Bench Memos

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Michael McConnell’s Response—and My Reply


Michael McConnell has asked me to post this response to my critique of his Wall Street Journal op-ed, and I am happy to do so:

To my good friend Ed Whelan:

With all respect, I think you may have lost sight of where we stand in this litigation.  It is not unlikely that the Court will impose same-sex marriage on the entire nation by judicial fiat, and in doing so embrace the broadest possible anti-democratic interpretive method of Roe v Wade.

There is a different path, which could command a majority and maybe even unanimous or near-unanimous consensus of the Court. This path would (1) hold that moral questions of this sort are properly matters of state law, (2) refrain from doing another Roe, and (3) reaffirm narrow principles of standing. All these are conservative principles of the highest order, built around federalism and a limited judicial role. This can be accomplished in a way that would calm rather than inflame the culture wars.

My op-ed could not, of course, lay out all the details of the legal argument. For that I suggest your readers consult the amicus brief of Walter Dellinger on the standing issue and of Roy Englert on the federalism issue. The latter was signed by many friends of this blog. I do not endorse every detail of these briefs, but they surely answer your charge that the arguments are devoid of merit.

Some quick comments in reply:

1. The way that Michael frames his response (“where we stand in this litigation”) signals rather clearly that, instead of providing his best constitutional analysis, he is recasting his views for tactical purposes—to invite the Court to take a wrong path that is (supposedly) not as bad as another wrong path. Alas, I’ve heard similar explanations from other folks in these cases who have decided to advance unsound arguments.

I’d respectfully suggest that law professors stick to offering their best reading of the law and stop trying to game the justices. At the very least, if Michael doesn’t really believe the arguments he has set forth (and note again how he subtly distances himself from them), he should have made that plain.

2. The amicus brief of Roy Englert to which McConnell refers is, I’m sorry to note, the brief of the “federalism scholars” that I have critiqued/ridiculed. For the reasons I have explained, I do not agree that that brief “answer[s] [my] charge that the arguments are devoid of merit.” Further, I’ll note that Michael passes on the opportunity to take issue with the federalism argument for DOMA that I have made and on which I invited correction.

I’ll acknowledge that I haven’t yet read Walter Dellinger’s amicus brief, though I have read the parties’ briefing on the standing issue as well as a previous article by Dellinger setting forth his arguments. I’d be very surprised if Dellinger’s brief alters my assessment of this issue, but if I find time to read it, I will weigh back in. In any event, I remain baffled, for the reasons I briefly stated in my original post, how Michael could believe that a ruling against standing would, in the particular context of Prop 8, operate to “reaffirm the ideal of democratic, decentralized decision-making.”


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