With all this talk about gay marriage, we eventually have to come to the question: Who decides? Who gets to say whether we will have gay marriage or not? And that question eventually becomes, Is it okay for courts to legalize gay marriage if legislatures won’t?
Publius over at Obsidian Wings has some interesting thoughts on the matter. He claims to start from a basically conservative/originalist perspective on the role of the judiciary, and says that when the Iowa Supreme Court legalized gay marriage, he initially opposed it. But, he says:
…after much thought, I’ve come around to the idea of using courts to legalize gay marriage. Admittedly, the idea runs against my general jurisprudence. But at some point, if my theories justify cruel and dehumanizing discrimination, well… maybe it’s time for new theories.
Yes indeed. Rawls called it reflective equilibrium, while other people simply call it not letting theory run away from practice.
But Publius runs into some trouble trying to justify this switch. His argument hinges on an analogy with Brown v. Board and other Warren Court race-discrimination cases:
The bottom line, then, is that the Warren Court’s race decisions were admittedly a departure from traditional precedent and methodology. But the injustice of American racial discrimination demanded a more aggressive response. …
The fundamental issue is whether discrimination against gay couples is so fundamentally unjust – so self-evidently repugnant to basic human dignity – that it justifies a more aggressive judicial response. In other words, is today’s discrimination in the same category as the racial discrimination that led to Brown and its progeny? That’s the million dollar question.
And I say yes.
Really? Discrimination against gays is in “the same category” as Jim Crow-era racial discrimination? Look, you just have to read my recent posts on this subject and you can see that I think discrimination against gays is an awful injustice, and that doing away with it would be a boon for both equality and liberty. Certainly it is the same kind of injustice as racial discrimination. But does Publius think there aren’t degrees of injustice? That denying hospital visitation rights is comparable to denying the right to vote, to go to school, to use public facilities? Does he really think that homophobia is as pernicious a force in Iowa, circa 2009, as racism was in Alabama, circa 1954?
This is not a petty distinction. Publius thinks that an aggressive judiciary is only legitimate when it is fighting injustices on the same scale as segregation. So even though he would probably have to grant that there is a difference between today’s discrimination and yesteryear’s, he has to make the analogy. Without it, he would not be “comfortable” using courts. And this is because he doesn’t actually get rid of his old jurisprudential theories, as he said he would. He wants to “reconceptualize” them, not abandon them. Yet, right after declaring that intention, he blatantly advocates good old common-law constitutionalism, Living Constitutionalism, whatever you want to call it:
Societies evolve. We evolved from our past racial views – and interpreted the Constitution accordingly. Last I checked, those new interpretations didn’t destroy the country – just the opposite, actually.
But you can’t have it both ways. You can’t say that we need a new theory of jurisprudence that accounts for obvious moral wrongs, and say we only need to “reconceptualize” originalism. There is no originalist or judicial-restraint theory, no matter how you conceptualize it, that will justify a pro-gay marriage judicial decision. You cannot say that the law should “mostly” be “coldly neutral” and say that gay marriage is just different. That isn’t a coherent judicial philosophy. Either interpretation must be neutral, or not. The lesson of Brown is not that we can just decide on exceptions to constitutional neutralism whenever we feel really, really strongly about it. The lesson of Brown is that constitutional neutralism is ridiculous in practice, and therefore flawed in theory. Publius initially seemed to get that, but by the end of his post, I was wondering where it all went wrong.