constitutional provision in a contemporary context is "ambiguous" is precisely the circumstance in which courts play their most important ro ... view full comment
I will defer to others regarding strategy (courts vs. legislative/public advocacy). Regarding constitutional interpretation, however, I find strange the notion that courts should defer to public opinion in construing a constitutional bill of rights. As other commenters have noted, the purpose of a bill of rights is to protect certain individual choices and actions from majoritarian tyranny. By definition, then, a court must endeavor to construe constitutional provisions without regard to public opinion or public consensus. And where the meaning of a constitutional provision in a contemporary context is "ambiguous" is precisely the circumstance in which courts play their most important role with regard to constitutional interpretation. Indeed, it is rare that constitutional questions come before a court where there is no "ambiguity," meaning that the constitutional text does not EXPRESSLY address the issue. It is the courts' task in that circumstance to determine whether the constitutional provision at issue extends to the activity in question, and the court must reach that determination without regard to public opinion, but, rather, with regard to the principles that are embodied in the contstitional text.
To be sure, a jurist will be informed by external factors such as their own experiences, observations of the world, and peronsal predelictions. But a judge should conceptualize his or her role in constitutional interpretation as ascertaining the meaning of a constitutional provision without regard to prevailing public opinion. To suggest otherwise misinterprets our constitutional system.
I agree with jhildner's comments. Rosen is actually articulating three propositions: (1) the judciary is not the best venue in which to seek recognition of gay marriage; (2) courts should follow public opinion rather than lead it with regard to constitutional values, at least where there is "ambiguity" regarding the application of the relevant constitutional provision; and (3) federal and state constitutions do not unambiguously proscribe discrminination against homosexuals. Jhildner points out that there really is no ambiguity here. The Equal Protection Clause does not identify any particular group as being subject to its protection. It obviously was aimed at discrimination against for ... view full comment
I agree with jhildner's comments. Rosen is actually articulating three propositions: (1) the judciary is not the best venue in which to seek recognition of gay marriage; (2) courts should follow public opinion rather than lead it with regard to constitutional values, at least where there is "ambiguity" regarding the application of the relevant constitutional provision; and (3) federal and state constitutions do not unambiguously proscribe discrminination against homosexuals. Jhildner points out that there really is no ambiguity here. The Equal Protection Clause does not identify any particular group as being subject to its protection. It obviously was aimed at discrimination against former slaves and other black persons, but there has never been any serious argument that its protection is limited to black persons. It wouuld defy reason to conclude that the Equal Protection Clause does not apply in analogous circumstances, i.e., where an identifiable group of persons is discriminated against under law either because of bias or animus toward that group, or for no discernible legitimate reason. Where a group has historically been subject to discrimination, there is a presumption that a discriminatory law is based on bias and the government must provide a compelling, non-discriminatory justification for the law in order for it to be upheld. The case law calls groups who have historically been victims of discrimination "suspect classes," and those classes include blacks, other racial and ethnic groups, women, etc. As jhildner argues, it is difficult to come up with an honest argument that homosexuals should not be deemed a "suspect class." Yet, as far as I know, no one has articulated a compelling govenmental interest in denying gays the right to marry. Indeed, the Equal Protection Clause requires even laws that discriminate against non suspect-classes (e.g., persons under 18 or 21 years of age) do be justified by some rational -- if not compelling -- interest. I have not seen articulated even a rational basis for denying gays the right to marry. So this really is not an "ambiguous" constitutoinal issue at all.
I do note that the Supreme Court has disingenuously bastardized the concept of "suspect classes" into "suspect classifications," so that it can recognize the concept of "reverse discrimination." Under that construct, a law discriminating against white males is a "racial classification," and therefore a "suspect classification" requiring a compelling governmental interest, even though white males could not remotely be considered a "suspect class" that has historically been discriminated against. So we have the perverse situation in which a law discriminating against white males is subject to strict scrutiny and will be struck down absent a compelling government interest, while legal scholars purport to question whether laws discriminating against gays implicate the Equal Protection Clause at all.
I think Jeff is operating under a wrong assumption: that this was possible to address in the CA legislature. My understanding is that the CA constitution is quite clear that voter approved initiatives can't be removed by the legislature, which is why Schwarzenegger vetoed the gay marriage bills passed by the legislature. Those bills contradicted Prop 22, and the courts almost certainly would have thrown them out, which is why there were only two routes to gay marriage: go back to the voters to try to get them to repeal Prop 22, or go to the courts to try to get them to overturn 22. Well, we've now done both. Unless the challenges to Prop 8 over it being a revision that requires legislati ... view full comment
I think Jeff is operating under a wrong assumption: that this was possible to address in the CA legislature. My understanding is that the CA constitution is quite clear that voter approved initiatives can't be removed by the legislature, which is why Schwarzenegger vetoed the gay marriage bills passed by the legislature. Those bills contradicted Prop 22, and the courts almost certainly would have thrown them out, which is why there were only two routes to gay marriage: go back to the voters to try to get them to repeal Prop 22, or go to the courts to try to get them to overturn 22. Well, we've now done both. Unless the challenges to Prop 8 over it being a revision that requires legislative approval succeed, it looks like we will be going back to the voters in 2, 4, maybe more years. In any case, there was no legislative solution for gay marriage supporters, and the Governor probably did the movement a favor - sparing us an embarassing court defeat - by vetoing those bills.
