Mirror of Justice

"Is Polygamy Next?" as an argument for how not to answer that very question?

Earlier this week, Will Baude had an op-ed at the New York Times: "Is Polygamy Next?" Most of the reactions I've seen have read the op-ed as an advocacy piece for recognition of the constitutionally protected right to marry as including polygamous marriage.

That reading is plausible, if one thinks the author accepts the Obergefell way of deciding on the boundaries of constitutional rights. If new understandings of marriage mean new understandings of the constitutionally protected right to marry, then we may come to recognize that right as including polygamous marriage; all it takes is a change in the understanding of marriage. That is the gist of Baude's account of why a right to polygamy may be coming down the pike. Most of the op-ed attacks attempts to limit Obergefell to monogamous marriage as flimsy and likely to collapse as "today's showstopping objections" may "come to seem trivial decades later." 

But Baude is an originalist, and he thinks others ought to be originalists as well--or at least it has seemed to me. Baude doesn't come out and say that Obergefell is wrong in result. But Justice Kennedy's opinion for the Court in that case now stands as a landmark case that he needs to navigate around if he is to hold to the belief that originalism is our law. And that method may be the real target of his op-ed.

Consider Baude's conclusion: "[W]e should recognize that once we abandon the rigid constraints of history, we cannot be sure that we know where the future will take us." Is Baude saying that those who believe marriage should be monogamous should be prepared to discard that understanding out of humility toward our possible future selves and our possible future understanding, such that it would be appropriate to recognize that future understanding as constitutionally protected (either now or at some point in the future when public opinion changes)? Or is Baude criticizing those who believe that we should change our present understanding of our past constitutional commitments on the basis of a new (and non-humble) belief in a morally superior understanding of marriage? I don't know. Surely there are other alternatives as well. But it would be surprising to find an originalist arguing for a constitutional right to polygamy.

 

Thanking God for a Daughter's "Premoition"

Last night — the last night of our Montana vacation — the three of us decided to take a drive to a nearby mountain lake, hidden in a valley and surrounded by rocky cliffs.  The drive was longer than expected, much of it on gravel roads, but we persevered.  The arrival was spectacular as Tally Lake became visible through the trees.  The the deepest lake in all of Montana was a dark blue in contrast with the gray rock rising up on all sides.

On the way back toward Whitefish, our daughter, Katie, home from Notre Dame for the summer, asked about the danger of hitting a deer while driving along these mountain roads.  My wife, Mindy, having grown up in Montana, and I, having lived there for several years, assured her that we had driven on these kinds of roads innumerable times without incident.

Katie persisted, saying she had a bad feeling.  Mostly to mollify her, I agreed to keep our speed low.  Even when we got back on to paved county highway, I kept the accelerator to around 25 miles per hour, though the posted speed limit was much higher.

Not more than ten to fifteen minutes after Katie expressed her disquiet — a flash of brown fur and a thud!  A deer had jumped right in front of the car.  And even with our slower speed and my instinctive slamming on the brakes, we hit the animal dead center.

None of us were injured — indeed, by virtue of the slow speed and my immediate braking, we barely felt the impact.  The deer collision had damaged the bumper, but the hood, windshield,  and engine were undamaged.

Even the deer may have survived the incident.  As I was slamming on the brakes, the doe’s legs were swept out from under her by the bumper and her side struck the grill-area of the front of the car.  She then fell out into the road and rolled to the side into the ditch.  I initially feared a gruesome scene of a badly injured animal flopping around in the ditch.  But, after just a second or two, the doe regained her feet and ran quickly into the surrounding woods.  As I examined the damage on the car, there was no blood.  To be sure, it is possible that the deer suffered fatal internal injuries.  But I’d like to think the deer, perhaps with a cracked rib or two, managed to get through the encounter.

I am so very grateful that I acquiesced to my daughter’s misgivings — and that she expressed them.  It could have been disastrous had I continued along the road as I otherwise was inclined, probably slightly exceeding the speed limit.  Had we struck the deer at such higher speed, the animal very likely would have bounced up on to the hood and perhaps into the windshield, with a grave risk of serious injury to the two of us riding in the front.

