Arbitrary power in the guise of the rule of law
The Supreme Court will soon rule on a bundle of gay-marriage cases, and many Court-watchers, who perform acts of haruspicy on the justices’ public actions that call to mind the exertions of Cold War Kremlinologists, expect that the outcome will be the gutting of traditional-marriage laws across the United States. The belief that marriage as historically understood should enjoy a unique legal status that reflects its unique social role would in effect be branded a species of bigotry so outrageous that lawmakers in Austin or Montgomery infected by it must be overturned by Washington. President Barack Obama — who ran both for the Senate and the presidency as a candidate opposed to same-sex marriage — was, under this understanding, a bigot legally indistinguishable from Bull Connor and the rest of the segregationist Democrats of the Jim Crow era. His stated belief — “I believe that American society can choose to carve out a special place for the union of a man and a woman as the unit of child rearing most common to every culture” — would be considered beyond the pale as a matter of legislative reasoning.
Which is to say, Barack Obama during his coward’s years — he was on the record in favor of gay marriage before he was against it and before he was for it again, d/evolving as suited his personal ends and subordinating both the question of marriage and the interests of gay Americans to his own ambition — was somebody whose views must be considered, in the words of District Court Judge John G. Heyburn II, “at best illogical and even bewildering,” an example of “hypocrisy” having “no rational relation” to any legitimate public concern. In the words of Judge Heyburn, such views exhibit a “lack of rationality” and, in case that’s not clear enough, “are not those of serious people.”
Of course it is inarguably the case that Barack Obama is a hypocrite whose actions very often are illogical and bewildering, with no rational relation to any legitimate public concern, informed by views and assumption that are not those of serious people — and that’s just his foreign policy. How much legal weight those facts should carry, if any, is unclear.
Judge Heyburn cites a case that commands our sympathy.
Timothy Love and Lawrence Ysunza reside in Louisville, Kentucky and have lived together for 34 years. On February 13, 2014, they requested a Kentucky marriage license from the Jefferson County Clerk’s Office, presenting the requisite identification and filing fees. The Commonwealth refused to issue them a license because they are a same-sex couple. They allege that their inability to obtain a marriage license has affected them in many ways. For example, last summer, Love underwent emergency heart surgery, which had to be delayed in order to execute documents allowing Ysunza access and decision-making authority for Love. As another surgery for Love is imminent, the couple fears what will happen if complications arise. The couple fears that healthcare providers and assisted living facilities may not allow them to be together or care for each other as they age. In addition, the couple has had difficulties with professional service providers; they found out after they purchased their home that their real estate attorney disregarded their request to include survivorship rights in the deed.
Judge Heyburn, though he racked his brain, could not think of “any reasonably conceivable” purpose for a law restricting marriage to heterosexual couples. This amounts to question-begging, of course: Barack Obama offered what he surely believed to be a reasonable purpose for such a law — to legally recognize “a special place for the union of a man and a woman as the unit of child rearing,” an argument also offered by many conservative critics of gay marriage — but Judge Heyburn considers such arguments to be categorically unserious. If one believes that the purpose of marriage is to establish a unique legal framework for relationships that are procreative in kind if not always procreative in fact, then Obama’s position — the one he first ran for the White House on, anyway — is sensible. If you believe, as Judge Heyburn implicitly does, that the purpose of marriage laws is to make domestic arrangements easier and more secure for committed couples, then Obama’s position — the short-lived one adopted to deceive Democratic-primary voters fearing that he was too left-wing — is irrational, bewildering, and more.
There are more important gay-marriage decisions than Judge Heyburn’s in Love v. Beshear, which is one of the cases bundled into the Supreme Court’s upcoming review, but it is notable for the nakedness of its activism, for its flat unwillingness to consider as serious the arguments in favor of traditional-marriage legal regimes, and for its high-school-debater’s rhetorical strategies. If there is a court richly deserving of being held in contempt, it is Judge Heyburn’s.
