Gay Marriage and Judicial Activism

By Crispin Sartwell

 

 

Of all the issues likely to confront a new justice of the Supreme Court, gay marriage is the easiest to resolve. The "legal" arguments against gay marriage are entirely fraudulent: fallacious and dishonest on their face. That anyone takes seriously the idea that court recognition of gay marriage would constitute "judicial activism" is a tribute to how enthusiastically people endorse any argument that flatters their bigotry.

    Compare the issue briefly to the high court's decision in Brown v Board of Education, a decision to which these days even most American conservatives pay lip service. Schools were desegregated under an interpretation of the intent of the 14th Amendment, which requires "equal protection under the law."

    But the application was a difficult one. First, it was not perfectly clear that public education amounted to the protection of law at all. And second, even if it did, it could be argued that this equality could be achieved even within segregated school systems, which is precisely what Plessy v. Ferguson demanded.

    Finally and perhaps most importantly, to define integration of the schools as a right was to directly limit existing rights of people to associate with whomever they pleased: the extension of rights to some in this case was a limitation of the rights of others, and the central question was how these conflicting rights were to be balanced.

   The case of gay marriage is much clearer. Marriage is a legal status that brings with it certain protections under state and federal law. These protections are witheld from certain - shall we say - romantic partners on the grounds only of the genders of the parties. Equal protection can easily be extended, and must be, according to the Constitution.

    One aspect of the situation that makes the decision incredibly easy is that extending equal protection of the law in this case does absolutely nothing to limit the rights of any other persons whatever. In that sense the implementation - like the argument - is effortless. No one is harmed in any way whatever.

   I am a heterosexual man and I am married. Let men start marrying men and women women willy-nilly and this has no effect on my marriage, on its legal status or on its day-to-day reality. Nothing, I believe, could be more obvious.

    I hope the argument is not that god-fearing heterosexuals will find it repulsive when men wear one another's rings in public or cakes feature two brides. As sensible conservatives point out when it's time to consider the pc speech code on campus: no one has the right not to be offended.

   The only argument that I've heard against legal recognition of gay marriage goes like this. Such recognition constitutes judicial activism because it changes the meaning of the term "marriage" by judicial fiat. It is not up to judges to fix the definitions of terms by stipulation, but to interpret the laws under the meanings - and hence of the meanings of the terms composing them - at the time of their drafting.

    But the interpretation of the intention of the framers of the Constitution such as Madison or Hamilton or of the legislators and others who framed and ratified the 14th Amendment after the Civil War is a complex matter. It is first of all not perfectly clear that it would have been impossible for such people to think of a partnership of two men or two women as a marriage, and many such partnerships certainly existed. This is a matter for serious scholarship.

   But either way, extending the marriage franchise to gay couples is obviously in keeping with the most basic principle on which the founders of the American republic staked their lives and sacred honor: that the purpose of government is to secure the greatest scope of individual liberty compatible with equal liberty for all. All persons possess certain rights in virtue of their humanity, and the scope of the rights of each are precisely fixed by the rights of others: you are free to do whatever does not harm other people or limit their freedom.

    This is the most general statement of the form of government embodied in the Constitition. It is the most fundamental commitment of the thinkers the founders most admired, and of the figures that most admired them, of John Locke and Jean-Jacques Rousseau, of John Stuart Mill and Henry David Thoreau, of Thurgood Marshall and Barry Goldwater, and of course of Hamilton and Jefferson, Sam Adams and Thomas Paine.

    If you can show me exactly how the legal recognition of gay marriage violates that principle - or for that matter if you can show me that witholding legal recognition does not violate it - I'll agree with you that it would constitute judicial activism. Until then, feel free to retain your bigotry, but stop demanding that the state enforce discrimination.