On June 26, 2015, the Supreme Court ruled that banning same-sex marriage is unconstitutional, and that all states must commence recognizing same-sex marriages.
Although millions saw a reason to celebrate this ruling, even the victors should be concerned with it. Same-sex marriage may or may not merit institutionalization in the United States, but the decision to institutionalize same-sex marriage should be made democratically.
If you think democracy had much to do with the decision, you haven’t looked closely enough.
Note: This post has nothing to do with whether or not same-sex marriage should be legal, but it has everything to do with how it becomes legal or not. The process, not the outcome, is at issue.
Democracy: By the People
If I were to tell you that some country allows 5 unelected and unrepresentative individuals to dictate social transformation for a diverse population of over 320 million, would you guess that it is a democracy? Probably not (at least I wouldn’t). But that is exactly what has happened here. A careful look at the arguments (or even a quick skim through the official opinion and any of the 4 dissenting opinions) makes it clear that the law, the constitution, and the democratic process were either misconstrued or ignored in the justification for the supreme court ruling.
How It’s Supposed to Work
The way our government is set up–with it’s checks, balances, and separation of powers–requires that laws be created in the legislature, carried-out by the executive, and interpreted by the judiciary. The legislature (which consists of congress at the federal level and various equivalents at the state levels) should be the only entity making laws.
Because the legislature has authority to make laws, they are made highly accountable to the people in the form of relatively short terms of office. If the people don’t like the laws that the legislature makes, they can vote the legislature out of office.
The framers recognized that in the heat of a moment the public might enact a law against its own principles or in defiance to the constitution. To ensure that the laws get interpreted objectively, and without any concern for the will of an individual or any political fad, the judiciary is kept separate from the people. Instead of being elected, most judges are appointed. Instead of having terms, many courts (including the supreme court) give the judges life tenure. All of this is supposed to insulate judges from political fads and popular ideology.
The judge’s job, then, is to make sure that whatever the legislature wrote–be it good or bad, smart or dumb, sound or ridiculous–gets interpreted and applied correctly,* so long as it doesn’t defy the constitution.
What Happened Instead
From the Court-side Seats
With the ruling on same-sex marriage, the justices stepped out of their judicial role and wrote, rather than interpreted law. The official opinion uses some flowery language to try to make it look like the decision was based on a strict interpretation of the law and the constitution, but it doesn’t take much thinking to see that the ruling had nothing to do with what the constitution says or means at all. The ruling is about what 5 justices found preferable for society in, as the opinion states, their own “reasoned judgment.”
All 4 of the dissenting justices provided well-written dissenting opinions that go into more detail on how the ruling had nothing to do with the law or constitution, but here’s the short version:
The 5 justices in the majority reasoned that the “due process” clause in the 14th amendment doesn’t allow states to deprive same-sex couples from the “liberty” of getting married. The idea is that you can’t be deprived of liberty without due process of law, and that marriage is a fundamental liberty.
The 4 justices in the minority pointed out the problem of identifying marriage as a fundamental “liberty.” This view is a misinterpretation of what the constitution has always meant by “liberty”: freedom from governmental intervention or action, not freedom to receive benefits or recognition by the state. This means that no one has a fundamental “liberty” to receive the recognition, tax benefits, and other legal ramifications of marriage as far as the constitution is concerned. (Interestingly, the most accurate interpretation of “liberty” likely involves nothing more than freedom of mobility, but you don’t need to be this perfectly strict to recognize the problem.)
Even if marriage is a “liberty” that couldn’t be deprived without “due process,” the “due process of law” includes the creating of laws through the legislative process. This means that in states where legislatures and/or the public voted to ban same-sex marriage, the legislative branch fulfilled the “due process” of law.
In a sentence: no one was actually deprived of any liberty, and even if they were, it was done legally, lawfully, and constitutionally.
The People Had Spoken
The actions of the judiciary should be concerning, even if everyone in the country were to prefer the result. It’s even more concerning when one accounts for how the people had spoken prior to the ruling. (see here, here, here, and here for sources, and credit here for the program to make the maps below)
States that Voted for Same-sex Marriage
Of the states that voted on whether or not to allow same-sex marriage, only three had approved it. They went through the due process of law and decided that legally institutionalizing same-sex marriage was valuable.
Votes and Legislatures
Although only 3 states approved same-sex marriage by public referendum, 8 more approved same-sex marriage through the legislative body. This is still fine. The legislature is supposed to write the laws in ways that represent their constituencies. If their constituents don’t approve of the way they make law, they can vote them out of office. This is why the legislative branch is frequently up for election; regular voting cycles help keep legislatures accountable to the public.