What is striking about the decisions in Beshear and other gay-marriage cases is that when they are read as exercises in rhetoric and political advocacy — which is to say, when they are read correctly — the inescapable conclusion is that these matters are to be decided on an almost purely subjective basis — that basis being what sounds reasonable to men such as Judge Heyburn, or to five out of nine Supreme Court justices. There is a great deal of talk about “diversity” on the Court, and about whether there is an operative conservative majority or liberal majority on the Court. There is a majority on the Court: the Harvard majority, with five of the nine justices having attended law school there. There is a unanimity on the Court, too: The Ivy League unanimity, with the remainder of the justices having gone to Yale (three) or Columbia (Justice Ginsburg, always the outlier).
Which is to say, one of the most profound social questions of our time is to be decided, as a legal matter, by a standard indistinguishable from “Sounds legit to me!” in the judgment of a remarkably homogenous, cloistered group of people with nearly identical professional and educational backgrounds, sitting in a single room in Washington.
One of the truly illuminating legal fictions is the “reasonable man” standard — the “reasonable person” standard in these sensitive, illiterate times — which is illuminating precisely because it is understood to be a fiction. Who is this “reasonable man”? What are his attributes? As the description attributed to British legal scholar Percy Henry Winfield has it, “He has not the courage of Achilles, the wisdom of Ulysses, or the strength of Hercules, nor has he the prophetic vision of a clairvoyant. He will not anticipate folly in all its forms but he never puts out of consideration the teachings of experience and so will guard against negligence of others when experience shows such negligence to be common. He is a reasonable man but not a perfect citizen, nor a ‘paragon of circumspection.’” Which is to say, the reasonable man is one who seems like a reasonable man to a reasonable man.
But he is a fickle character, our reasonable man. In her concurrence in Lawrence v. Texas, the sodomy-law case which all the smartest people informed us had nothing at all to do with gay marriage, Justice Sandra Day O’Connor insisted that while the law in question was unreasonable, a law restricting marriage to heterosexual couples would not violate the law’s demand for a “legitimate interest,” because legally legitimate “reasons exist to promote the institution of marriage.”
Until they don’t.
In reality, if you want to know whether a particular rationale is reasonable or legitimate or logical — or even serious – from a legal point of view, the answer is: It really depends on whom you ask. Which does not seem very much like “the rule of law,” if you think about it too hard. Fortunately for the politicians — including the politicians in black robes — we are not in an age of thinking about it too hard.
I once knew a woman who at the age of 18 — and despite having two physicians for parents — was not entirely clear on where babies came from. Being of very traditional upbringing, the question had not become pressingly relevant to her. But it is of course relevant, as much as the 21st-century ethic labors to elide the differences between men and women, between what we once called marriage and what we now call marriage and what we will probably call marriage after the Supreme Court gets done with it. If gay couples want to share property, designate their partners in medical, legal, and financial matters, etc., then the law should accommodate them. If they seek blessings for their unions, there are those who would bless them, and those who — so long as the First Amendment holds — would exercise their right to choose not to. But that is not what civil-marriage law is there to do. It is not about the fulfillment or happiness of married people. It is about where babies come from. Those who believe that to be an “unreasonable” position arrive at that conclusion mainly by refusing to consider the position at all. Instead, they dismiss it as hypocritical, illogical, etc.
That’s one of the reasons why the opponents of same-sex marriage are going to lose that fight. The second reason is that even if same-sex marriages were outlawed nationally, a return to the status quo ante would represent only another kind of defeat: The regime of no-fault divorce, the normalization of nonmarital parenting, abortion on demand, and the rest, which far precedes any move toward same-sex marriage, also constitutes a model of marriage organized around the sexual and emotional interests of adults rather than around the wellbeing of children.
Which sounds perfectly reasonable, if you badly enough want for it to.
— Kevin D. Williamson is the roving correspondent of National Review.