I'm not a lawyer, but I found it strange that Rosen--instead of citing substantive evidence supporting views that hold gay relationships are not deserving of the same respect and protection as heterosexual relationships-- relies instead upon inexact analogies that are relevant only insofar as they are controversial. To allow the "tyranny of the majority" to prevail in the absence of positive evidence of harm seems fundamentally wrong. Especially when the evidence--rational, scientific evidence--suggests that gay relationships are at least as healthy as heterosexual ones.
Also, to use the expression "traditional marriage" without elaborating just what that means is problematic. Only recen ... view full comment
I'm not a lawyer, but I found it strange that Rosen--instead of citing substantive evidence supporting views that hold gay relationships are not deserving of the same respect and protection as heterosexual relationships-- relies instead upon inexact analogies that are relevant only insofar as they are controversial. To allow the "tyranny of the majority" to prevail in the absence of positive evidence of harm seems fundamentally wrong. Especially when the evidence--rational, scientific evidence--suggests that gay relationships are at least as healthy as heterosexual ones.
Also, to use the expression "traditional marriage" without elaborating just what that means is problematic. Only recently has marriage been conceived in terms of affection or happiness: traditionally, heterosexual marriage has been more about property or alliances among families than it has been about love or intimacy. As the meaning of marriage has changed, it's become increasingly difficult to justify, rationally and on the basis of sound evidence, why it would be denied to gay and lesbian citizens in a society like ours.
It seems to me that, while each of your positions seems to argue the role of the people, neither of you have brought up the main point of why a governing structure is organized in such a way as our own.
For example, the concept of "electorate": It does not matter what the majority of the people think in a Presidential election; why should this be any different? The structures of a government are meant to provide both for the voice of the people to be heard and for the voice of the people not to be its own tyrant. Regardless of what the country thinks, the government ought to function as it has been organized to do so. For this reason, neither the populace or the courts are wrong in the ways ... view full comment
It seems to me that, while each of your positions seems to argue the role of the people, neither of you have brought up the main point of why a governing structure is organized in such a way as our own.
For example, the concept of "electorate": It does not matter what the majority of the people think in a Presidential election; why should this be any different? The structures of a government are meant to provide both for the voice of the people to be heard and for the voice of the people not to be its own tyrant. Regardless of what the country thinks, the government ought to function as it has been organized to do so. For this reason, neither the populace or the courts are wrong in the ways they have acted, because they have acted according to the avenues set for them in the state governance.
So you may see the real issue, then: not appealing to the courts, but the idea that popular vote determines law. Being from California myself, I find this system of state governance ridiculous. Why ought the state function any differently than the Federal government; and surely we do not propose to have every law passed by Congress now put to popular vote? No; the people are allowed to vote for others who then make the law. There is no question. If the law was to be the law, it should have been put to the state legislature. And so, the homosexual community was not wrong. Rather, it is the oddity of populace law-making that has caused this, and the idea that the issue of gay marriage is only a state issue, instead of a nationwide issue which therefore deserves Federal consideration instead.
Therefore, it seems that the problem is not what the gay community should have done, but rather, which court system -- Federal or State -- ought to hear the argument.
I'm a great believer in judicial restraint, and on the face of it Rosen is making a similar case. But I'm baffled by aspects of his argument. How would the failure of Prop 8 have vindicated the California Supreme Court's 4-3 decision, even if - as Rosen suggests - the decision was weakly justified? Clearly it is a higher bar to actually amend the constitution after the fact, and the Courts thus typically help to make their decisions self-fulfilling in that sense. Keep in mind that gay marriage, pre-judicial usurpation, failed by 20 points in California only a few years ago. I personally, as a resident of Massachusetts at the time, have no doubt that gay marriage would have failed an honest v ... view full comment
I'm a great believer in judicial restraint, and on the face of it Rosen is making a similar case. But I'm baffled by aspects of his argument. How would the failure of Prop 8 have vindicated the California Supreme Court's 4-3 decision, even if - as Rosen suggests - the decision was weakly justified? Clearly it is a higher bar to actually amend the constitution after the fact, and the Courts thus typically help to make their decisions self-fulfilling in that sense. Keep in mind that gay marriage, pre-judicial usurpation, failed by 20 points in California only a few years ago. I personally, as a resident of Massachusetts at the time, have no doubt that gay marriage would have failed an honest vote, and has only survived because of the arcane amendment rules in MA. (This is also true in CT). This, indeed, is why these states were selected by gay rights advocates.
The more I read this debate, the more I got the sense that the argument concerned how best to lure the voters on side. Constitutional reasoning cannot be this instrumental. If it is, then procedural justice - the very basis of our liberal democracy - is dangerously undermined.