We’re all familiar with the Woody Allen quip saying that 80 or 90 percent of life is just showing up.  I tend to think showing up is not enough.  One also has to also be paying attention.  Today I am very grateful that we paid attention to our daughter.  I’d like to think that, by doing so, we were listening to the voice of God speaking through her to warn us of the approaching danger.

Obviously this was not the most enjoyable way to end an otherwise wonderful summer vacation.  But a dented bumper can be repaired.  And the family is fine.  Thank God.

 

Schneck on PP, the 20-Week Ban, and Support for Pregnant Women

At U.S. Catholic, Steve Schneck laments how the outrage over the Planned Parenthood video will likely devolve into familiar abortion politics, leaving little or nothing done legislatively about--for example--ending late-term abortions where the child could well be viable and, "many agree[,] feels  pain." He describes the proposal from Democrats for Life about how to move forward, on the late-term ban that currently has no prospects in the Senate:

By connecting the Fetal Pain Bill with perinatal help for crisis pregnancies, with support for women otherwise unable to afford their pregnancy, or with a nationwide policy for paid maternity leave, [Kristen] Day  and [Charlie] Camosy’s proposal weaves together the strands of what the church calls “the consistent ethic of life” in ways that make it easier for America to choose life.

(Disclosure: Schneck and I are both board members of DFLA.)

The U.S. is extreme among the Western industrial nations in how little we restrict abortion (Western European prohibitions kick in after three or four months). We are also the only OECD nation that does not guarantee some paid maternity leave. This moment presents another opportunity to take a different approach.

By connecting the Fetal Pain Bill with perinatal help for crisis pregnancies, with support for women otherwise unable to afford their pregnancy, or with a nationwide policy for paid maternity leave, Day  and Camosy’s proposal weaves together the strands of what the church calls “the consistent ethic of life” in ways that make it easier for America to choose life. - See more at: http://www.uscatholic.org/blog/201507/planned-parenthood%E2%80%99s-video-can-we-ever-get-beyond-banality-abortion-politics-30251#sthash.uGsAeJlS.iWrulYH2.dpuf

By connecting the Fetal Pain Bill with perinatal help for crisis pregnancies, with support for women otherwise unable to afford their pregnancy, or with a nationwide policy for paid maternity leave, Day  and Camosy’s proposal weaves together the strands of what the church calls “the consistent ethic of life” in ways that make it easier for America to choose life. - See more at: http://www.uscatholic.org/blog/201507/planned-parenthood%E2%80%99s-video-can-we-ever-get-beyond-banality-abortion-politics-30251#sthash.uGsAeJlS.iWrulYH2.dpuf

"An Obvious Moral Horror"

Sometimes the clarifying lens of the law helps to sharpen the analysis. Sometimes the fog of the law obscures.

So it is with the attention given to the disturbing uncover video of Deborah Nucatola, Planned Parenthood's Senior Director of Medical Services, swilling wine and eating salad as she dispassionately spoke about obliterating the skull and destroying the lower extremities of unborn babies while carefully preserving the internal organs for medical research. 

 The mainstream news media quickly shifted the question to whether the legal line had been crossed from non-profit use of abortion remains for research to selling human body parts for profit. Those who had released the video were accused of editing it to make it appear that Ms. Nucatola was setting prices for profit rather than simply recovering the expenses of distributing the tissues (which is not illegal).

While the legality of Planned Parenthood's activities under current statutes is not unimportant, to focus on that point is truly to miss the what is most important. The gut-wrenching power of the video — what makes this revelation such an important event in the history of abortion in the United States — lies in its depiction of the callous attitudes of the abortion industry. Here the words of Planned Parenthood's leader of medical services speak for themselves:

“We’ve been very good at getting heart, lung, liver. So I’m not gonna crush that part. I’m going to basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.”

Not willing to be so distracted, Heather Wilhelm sums it up well:

“Abortion, when you’re forced to acknowledge the reality of it, is an obvious moral horror. It involves killing little humans, many with lungs and hearts—not just ’clumps’ of ’tissue’—and it happens every day.”

