QandO

August 04, 2004

I now pronounce you husband and...er...husband
Posted by Dale Franks

King County, Washington, Superior Court Judge William Downing has ruled that denial of civil same–sex marriage violates the state constitution. Judge Downing, evidently not sure how shaky his own opinion is, has also decided to hold his ruling in abeyance until the state supreme court takes a whack at it.

In reading Judge Downing's opinion, a paragraph jumped out at me:

In the past two decades, there have been dramatic shifts in public attitudes toward homosexuality. This conclusion is readily apparent to anyone viewing primetime television entertainment, perusing the New York Times marriage announcements or hearing such news as the recent report that the 150,000 member American Psychological Association has now officially endorsed same-sex marriage (Seattle Post-Intelligencer, July 29, 2004). In addition to Lawrence, supra, many courts as well as legislatures across the United States, Canada and Western Europe have given new recognition to “gay rights”, including key developments in the area of same-sex marriage. This societal change, coupled with the sound proposition that the courts have a key role in identifying an “emerging awareness” of the evolving parameters of individual liberty, make it entirely appropriate that these plaintiffs now bring before this court the issue of their right to marry.

The above is precisely wrong. It is certainly true that "dramatic shifts in public attitudes" are a perfectly acceptable reason for the legislature to address this issue. It is not, however, a valid reason for court intervention. The purpose of the courts is not to enshrine "dramatic shifts in public attitudes" into unchallengeable constitutional law, but rather to interpret the laws duly made by the democratically elected legislature. The idea that the courts have "a key role in identifying an 'emerging awareness' of the evolving parameters of individual liberty" is utter poppycock.

The proper place to handle emerging awarenesses is the legislature, not the judiciary. If the judiciary's job is to do that, then we might as well just disband the legislatures, and let unelected judges run the show. Because, in practice, that's exactly what the system will become, and it's foolish to pretend otherwise.

Not only is Judge Downing wrong, he's factually incorrect about those dramatically shifting public attitudes as well. Of course, if I based my perceptions of public attitudes on what I saw in the New York Times, I'd have some pretty goofy ideas as well.

No matter how tolerant we may have become to homosexuality, when given a chance to vote on homosexual marriage, as the voters were in Missouri yesterday, our tendency, tolerance and all, is to decisively reject it. I live in California, one of the most liberal states in the union, and when the gay marriage issue came up with Prop 22, denying gay marriage passed with a 60%+ vote. Come back and talk to me about "dramatic shifts in public attitudes" after gay marriage has triumphed on couple of ballot measures somewhere. Until then, it's just a load of nonsense.

Judge Learned Hand, it is said, at the end of a lunch with Justice Oliver Wendell Holmes, was overcome by enthusiasm as Holmes entered his carriage to return to the Supreme Court. "Do justice, Sir! Do justice!" cried Hand. Justice Holmes looked down at him disapprovingly, and said, "That is not my job, sir. My job is to apply the law."

Apparently, it's getting a bit harder to find jurists who share Justice Holmes' opinion. And that is not, in my opinion, a good thing. We are increasingly coming to regard the Constitution as the font of all good things. Everything we like is now supposed to have some rational Constitutional basis. Even worse, to buttress this belief, we now have a growing cult of the "living Constitution", which posits the Constitution is not a simple safeguard of our basic liberties, but rather an evolving document that says pretty much whatever we wish it to say at any particular time.

I, on the other hand, believe in a dead Constitution. It says precisely what its text says, and if we wish to expand the meaning of the document, we can follow the process of amendment, in effect, briefly resurrecting it, before laying it down again with its new meaning firmly etched in the text.

The problem with the whole "living Constitution" nonsense is that it offers no defense against the possibility that the day may come when a majority of the people—or even a large and vocal minority—may wish the Constitution to say some pretty nasty things. How does the "living Constitution" offer a defense against, say, expelling native-born citizens for disloyalty, simply because they are Muslims? Not much, if the proponents of the idea are to be taken seriously in their arguments that the constitution means what our society feels it should mean.

Indeed, that is an almost perfect definition of what a constitution is not, rather than what it is. The whole point of the Constitution is render some principles immune to popular sentiment. The Bill of Rights supposes that there are some fundamental procedures, such as the protection against unreasonable searches, or the prohibition against forced self-incrimination, that must be upheld irrespective of the public's wishes, or, for that matter, the social costs associated with them. Inevitably, this means that criminals may go free, no matter how great the public outrage, or that smelly, unkempt people can burn the flag at demonstrations, no matter how much we might wish them to get a haircut, a good shower, and an honest job. The whole idea of a "living Constitution" is a rejection of the idea of the Constitution as an explicitly anti-majoritarian mechanism to protect the rights of the minority.

"Ah," you say, "but isn't the whole idea of gay marriage an attempt to protect the rights of the gay minority from the straight majority." To which I would respond, it certainly would be, if the Constitution mentioned marriage anywhere in the document as a right. The closest the Bill of rights has to this is a little amendment which says that the enumeration of certain rights doesn't deny the existence of other rights. But, it doesn't tell us what these other rights are.

The Supreme Court has ruled that, for something to be a right, it must be deeply ingrained in the history or tradition of our people, or implicit to the concept of ordered liberty. Frankly, gay marriage doesn't meet either of those two criteria.

Neither does abortion, for that matter.

This is not to say that, just because something is constitutional, it is wise policy. I believe that abortion, at least in the first trimester, should be legal. I believe gays should be allowed to marry. While we're on the subject, I believe drugs, gambling, and prostitution should be legal, too. I also believe that people should be free to practice law or medicine without a license, as well. I believe I should have the legal ability to obtain prescription medication at my own risk, without a prescription from a doctor. In fact, I think that, except for fairly narrow exceptions, the government should have no power to prohibit any adult from engaging in any consensual activity with any other adult, as long as the person or property of a nonconsenting person is not harmed.

So what? It's only my opinion, and I don't pretend that the Constitution says anything like that, because it doesn't. We have legislatures and elections to deal with stuff like this, and that’s the process we're supposed to follow, not one that flows from the judicial tyranny of nine robed lawyers in Washington DC.

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