Bench Memos

Michael McConnell’s Inane WSJ Op-Ed on the Marriage Cases

I never imagined that I would write a post bearing this title. If you had shown me the text of this Wall Street Journal op-ed and asked me to guess the author, I never would have guessed Michael McConnell, the usually brilliant conservative law professor at Stanford.

Some comments:

1. McConnell’s op-ed is excellent for most of its first six paragraphs, which include these observations:

We learned from Roe v. Wade that the Supreme Court endangers its own legitimacy and exacerbates social conflict when it seeks to resolve moral-legal questions on which the country is deeply divided without a strong basis in the text of the Constitution.…

The system today, without the Supreme Court’s intervention, is working as it should. Representatives of the people are deliberating. “We the People” are thinking. So far, nine states have extended marriage to same-sex couples; many others chosen to explicitly endorse traditional marriage. Those choices distress advocates on either side of the matter when their wishes have been disappointed.…

Moreover, in states where same-sex marriage has been made legal, legislatures have taken care to provide generous protections [EW: Quite an overstatement, I think] for people and institutions—especially churches—that conscientiously disagree. This is good for civic harmony and for achieving a long-term position of mutual respect. A judicial decision likely would not include these protections.

The two cases that will be argued next week seem to endanger this process. If the justices hold that California’s Proposition 8, which provides that “only marriage between a woman and a man is valid or recognized,” is unconstitutional, this will end the deliberations and impose a single national definition of marriage on us all. The court cannot reach this outcome without branding the views of the other side as either “irrational,” if it employs the lower, rational-basis level of judicial scrutiny, or “bigoted” and hateful, which would justify heightened judicial scrutiny. That is not the path to national reconciliation, and it does not show respect to the diverse views on this divisive issue.

2. But McConnell then makes this strange pivot:

But if the justices hold that there is no constitutional right to same-sex marriage, this also imposes an answer of a sort. It would reflect the Supreme Court’s considered judgment that in the eyes of the Constitution, same-sex relationships may be treated as morally different from (and inferior to) heterosexual relationships. Such a decision would set a precedent for the foreseeable future. It would embolden opponents of same-sex marriage and deprive proponents of one of their most potent moral claims in the political process—that the denial of marriage rights offends American values of equality.

McConnell’s argument is badly flawed. The “answer of a sort” that the Supreme Court would be providing in holding that there is no constitutional right to same-sex marriage, and the “precedent” that it “would set … for the foreseeable future,” is precisely what McConnell spelled out in his first six paragraphs: that the question whether or not to redefine marriage to include same-sex couples is a matter that the Constitution leaves to the democratic processes. (Further, a decision that the Constitution allows traditional marriage need say nothing about the moral status of same-sex relationships; it could say merely that it is permissible to regard the perennial male-female component of marriage as essential to marriage.)

McConnell is a longstanding critic of Roe v. Wade. If his argument here were sound, would he also have opposed the Court’s ruling in a hypothetical anti-Roe that there is no constitutional right to abortion? That, after all, would have “impose[d] an answer of a sort” by reflecting the Court’s considered judgment that abortion may be treated differently from childbirth. And it would have deprived proponents of abortion of “one of their most potent moral claims in the political process—that the denial of abortion rights offends American values of equality.”

3. McConnell then asserts that the two marriage cases before the Supreme Court “offer[] the justices a golden opportunity to resolve these cases without setting a precedent either way, and to reaffirm the ideal of democratic, decentralized decision-making.”

a. McConnell urges the Supreme Court to “strike[] down DOMA [the Defense of Marriage Act] on federalism grounds.” So much for not “setting a precedent either way.” Here is the entirety of his argument:

The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). In the past, the court has recognized a “domestic relations exception” to federal judicial power. Although the legal question is close, the court could take the same path in Windsor—holding that DOMA improperly intrudes on the reserved powers of the states.

What McConnell calls the “leading argument” against DOMA is, I believe, an argument that is devoid of merit. DOMA doesn’t regulate domestic relations. It merely defines what marriage and spouse mean for purposes of provisions of federal law. As I spell out more fully in this National Review essay, DOMA doesn’t intrude at all on a state’s authority to regulate marriage under state law. It doesn’t nullify or prohibit any marriages, or in any other respect preempt the operation of state law. DOMA respects and implements federalism by exercising the federal government’s authority over federal law.

I have been making this elementary argument, without meaningful rebuttal, for months. Frankly, if I’m mistaken—if indeed intelligent minds, on careful consideration, could even reasonably differ on the point—I’d be eager to learn. For the unwelcome alternative is for me to conclude that folks like McConnell whom I have long admired have for some reason had their brains or spines turn to jelly on this matter.

A careful parsing of McConnell’s argument reveals that he actually avoids embracing the federalism argument that he nonetheless urges the Court to accept. He says only that “the legal question is close” and that “the court could take [that] path.” In other words, his incoherent longing for the Court somehow to avoid “setting a precedent” leads him to encourage the Court to strike down DOMA whether or not it’s unconstitutional.

b. On the Prop 8 case, McConnell contends that Prop 8 proponents lack standing and that the Court therefore has no jurisdiction to hear the case. I think that he’s wrong: the California supreme court, the authoritative interpreter of state law, has ruled that Prop 8 proponents represent the state’s interest in defending Prop 8. That ruling readily distinguishes the precedent McConnell cites.

Moreover, a ruling of lack of jurisdiction would be unlikely to “reaffirm the ideal of democratic, decentralized decision-making.” Instead, California governor Jerry Brown would surely seize the opportunity to instruct state officials not to enforce Prop 8—and thus override the exercise of “democratic, decentralized decision-making” that it represents.


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