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The Court and Marriage II: The Pretenses of Judicial Restraint Print E-mail
By Hadley Arkes   
Tuesday, 02 July 2013

In his book What I Saw in America, G.K. Chesterton recounted his experience in seeing Broadway at night in New York. He marveled at the uses there of God’s gift of color and lightening (light), and the garish advertising. “What a glorious garden of wonders this would be,” he said, “to anyone who was lucky enough not to be able to read.”  

The same thing could have been said by those of us who were there in the courtroom of the Supreme Court this week, as the decisions on marriage were read from the bench. The dignity of the place, the rules of civility and decorum, were so evidently in the air, and so firmly respected. And yet the reasoning in the cases offered a parody of the principles of law that this building was designed to frame and enhance. 

In the aftermath of the decisions this week, I wrote in this space on one of the decisions, U.S. v. Windsor, where the Court struck down Section 3 of the Defense of Marriage Act (1996). In Section 3 the Congress had stipulated that every reference to marriage in the federal code would refer only to the legal union of a man and a woman. 

Justice Kennedy wrote for the Court in striking down a law that, he claimed, demeaned and “humiliated” gays and lesbians by implicitly refusing to accord, to their relations, the dignity of a marital union. Kennedy affected to offer a judgment limited in its reach: he would not reach Section 2 of the Act, which sought to shore up the authority of a State to refuse to recognize same-sex marriages coming in from other States. 

But if it were judged to be morally wrong, unjustified, to bar gay and lesbian couples from marriage, the same understanding would have to spill over to the cases sure to arise in challenging Section 2.  Surely it had to be quite as wrong then for a State to cast an adverse moral judgment and refuse to recognize the legitimacy of homosexual unions.

In the companion case of Hollingsworth v. Perry, the majority affected there too that it was acting with the refined sense of limitation, offering a virtual model of judicial restraint. For the Court was deciding here not to decide.

The case involved the famous Proposition 8 in California. The voters of California brought forth a referendum to amend their constitution to affirm marriage solely as the union of a man and woman. But of course that measure (Proposition 8) was challenged in a federal court, and a friendly judge, openly gay, struck down that amendment to the constitution.

At this point the plot thickened. The Executive in the State (Governor Brown) refused to defend the amendment in court. The proponents of the measure stepped forward, seeking to stand in his place to defend that amendment in the courts. 


         Demonstrators outside the Supreme Court on June 26, 2013

The Supreme Court of California agreed that, when the Executive refused, the proponents would have standing to defend the measure they had helped to frame and pass. For otherwise, the process of “initiative and referendum” would become a nullity. 

But that is essentially what has happened now as the Supreme Court refused to accept the standing of the proponents to defend their own measure. Chief Justice Roberts insisted that the federal courts had to be governed by their own, distinct rules, and those rules sought to limit the power of the courts by confining them to a “case in controversy.” The litigants would have to show a direct material and “personal” stake in the outcome.  

The proponents of Proposition 8 had invested themselves deeply in the cause with the concern of “citizens,” but they would not be deprived of anything in their own lives if the Court failed to sustain their policy.

There was now a new asymmetry: The governor of any State now could overturn a part of his own constitution – or indeed any part of the laws of his State – by refusing to defend them if they were successfully challenged in a federal court. 

All it requires now is a gay or lesbian couple to come forward to challenge the constitution in a State in which the constitution does not accept same-sex marriage. If the State now has a liberal governor who refuses to defend that part of the constitution, that will be enough to make it into a nullity.

The Supreme Court decided that the Windsor case then was not “justiciable.” All decisions would be swept away, leaving possibly only that first decision in the District Court. In that case, the judgment would apply only to the litigants in the case, with no authority binding any other court. 

But Governor Brown made it known right away that he would direct registrars to accept same-sex marriages all over the State, and couples have already come forward to marry.

Beyond the tragedies of this week, then, there is a further lesson for our friends doing conservative jurisprudence. They wish to believe that the judges take seriously the limits in positive law – that Kennedy is striking down only Section 3, not Section 2; that Roberts is leaving the issue to be contested in the separate States. 

But they do not see that the moral judgment at the core of these decisions has a dynamic of its own, which will sweep past all of these barriers of the positive law.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
 
 
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Comments (19)Add Comment
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written by Jacob, July 02, 2013
I wonder if there's any evil that will make orthodox Christians stop supporting these militant secularists and buying into Satan's lie that we're going to convert them by arguing with and losing to them in court for the rest of time.
We'll keep building up a society while they bloodsuck it nearly to death, but never ever think of trying to rebel against this evil nation, like the old Catholics who used to actually change cultures for the better.
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written by Manfred, July 02, 2013
Dr. Arkes: I personally want to thank you for your columns at TCT. Your erudition on judicial matters and the clear way you explain the false reasoning in these decisions, is extremely helpful to me. I will print and keep both of these reports. Your conversion to Catholicism, while of grea benefit to you, is of enormous benefit to serious Catholics (and others!) as well. We are in your debt.
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written by Grump, July 02, 2013
Well analyzed, professor. It is only a matter of time before so-called "same-sex marriage" will be federalized, nullifying laws in 35 states that prohibit it. Popular vote be damned. More than 7 million Californians voted for Prop 8 -- a 52% majority -- only to see a clearly biased lone homosexual judge negate the will of the people. Any pretense that America is a "democracy" ought to be discarded forthwith.

