Striking Down Supported Legislation

This morning, the Washington Supreme Court held that there is no right to gay marriage in the state, reversing two lower court rulings to the contrary. The decision was 5 to 4, but the majority was split into a 3-judge plurality, which ruled quite narrowly, and a 2 judge concurrence, which was far more vigorous in its defense of "traditional" marriage. Three separate dissents were authored, but one was clearly the main and the other two were written to clarify separate objections (whereas the concurrence disagreed fundamentally with the tepidness that the plurality used in its analysis).

I think the dissent gets the better of the exchange, which is unsurprising, as I have long since stopped believing that (absent the political charge surrounding the issue) marriage discrimination presented even a moderately difficult question of law. Indeed, here the plurality only managed to pull together a barely coherent rational basis argument by finding the homosexuality is not "immutable", which a) is almost definitely untrue, b) premised on a view of "immutability" that is overly narrow, and c) puts the cart completely before the horse in terms of what type of groups demand strict scrutiny protection. Even if homosexuals don't deserve strict scrutiny for discrimination, I've always been at a loss as to why they don't at least deserve heightened scrutiny. But even that is irrelevant here, because the court so badly mutilates the issue at hand that it is more than self-evident that an objective look at the issue would conclude that anti-gay marriage laws would fail rational basis--and hard.

However, what I want to talk about is the issue of courts refraining to let their personal views as to a laws merits or morality cloud their judgment as to its legality. Right at the top of the plurality opinion, the judges admonish their colleagues (both the dissenters and the concurrence) that:

It is important to note that the court's role is limited to determining the constitutionality of DOMA and that our decision is not based on an independent determination of what we believe the law should be....A judge's role when deciding a case, including the present one, is to measure the challenged law against the constitution and the cases that have applied the constitution. Personal views must not interfere with the judge's responsibility to decide cases as a judge and not as a legislator [slip op. at 3-4].

Though I am not entirely sure how much a judge can divorce her personal beliefs from interpretations of constitutional law, I think the sentiment is fine in general. What I do question is why this argument is always limited to indicting judges who strike down legislation, and never to ones who uphold it.

In gay rights cases particularly, we have seen several instances where judges who have upheld discrimination against gay and lesbian Americans have expressed their reluctance and their sincere hope that the legislature will soon see the light and agree to grant equality via statute where the court could not do so by fiat. For example, in Lofton v. Department of Health and Family Services, the judge wrote at the end of his opinion that

I will conclude on a purely personal note. If I were a legislator, rather than a judge, I would vote in favor of considering otherwise eligible homosexuals for adoptive parenthood. In reviewing the record in this case one can only be impressed by the courage, tenacity and devotion of Messrs. Lofton and Houghton for the children placed in their care. For these children, these men are the only parents they have ever known. Thus, I consider the policy decision of the Florida legislature to be misguided and trust that over time attitudes will change and it will see the best interest of these children in a different light.

Similarly, Justice Thomas wrote a brief dissent in Lawrence v. Texas that was comprised almost entirely of his belief that

the law before the Court today 'is ... uncommonly silly.' Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

I do not question the sincerity of such statements. However, I wonder why we do not apply an equal mandate upon judges who vote to uphold statutes or enactments based on deeply held personal beliefs, even when it seems clear that the legally mandated result lies elsewhere. In other words, there is a lot of pressure on liberal judges to put their personal beliefs aside and apply law "neutrally" (i.e., upholding anti-gay legislation). But there is very little pressure on conservative judges to put their personal beliefs aside and apply law neutrally, striking down anti-gay laws.

In general, the mark of "judicial restraint" is when a judge, presented with a law she finds odious, repugnant, misguided, or just plain foolish, puts those sentiments to the side and recognizes that, as a judge and not a legislator, she is not in a position to make policy, and (however reluctantly) upholds the law. However, presumably there are cases which present the exact opposite scenario: A judge is presented with a law she believes in passionately, thinks is both wise and just, but appears to violate quite clearly some constitutional right. It seems apparent that we should be equally strident in demanding the such a judge bite the bullet and strike down the law (however reluctantly). But in general, the issue is not put that way.

