Joseph W.H. Lough
Adam Liptak’s front page piece on the Supreme Court’s looming decision on same-sex marriage deserves close scrutiny, not because it exposes still another fault-line in the contest over same-sex marriage, but because of its brash (and tragically true) assumption that the Supreme Court is always legislating social and political policy, even (or specially) when its decisions undermine the very validity of the document its members are sworn to uphold.
In the ideal world imagined by the framers of the Constitution, the Supreme Court would be considering whether or not to allow same sex couples the right to marry not based upon a polling of whether one or another segment of the population believes that marriage between one man and one woman is a divinely ordained institution (it is not), or on whether such marriages are good or bad for children (they are good), but on whether they violate any given individual’s right to have the law applied to them in the same way it applies to any other individual, i.e., equal protection.
In the web of rights and obligations between public institutions and private individuals created under the law, there is simply no question but that laws preventing two individuals of the same sex to marry creates a circumstance where rights and obligations are applied unequally. In other words, the Constitutional question is an open and shut case.
But Liptak’s article calls our attention to another dimension of Constitutional law, the role that it invariably plays in constituting the very society out of which it is thought to have emerged. That is to say, Constitutional law not only reflects the society it upholds, but constitutes that society.
Most of the readers of this blog will immediately recall how the vast majority of Americans in 1787 were fiercely anti-federalist. The elite gathering of highly educated, wealthy, landed men in Philadelphia represented but a slender segment of American society. Their promotion of a rigorous, radical federalist constitution – federal currency, federal taxes, federal courts, interstate commerce – is evidence enough that these men had no truck with individuals who wanted each state to determine its own taxes, mint its own currency, establish its own supreme courts, regulate its own commerce independently from other states; even though the vast majority of Americans felt otherwise.
Perhaps Justice Ginsberg would argue that it was their rigorous, radical promotion of federalism that eventually provoked the radically anti-federalist southern states to pull out of the Union and thereby instigate the war between the states. Perhaps she therefore would have counseled the wealthy, educated, landed men gathered in Philadelphia in 1787 to move more slowly – perhaps by inserting a 3/5ths clause into Article I of the Constitution. Or perhaps she would have had them explicitly state in the Constitution – as all Americans at the time (Anglicans, Evangelicals, Catholics, Protestants) believed – that the soul entered the fetus only with the “quickening,” i.e., only at the sixth month of pregnancy and therefore that they should have explicitly established the sixth month as the month when a person became a person, a citizen.
But let us assume that the framers of the Constitution already went too far when they inserted the 3/5ths clause. Let us assume that they should have held firm to their federalist principles and resisted the temptation to make an exception for states with a preponderance of slaves. And let us further suppose that they were right not to pander any more than they already did to one or another of the many religious factions of the nation, by, say, inserting the Ten Commandments into the Bill of Rights or requiring that the Christian Bible be the official Book of the Nation, or requiring that the Lord’s Prayer be read at all public events and so on.
But, let us assume that the framers really did favor the rule of law, even if, by some estimates, ninety percent of adult Americans were opposed to their variety of federalism and even though in less than a century this same federalism would give rise to a bloody Civil War.
Insofar as the justices are Constitutionally bound to uphold (well) the Constitution, irrespective of whether or not it will or will not lead to social conflict (civil war?), it follows that the Court should be considering only the civil rights and liberties of those whose rights are being abrogated by the restriction of marriage to one adult male and one adult female.
However, Liptak’s article does raise another, darker possibility. For just as the framers of the Constitution felt authorized under social pressure to make an exception the universal human rights and civil liberties, so might the current justices also feel so authorized to deprive certain classes of individuals the same rights and liberties enjoyed by others.
And it is precisely here that Justice Ginsberg’s reasoning defies logic. For just as inserting the 3/5ths clause did not prevent an awful civil war, but only rendered it bloodier than it otherwise may have needed to be, and just as Roe v Wade ought not to have ruled only on the narrow issue of privacy, but on the broader issue of equal rights for women, so in this instance the Justices are ill-advised if they believe that by skirting this broader issue of human rights they can prevent the social discord or civil conflict they fear a broader ruling would ignite.
Instead, preserving the letter and spirit of the Constitution, they ought always to err on behalf of civil rights and civil liberties, without concern for how today’s anti-federalists may respond. My fear is that they will feel authorized and even emboldened, tragically by Justice Ginsberg, to insert their own nasty little 3/5ths clause into our laws and so ignite another round of tragic hardship, pain, and grief.
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