De Tocqueville, who penned "Democracy in America," said: "Liberty cannot be established without morality, nor morality without faith."

But my more cynical side likes to quote H.L. Mencken, who wrote in The Baltimore Sun in 1920: "As democracy is perfected, the office of President represents, more and more closely, the inner soul of the people. On some great and glorious day, the plain folks of the land will reach their heart's desire at last and the White House will be occupied by a downright fool and complete narcissistic moron."

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written by Dan Deeny, July 02, 2013
A good, clear explanation. Is legal resistance possible? What if state executives decided not to follow any of these decisions? What would happen?
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written by Catholic State Legislator, July 02, 2013
I agree, Professor Arkes. These Supreme Court opinions are open invitations to bring federal court challenges to invalidate state constitutional protections of traditional marriage.

Eight years ago, I cosponsored legislation to enact a state constitutional amendment to protect traditional marriage in our state. The people ratified the amendment the following November.

If this amendment is challenged in federal court, our sitting Governor and Attorney will likely dcline to defend.

If the people have no standing to defend such cases in federal court, then it is incumbent upon state legislators, like me, to step up and defend the sanctity of traditional marriage in our respective states, just as Congressional Republicans did on behalf of the federal DOMA. There was no objection to Congressional standing in the DOMA case.

I believe we can still win this war in America's Heartland if state legislators intervene in these inevitable challenges.
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written by Kurt, July 02, 2013
I find it disheartening that Prof. Arkes and "Grump" choose to insinuate that Judge Vaughn Walker's ruling was animated by the fact that he is gay. Some facts are in order on this point. When first nominated to the bench by President Reagan, Walker was denounced by the likes of Nancy Pelosi for being anti-gay. He was re-nominated by the first President Bush and affirmed over opposition from the left. No one has ever characterized the judge as liberal (until this case). Most would say he is a conservative, law-and-economics jurist. In the Perry case, Walker held a lengthy trial where, it should be said, the Prop 8 advocates put on a miserable case. Judge Walker's decision in the case was based on the facts presented to him.

Catholics don't like having their views denigrated as simply a matter of faith, as simply one set of religious beliefs among many, none superior to another and all just a matter of blind belief. As Prof. Arkes so often demonstrates, evidence and reason are at the core of natural law--that is why certain truths are universal and can be understood by (and binding upon) everyone. To say that Judge Walker ruled as he did because he is gay is no different from saying Justice Scalia's dissent in the Windsor case is devoid of legal reasoning and was telegraphed to him by the Pope. We all should be above such meanness and deal with the arguments on their merits.
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written by Grump, July 02, 2013
@Kurt. A homosexual judge should not be allowed to decide a case in which the "rights" of homosexual are at the core. That is clearly a conflict of interest. The larger point, which you missed entirely is that, sexual orientation aside, the notion that one person can thwart the will of 7 million people who had the opposite view is, ipso facto, a miscarriage of justice and antithetical to democratic principles. Then again, as I averred previously, democracy does not exist in America.
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written by Achilles, July 02, 2013
Kurt your arguments are sophistry.
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written by Ken Tremendous, July 02, 2013
Regarding "conservative jurisprudence" and "judicial restraint" let's finally come to grips with the fact that these notions were an ad hoc response to the wave of liberal activism from another era. They have no meaning today. Liberal majorities have no problem invalidating state laws and state constitutions (witness this decision) while conservative ones are quite OK with invalidating acts of Congress (the decision on the VRA only the latest example). The Roberts decision in that case was not made based on any "constitutional principle" but only the observation that things had changed since 1965--a consideration that a Republican controlled congress and President considered and ignored in 2006--secretly hoping of course that the Court would get the desired outcome later at less political cost.

The court has always been a political institution wherein judges mostly reason backwards from their preferred outcomes to produce the "case" for what they are doing in law and precedent. And no, Bork was absolutely no different in this regard. The results of his jurisprudence tracked with his political beliefs almost perfectly.

We should stop pretending otherwise and just adopt term limits for justices.
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written by Woody, July 02, 2013
Ken is correct. All federal judges are appointed by a politician. Thus, they are all political with agendas to see through. Ask anyone who has clerked for any judge and you will find out that judicial restraint is something one learns in law school but never sees in reality. Not only should federal judges be elected but there also should be a mandatory retirement age of, say, 70.
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written by Robb, July 02, 2013
Come on people. Judges are just lawyers in choir robes.
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written by Ken Tremendous, July 02, 2013
Well Woody, I wouldn't favor even more federal elections. I think that would actually make the problem worse. Just 10 year terms would be sufficient with an option for the president to reappoint the same person at the end of his/her term. That would end the psychological and political pressure for judges to stay on well past their prime. And basically ensure overtime an even number of appointments by all presidents.

