I suppose some folks are thinking, particularly in the wake of those four powerful dissents, that the post-Obergefell environment could turn out to be politically beneficial to Republicans, at least for their 2016 prospects. But that is likely a mistake. I’ve come to realize, by thinking through my last couple of posts, that Republicans will soon find themselves trapped between their (often weak) commitment to orginalism and the widespread desire in this nation to be done with the same-sex marriage dispute.
There is no avoiding the trap. Every serious Republican candidate for the Presidency (and the Senate) is going to have to admit that their “I-want-judges-who-do-not-legislate” rhetoric would, if seriously followed, commit them to appointing justices who would overthrow Obergefell. That unavoidable fact will either allow liberals to paint the Republican candidates as hater-obsessives who will force Americans to pointlessly revisit an issue they had thought was finally resolved, or it will lead the ones determined to dodge that charge into abandoning the originalist principles that are the true foundation of their rhetoric.
To illustrate this, but also the way out of the trap, here are a pair of imagined interviews conducted by a hostile liberal journalist. The first is with two hypothetical G.O.P presidential candidates who think as most Republicans do. The second is a separate interview with a third candidate who is able to extricate himself from the trap by adopting a new sort of approach to constitutional politics, the distinguishing feature of which is a proposal of mine called the Responsibility Amendment. I’m not trying to hint at anyone in particular with these hypothetical personages, but rather trying to force all of our candidates to think these issues through.
So without further ado–
Hostile Liberal Journalist: So it sounds like what you’re saying is that you want to reverse what the Supreme Court decided in Obergefell v. Hodges, and strip homosexuals of their Constitutional right to marry?
G.O.P. Candidate #1: Read it however you like, the right of persons of the same sex to marry one another is not contained, explicitly or implicitly, in the Constitution. And as a result, the religious liberty of millions of Americans is now…
H.L.J.: You’re not answering the question, which is whether you support reversing Obergefell. Would you have the Supreme Court tell all the gays that did marry, “Sorry, there never was a right for you to marry. Your marriages didn’t count?”
G.O.P #1: Well, if Obergefell was reversed, it wouldn’t invalidate the marriages of those who were married under its authority, I assume. It would keep gays who hadn’t married in those states where same-sex marriage was illegal prior to the decision from marrying, at least in those states.
H.L.J.: And you support that? You’re for telling a young gay couple in Alabama or someplace that, “Sorry, you missed the window for marrying. What was legal for gays to do yesterday, now is illegal.”
G.O.P. #1: Probably several of the states that had previously prohibited same-sex marriage would now decide not to return to that policy, and if prospective…
H.L.J.: You are against America being done with the debate about gay marriage?
G.O.P. #1: I’m for the Constitution. And for judges doing their jobs, and…look, if the price for our justices learning their lesson, if the price for upholding the Constitution, is having to tell a few couples, who can still get most of the relevant legal privileges, that they can’t marry in a handful of states, then it will be worth it.
H.L.J.: How do you think a young gay couple in Alabama would feel, if all their older gay friends who wanted to marry had, say, between now and sometime in 2018 or so when the decision would be reversed, and they…
G.O.P #1: We don’t know that. We don’t know that a decision…
H.L.J.: Well if a decision did come against gay marriage, and this is what you say you want, how would this couple feel? Wouldn’t it be a bizarre situation? And what good could that do religious Bible belt conservatives, to be able to tell their children that “We don’t let gay people marry, but we accept the marriages of the many who did when we allowed them to, from 2015 to 2018?”
G.O.P. Candidate #2: Can I get in here?
G.O.P. #1: Yes, but let me answer the question. The truth is, we don’t know if a decision against Obergefell would come…
H.L.J.: Wait, stop. You say you are for judges who don’t legislate from the bench, who like Scalia, seek the original meaning of contested phrases, and you say that the five justices who voted for Obergefell don’t do that? Yes or no, G.O.P. #1.
