What The Court Did And Did Not Say About Gay Marriage

It is extremely important to understand what the U.S. Supreme Court did AND DID NOT say concerning two cases it reviewed involving gay marriage.

In neither case did the court issue a finding on the constitutionality of gay marriage.

In a case involving Proposition 8 in California, a legally binding ballot initiative that banned gay marriage, the court declined to make a judgment and tossed the tennis ball back to a lower court. The issue before the court was whether the supporters of the Proposition 8 ballot initiative had legal "standing" to defend it in court after state officials had declined to appeal a finding issued by a lower court against the ballot initiative. The court ruled that those challenging the lower court decision had no legal standing to do so. 

The question addressed by the court in the second case was this: In states in which gay marriage has been made legal, is it permissible for the national government through a provision in a Defense of Marriage (DOMA) bill to deny to married gays federal benefits that accrue to married couples in non-gay relationships? The answer to that question, said the court in its majority opinion, is – no. If a state has recognized in law the validity of gay marriage – which is the case in Connecticut and 11 other states about half of which were initiated through court orders – U.S. Constitutional provisions require legally equal marriages to be treated equally.

In a dissenting opinion, Justice Antonin Scalia quite rightly lambasted Justice Anthony Kennedy, who wrote the majority opinion, for having engaged in wild, unnecessary and misleading moral and sociological puffery.

There are scores of questions best left unanswered by the Supreme Court the chief responsibility of which is to say what the U.S. Constitution means. Mr. Scalia sensed that Mr. Kennedy in his majority opinion was drifting into an unquiet sea of dubious sociological and ethical prescriptions. And he said so in a scalding dissent:

“To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to ‘disparage,’ ‘injure,’ ‘degrade,’ ‘demean,’ and ‘humiliate’ our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”

Indeed, the court does not know – and cannot know – the practical effects of what may be a revolutionary rearrangement of “an aspect of marriage that had been unquestioned in our society for most of its existence.” The traditional family – mom, dad and 2.5 kids, the number of children required in a marriage to assure the continuity of a state or nation – has been from time immemorial the DNA of the social structure of the Western world, buttressed and supported by rational laws friendly to normative ethical codes and religious proscriptions. Aristotle begins his “Politics” with a discussion of the traditional family as an indispensable political unit. It is no hyperbole to say that the traditional family has been the foundation stone of Western civilization. Now, theoretically it may be possible to erect a more just and fruitful society on a different foundation stone. But it is nonsense of the worst kind to suggest that so profound a readjustment will not disturb other social pillars.

Speculation of this kind should not enter into the decisions of the high court. The court should be driven by the law, and only by the law. When it descends to sociology and politics, it loses all its moral footing. Courts are called upon to judge, never to prescribe palliatives for social ills and moral disorders.  All this is best left to oleaginous politicians, commentators and other soothsayers.

Scalia At Wesleyan

Associate Justice of the U.S. Supreme Court Antonin Scalia is perhaps the nation’s foremost advocate and interpreter of orginalism, a mode of constitutional interpretation. The chief business of the Supreme Court, both originalists and non-originalists will agree, lies in Constitutional interpretation, a task that no Supreme Court justice may responsibly avoid.

Mr. Scalia’s views on originalism have been widely disseminated; the justice has not in the past hidden his light under a bushel basket. An address on orginalism delivered twenty three years ago at the University of Cincinnati during the William Howard Taft Constitutional Law Lecture is available to every reporter in the state at the click of a mouse.

In that widely available lecture, Mr. Scalia dilates on the defects of non-orginalist interpretation. Briefly, non-orginalism binds constitutional interpretation to what has been called “the living constitution,” which is to say the constitution as interpreted by justices of the moment who feel that the ancient provisions of the constitution must be translated with reference to current sociological considerations that carry greater weight than historical interpretation.

The origanalist interpreter acknowledges that some language in the Constitution may be ambiguous and in need of interpretation. Faced with a difficult constitutional term, the originalist will first consider the constitutional text. Not every Constitutional referent is ambiguous, but some are. If the referent is unclear, he then will seek its meaning in other contemporary texts such as state constitutions, constitutional deliberations, newspaper accounts, historical journals and the like. In Mr. Scalia’s understanding, proponents of a “living constitution” may dispense with such bothersome tasks, because the non-originalist is engaged in a procrustean effort to trim the appendages of the Constitution so they may better fit the bed of modernist subjective interpretation.

If one does not give proper weight to the original meaning of the Constitution, the document itself becomes a mere fantasy in the minds of judicial interpreters -- judicial interpretation as fad, and there is nothing so impermanent, changeable and fickle, G. K. Chesterton reminds us, as a fad. Under this scheme of interpretation, interpretive responsibilities simply disappear, and constitutional meaning becomes a meaning of the moment loosed from constitutional moorings.

Mr. Scalia is concerned with moorings and bindings and constitutional interpretive boundaries, as any reporter might have discovered by reading his twenty-three-year-old University of Cincinnati lecture, one always hopes, in preparation for reporting on the justice’s Wesleyan lecture.

Mr. Scalia arrived at the university at about twelve noon. He graciously spent about ten hours at Wesleyan, lunching with the students, talking with students and faculty, giving a well prepared lecture that lasted more than an hour, entertaining questions afterwards, and commenting good naturedly on the antics of professional protesters who unfurled banners wrong side out, so that the message on them was obscured, and sprinkled those attending the lecture with a shower of condoms. These happy warriors, some of whom were veterans of the ""Occupy Wall Street" movement, bearing signs outside, one of which read “The GOP Hates Women”, left the premises before Mr. Scalia explained that non-originalists were more likely than originalists to deprive them of their First Amendment rights of free speech, originalists being bound by constitutional provisions the import of which are made clear by hard historical research, while non-originalists rely on a capricious, ever changing interpretive standard that is faddish and subject to the fanciful imaginations of fallible justices.

Both originalist and non-originalists, Mr. Scalia said in his address, may make errors in judgment; and, in fact, Mr. Scalia mentioned in his address an instance in which, on reflection, he determined that the consequences of one his own originalist interpretation was too severe to be borne. But, he insisted, orginalism, while not error free, a least applies a measurable standard to judicial interpretation. Its great virtue is that its rigorous standard binds judges and leaves people free, while non-orginalism frees the judicial imagination and more often deprives people of their constitutional liberties.

An excellent report on Mr. Scalia’s appearance at Weselyan by David Lat may be found on his site, “Above the Law”