Further there should be ways for Congress to overturn Court rulings--with a supermajority vote or even a majority one. There are no ways today really to do this. The court can do whatever it wants provided the results have some political constituency behind them.

I think a "judicial restraint" amendment should be what conservatives should now be championing. I actually think we might find some Democrats to go along with it, since they have been on the receiving end of several decisions--unpopular from their perspective.

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written by Hadley Arkes, July 02, 2013
I'm going to be tied up this evening, and so I wanted to set down a few things while people may still be tuning in. Beyond everything else I wanted to tell Manfred how touched I've been by his words. I want to thank him also for beingone of our regulars, and if he is in touch with me by e-mail I may get to learn his real name. [The e-mail is hparkes@amherst.edu.] But if he really does keep printed copies of today's piece, I hope it will include Grump's letter, with that marvelous line from H.L. Mencken, which I surely would have remembered if I had ever seen it. And yet,perhaps I really have read it: from what essay is it? But beyond that,it is so good to hear again from Grump.

Even before the note from "Kurt," it occurred to me that I should have made this slight correction: Vaughan Walker was not "openly" gay at the time the case was being litigated. It was just acknowledged after the fact that he was gay and living with a long-time partner. I had met him years ago at a reception in San Francisco of the Pacific Research Institute. He was there because he was a libertarian and a supporter of a free market economy. In that respect he did have the coloration of a conservative. But he was not at all conservative on these other matters of moral consequence that some of us take even more seriously--the issues of abortion and marriage and the moral ground of the laws. His stance on the matter, say, of pornography and the regulation of public entertainments I do not know. I could, though, venture a guess.

But the main point was caught exactly by Grump: There was the gravest conflict of interest here, for Walker promised to gain personally, and materially, by the finding of a new "right" that he and his friend could claim. Still, none of that would establish that Walker would have been incapable for rendering a strict, "disinterested" justice, a judgment unaffected by his own interests. But with a judge, issues of high moment and the lives of other people are directly affected by his decision, and he needs to be especially careful to avoid anything that could bend his judgment. Apart from that, though, Kurt should see the string of memos put out by Edward Whelan in his "Bench Memos" for National Review Online. Whelan cites there a whole string of bizarre holdings by Walker, abuses of discretion, which could only be explained by a judge who had made his mind up about the outcome of the case from the beginning. Our readers might want to see and hear Whelan's commentary in a presentation that he and Carrie Severino and I did last night, on the cases on marriage, at the Catholic Information Center in Washington. The program was recorded by C-Span and I'm told that it might be retrieved with this link.

http://www.c-span.org/flvPop.aspx?id=10737440280

But again, I want to thank our readers for writing in today as they have. Some have expressed in "what we do next"--and I'll return to that matter in a column to come.



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written by Tom, July 02, 2013
"But of course that measure (Proposition 8) was challenged in a federal court, and a friendly judge, openly gay, struck down that amendment to the constitution.

At this point the plot thickened. The Executive in the State (Governor Brown) refused to defend the amendment in court. The proponents of the measure stepped forward, seeking to stand in his place to defend that amendment in the courts."

To clarify, didn't Gov. Brown refuse to defend in the trial court also? And, thus, there should have been a default judgment instead of a trial?
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written by Jack,CT, July 03, 2013
Do Any of these sound Catholic?
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written by Brian, July 03, 2013
Here's a question that occurred to me as I read Windsor this morning: had Congress never enacted DOMA, then, under normal canons of statutory construction, would Windsor have prevailed in her estate tax claim? If the answer to that is anything other than an unqualified "yes," then what does that say about the exercise of judicial restraint in the case?
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written by Michael Paterson-Seymour, July 04, 2013
Brian

The answer is, indeed, "yes."

According to the great authority on conflict of laws, Storey, the normal rule is that the formalities of marriage are governed by the law of the place of celebration and the capacity to marry by the law of the parties' domicile.
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written by Edward B. Connolly, July 09, 2013
The words ascribed to Mencken by Grump are rather inaccurate. If one can trust the "Brainy Quotes" website, here is what Mencken actually wrote: “On some great and glorious day the plain folks of the land will reach their heart's desire at last, and the White House will be adorned by a downright moron.” That sounds more plausible.
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written by Aloyius van Dunk, July 11, 2013
It is politically and judicially incorrect to ask the question: Is homosexuality a learned behavior or is it equivalent to a trait people are born with such as race. In Massachusetts, legislation is pending making it unlawful for parents to seek reparative therapy for their children who think (with the credibility of a child) he/she/? is a homosexual or transgendered or bisexual or immutably controlled by some other form of sexual attraction (pedophilia, maso-sadist, etc?) I am whatever I decide I am and entitled to whatever you're giving away for everyone else. Pour on the tax subsidies and the lawsuits and the special treatment because I am due compensation for behaving the way I was born to behave. Anyone who dare doubt that all sexual behaviors are equal, and due federal recognition and benefits is a hater. End of discussion.

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