Here Come Da Judge

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Over at The New Republic, prolific author and controversial Judge Richard Posner weighs in on gay marriage via a review of Same-Sex Marriage and the Constitution, by Evan Gerstmann. He pooh-poohs the idea of the U.S. Supreme Court following the Massachusetts Supreme Court's lead:

I am dubious about interpreting the Constitution to authorize the Supreme Court to make discretionary moral judgments that offend dominant public opinion. Nothing in the Constitution or its history suggests a constitutional right to homosexual marriage. If there is such a right, it will have to be manufactured by the justices out of whole cloth. The exercise of so freewheeling a judicial discretion in the face of adamantly opposed public opinion would be seriously undemocratic. It would be a matter of us judges, us enlightened ones, forcing our sophisticated views on a deeply unwilling population.

His solution?

There is an alternative to judicializing the issue. It is to submit it to social experimentation. A great advantage of our federal system is that it enables large-scale social experiments, as the Supreme Court recognized recently when it authorized public school vouchers. We can subject the issue of homosexual marriage to experimentation as well.

This thinking tracks pretty well with that of some pro-gay marriage people, who want to avoid a replay of Roe v. Wade, which many feel undermined a slower but more consensual drive toward abortion rights (at the time of Roe, several states had either or were about to legalize abortion). While Posner's reading of the Constitution is correct, there is still something unsatisfying about an outcome that forces part of the population to rely on state-by-state "experimentation" in order to do what other Americans take for granted. Maybe it's time for the lily-livered folks in Congress to repeal the Defense of Marriage Act (signed, incidentally, by that great champion of alternative lifestlyes, Bill Clinton). Not that that will happen anytime soon, esp. in an election year.

Reason interviewed Posner a while back and he talked sharply about "Sex, Economics, and Other Legal Matters."

[Link via Arts & Letters Daily]

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  1. OK, some of the posts are focusing too much on semantics.

    First, when Posner said “The exercise of so freewheeling a judicial discretion in the face of adamantly opposed public opinion would be seriously undemocratic”

    I doubt he meant to suggest that this country is or should be a democracy in the sense of unlimited mob rule (a definition used by some libertarians and conservatives, even though the rest of us tend to have a more benign meaning when we used the word). Based on other Posner books and articles that I’ve read, I suspect he simply meant that it would go against the notion of government by elected representatives, replacing it with the tyranny of an elite with life tenure. Tossing out the “republic, not a democracy” mantra without considering the source or the context is knee-jerk potshotting over semantics.

    Second, when somebody talks about rights being in the Constitution, thta doesn’t contradict the point that rights are inherent and the Constitution enumerates them rather than create them. It simply means that a certain right, however inherent or proper it may be, is (unfortunately) not enumerated in the Constitution, so the only way to protect it is either via the legislative process, or via the even more arduous amendment process. Without enumeration in the Constitution judges can’t simply decide to protect it, at least not if one believes in judicial restraint.

    Now, one might argue that some rights are not explicit in the Constitution but are nonetheless strongly implied by the Constitution. We can (and undoubtedly will) debate forever about how far one can go in elucidating implied rights, but clearly at some point you have to make a cutoff and say “Nope, we really can’t go any further than this, otherwise we’ll be imposing our own meaning rather than working from the actual wording.”

  2. I agree there’s nothing contradictory about saying that the Constitution merely formalizes rights inherent in human beings. My point is simply that this is a fantasy. To say that something is a right is merely to say that you have strong legal claims you think the government should enforce. It’s not as though you can examine a baby fresh from the womb and say, “ah, five fingers, five toes, and look, she’s got all her rights too.”

