Bench Memos

Re: The Pro Hominem Insult

I saw the New York Times headline “Republicans Sign Brief in Support of Gay Marriage” and expected to read that prominent members of the conservative legal movement had endorsed a constitutional right to gay marriage. Turns out the news was far less interesting, in that the brief seems to have been signed by all of the attendees of the latest No Labels rally. Perhaps the list of originalists is in development, or being held in reserve for Round II.    

I agree with Ed that the conservative justices ought to feel pretty insulted by the notion — advanced in the Times story — that their approach to the constitutional questions will be dictated by the number and stature of the Republicans who signed the brief. But let’s assume for a moment that names on briefs matter a great deal to the targeted justices, i.e. those justices who have claimed some level of adherence to judicial restraint or the notion that judges ought to be bound by the text and original meaning of the U.S. Constitution. Has anyone ever known Christine Todd Whitman, William Weld, and Jon Huntsman as people who are even remotely interested in the principles that gave rise to the conservative legal movement, or any of the ideas set forth in books like The Tempting of America or A Matter of Interpretation? Or, to put it another way: Are these really the best people to make any argument whatsoever about the text and original meaning of the U.S. Constitution, let alone whether it prohibits the people of California from deciding how they want to define marriage? Perhaps the more appropriate headline would have been “Politicians of Middling Significance Lobby Justices to Adopt Fashionable Political Views.”  

Jokes aside, gay-rights advocates seem to be changing public opinion and achieving reform through the political process. Why risk that progress by catalyzing another Roe v. Wade moment that could distort our political process for many decades to come? The Republicans and “legal analysts” cited by the Times might not care about that question, but some prominent gay-rights advocates do. As Charles Lane put it:

We’ll never know what would have happened if the court had let the democratic process play out in the matter of abortion. What we do know is that gay marriage also confronts the unelected justices with delicate issues of morality, equal rights, federalism and democracy.

It does so at a time when democratic politics appear to offer advocates of same-sex marriage opportunities not available to, say, opponents of segregation at the time of Brown. Indeed, the political momentum behind marriage equality is so strong that its ultimate victory seems, if not inevitable, then nearly so. Even in the South, support for gay marriage is 14 percentage points higher than it was a decade ago, according to Pew. Political reality, in this case, may counsel judicial restraint.

And Jonathan Rauch:

Here is a movie plot you have never seen and never will see: a disadvantaged athlete struggles against the odds, makes it to the Olympics by sheer force of grit and talent, and is ahead in the race for gold—when, with the finish line in sight, the referee calls off the competition, hands the hero a medal, and everybody goes home.

Gay Americans are in sight of winning marriage not merely as a gift of five referees but in public competition against the all the arguments and money our opponents can throw at us. A Supreme Court intervention now would deprive us of that victory. Our right to marry would never enjoy the deep legitimacy that only a popular mandate can bring.

So the real question here is not whether Jon Huntsman’s opinion matters to a justice, but whether any justices want to risk detonating a dirty bomb in a culture war that already seems to be going pretty well for one side.   

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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