Seldom does a single event occur that can so dramatically move public opinion by shining the light into darkness. The pro-life movement must ensure that, even as the news media loses interest, this video is replayed again and again for every audience.

"End of an Illusion"

The other day, America re-ran this piece, "End of an Illusion," which originally appeared in June of 1973, a few months after Roe v. Wade.   It's definitely (still) timely.  Take a look.

Reese on Laycock on religious liberty

Fr. Thomas Reese has this piece, at NCR, about the views and work of Prof. Doug Laycock regarding the current religious-liberty landscape.   I'm not sure the title of the piece captures the range of what Laycock is saying -- he is quite clear-eyed about the fact that religious liberty's vulnerable status has to do with a lot of things besides "bishops' strategy" and most of the piece focuses on what sure looks to me like the intransigence and aggressiveness of religious-freedom's opponents -- but put that aside.  The piece is worth reading to get a good sense of Laycock's position.  (I've been working with him on a few legislative proposals, and believe that he is one of the most important, and admirably fair and liberal, persons in the public square.)  

One thing that comes out in the piece is Laycock's view that "conservatives'" opposition to the "sexual revolution" is contributing to the waning support for religious liberty among "liberals."  This raises a tricky challenge, though, because -- I would think, and I would assume Fr. Reese would agree -- Christians ("conservative" or "liberal") don't have much of an alternative to opposing -- at least in terms of our teaching, formation, and witness -- a whole lot of what comes under the heading of the "sexual revolution."  The extent to which this opposition should or can be expressed in positive law is another matter but, increasingly, it seems as though the opposition itself is something that it has now become the mission of a certain understanding of political liberalism to push aside.

CLS Panel: The Salient Characteristics of Obergefell v. Hodges

Below is the presentation that I delivered for the panel on Obergefell v. Hodges hosted by the Christian Legal Society on July 1^st in Chicago.  I had intended to post this last week but neglected to do so.  I previously posted the second part of the presentation concerning the challenges to religious liberty that Obergefell will likely pose here.

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Thank you very much for inviting me to be here and participate on this panel, this initial exposition of the Obergefell opinion, an opinion that will, undoubtedly, be the subject of many books and symposia, and countless law review articles in the years to come.  In my remarks I plan to offer a brief overview of the holding of the case followed by four observations that directly concern the opinion’s reasoning and methodology.

Briefly put, in Obergefell, the Court held that “same-sex couples may now exercise the fundamental right to marry” (Slip Op. at 22; id. at 12) and that this result is compelled by the Fourteenth Amendment to the Constitution.  Justice Kennedy, the author of the opinion, reached this result by redefining what marriage is, contrary to the definition adopted by the majority of states, and until 1993 uniformly the law of the land in all fifty states. For those who oppose this result – this redefinition of marriage now enshrined in our Constitution – it is hard to imagine how Obergefell could have been any worse given that the Court’s holding ostensibly stands upon the twin rationales of substantive due process and equal protection.

Perhaps the opinion would have been even worse had Kennedy engaged in the same vitriol found in the same-sex marriage decisions of state and lower federal courts disparaging the views of defenders of traditional marriage as “irrational” and full of “animus” for gays and lesbians.  Indeed, compared with Kennedy’s own opinion in U.S. v. Windsor, striking down the federal Defense of Marriage Act, Obergefell is downright restrained.  In Windsor Kennedy described the law in question as “designed to injure” same-sex couples, “a bare congressional desire to harm a politically unpopular group,” a law designed to “impose a disadvantage . . . and so a stigma” on same-sex couples, to “degrade or demean” them.  That language is largely absent in Obergefell.  While Obergefell does say that laws defining marriage as a relationship between one man and one woman have the effect of “demean[ing] or stigmatiz[ing]” gays and lesbians through exclusion (p. 19), the opinion does not directly attribute a desire harm gays and lesbians to supporters of traditional marriage.  Indeed, Kennedy says that the traditional view of marriage is held “in good faith by reasonable and sincere people” (p. 4) and that neither such people “nor their beliefs are disparaged here” (p. 19).  Chief Justice Roberts rightfully doubts whether Kennedy’s description of marriage laws can be squared with Kennedy’s intention not to accuse proponents of traditional marriage of animus towards gays and lesbians (p. 28).  Still, in this one minor respect, the majority opinion could have been worse.  At the same time, nothing prevents the proponents of Obergefell from accusing its opponents of hate and irrationality – something already witnessed in the last few days.

