A Constitution Informed by Social Change

By David K. Shipler

            If you spend time reading the Supreme Court’s majority and dissenting opinions in the landmark same-sex marriage case, a transcendent principle jumps out at you. It has little to do with the definition of marriage or the widening acceptance of homosexuality. Rather, it is the notion that society should be alive to its own injustices, even those unseen in the age when solemn constitutional texts were written. Later—nearly 150 years later in this instance—practices that were once acceptable emerge as violations of the rights set down at a very different time.

This is the crux of the ideological dispute between conservatives and liberals on the Court, and it is articulated in this case with unusual clarity. The conservative dissenters define liberty in the narrowest terms—to Clarence Thomas it means freedom from physical restraint and imprisonment, nothing more.

To Antonin Scalia, the clock simply has to be turned back to the date of the post-Civil War Fourteenth Amendment, whose clauses banned the states from denying any person “the equal protection of the laws” or depriving anyone “of life, liberty, or property, without due process of law.” Those were the provisions that the Supreme Court found were being violated by denying same-sex couples the right to marry.

Scalia scoffed. “When the Fourteenth Amendment was ratified in 1868,” he wrote, “every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so.” Case closed.

Compare that with Anthony Kennedy’s fluid view of liberty in his opinion for the slim 5-4 majority. Kennedy is not easily categorized as liberal or conservative; he is often a swing vote. Here, however, he effectively endorses the liberal concept of a living Constitution by emphasizing its place in a shifting world.
His Constitution doesn’t change; society does. His Constitution’s towering guarantees don’t mutate. It is the society that moves and evolves and comes to recognize behavior that falls outside the Constitution. And the genius of the Constitution lies in the scope of its great words—liberty, freedom, rights, equal protection—which are grand enough to shelter members of a vibrant, changing society, if the courts allow.

             “The nature of injustice is that we may not always see it in our own times,” Kennedy observed. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” As we learn its meaning—an interesting phrase, derided by the dissenters, yet appropriate to the self-correcting nature of a healthy society.

“Changed understandings of marriage,” Kennedy wrote for himself and his four fellow justices, “are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”

It is that political process that has been cut off by the Court’s decision, Chief Justice John Roberts countered, the process of debate and reconsideration of gay marriage that has seized the country. He lamented that the Court had failed to let the process run its course and, instead, had indulged in “its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’” The question is a matter for legislatures, not judges, he declared, a matter of policy, not constitutional provision. Unelected judges who strike down democratically enacted laws, he said, must act on something more than their own beliefs.

We might wish that the Chief Justice would take his own advice. His point could be turned against several of his most significant opinions: granting free speech rights to corporations to overturn Congressionally mandated campaign finance limits in Citizens United, for example, and striking down a key section of the Voting Rights Act soon after it had been renewed overwhelmingly by Congress.

The section was critical. In response to the many sly ways that local officials had found to deny voting rights to blacks, Congress had required certain Southern states and counties elsewhere with histories of racial discrimination to get preclearance from the Justice Department for practically any change in voting procedures, including the locations of polling stations. By stripping the requirement from the law, the Court intruded directly into the legislative process and removed a federal tool for bolstering access to the ballot box.

It is hard to escape the conclusion that Roberts eloquently urges deference to the laws that he likes. Scalia, too, had joined in the campaign finance and voting rights opinions, which have hampered democratic process. In this case on gay marriage, though, he wrote separately, he said, “to call attention to this Court’s threat to American democracy.”

            Roberts makes much of the Constitution’s silence on the subject before the Court. At the end of his dissent, the Chief Justice allows those who favor same-sex marriage to celebrate a goal achieved, a new expression of commitment to a partner, the acquisition of new benefits. “But do not celebrate the Constitution,” he concludes. “It had nothing to do with it.”

            Not celebrate the Constitution? Let history judge.