G.O.P. #1: Yes.
H.L.J.: So you would support replacing those justices when they retire with ones in the Scalia mold, if you had the chance? If you win the presidency?
G.O.P. #1: Yes.
H.L.J.: So, assuming you got a chance to do this, the resulting 5-4 majority would overturn Obergefell, and thus put the hypothetical young gay couple, and tens-of-thousands like them, into the limbo we just discussed. Yes or no?
G.O.P. #1: Yes. But this is a….
H.L.J.: Na-ah-ah, this is all yes or no! But here’s the last one: aren’t you against resolving the gay marriage debate, since if you get your way on judges we’ll be right back to arguing about it state-by-state?
G.O.P #1: That’s your framing. We didn’t ask for this fight. We’re doing what we have to do to defend the Constitution, trying to repair damage done by others! If your hypothetical young gay couple suffers distress, it certainly isn’t the fault of those of us who said judges shouldn’t be deciding this, shouldn’t be deciding this issue for everyone.
G.O.P. #2: If I may, this is a key difference between #1 and myself. I agree with him that this decision was not handled correctly, but I’m standing with the many conservative Americans who want to move on from this. We of course are against giving a set of people a constitutional right, and then ripping it back again.
H.L.J.: So unlike #1, you won’t appoint justices in the Scalia mold, that is, originalists, to the Supreme Court?
G.O.P. #2: I didn’t say that. Justices have their legitimate differences on a whole number of issues—I’m just, well, I’m not going to have litmus tests, but I can promise those Americans who support gay marriage or who understand the need to move on, that so long as religious liberty is firmly protected, that with my leadership, we will not be revisiting this issue.
H.L.J.: But we will be revisiting it if you appoint originalists. Or are you going to seek out a kind of compromise model for your judges, judges who refrain from living constitution interpretation, but who let decisions widely accepted as settling contentious issues, like Obergefell and Roe, stand?
G.O.P. #2: The justices I appoint will be judges highly regarded in the profession, experts in every aspect of the law, but sensitive to what the people…
G.O.P. #1: Isn’t that what Obama promised about his justices? That they would be sensitive? Look, a judge isn’t a politician. He or she…
G.O.P. #2: That’s a gross distortion of what I’m saying, and with respect, this is my question to answer. I cannot predict with 100% accuracy that my judicial picks will rule this way or the other on any particular case. But yes, I am against Obergefell being reversed, and I will do what I can to make sure it remains respected as the law of the land. And let me ask you, H.L.J., a question: why are you bringing up Roe v. Wade? That’s not even an issue here. Americans might find themselves divided on these kinds of social issues, but when they vote, I think they find it in their interest to instead focus upon issues where we find ourselves all in the same boat, which is why I’ve been zeroing in on the need to restore the economy, and the foreign policy situation.
H.L.J.: I’m bringing it up because the term “originalist” was invented by Ed Meese during the Reagan administration [sic ], and as it turns out, if one of you gentlemen win the election in 2016, America may wind up with its very first originalist court, and given everything champions of this philosophy have said, they will overturn Roe v. Wade, and Obergefell, too. So I again ask you, how would your presidency keep America from revisiting these decisions? Do you have some method for weeding out those originalist justices who would join Scalia, Roberts, Thomas, and Alito, in overturning them?
[G.O.P. #2: gives a question-dodging answer here, and the interview degenerates into interruptions and talking points unworthy of our attention. There is some bickering back-and-forth about the Founders being the original originalists, but it has little to no bearing on current issues.]
PART TWO [The next day, the same journalist interviews a third G.O.P candidate.]
H.L.J.: I have heard you talk in ways that suggest you agree with G.O.P #2 that it’s time for Americans to move on from the gay marriage issue, regardless of their past and remaining differences about it. Will you appoint justices that overturn Obergefell if you have the chance?