  3. So abstract relational properties aren’t like toes. Glad that’s cleared up.

  4. Five fingers, five toes, all her rights. Sounds like she’s missing her lefts.

  5. Perhaps the most libertarian solution would be to eliminate any state-conferred benefits (or costs) to marriage. Though Posner’s solution is in line with federalism as well as allowing law to evolve, wouldn’t the question become moot, if, in the state’s view, marriage was just another contract to be enforced? An individual could then assign whatever meaning to marriage that he or she wanted. Social conservatives could keep their views on marriage as could everyone else as long as they didn’t interfere with the contracting rights of others. Abolishing political privileges in this way would ensure equality before the law.

  6. “Nothing in the Constitution or its history suggests a constitutional right to homosexual marriage.”

    Marriage provides benefits under the law. The Constitution requires equal protection. The legal benefits of marriage, therefore, must be extended to gay people.

  7. Nick,
    What most Americans take for granted is that marriage is between a man and a woman, which is why public opposition to gay marriage is overwhelming.

  8. so what?

    when you’re dealing with “crimes against reality” which only offend the sensibilities of those around you and harm them in absolutely no way EXCEPT for their sense of the world around them…so what is the only reasonable response.

  9. “The exercise of so freewheeling a judicial discretion in the face of adamantly opposed public opinion would be seriously undemocratic. It would be a matter of us judges, us enlightened ones, forcing our sophisticated views on a deeply unwilling population.”

    FIRST: We’re a republic. NOT a democracy. Gang rule should not prevail.

    SECOND: “Unwilling population(s)” often have to be dragged – bitching and moaning – into the modern era. Nothing new here.

    THIRD: The tiniest minority is the individual. His rights are the keystone of a free society. He has freedom of – and from – religious bigotry and all its baggage.

    FOURTH AND LAST: Do I really care if a man marries a man? I do not. I simply don’t care if two consenting adults enter into a legal contract, same-sex or not. I am not threatened by it. I have a life.

  10. …public opposition to gay marriage is overwhelming…

    Not uniformly. A recent poll in Massachusetts found that better than 50% of the public was fine with the Mass. Supreme Judicial Court’s ruling in favor of gay marriage. I wouldn’t be surprised if the national numbers were close to 30-40% pro.

  11. And the proper scope a federal court ruling – the granting of equal benefits on issues of inheritence, hospital visitation, custody, etc. – would enforce rights that are already supported by a majority of Americans. What name a state chooses to call this bundle of rights is the controversial issue, and is out of the courts’ hands.

  12. Posner’s comment concerns me: “Nothing in the Constitution or its history suggests a constitutional right to homosexual marriage. If there is such a right, it will have to be manufactured by the justices out of whole cloth.” Just like Scalia’ claim that there is no right to privacy in the constitution.

    I get depressed when I hear supposedly learned men talk as though the constitution is where the people derive their rights, as opposed to the constitution establishing limits on governmental power, while the people retain their rights.

    I realize that some of it is semantics. I’m sure Posner would clarify his statement to note that nothing in the constitution prevents homosexual marriage either. And I realize that there’s a difference between rights that are fundamentally protected even from the legislature’s meddling as opposed to others that we the public can stupidly give up to our lawmakers.

    However, I wish that people like Posner and Scalia would stop using the language of rights conferred by the constitution. They are in a position to educate the public as well as persuade their peers, and we already do a poor job of educating the public about the origin of rights.

  13. While libertarians may, for emotional reasons perhaps, prefer to think of their rights as being innate (whatever that means), Posner is simply making the practical point that the Constitution says nothing itself. It merely says what the nine Oracles in robes say it says. Under such a jurisprudence, rights are either traditional (meaning firmly embedded in our traditions and history) or they are new. When it comes to contentious social issues, it’s not clear that we should prefer the tyranny of judges to the tyranny of the people, though this may genenrate unfortunately counter-libertarian results such as general prohibitions on gay marriage.

    For my money, Posner is one of the clearest thinkers on American law.

  14. Ugh, could you imagine an “experimental” run at homosexual marriage? What happens if we decide it didn’t work out? “Sorry, we’re repeallingthe law and BTW, you’re not married anymore.”

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