Michael Klarman of Harvard Law, author of an acclaimed history of the legal struggle for civil rights, delivered himself of an op-ed in Sunday’s Los Angeles Times that made me think, not for the first time when reading an article by a law professor, “What exactly do you teach in law school?” As history, Klarman’s thesis is more than a little pat; as predictive political science, it’s wishful thinking; and as an exercise in legal thinking it’s . . . well, AWOL.
Klarman is clearly a partisan of same-sex marriage, and he doesn’t much care, it seems, whether a right to such marriage can be legitimately derived from the text or principles of the Constitution. He discusses only whether the timing would be right for the Supreme Court to rule in its favor, given the state of public opinion and the probable impact of the ruling on the political landscape. Does it need to be said that such considerations–however much they have played a role in judicial decision-making in some historic cases–should not play a role at all? Evidently it does. As I say, I hope this article does not exemplify the sort of thing Klarman does in the Harvard classroom. If so, his students are being robbed of a legal education.
After weighing the odds, Klarman appears to conclude that Justice Anthony Kennedy should go for broke–that he should “win the plaudits of future generations of Americans” by casting the deciding vote in favor of same-sex marriage. The thesis rests on Klarman’s evident conviction that same-sex marriage is just like civil rights for black Americans, with an eventual decision of Perry v. Schwarzenegger in same-sex marriage’s favor being indistinguishable, as a matter of justice and of public opinion (remember, he says nothing about the Constitution), from Brown v. Board of Education.
Klarman is too confident about what he thinks public opinion polling reveals. Remember, in every state in which we have been able to put the question of marriage directly to the people, the tradition of conjugal marriage between a man and a woman has won–every time. Thanks to the rampant extremism of Judge Vaughn Walker, I think the struggle could be won again in California, if it came to another vote at the polls.
More importantly, though, a ruling in favor of same-sex marriage is likely to play out more like Roe v. Wade than like Brown v. Board of Education. After Brown, as Klarman notes, there was quite a backlash. Intense struggle ensued that did not reach a climax until the Congress passed the Civil Rights Act of 1964, a law that transformed American political culture for the better with amazing rapidity. Note well that Congress did act and American life did change, in ways that vindicated the impulse at work in the Brown case (if not the reasoning that produced or announced the ruling). Since Roe, by contrast, every act that has passed the Congress on the subject of abortion has been an effort to roll back the effects of the ruling, to hem in its destructive implications, to constrain its reach. And Americans are more pro-life today than they were in 1973. The cause of restoring respect for the right to life of the unborn child has been an unquenchable fire in American life, and the issue has dominated our politics–especially the politics of judicial appointments–like no other. Roe was a disaster for the Supreme Court, a calamity for the Constitution, and a catastrophe for the cause of justice. Because it was all these things, it was also bad news for our politics in the everyday sense. Only the undoing of Roe itself can start to undo all these effects.
Should the Supreme Court step unwarily into the firestorm of the same-sex marriage issue, with a ruling that upholds the radicalism of Judge Walker (even if rewritten in less inflammatory terms), it will go down in history not as Brown-like “statesmanship,” but as Roe-like usurpation. And this for the simple reasons that no plausible connection can be made between same-sex marriage and the principles of the Constitution; no plausibly just case exists for dismantling the natural institution of conjugal marriage and pretending that other couplings or unions are indistinguishable from it; and the American people cannot be chivvied by their “betters” into believing otherwise. And if the ruling comes down creating this great wrong against the Constitution, Americans will rapidly see another one in its train–the invasion of the rights of religious conscience, which will magnify the backlash tenfold.
Professor Klarman should be careful what he wishes for. Unless he wishes for culture wars that make our present politics look like a polite game of croquet.