I don't think we are completely at loss to do this. We would properly, I think, condemn southern judges who let their bias against African-Americans and their sincere belief as to their inferiority motivate them into upholding blatantly discriminatory Jim Crow laws. We can still attack Justice Hugo Black for his role in upholding Japanese Internment in Korematsu, even though it seems that Black genuinely believed that the program was legitimate (and perhaps necessary) for national security.

But it seems more difficult to demand it in a contemporary context. Why is this so? Well, constitutional clauses are not only worded broadly, but are phrased in terms of sacred rights and commitments that (to be blunt) you'd have to be a real chump to want to violate. Nobody likes to think that their views--when enacted into policy--are a violation of the constitution's defense of equality. Nobody likes to think of themselves as a discriminator, or having a preference for violating rights. When upholding statutes that one would prefer to strike down, the argument runs like this:

This law, in my view, is unwise and unfair to X persons. However, we live in a democracy, where courts must give deference to the legislature's pronouncements as to matters of policy. As much as it pains me, I can find no constitutional violation with the law at issue here.

When striking down a statute that one would prefer to uphold, however, the rhetoric would have to run something more like this:

In my ideal world, a government would be entirely permitted to discriminate against X/suppress Y's speech/not follow strict due process rights for suspect Z. However, the fact remains that the law mandates equality/free speech/due process, and so I must reluctantly strike down this law as a violation of the constitution

In the former, you're a bold defender of democracy even as you subtly suggest that the law should change. In the latter, you are (for all intents and purposes) declaring yourself to dislike the constitution (there are, as it happens, plenty of things about the constitution that are dislikable. But it's still not a good recipe for popularity to declare your preferred policy agenda to be in contrivance of constitutional norms). This isn't to say that deference to democracy in the face of a perceived bad decision isn't laudable--I think it often is. However, I don't see why it is any more laudable than striking down a democratically enacted decision that does conflict with the constitution. If there is a bona fide violation, shouldn't we be as vociferous in demanding judicial remedy as we are in demanding judicial restraint when the violation is absent?

The upshot of this, however, is that the true test of a judge's commitment to judicial neutrality isn't restraining herself from striking down the law she hates. It's being willing to strike down a law she supports. We should be equally suspicious of a judicial philosophy which upholds every law a judge thinks would be ideal, as one that would strike down every law the judge finds unwise. I can think of a few instances where I can conceptualize laws I might find agreeable being unconstitutional (especially in 2nd Amendment jurisprudence). But in general, there isn't the same pressure, and I don't think there is a principled reason why.

Other coverage of the Washington Decision:
Gay rights expert law professor Dale Carpenter has a nice big analysis up.

Nathan Bradfield believes that rulings like Washington's will keep coming until either "homosexuals prove to the courts that homosexuality is NOT a sin and traditional families are not a cornerstone of society, or a humanist President is elected and succeeds in nominating several hundred Stephen Reinhardt's. [sic]." He seems to think that this is a good standard. I think it just buttresses my point about the perceived benigness of conservatives injecting extra-constitutional views into their legal decision-making.

Mike Silverman notes that this decision is an improvement in that the plurality is respectful of the gay plaintiff's claims, and rejects the concurrence's gay-bashing. It's a step forward. I guess.

Andrew Sullivan thinks the "court pause" could be a break for the marriage equality movement, as New York Attorney General and gubernatorial candidate Elliot Spitzer endorses gay marriage.

Pam Spaudling responds to an argument made by AmericaBlog that gay-rights advocates should focus on other (non-marriage) issues.

Shakespeare's Sister draws an interesting paradox between the conservative procreation argument relied on by the court here (biological parents are so important we can discourage gays from even having the option of marrying!) to the conservative "snowflake baby" argument we've been hearing on the stem cell debate (we should be encouraging these cells to be adopted by any willing family--biological or not!).

Shock and Blog only has a blurb, but it made me smile: "Washington Supreme Court upholds traditional marriage." Because if the decision had gone the other way, nobody would ever be able to obtain a traditional marriage again. Now that I think about it, I'm frowning, because this basic conceptual misunderstanding is actually pervasive in the plurality's analysis, which examines the reasons for letting heterosexuals marry (which is not disputed by any party) rather than the reasons for excluding homosexuals from marrying (which it really does not get into at all). As Professor Farsnworth might say: "ohh...I made myself sad."