My thanks to Ed Darrell for pointing me to an article by Peter Gomes in the Boston Globe. Gomes is the Plummer Professor of Christian Morals and minister of the Memorial Church at Harvard. Of the recent court cases involving gay marriage, he writes:
We have seen this before. When the courts eventually invalidated long-established laws sanctioned by church and society that forbade interracial marriage, the so-called "miscegenation" laws that obtained in many parts of this country within living memory, the courts that did this were invariably maligned as interventionist, arbitrary, and usurpatious.
Most now would agree that those laws were wrong, indeed unconstitutional, and that the courts were right in their judgments on behalf of the petitioners.
Now it is of course true that the analogy between gay marriage and interracial marriage is not an exact one (no analogy is), and I'm sure the opponents of gay marriage will immediately yell, "But interracial marriages were still between a man and a woman!" They would be right, of course, but that's not the point that either Gomes or I wishes to make. The issue at question is one of law, not merely of impassioned argument, and in court the arguments made are legal ones. The comparison I am making is between the legal arguments and the reactions to the rulings in these two issues, not between the two types of marriage specifically. Let's look at the legal arguments being made about gay marriage and compare them to the legal arguments made in response to the ruling in Loving v Virginia, the 1967 case that struck down laws banning interracial marriages. One obvious difference is that the two recent court cases dealing with gay marriage were both issued by state supreme courts, of Massachusetts and Vermont respectively, not by the US Supreme Court. But in both cases, the reaction from conservative legal scholars, legislators and activists has been identical. Let's examine those arguments:
1. "Judicial Activism".
President Bush invoked this argument in the state of the union address, saying,
Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our nation must defend the sanctity of marriage.
This is a common and favored buzzword of conservative legal theorists, but it's mostly a meaningless phrase, as I've argued elsewhere. Conservative judges are no less prone to "activism" than liberal judges, nor is there anything like a coherent definition of "activism". This is sometimes also called "judicial tyranny" - unelected judges overruling elected legislatures. But as Gomes pointed out, those unelected judges, when dealing with the issue of extending constitutional protection to minority groups, is almost always in the right and it doesn't take long for popular sentiment to catch up to it once the ruling is made. Is there anyone short of the KKK who would today argue that the Loving decision was wrong? Or Brown v Board of Education, which desegregated public schools? In both cases, the legislatures whose will was overturned by those "judicial activists" had popular support. If it had been left to the "will of the people" in Virginia (or the other states that had laws against interracial marriage) in 1959, or the "will of the people" in Alabama in 1953, neither of those decisions that are now universally seen as correct both morally and constitutionally would have survived. As Gomes points out:
Legislatures more often than not are subject to the prevailing passions of any majority that can muster sufficient votes; rarely are legislatures in the first instance instruments of social change. It was, after all, legislators who, reflecting the views of those who elected them, kept in place every oppressive law on the books until challenged by aggrieved citizens who sought relief in the courts.
If society waited for majority opinion and legislative action, African-Americans, for example, would still be enduring the indignities of separate but equal accommodation and the other manifestations of legal, social, and political segregation. If the decision of the Supreme Judicial Court in Goodridge is "judicial tyranny," let there be more of it.
The editors of the New Republic agreed in a 2000 article on the Vermont decision:
Some argue that such a change should never be imposed by the courts, since homosexuality remains a source of widespread public unease. But surely such an argument also applied to the courts' assaults on anti-miscegenation laws in the 1950s and '60s. Should the courts not have struck down those laws for fear of invoking "judicial tyranny"? After all, public hostility toward interracial marriage was at least as great in 1967, when it was finally protected by Loving v. Virginia, as is hostility toward same-sex marriage today.