G.O.P. #3: I will. I agree with the dissents written against the majority’s decision, and I will appoint like-minded judges, i.e., those like Scalia, Thomas, Alito, and Roberts. However, I understand that such a decision would be very painful for the many Americans who regard the national legalization of same-sex marriage as a final and overdue recognition of the dignity and equality of gay Americans. We can’t say for certain that such a decision would come if I were elected president—much depends on case details, retirements, etc.—but what will happen for certain is that I will push early on for a new amendment, that among its other benefits, would make a reversal of Obergefell much easier for supporters of SSM to take. This proposal has been called the Responsibility Amendment. It would make the Constitution easier to amend. It would lower the requirements for ratification of a proposed amendment from 2/3 of Congress and ¾ of the states to 55% of Congress, and 66% of the states. And that would mean that if Obergefell was reversed, and the current opinion trends in favor of same-sex marriage hold, that another amendment could in turn restore same-sex marriage to all fifty states, thus settling the issue for good.
H.L.J.: You would support such an amendment, I mean the second one, to make same-sex marriage the law of the land?
G.O.P. #3: Yes.
H.L.J.: Because you support same-sex marriage?
G.O.P. #3: Yes. In terms of policy, of whether it should be legal. What goes for church practice and what I teach my children about our Christian beliefs is a distinct issue, as I’ve discussed elsewhere. But note that my fellow Republican, Representative X, who unlike me opposed same-sex marriage in terms of it being a policy issue, has indicated to me that he would also support this kind of amendment. Because he also thinks it’s time now to settle the issue—he’s willing to admit that his side has lost the public opinion debate on the policy merits. There are plenty of conservatives like that now—they will support moves to settle this issue, to concede defeat, so long as religious liberty is protected, and so long as the bad judicial reasoning behind Obergefell is repudiated.
H.L.J.: How is that possible? How can you be for the result in Obergefell, and yet against appointing justices who will support it?
G.O.P. #3: You’re distorting the issue, and by appealing to a common mistake Americans now make about the Supreme Court. The short answer is that I distinguish between policy, properly decided by legislation, and judicial interpretation of the Constitution and the law, which is the only job that the Supreme Court properly has. That is, I agree with what the famous liberal justice Felix Frankfurter essentially said, that the constitutionality of a law, and the desirability of a law, are fundamentally distinct questions. It matters that the Supreme Court invented out of whole-cloth a right to same-sex marriage in Obergefell. For if they do it with that, they’ll do it with other things.
H.L.J.: Don’t you see how complicated this looks? You’re saying you need the nation to approve not just one amendment, but two, to wind up supporting Obergefell’s result, when after all, you could just appoint mainstream justices instead to keep the result you want.
G.O.P. #3: It’s not that hard to understand. And it’s democracy. The first step of supporting the Responsibility Amendment is one which returns the inevitable development of our constitutional order, including the declaration of rights that we didn’t previously recognize, to the American people, out of the hands of irresponsible judges. Its significance goes far beyond this same-sex marriage issue—different Americans of different ideological stripes will find they have their own reasons for supporting it. Indeed, within my own party, I think that folks like Senator Cruz and Governor Walker ought to support it, because otherwise, their proposed amendments in response to Obergefell have absolutely no chance of going anywhere—there’s simply no way they can get ¾ of the states to approve of their proposed amendments, but with 66%, they’d have a chance. And I’d say the same thing to the Democrats who want to overturn Citizens United by amendment.
H.L.J.: You just suggested there’s an opinion trend afoot in favor of same-sex marriage, such that an amendment for it would be easy to pass, if you first get your Responsibility Amendment, but here you’re saying that those who support the amendment that Governor Walker supports, which would return the definition of marriage to the states, would also have a better chance?