(1)  The first observation I wish to offer about Obergefell is how un-law-like it is.   Indeed, Obergefell reads not so much like a judicial opinion – setting forth what the law provides and how this law connects to the facts of the case – as it does a discourse about how the world ought to be – a discourse that at times sounds as if it was lifted from the pages of a psychological journal or tract on self-fulfillment, or as Justice Scalia says with some disdain in dissent, a “fortune cookie” (p. 8, n. 22).  Perhaps the opinion would have been worse if the majority had actually made more of an attempt to craft a legal opinion, because then it would be more plausible for its supporters to defend the decision as a legitimate exercise of the Court’s authority – of what Chief Justice Marshall described in Marbury v. Madison as “the province and duty” of the Court “to say what the law is.”

But the opinion doesn’t read that way.  Rather, as Scalia remarks, Obergefell is “an opinion lacking even a thin veneer of law” (p. 4).  Unlike other equal protection and substantive due process cases the Court doesn’t wrestle with the question of the appropriate level of scrutiny to apply and why.  Although Kennedy purports to ground the majority’s conclusion in the Equal Protection Clause, he eschews traditional equal protection clause analysis.  He does not define gays and lesbians as a “suspect class” such that laws singling out such a class are subject to “strict scrutiny” (although the federal government argued for the adoption of such a position in the case).  Nor does Kennedy say whether either “intermediate scrutiny” or “rational basis” review applies to the case at hand.  In ignoring the legal framework of the Court’s own construction, the opinion reads less like an example of judicial reasoning and more like an exercise in normative discourse untethered to law.

With respect to substantive due process, the opinion avoids even the use of the term “substantive due process,” opting instead for the more innocuous sounding expression “fundamental rights.”  But make no mistake – the bulk of the Court’s decision is founded on substantive due process, not the extension of an already existent fundamental right, but the invention of a right – the redefinition of marriage – so that it extends to same-sex couples.  This is the Court majority functioning as a super-legislature composed of nine unelected lawmakers, not constrained by tradition or history, but only their own “reasoned judgment” (p. 10).  This is the latest and most dramatic example of what Raoul Berger termed “government by judiciary.”

I confess that in reading the opinion what first came to mind was John Hart Ely’s famous criticism of Roe v. Wade -- that Roe was not bad constitutional law “because it is not constitutional law and gives almost no sense of an obligation to try to be.” John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 947 (1973).  Roe was instead an invention conjured by Justice Blackmun.  Justice Kennedy has authored a similar creation – one that, like Roe has virtually no connection to the text, structure, or history of the Constitution, and only the most tenuous connection to the Court’s precedents concerning marriage (about which I will have more to say in a moment).  Indeed, the connection between the holding in Obergefell and the text of the Constitution is so weak that Kennedy’s “argument” from text proceeds by way of proxy – with Kennedy substituting the word “dignity” for that of “liberty.” Thus, reading the opinion brings to mind Justice White’s indictment of Roe as “an exercise of raw judicial power,” Doe v. Bolton, 410 U.S. at 222.

(2)  Second, with respect to the methodology employed, the Obergefell court overtly rejected the cautious approach to substantive due process set forth by the Court in Washington v. Glucksberg.  In Glucksberg the Court held that “liberty” under the Due Process Clause should be understood to protect only those rights “deeply rooted in the Nation’s history and tradition.”  In rejecting this approach Kennedy frees substantive due process from any constraining principle.  It cannot be tamed – or will be tamed only by the fiat of those who wield the power in question. 