2. The court is inventing a "new right" that wasn't there before
This is an argument that is often heard from conservatives on a wide range of legal decisions. They argue that since the constitution doesn't enumerate a specific right, courts are wrong to apply broader concepts like a right to privacy to specific areas not explicitly mentioned in the text. This argument has been made against Griswold v Connecticutt ("there is no right to buy contraception mentioned in the constitution"), against the recent Lawrence v Texas decision ("there is no right to engage in sodomy mentioned in the constitution"), and yes, against Loving v Virginia - there is no right to marry who you please in the constitution. Well guess what? They're right. None of those things are mentioned in the constitution specifically. But that's where the 9th amendment comes in, the one that Bork and his ilk want to pretend is just an "inkblot" on the constitution. The 9th amendment says:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
And despite Bork's pretensions, this was not an afterthought on the part of the framers. There was a major argument going on about the need and utility of a bill of rights, and the principle argument against having a bill of rights was that if you mention specific rights, the government will thereby have the prerogative to encroach on anything not specifically mentioned. This was remedied by adding the 9th amendment, whose purpose was, in my view, to put the burden of proof on the government when it comes to unenumerated rights. Those rights not specifically mentioned are presumed to be retained by the people unless a compelling case for violating those rights can be made. Ironically, it's the "strict constructionists" like Bork who argue that this vital part of the text of the bill of rights, which was added with announced intent and purpose by those who framed the amendments, is meaningless and cannot be applied in any specific legal circumstance. Nor will they allow penumbral reasoning, of course, but as Glenn Reynolds pointed out in a Penn Law Review article in 1992,
Recent years have seen considerable criticism and hostility regarding efforts of both courts and commentators to derive constitutional rights from sources other than explicit constitutional language. Nearly all of that criticism has emanated from those generally characterized as "right wing" or "conservative," and it concerns case in which the outcome is generally regarded as "left wing" or "liberal."
One might imagine that the unidirectional nature of this criticism stems from a similar tendency in the way the Constitution is interpreted, with the left relying more on extratextual sources of authority and loose interpretations of constitutional language, and the right rejecting these methods in favor of strict reliance on explicit textual language and original understanding. Interestingly, however, this turns out not to be the case. Upon even a cursory examination, it becomes apparent that judges and scholars on the right have been as willing as those on the left to rely on reasoning and authority that are not explicit in the language of the Constitution to reach ends consistent with their desires. Nevertheless, uses of what I call "penumbral reasoning" to obtain "right wing" results have not generated the kind of criticism from advocates of "strict construction" and "original intent" theory that has appeared when the results have been otherwise.
Reynolds goes on to point out that there are numerous cases where the court has applied broadly worded rights to specific situations not explicitly mentioned because to do otherwise would be to leave the broadly stated right unsecured. And he quotes Justice Douglas' decision in Griswold v Connecticutt where he points out several of those cases:
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice--whether public or private or parochial--is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.
By Pierce v. Society of Sisters [268 U.S. 510 (1925)], the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska [262 U.S. 390 (1923)], the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U.S. 141, 143 [(1943)]) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344 U.S. 183, 195 [(1952)])--indeed, the freedom of the entire university community...Without those peripheral rights the specific rights would be less secure.
Reynolds then goes on to list numerous instances where the same type of legal reasoning is used without hearing cries of "judicial tyranny" or "unprincipled judicial overreach" from the conservatives. Their outrage at abstracting the text is selective and seems to be triggered only when a right is being extended to someone of whom they disapprove. Or as Gomes put it,
"Judicial tyranny" is a phrase usually heard from those whose prejudices have not been sustained by a court's decision.
The fact is that there is only one legal argument that was used against the court decision striking down laws against interracial marriage that has not yet been used against decisions striking down laws against gay marriage. That one argument is federalism. In 1967, conservatives complained long and loudly that this was the federal government interfering in what had always been a state-determined issue. And they were right, marriage laws had always been a state matter, but since the issue involved the 14th amendment, their argument was wrong. But why hasn't this argument been used? Because, of course, the shoe is on the other foot now. In yet another example of throwing out their long held judicial principles to insure the outcome they desire, many conservatives are now calling for a federal constitutional amendment to prevent state courts and legislatures from allowing gay marriages. They would impose a single definition of marriage at the federal level and override state constitutions in order to achieve their ideological goals of stopping gay marriage. As in the case of penumbral reasoning and "strict constructionism", many conservatives (though by no means all) will jettison the principle of federalism to further their political and religious aims. In the battle between principle and the will to control, principle usually loses.