G.O.P. #3: What I say is let the best arguments win with the American people, and let the chips fall where they may. If Walker and Cruz are serious about the amendments they propose, I think they would want a situation where there is at least a chance that these might be ratified. Perhaps that shows you they are not serious. But I do think that an amendment that restored national same-sex marriage after a decision against Obergfell would have a much easier chance of winning the day than an amendment that returned the debate to the states. And that would also…
H.L.J.: But isn’t this going against Madison and the Founders? They wanted amendment to be difficult. We don’t want a Constitution that’s constantly being changed by politics. That’s very un-American.
G.O.P. #3: The Constitution is already changing constantly due to politics, but in illegitimate and totally undemocratic ways through the courts, or through bureaucratic and executive-branch innovation. Get the politics out into the open, I say, and let the American people have their say in how their Constitution changes. And do note—this is very important—the Responsibility Amendment would still make amendment difficult. Getting 33 state legislatures out of 50 to approve of something that will have amendment status is no small feat. So the Madisonian desire for a fundamental level of law that doesn’t change much would be preserved. Giving the people greater responsibility with this amendment fits perfectly with appointing originalist justices who recognize that they have no license to enact purportedly needed constitutional change, but merely the duty to interpret the Constitution as it stands.
H.L.J.: If you appoint justices who overturn Obergefell, it could still be the case that…, er…less than 66% means 35% or more opposed , which amounts to 18 states, so 18 could defeat a pro-same-sex marriage amendment. So there could still be this stripping of gays’ constitutional rights, and this creation of a two-class system for gays—those who got to marry when it was legal, and those now prohibited from doing so.
G.O.P. #3: Your numbers are correct, and the opinion trends are such that we would definitely be able to get under 18 resistant states within a decade, if not today. As G.O.P. #1 noted, if Obergefell falls, probably only a handful of states would be willing to return to banning same-sex marriage, for precisely the reasons you indicate. More importantly, if supporters of same-sex marriage cannot get 33 state legislatures behind it, then that would be a sign that the American people are not really with them, that is, not as strongly with them as to merit a declaration of a new constitutional right. We shouldn’t treat constitutional rights lightly. It should always be clear what they are and that we have wide agreement about any new ones we are adding. Moreover, think of what a victory it would be if the amendment succeeded—gay Americans would know that it wasn’t merely that justices had forced reluctant Americans to go along with same-sex marriage, which in many of the states is the situation now, but would know that a supermajority of their fellow citizens supported it.
L.J.: Interesting. I have much more to ask you about all this, G.O.P. #3, and will try to have you back to discuss this further, but for now, a final question. Doesn’t your initial Responsibility Amendment need ¾ of the states to pass? So, those who resist gay marriage could easily find a quarter of the states to oppose that first step.
G.O.P. #3: The case for the Responsibility Amendment is its own case, extending far beyond its allowing us a better way to resolve, or put a final capstone upon, the same-sex marriage debate. Those conservatives, for example, who for reasons unrelated to same-sex marriage are pushing for a state-initiated amendment convention would have strong reasons to support it, as would any American who strongly believes in the necessity of any amendment that cannot realistically get over the ¾ hurdle. I’ll be happy to come back and make a fuller case for it another time. But to conclude, you can see why my presidency would allow Americans to move forward, whereas G.O.P. #1 would return you to the same old divisions and arguments which divide our nation and cause the Republicans to unnecessarily lose younger voters, and whereas G.O.P. #2 refuses to stoutly support originalism, which makes him little better than the Democratic candidates on judicial matters. What I propose can deliver resolution of the same-sex marriage issue, and without craven compromise on the far more important issue of the Constitution.
L.J.: Thank you, G.O.P. #3.
[My own position on the constitutional politics of same-sex marriage is more along the lines of that of “Representative X,” than it is along the lines of “Candidate #3.” But I sure would love to be able to cast a vote for a candidate like #3. As for the Responsibility Amendment itself, of course I support it, and I will note that Justice Scalia once made noises in favor of something like it. But what do you think? About the “trap” I’ve described, or about Republicans supporting an amendment to settle same-sex marriage, or especially, about the Responsibility Amendment?]