Friday, March 22, 2013

Professor Michael McConnell on the Same-Sex Marriage Cases and Federalism: A Reply

Professor Michael McConnell has a piece in the Wall Street Journal on the same-sex marriage cases that advocates looking at the cases not through the lens of equal protection but in relation to federalism. He writes, the cases "are a test of the nation's democratic and decentralized constitutional structure. These cases thus are not just about marriage. They are about how we reach decisions regarding matters of deep moral significance in our federal republic."

He argues, "We learned from Roe v. Wade that the Supreme Court endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution. . . . When it jumps into a live political controversy, the justices look like they are acting like legislators." He notes, "The system today, without the Supreme Court's intervention, is working as it should." He adds, "But when all of us have an equal right to be heard on an issue, and to participate through our representatives in making the decision, it is easier to accept the outcome than when unelected judges make moral pronouncements from the bench. Change that comes through the political process has greater democratic legitimacy."

He declares, "The two cases that will be argued next week seem to endanger this process. If the justices hold that California's Proposition 8, which provides that "only marriage between a woman and a man is valid or recognized," is unconstitutional, this will end the deliberations and impose a single national definition of marriage on us all. The court cannot reach this outcome without branding the views of the other side as either "irrational," if it employs the lower, rational-basis level of judicial scrutiny, or "bigoted" and hateful, which would justify heightened judicial scrutiny." Similarly, "if the justices hold that there is no constitutional right to same-sex marriage, this also imposes an answer of a sort. It would reflect the Supreme Court's considered judgment that in the eyes of the Constitution, same-sex relationships may be treated as morally different from (and inferior to) heterosexual relationships."

Professor McConnell contends, "But the court need not base its decision in Windsor on the merits of the same-sex marriage question. The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage." He notes, "The court has held that "regulation of domestic relations" has "long been regarded as a virtually exclusive province of the States" (Sosna v. Iowa, 1975). In the past, the court has recognized a "domestic relations exception" to federal judicial power." He adds, "if the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds, the combined effect would be to reaffirm America's democratic, decentralized decision-making process without imposing an answer-one way or the other-to the same-sex marriage question." "By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage-a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being."

He concludes, "Considerations of these sorts have long been part of the virtue of judicial modesty, too often undervalued by partisans on both sides. In this instance, modesty requires no more than that the justices follow the technicalities of the law."

Professor McConnell’s well-written and well-reasoned essay has one problem; it essentially ignores the existence of the Equal Protection Clause. I basically agree with what Professor McConnell says about our government’s structure and the democratic process. (I consider myself a moderate on federalism.) Our government is mainly a democratic one. However, the Equal Protection Clause and the Bill of Rights exist to protect minorities when the democratic process does not. Same-sex marriage is an instance when the Court must step in to protect a minority.

Professor McConnell is correct when he states that marriage has generally been the provenance of the states. Nevertheless, the Supreme Court has stepped in when a state’s restrictions on marriage have violated equal protection, such as in Loving v. Virginia. ("While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, Maynard v. Hill, 125 U. S. 190 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska, 262 U. S. 390 (1923), and Skinner v. Oklahoma, 316 U. S. 535 (1942)."  (Loving at 7))  In addition, the definition of marriage is a federal issue when it concerns how federal statutes are interpreted and how federal monies are expended.

I agree with Professor McConnell that, in most cases, states should have the power to make decisions that are different than other states. However, this does not apply to same-sex marriage because it treats one group of law-abiding individuals differently from another group. This is what equal protection is about. I also think that states should be allowed to make their own policy decisions. However, is whether to discriminate against a group of people based solely on an immutable characteristic a policy decision?

I also agree with Professor McConnell that making a major change like legalizing same-sex marriage would be easier to accept if it came through the democratic process. Nevertheless, did the Supreme Court wait for the democratic process concerning racial or gender discrimination? Sometimes, the democratic decision is slow or never comes, and the Supreme Court must make a decision. As far as those who oppose same-sex marriage being labeled as "irrational" or "bigoted," a decision striking down restrictions on same-sex marriage will have no more effect than did other cases on gay rights, such as Lawrence or Romer.

Professor McConnell talks about the morality of the democratic process. I agree that this is very important and that it has not been recognized enough in recent constitutional jurisprudence. However, there is another morality–a morality that protects the individual from an overreaching government. Not only does this morality take precedence over democracy, the drafters wrote the Bill of Rights so it would.  ("Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival."  (Loving at 12))

In recent years, our country has recognized that gays and lesbians are equal moral members of our society. Similarly, the Supreme Court has protected the rights of gays and lesbians in Romer and Lawrence. It is time that the Supreme Court take the final step to giving them full citizenship by striking down DOMA and restrictions on same-sex marriage for the entire nation.

(Scott Fruehwald)

P.S. I have also discussed the same-sex marriage cases and federalism here and here.

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