Judicial activism, federalism, and same-sex marriage

“What I also love about this conservative but extraordinary decision from SCOTUS is that it affirms the power of federalism against the alternatives,” said Andrew Sullivan of the Supreme Court’s decision not to review seven decisions on same-sex marriage this week.  “Marriage equality will not have been prematurely foisted on the country by one single decision; it will have emerged and taken root because it slowly gained democratic legitimacy, from state to state, because the legal and constitutional arguments slowly won in the court of public opinion, and because an experiment in one state, Massachusetts, and then others, helped persuade the sincere skeptics that the consequences were, in fact, the strengthening of families, not their weakening.”

He’s got the right idea about what should be happening, but of course he’s absolutely wrong about what is actually happening, and I suspect he’s well aware of that, which makes him more disingenuous than confused.  It’s absurd to talk about federalism and democracy with respect to same-sex marriage.  Only in a few cases has it been made legal with the support of the people, through their representatives.  In the states that petitioned the Supreme Court, it has been imposed by judges.  That’s what these petitions of the Supreme Court were about: the state legislatures passed laws regarding the traditional definition of marriage, and judges struck them down.

Easy enough to ignore those little details if you agree with the outcome… but that’s the point behind embracing “the power of federalism against the alternatives,” isn’t it?  The process matters.  No end should be so desirable that all means are embraced.  In the case of same-sex marriage, as Sullivan’s odd encomium to federalism demonstrates, the end is considered so desirable that the means are obscured.  Supporters literally do not want to think about what it takes to re-define marriage, as long as the outcome is agreeable.  Somehow activist judges become avatars of popular will, while the actual people and their elected representatives fade into invisibility.  Maybe conditions today are less heavy-handed than the outcome everyone was expecting, in which Supreme Court Justice Anthony Kennedy lectures the entire nation on what marriage “really” means, but it’s grotesque to describe the situation as flourishing federalism.  That would involve introducing bills and having robust popular debates.

Who knows how those debates would go, or how many of the states currently ruled into agreement with same-sex marriage would actively vote to affirm it?  I’m sure some of them probably would – there is undeniable energy behind the SSM movement, boosted by virtually unlimited media power, while the defenders of traditional marriage have been made to feel like the proverbial Japanese soldier holed up on an island in the Sixties because he didn’t know the war was over.  There’s a soft layer of support for SSM from good-hearted people who don’t think insisting on the traditional definition of marriage is worth hurting anyone’s feelings.  The political class is largely convinced that defending marriage is an unwise investment of political capital.  It’s just not something a lot of people want to fight about any more.

And yet, the energized advocates of same-sex marriage still have very little appetite for the business of representative government and legislative process.  They’d rather keep this in court, instead of bringing it to the polls.  Best not to give the people anything to say about what the Will of the People is.

One person who is sincerely interested in a true federalist approach is Senator Ted Cruz (R-TX), who probably isn’t waiting for applause from Andrew Sullivan.  In a statement released after the Supreme Court’s announcement, Cruz called the situation “judicial activism at its worst,” and proposed both legislative and constitutional remedies:

The Supreme Court???s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible.  By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing.
This is judicial activism at its worst. The Constitution entrusts state legislatures, elected by the People, to define marriage consistent with the values and mores of their citizens.  Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.
The Supreme Court is, de facto, applying an extremely broad interpretation to the 14th Amendment without saying a word ??? an action that is likely to have far-reaching consequences. Because of the Court???s decision today, 11 States will likely now be forced to legalize same-sex marriage: Virginia, Indiana, Wisconsin, Oklahoma, Utah, North Carolina, South Carolina, West Virginia, Kansas, Colorado, and Wyoming. And this action paves the way for laws prohibiting same-sex marriage to be overturned in any state.
It is beyond dispute that when the 14th Amendment was adopted 146 years ago, as a necessary post-Civil War era reform, it was not imagined to also mandate same-sex marriage, but that is what the Supreme Court is implying today. The Court is making the preposterous assumption that the People of the United States somehow silently redefined marriage in 1868 when they ratified the 14th Amendment.
Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts.
Marriage is a question for the States.  That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws. 
Traditional marriage is an institution whose integrity and vitality are critical to the health of any society. We should remain faithful to our moral heritage and never hesitate to defend it.

Hard to see how anyone who values the power of federalism could have any problem with that.  Note well that Cruz is not proposing legislation, or a constitutional amendment, to define marriage at the national level; he’s proposing to protect the rights of individual states to make that decision, one way or the other.  Or the other other, since the polygamists will be along shortly, quoting the arguments in favor of SSM word-for-word.  Any sincere advocate of same-sex marriage who doesn’t want polygamy should be in favor of moving this battle out of the courts as swiftly as possible, because there is absolutely no legal or logical argument in favor of gay marriage but against polygamy; if the sex of the participants must be thrown aside as a barrier to “marriage equality,” what possible barrier can the number of participants represent?  That’s the kind of distinction societies make through the democratic process, not in court.

I’ve done what I could to argue in favor of traditional marriage, but there is no custom or tradition that people cannot change; even the Constitution can be amended.  The question is how we go about changing them.  If the people really do support changing marriage laws, same-sex marriage advocates have nothing to fear from a fifty-state campaign, and really not much reason to curse their fortune if a few states don’t get on board.  Conversely, if same-sex marriage is something people affirmatively vote for, then with all due protections in place for conscientious objection, it is a decision worthy of respect.  That doesn’t mean silent and eternal acquiescence, of course.  The whole point of this debate is that traditions don’t deserve absolute deference by virtue of their age, is it not?  Maybe people will change their minds about marriage in the future, and that decision would also be worthy of respect, as will its honest advocates.

Senator Mike Lee (R-UT) also felt the Supreme Court should intervene in the name of federalism, rather than waiting for a “circuit split” that could oblige it to reconcile opposed rulings from different federal courts: “The Supreme Court???s decision to not review the Tenth Circuit???s ruling in Kitchen v. Herbert is disappointing.  Nothing in the Constitution forbids a state from retaining the traditional definition of marriage as a union between a man and a woman.  Whether to change that definition is a decision best left to the people of each state ??? not to unelected, politically unaccountable judges. The Supreme Court owes it to the people of those states, whose democratic choices are being invalidated, to review the question soon and reaffirm that states do have that right.”

Another disturbing thing about the march of same-sex marriage through the courts is that some of these cases weren’t exactly fair legal fights, since the government elected not to represent its citizens in defense of the laws that were under assault.  There are no such considerations when the peoples’ representatives vote on changing the law.  There are all sorts of other considerations, mind you – one does not often mistake modern political campaigns for exercises in Solomonic wisdom – but the goal here is to find the best path toward representative self-government, not the perfect one.  I don’t see how anyone can honestly confuse courts overturning duly enacted laws with “representative self-government.”

The question is whether a particular policy outcome can be held more important than the principles of government.  Presumably some advocates of same-sex marriage believe the answer is “yes” with respect to their issue, which is absolutely righteous in their eyes.  That’s not a good strategy for organizing a just and orderly society, since there are plenty of people who believe their causes are absolutely righteous.