Voting, Legislating, and Adjudicating
In contrast to the 11 states that obtained same-sex marriage in democratic ways, 26 states allowed same-sex marriage at the time of the Supreme Court case as a result of a court order. This, to me, is a problem. The majority of judges don’t go up for a vote to the people. The constitution (both the federal constitution as well as most of the state constitutions) designs the judicial branch to be kept relatively aloof from the public so as to avoid becoming subject to political fads and drama. The judges are supposed to simply interpret the law, not make judgments about whether the law is good or not. For the states in orange in the map above, judges decided that they knew better than the people and imposed their will upon them.
The Opposing Voice
This issue doesn’t just involve judges creating new laws, but it involved judges creating laws that the people had explicitly opposed. The red states above indicate states that voted against same-sex marriage the last time that a vote was put to the people. Many of these states are orange in the map above, indicating that the judges denied the expressed will of the people.
This final map includes both the states that voted against same-sex marriage, and the ones who’s legislatures created laws against it before being overturned by a court. Many of these states’s laws were struck down by a state or district court, but even the ones that kept their laws intact felt the heavy finality of the decision of the Supreme Court.
It’s also worth mentioning that in the uncolored states above, many never had a vote on the issue at all. There’s no final, conclusive evidence on what the people really want in those states, but they’ve been told what they are allowed to have by 5 judges in Washington DC.
It’s Not Just Conservatives Losing
Right now, only conservatives seem to be advocating originalism and a reigning in of judicial power. This doesn’t mean that originalism is an exclusively conservative cause, nor does it mean that only conservatives have something to gain from it. Liberal ideologies have been at odds with law-writing judges as well. A case called Lochner vs. New York is perhaps the most famous case involving conservative law-making from the bench.
In Lochner, the court struck down laws in New York that restricted how long bakers could work. The dissenting opinions pointed out that the ruling had little to do with the actual constitutionality of the laws, and had everything to do with the economic theories held by the judges in the majority opinion. This case was used as a precedent to create many conservative economic policies that the legislatures opposed, ironically using the 14th amendment and the due process clause as justification for doing so.
The court slowly turned itself around though. In 1955, the court stated in its opinion for Williamson v. Lee Optical of Oklahoma that
“[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”
Unfortunately, judges continued to use the Due Process Clause to strike down state laws that they personally disagreed with. Since it’s evident that this practice can work both ways, what will happen if a Republican becomes the next president and a Democrat-appointed justice must resign? Will a more conservative court avoid writing laws from the bench? Or will conservatives take advantage of the situation, perhaps thinking that turnabout is fair play?
The same-sex marriage case compounds the body of precedent that can be used as fodder for whichever side has the court majority, so no one should be happy about it.
What We All Lost
The only complete victor in this situation was the court by extending its ability to project power. Everyone else suffered a heavy loss the day that the opinion was published. Of course, proponents of traditional marriage lost the battle to keep marriage defined in a certain way. But the opponents to same-sex marriage bans lost too. That day, we all lost a little (perhaps a lot) of the ability to govern and make decisions for ourselves.
Some say that the fact that a court decided the issue is a moot point because the public generally supported same-sex marriage anyway. Even (or especially) if that’s the case, the issue should still be put to a vote or the legislature. Sure, the debates have been vigorous and impassioned on both sides, but people were coming to their own decisions on it. Potential problems were being discovered or resolved. Solutions were being proposed and refined. Now, instead of continuing the democratic process and enabling the public to develop their own solution that would work the best for the most people, the issue has been closed, the public’s ability to make their own way has been circumvented, and a lot of people are left feeling like they got cheated. If the nation really was heading toward an inevitable approval of same-sex marriage, then all the court did was rob the public of their chance to come up with the best solution, and consolidate a dangerous amount of power to the judiciary.
Although this was a big loss for democracy, our situation isn’t hopeless. Next week I’ll publish more on originalism and why it’s better for America. It’ll take time and public interest, but since we will all end up on the losing side of a court majority at some point, my hope is that people will increasingly recognize the importance of keeping issues in our own hands.
Keep seeking truth.
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*The phrase “gets interpreted and applied correctly” is an admittedly slippery phrase, but as someone who values power coming from the people, I think the judiciary should interpret laws based on the original public understanding (more on why next week). This differs from some other forms of looking into the “original intent” (which is often described as thinking about what people like James Madison meant or were thinking when they wrote it) in that the court should uphold what the people thought they were signing up for in the first place. Hence, the issue with using the 14th amendment as a constitutional justification for enforcing same-sex marriage. The token references to framer intent embedded in the majority opinion are not adequately persuasive. There is simply no way that the people thought they were allowing alternative marriage forms, or any sort of “freedom” like it, when they passed that amendment. As such, the 14th amendment should not be used as a constitutional guarantee of specific forms of marital liberty, but the people should be left to figure out marriage for themselves.