Matthew Franck advances a number of arguments for thinking the Supreme Court taking a pass on gay marriage is similar to the Dred Scott decision. I think he missed one that is at least as good as several of the ones he offers.
The Supreme court took a pass on October 6, 2014.
Dred Scott was decided on March 6, 1857.
Do you see the pattern?
If two things can be decided on the 6th day of the month, imagine what further atrocities might be in store! The Supreme Court might decide, on the 6th day of some month, that little babies should be able to get married. Or that dogs should own all the money.
(I know what you are thinking. You thought the point was going to be that 2 + 0 + 1 + 4 = 7. And 1 + 8 + 5 + 7 = 21. And 21 is divisible by 7. They’re both divisible by 7? Where will it end?)
Right. Continuing my wildly popular series of ‘let’s salvage at least something worth thinking about from the wreckage that is NR’ posts, consider what I consider to be Franck’s least obviously bad argument, from his previous post.
The courts in these three circuits wrote various forms of rhetorical twaddle to justify their imposition of a spurious constitutional right on those states. What is the ground of the right to same-sex marriage? Is it the equal protection clause (as the Seventh Circuit seems to believe)? Or the due process clause (which the Fourth appears to lean toward)? Or some penumbras-from-emanations “fundamental right” that partakes equally of both (which seems to be the view of the Tenth)? Who knows? The judges want a result, and legal reasoning is such a nuisance.
Not that it’s a good argument, mind you. But it is interesting that there seems to be an emerging legal consensus that the pro-same-sex-marriage position is rather overdetermined. Franck concludes that therefore the arguments must all be twaddle, devoid of reason. But, if you actually read them, they obviously are not. So how should we think about this?
Consider an analogy. Suppose we got up tomorrow morning and noticed, for the first time – somehow we just hadn’t been paying much attention, I guess – that people born on the 6th day of the month have always been legally forbidden to marry. But now cases are making their way through the courts, and decisions are coming down, mostly strongly in favor of the get-married-on-the-6th side, but they are kind of a mixed bag. One court says forbidding this thing is a violation of equal protection. Another says forbidding this thing is a violation of due process. Still another hints that maybe people have a ‘fundamental right’ to marry, even if they are born on the 6th, even though the Constitution totally doesn’t say that they DO have that right, in so many words. Some judges seem rather impatient with the whole business, like they know what the right answer is, and are just finding any old convenient, colorable reason for getting it done already. Surely, if it’s so obvious as that, we should be able to agree on WHY it is obvious, legally!
In short, we are facing a farrago of fallacious fancies, as activist judges seek to legislate their politically correct diurno-relativistic beliefs, from the bench. How can the Republic remain strong? (Outside the courthouses, protestors kneel, despondent; their ‘Sixth Day, No Way!’ signs damp in the rain.)
My analogy is rather extreme. But it gets at an important point about the really staggering degree of moral shift we have experienced, culturally, over the same-sex marriage issue. A critical mass of people now see no moral sense, whatsoever, in opposing same-sex marriage, legally. No matter how you slice it, it’s arbitrarily harmful discrimination. (If Franck is genuinely curious what people’s moral – as opposed to legal – reasons are, he can ask them. There are lots of moral arguments, and people now find them overwhelmingly convincing. I do.) This isn’t a legal argument, of course. But it sufficiently explains why, suddenly, not just one but several lines of legal argument seem basically plausible. People haven’t suddenly lost the ability to reason legally. Rather, they have a new moral framework in which old abstractions about rights and equality carry fresh implications.
Basically, Franck’s argument is this: if it was so damn legally obvious, why didn’t anyone notice before? This just reduces to: if it was so damn morally obvious, why didn’t anyone notice before? And the answer is: it’s actually kind of mysterious why so few noticed before, then suddenly so many did. But it’s not illegal that this happened. Hence there isn’t a legal objection to the implications of it having happened.
Conservatives like to complain about ‘living constitutionalism’. I think that’s mostly silly. But it’s also largely beside the point, at least in the same-sex marriage case. If several legal lines appear out of nowhere, it might seem that the legal tree must have grown. So if you don’t think the law is a tree, something bad has happened to the law. Anyway, it needs to be pruned back to its original shape.
But consider another silly argument. Suppose tomorrow we all decide that dogs are self-evidently people, in all morally relevant senses. Any attempt to treat dogs morally differently from people would be arbitrary. We’re sure of it! (No, I have no idea what we are thinking. Just go with it.) Well, that has huge legal implications. Suppose a few heroic souls want to fight against this moral shift by resisting all accommodations to it on the legal front. They don’t want dogs getting all the rights that, until now, ‘people’ have enjoyed. The only way to accomplish this, legally (as opposed to morally), is to change the law so that ‘people’ are not so equal any more, in principle.
It’s a classic conservative witticism (
Leopardi, The Leopard, isn’t it?) that sometimes, in order for things to stay the same, they need to change. In the case of same-sex marriage, given the moral change, the thing that needs to change, to keep there from being change, must be the law. If you can’t convince people that there’s a moral problem with same-sex marriage, the only way to preserve traditional marriage, as a legally exclusive form, would be radical judicial activism about due process, equal protection, maybe some other things. I trust Franck has the stomach for it!