Given its conclusion, the opinion cannot help but be a-historical, a point that Alito underscores in dissent (p. 3).  Indeed, the majority opinion gives no pretense to being firmly rooted in the history and traditions of the nation.  It acknowledges history – without exploring it in any great detail, let alone discerning its meaning – only in order to dismiss it.  This dismissal is not overt as this would undermine the legitimacy of the opinion – but it does so in substance.

Thus, after briefly recounting the history of marriage and its central role in civilization the Court tips its hand that it will not be confined by history: “That history is the beginning of these cases” (p. 4).  The history of marriage, the Court assures us, has been “one of both continuity and change” (p. 6).  History reveals “new insights” (p. 7) about marriage as “new dimensions of freedom become apparent to new generations” (p. 7).  We don’t “always see [injustice] in our own times” (p. 11).  Liberty may have meant one thing in the past, but we gain “new insight” and “we learn its meaning” with the passage of time (p. 11).  As the Court says in its most candid remark on this point: “History and tradition guide and discipline th[e] inquiry [of identifying the fundamental right to marry] but do not set its outer boundaries” citing Lawrence v. Texas, (p. 11) a case in no way bounded by history.  While the Court acknowledges that its prior decisions involving marriage – Loving, Zablocki, and Turner – “presumed a relationship involving opposite-sex partners” (p. 11), insofar as they contained this quality they were the product of an earlier and unenlightened age – the prejudice of yesteryear: “The Court, like many institutions, has made assumptions defined by the world and time of which it is a part” (p. 11-12).  Later Kennedy remarks that “rights come not from ancient sources alone.  They arise too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era” (p. 18-19).

The bottom line that emerges is a kind of disdain for history, for what has gone before: Yesterday is the past and today is a new day in which we clearly know better.  History is not something to be seriously studied.  It is something to be made by those who live in the here and now. 

(3)  Third, the heart of the petitioners’ concern – the interest which the Court deems to be worthy of the robust protection of both substantive due process and equal protection – is their interest in self-esteem, and personal “fulfillment” (pp. 3, 17, 28) which cannot be attained absent government affirmation and public approval.  That is, the petitioners seek not only to exercise a protected liberty to which they are entitled, but to have their exercise of liberty enjoy a certain public status (hence the change in terminology from "liberty" to "dignity").  Without the enjoyment of this status they will be “demeaned.” 

Thus, for the majority the right to marry “dignifies couples who ‘wish to define themselves by their commitment to each other’”; it responds to the “universal fear of loneliness” and “offers hope of companionship and understanding of assurance that while both still live there will be someone to care for the other” (p. 14); it helps “achieve the full promise of liberty” (p. 14); it gives “recognition and legal structure” to a relationship so that children can “understand the integrity and closeness of their own family and its concord with other families in their community” (p. 15); and without this recognition the children of same-sex couples would “suffer the stigma of knowing their families are somehow lesser” (p. 15).

This comes through in page after page of the opinion, such that the responses celebrating the decision echoed a common theme: “We are affirmed!  We are celebrated!” with the subtext being “You – Evangelical rubes, Catholic homophobes, and Christian haters – cannot think less of us.  Our relationships are on equal footings.  The State has made it so!”

Thus, notwithstanding the Court’s brief mention of the material aspects of marriage, it is marriage’s expressive qualities that dominate the opinion – the expression not simply of the parties’ commitment to one another (which may be achieved wholly through private ordering), but the State’s acknowledgement of and commitment to support the union.  Thus, as Thomas notes in dissent, the petitioners “want to receive the State’s imprimatur on their marriages” (p. 10) – something that private ordering cannot attain.

(4)  Fourth, and finally, the Court offers a truncated theory of marriage that it pieces together in patchwork fashion, from a selective reading of the Court’s prior decisions concerning marriage and sexuality. 

Drawing on Griswold, Lawrence, Loving, Zablocki, and Turner the Court identifies what it says are the four “essential attributes” of the right to marry (p. 12).  These four principles or attributes are: (i) that “personal choice regarding marriage” is “inherent in the concept of individual autonomy” (p. 12); (ii) that “the right to marry is fundamental because it supports a two-person union unlike any other in importance to the committed individuals (p. 13); (iii) that the right to marriage “safeguards children and families” such that its meaning draws upon the “related rights of childrearing, procreation, and education” (p. 14); (iv) that “marriage is a keystone of our social order” (p. 16).

