A New Sexual Constitution?

On May 15, a 4-3 majority of the California Supreme Court rewrote the state constitution and decreed that same-sex marriage was now a “fundamental” right. In a stunning display of disingenuous humility, the court had the brass to assert that it was not stating a policy preference, but only interpreting the people’s will as expressed in the state’s highest law. But California’s constitution says nothing about same-sex marriage, and the people of California made their will abundantly clear as recently as 2000, when they overwhelmingly passed a legislative initiative defining marriage as a union between man and woman.

Such facts were, however, mere inconveniences to the court’s majority, which dismissed them as vestigial remnants of irrational prejudice that could no longer be tolerated. Welcome to the world of “living” constitutionalism, where constitutional text and precedent, and even deeply held and strongly expressed public sentiments, are overturned in favor of what Chief Justice Earl Warren once described as “evolving standards of human dignity.” Armed with that criterion, federal and state judges have spent much of the past four decades rewriting our laws to accord with the fashionable opinions of intellectual elites.

Nowhere has this tendency been more pronounced than in matters touching sexual behavior. State regulations restricting the sale of contraceptives were first overturned in the name of a judicially contrived constitutional right of privacy. That same logic later made abortion-on-request the constitutional law of the land in 1973. In more recent years the argument (now broadened to encompass a right of personal autonomy) has been used as a battering ram against all manner of state laws expressing preference for the tenets of traditional morality as they apply to sexual activity, marriage, and the family. Courts have, for all intents and purposes, written a new sexual constitution and imposed it on the entire nation.

In the light of these prior developments, the California decision is hardly surprising; it is chiefly notable, not for the novelty or brilliance of its reasoning, but for the boldness with which it makes individual autonomy the summum bonum of constitutional law. Given the reigning shibboleths of modern jurisprudence, Chief Justice Ron George’s opinion for the California majority will in all likelihood become the gold standard for judges in other states who believe that defining marriage as a union between one man and one woman is so much arbitrary prejudice.

Lesson No. 1 to be drawn from the California litigation is that a preference for traditional marriage can no longer be silently presumed; it will have to be argued and explicitly defended. Without a coherently articulated moral and social rationale to back them up, mere statutory declarations will not likely survive judicial scrutiny. Indeed, it is not clear that they will be able to survive even if they are supported by detailed argument. At the state level, only constitutional amendments have any chance of restraining activist judges.

Activist federal judges present another question altogether, since even state constitutional provisions can be overridden in the name of federal constitutional supremacy. Here, recent U.S. Supreme Court decisions give little reason for optimism. Doctrinal precedents extolling the right to privacy and individual autonomy are already in place. It is largely a matter of judicial will at this point whether the justices will imitate California by voiding preference for heterosexual marriage as an expression of mean-spirited anti-homosexual animus. Four, and arguably five, justices are already philosophically inclined in that direction. Two of them will in all probability retire in the next few years. If you think recent confirmation battles have been unusually heated, you ain’t seen nuthin’ yet. When you add the politics of abortion to the politics of gay rights you get an explosive mixture that may reduce all prior confirmation battles to a sunny afternoon tea party.

Lesson No. 2 from the California decision is that legal halfway houses, such as “civil union” legislation adopted by many states, are of little avail. Over the years California has made every imaginable accommodation to homosexual couples; they already enjoy all of the economic and social benefits available to male-female unions. The California court, however, turned this political accommodation on its head, arguing, in effect, that it demonstrated how little value the state placed on the distinctive virtues of traditional marriage.The California ruling draws the political battle lines in clear and unmistakable terms. If marriage is to be preserved as anything other than a name only, its defenders will have to organize and act – in the first instance at the state level (Californians will get a chance this November to enact a constitutional amendment by initiative), and thereafter by pressuring Congress to move on a federal constitutional amendment. That is an enormous task, but so are the stakes.

Michael Uhlmann (1939-2019)

Michael Uhlmann served in the Reagan White House and taught American politics at the Claremont Graduate University.