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.
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.
It's amazing that these supposedly very bright people - justices - cannot see their own blindness!! - their many inconsistencies. It's discouraging!
ReplyDeleteThanks for pointing them out so clearly. Really good piece.