These four somewhat abstract principles are all selected with the goal in mind of stating what marriage is in a way that same-sex couples fit comfortably within it, so that denying them the right to marry seems not only unjust but nonsensical.

Of course, Justice Kennedy is able to reach this conclusion only by ignoring what is central to the authority he cites.  For example, in discussing the second of the four principles Kennedy cites Griswold v. Connecticut (p. 13) for the proposition "that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals." In this, he seems utterly oblivious to the quality of the marital relationship at issue in Griswold that makes the commitment so important and so "unlike any other," namely, the capacity to produce a child, a quality obviously lacking in all same-sex relations.  Because he is oblivious to this fact he does not trouble himself with the question of why the State recognized marriage as a legal institution in the first instance, and why this legal recognition was limited to the conjugal union of husband and wife.

What Justice Kennedy fails to do is to be fully candid with the American public by articulating what marriage now is given his selection of these four principles.  Stated concretely, under Kennedy’s approach “marriage” is now a genderless institution the public (legal) purpose of which is to serve as a platform for personal expression, the pursuit of individual fulfillment, and the feeling of possessing “dignity” through State recognition.  Although marriage may be the familial arrangement wherein children are raised, the State must be officially indifferent to the composition of such a childrearing union.  Indeed, it can have no legitimate interest in preferring a male-female union over a same-sex union such that the absence of a mother or a father doesn’t matter.  A child may have a mother and a father, or two mothers or two fathers.  For the State, there is no ideal arrangement.  The presence of both a mother and a father is wholly optional (albeit, not an option that the child gets to select).

Candidly stating this result would be a critical step in any intellectually honest opinion reaching the same conclusion as Obergefell that had any hope of persuading those not already committed to the result of “marriage equality” as a political matter.  Sadly, this step is conspicuously absent from Kennedy’s opinion and its absence renders Obergefell a tragic decision – a colossal intellectual failure of enormous proportions.

An erroneous allegation of an "erroneous claim of anti-Catholic discrimination"

Prof. Robert Goldstein (UCLA) has posted a paper, "The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination."  In my view, there is a lot in the paper that is valuable and insightful.  For example, Prof. Goldstein emphasizes the "structural" dimension of our no-establishment rule and also the importance of broadening the religious-freedom narrative to include 19th century church-state conflicts in Europe.   Where the piece goes wrong, in my view -- that is, its "erroneous claim" -- is in endorsing the argument that it is wrong to emphasize the importance of anti-Catholicism in the development of Establishment Clause doctrine, or in the school-funding and Blaine Amendment controversies, because what some of us (me, for example:  here and here) call anti-Catholicism is really just a manifestation of "a popular constitutional commitment to liberal democracy; that commitment involved opposition to the goals of the ultramontane Church, which linked its establishment and authority as the one true church to its anti-liberal and anti-democratic politics."  But, anti-Catholicism preceded, by a lot, Mirari Vos, and pre-dated, by a lot, 19th century American reactions to, say, the 19th century popes' struggles during the Risorgimento (or the Lateran Accords with Mussolini).  And, the efforts in the piece to defend Justice Hugo Black and author Paul Blanshard's American Freedom and Catholic Power from anti-Catholicism charges strike me as strange and, certainly, unsuccessful.  

All that said, the closing section includes a long discussion of Dignitatis Humanae (happy birthday!) and John Courtney Murray, which is always a nice thing to see in a law review!

The coming attacks on school choice

This story, out of the Philadelphia area, reminds us not only that Catholic (and other religious) institutions are going to face "internal" pushback, sometimes, when they insist on hiring-for-mission, but also that those states that have (wisely) enacted school-choice programs will face pressure to condition participation in such programs on adopting the current understanding of the antidiscrimination norm, whether or not it conflicts with schools' religious character.

Skinner on the "Genealogy of Liberty."

This video is well worth a watch.   A stunningly detailed history of the idea(s) of "liberty."