The Corner

The Risk of Backing into the Other Side’s Premises on Marriage

Our friends at the Wall Street Journal, usually so urbane and savvy, seem to lose their moxie when they turn to the questions of abortion and marriage. And so this morning they take the line that we should let the political process settle this matter in the separate states, working out a set of compromises for this vexing issue. In this they are deluding themselves. The voters of North Carolina just joined a cluster of other states in making explicit in their constitution that marriage involves the legal union of a man and woman. No judge in North Carolina may invoke the constitution of that state in imposing same-sex marriage. But the Supreme Judicial Council in Massachusetts swept past the constitution and laws of the Commonwealth when it imposed same-sex marriage in 2003. The most decisive precedent that the Court cited was the decision by the U.S. Supreme Court in Lawrence v. Texas just months earlier. That was the case in which the Court struck down Texas’s laws on sodomy. Justice Scalia rightly anticipated that the decision in Lawrence teed up the next move to impose same-sex marriage. Justice Kennedy indirectly denied it, but Scalia famously retorted, “Do not believe it” [the denial]. Lawrence is the case that the activists are relying on as the case on Proposition 8 heads to the Supreme Court, with the hope that Justice Kennedy will take the next, decisive step. The point is that the judges in any of the states can override their constitutions by invoking the Supremacy Clause of the Constitution: If the judges hold that the principles of the U.S. Constitution entail the wrongness of barring marriage to couples of the same sex, then they can proclaim that judgment “any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”

#more#The editors of the Journal are of course counting on the prospect that Mr. Justice Kennedy will not indeed take that last, decisive step. And if the Supreme Court holds back its hand here, the laws in the separate states may be preserved. But that does not at all bar judges in the separate states from coming to the conclusion that Kennedy had simply lost his nerve; that he had backed away from recognizing the clear implications of his own, earlier decisions; and that the judges should reach their own judgment on that question. We would expect panels in the appellate courts to knock down these moves eventually. But some appellate courts may take a different path from the Supreme Court, as they have in the past — and they could preserve in that way the sense of a judiciary powerfully convinced that this will be the right eventual outcome. The logic and the dynamic that moves this issue will move it to a national resolution, one way or the other.

We could leave for another day the question of whether leaving the matter to the States is really the most defensible course for abortion or marriage. That stance ultimately hinges on the judgment, overt or covert, that there is no issue of principle here, no issue that matters. The people who think that there is a deep constitutional right to abortion have never taken well to the notion that a deep constitutional right can disappear if they merely move to another state. Those of us on the other side are sure that we are dealing, in abortion, with the unjustified taking of an innocent human life, and that the Constitution comes plausibly into play when the laws at any level are withdrawn from the protection of human “life” as well as liberty. I do favor returning the matter of abortion to the legislative powers of the states. But why would it be any more unreasonable for us, as well as the pro-choicers, to think that the matter could simply be returned to the states? Could it be that our friends at the Journal think we are unreasonable here because they have come to absorb the premise that there is no wrong here in principle? When the matter is seen in that way, one can settle into the posture of being indifferent on the question of whether human life is protected in the same measure, with the same levels of respect, as we move from state to state.

On the matter of marriage, yes, we do expect that it will not be the main determinant in the election. But Jeff Bell, in his recent book, has made a strong case to show that this issue worked powerfully for George W. Bush in the last election, and that it might indeed have been decisive at the margins in tipping Ohio and other states. In the meantime, it would be a notable and gratuitous mistake for Mitt Romney to go out of his way to say that the issue of the economy and Obamacare are primary, and that the issue of marriage — and the future of the family — is really a secondary or peripheral concern. There is no need for that kind of explicit ranking of things. It opens a path for talking ourselves into the understanding that marriage is indeed a secondary question, which may not matter overly much. With that step we would begin to absorb the premises of the other side: The premise that the preservation of marriage, in the scale of things, is not all that decisive. And the beginning of the end is to start talking ourselves into the premises of the other side.

Hadley Arkes — Hadley Arkes has been a member of the Amherst College faculty since 1966, and since 1987 he has been the Edward Ney Professor of Jurisprudence. He has written five books ...

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