Wednesday, August 04, 2010

The Constitution's There For A Reason

OK, let me clear something up for y'all in the wake of the smackdown Judge Vaughn Walker dealt to California's Proposition 8 restricting gay marriage. Walker based his ruling on the obvious 14th Amendment grounds - the denial of marriage rights to gay couples was a violation of both equal protection and due process. The equal protection argument seems so blindingly obvious to me that I'm surprised a judge hasn't used that one yet against gay marriage bans (though it was used against the federal DOMA by a MA judge last month, though that ruling also - awesomely - referenced the conservatives' favorite amendment, Number 10). But hold this thought for a second.

Across the country, Virginia AG/demagogue Ken Cuccinelli is clearing hurdles for his lawsuit against the individual mandate to purchase health care that was a centerpiece of the recent health care system reform bill passed back in March. I don't know about whether this case will succeed or not - my gut tells me it won't, mainly because the courts have had an insanely expansive view of the Commerce Clause over the last few decades - but the judge's ruling allowing the suit to proceed is consistent with the unique nature of a federal law requiring individuals to participate in interstate commerce.

The point I'm trying to make is this: critics of both rulings, while hailing from opposite political poles, will make essentially the same argument. You shouldn't overturn legislative acts, they'll say. A majority of citizens or their duly elected representatives voted for it, they'll say. They'll whine about activist judges and say runaway courts are trying to ruin America.

And they'll all be wrong.

See, it doesn't matter if 52% of a state's citizens voted for a law. It doesn't matter if 221 Representatives and 56 Senators approved it. It doesn't matter how well it polls or how much good it does. If it violates the Constitution, it is a judge's solemn duty to invalidate the law. And this applies equally to the gay marriage bans, the federal DOMA, and the individual health care mandate.

Whining about "activist judges" ignores one important principle - we don't live in a pure democracy. We live in a constitutional democracy, and in a constitutional democracy the majority doesn't always get its way. Those words in that constitution have to mean something. It doesn't matter how popular censorship is, say: the Constitution says you can't do it. It doesn't matter how popular gay marriage bans are, and it doesn't matter how much good can be done by an individual health care mandate. If it's unconstitutional, you can't do it.

And guess what? Judges are better positioned to make those calls than we are. That's why we have a system that gives knowledgeable, sharp legal minds the power to compare laws to the Constitution. And if we disagree with the results of a ruling - whether it's the gay marriage ruling, the health care ruling, Citizens United, whatever - we can't be so quick to dismiss it as illegitimate. Judicial review - unfriendly folks call it "activism" - is a well-respected and perfectly legitimate power granted to judges. Rather, let's debate these rulings on the grounds they ought to be debated on - is the judge's interpretation of the Constitution correct?

In the case of gay marriage, I think the judge is correct. You're free to disagree in the comments. But if anyone whines about "activist judges," or thinks that the outcome is less legitimate because it came from a judge instead of a vote, I'm ignoring them and so should you.


Mike said...

In 2016, you'll become eligible to run for President, and I've decided you should. You'll be Jed Bartlett to my Leo McGarry (hopefully without the subsequent heart attack). I'll also throw in a little dose of Josh Lyman, just so I get to hook up with Mary-Louise Parker. Ahem. Anyway. Point being, we need people in Washington who actually understand the purpose of the Constitution. What do ya say?

Matthew B. Novak said...

A well written post.

I don't think I've ever been one to complain about the role of judges. I do, however, get bothered when they use sloppy reasoning to get to a result they want.

I think the Prop 8 ruling might be that way. See, we've talked before about how there is a rational difference between same-sex couples and heterosexual couples, that being that the one, by definition, can't have kids. That is a real difference. Proponents of gay marriage bans point to that difference and say "that's our rational basis."

Any court decision that is truly addressing the merits needs to address that difference. The Prop 8 ruling didn't address that real difference, but said it was merely personal moral grounds that gave rise to the ban, and not an actual distinction. Now, the judge could have said "yes, there's a difference between the two, that same-sex couples can't have children by definition, BUT that's not a meaningful difference." He didn't go that route. And that bothers me. He chose to frame the issue in such a way that he didn't have to address the underlying issue.

Oh, and don't get me started on whether morality is a legitimate reason for a law... let's just say that there's probably no good way of outlawing dog fighting unless private morality is a legitimate basis for legislation.

All that said, I'm not exactly up in arms on the Prop 8 ruling. I have issues with the reasoning but not so much the result.

Jeff said...


I think the framing of the ruling was more the result of the manner in which the case was argued before the court. The defense didn't even try to argue, as you would, that there ought to be some sort of distinction between straight and gay relationships based on child-bearing. Rather, they argued that gay marriages do harm to the institution of marriage and children - which turned out to be a hilariously inept strategy that even the defense was half-assing by the end of the trial. Walker mostly deals with dispensing with that idea, claiming that because gay marriage does no harm to straight marriage, there's no rational basis for the restriction.

Walker, I believe, dispensed with the child-bearing argument in his opinion as well. He noted that straight non-childbearing marriages are still legal, and that gay couples can still adopt and raise children, so the necessity that the union possibly produce children is not a basis for legal marriage.

Matthew B. Novak said...

Yeah, bad lawyering can often have a big impact on our laws. The argument that they actually presented - and they way they presented it - was pretty silly. But my understanding was that Walker went a lot further in his statements then dismissing the argument that was raised. I guess it was that part of his decision that I take umbrage with. Just because the bad lawyers didn't raise the best argument doesn't mean it doesn't exist and going so far as to say that it doesn't is overreaching by the judge.

Moreover, I don't think the "best" argument against same-sex marriage is really dispensed with by that logic. Like I've said before, the definitional difference as regards production of children is an actual difference. Just saying "other people can't have kids" and "same-sex couples can adopt" doesn't actually address the definitional difference. It does show how, when it comes to child creation/rearing some heterosexual couples can be kind-of-similar-to same-sex couples and vice versa. That gets you closer to saying that it's not a meaningful difference. But in order to dispense with the argument you've got to actually say "it's not a meaningful difference."

I could respect a ruling that did that.