Kermit Roosevelt on the federal suit against Proposition 8

Here is an e-mail I sent to law professor Kermit Roosevelt, a supporter of same-sex “marriage,” asking him about what the grounds of the suit (discussed in an earlier entry) would be, followed by his reply.

Kermit Roosevelt
University of Pennsylvania Law School

Dear Mr. Roosevelt:

You may remember that last year you kindly corresponded with several readers of my website, View from the Right, and, indirectly, with me, about your article in the Christian Science Monitor supporting the overturning of Proposition 8 by the California Supreme Court. The exchange was posted here.

Now that a federal court will be holding a trial on Proposition 8, I wonder if I could ask you, what do you think will be the basis of the plaintiff’s case? It seems there are so many items on the 14th Amendment menu they could choose from. Will they argue that a clause in the California State Constitution declaring that marriage in California is defined as the union of a man and a woman violates the equal protection clause of the 14th Amendment? Or perhaps the zone of privacy and mutual consent under Lawrence v. Texas? Or perhaps the federally protect liberty of people to define the meaning of life under Planned Parenthood v. Casey?

It seems to me that an equal protection argument is the most likely, as I write here. I also write that, while anything is possible, I think it’s unlikely the plaintiffs will prevail.

In any case, I would appreciate any thoughts and insights you have on this.

Sincerely,

Lawrence Auster

Follow-up by LA to Kermit Roosevelt:

With a little searching, I found this in a news report:

The lawsuit, filed on behalf of two couples denied a marriage license, says that gay marriage should be allowed under the Equal Protection Clause of the Fourteenth Amendment.

I have to say that, while I don’t think the suit’s chances are good, if the U.S. Supreme Court held that a state constitution enactment defining marriage as the union of a man and woman violated equal protection, meaning that there is a federal right for same sex couples to marry, I think there would finally be a popular and political uprising in this country against judicial usurpation of legislative powers—the uprising that there should have been in 1962 against the school prayer decision, and in 1973 against Roe v. Wade.

I am aware that various homosexual rights organization were against this suit because they thought it had a poor chance and would set back their cause. But I think that if the suit is successful it will also set back their cause.

Kermit Roosevelt replies:

I do think it’s unlikely that the plaintiffs will prevail. The Equal Protection argument is the central theory. I suppose there could be a privacy argument, but since the demand is for state recognition of a relationship, rather than to be left alone, it’s a weaker argument. I expect that the plaintiffs will lose in the lower courts on the grounds that the Supreme Court’s recent gay rights decisions, notably Lawrence, explicitly said that they did not apply to marriage. And the Supreme Court will decline to hear the case.

If the lower courts did decide in the plaintiffs’ favor, it would force the Supreme Court to address the issue, which I think it probably doesn’t want to do now. My guess is that there are five Justices willing to recognize a right to same-sex marriage eventually, though I’m not as confident about Sotomayor as I was about Souter. But I don’t think that they would want to do it until public opinion has shifted more. So there are some interesting strategic questions about whether the conservatives might actually want to force the issue before the Court now, and some gay rights organizations have wondered whether maybe that’s what Ted Olson is actually doing.

As far as the way the issue should be viewed from a constitutional perspective, I think more or less what I said at the time of the Prop 8 battle. The Equal Protection Clause forbids some kinds of discrimination but doesn’t tell us which ones. I think it’s sensible for judges to look to national values to decide which kinds of discrimination are invidious or unjustified and then use the Equal Protection Clause to make outlier states conform to those national values. Historically, this is more or less what the Supreme Court has done, and there’s really no other way to justify Brown v. Board of Education and the sex discrimination cases. So unless we want to say those are all wrong, I think we have to accept the methodology. And the consequence is that as public opinion shifts on same-sex marriage, eventually it will be right as a matter of constitutional interpretation for the Supreme Court to say that denying same-sex couples the right to marry violates the Equal Protection Clause. (At least, that’s true if public opinion continues to shift in the way it has been going. And since the shift is much stronger in younger people, this seems likely.) I don’t think we’re there yet, which is why I think the Court would like to avoid the issue now. I also don’t think that a federal constitutional amendment could be passed if the Court did step in now, but it might be close, and there would certainly be a lot of unrest.

Kermit Roosevelt
Professor of Law
University of Pennsylvania Law School

- end of initial entry -

A. Zarkov writes:

Kermit Roosevelt wrote:

“I think it’s sensible for judges to look to national values to decide which kinds of discrimination are invidious or unjustified and then use the Equal Protection Clause to make outlier states conform to those national values. Historically, this is more or less what the Supreme Court has done, and there’s really no other way to justify Brown v. Board of Education and the sex discrimination cases. So unless we want to say those are all wrong, I think we have to accept the methodology.”

Bingo. Roosevelt has framed the situation concisely. First he makes the U.S. Constitution hostage to public opinion—that is public opinion as divined by serve-for-life judges, and not the citizens through their elected representatives. Has this man ever read the Federalist Papers? Then he reveals the main driving force behind the so-called “living constitution”: justifying Brown v. Board of Education. You can’t get to Brown under Originalism, or textualism etc. Thus it’s worth looking at Brown to see if the result there was worth the major shift in constitutional jurisprudence that has opened the floodgates to judicial activism.

The intent of Brown was to achieve the racial integration of American schools. It didn’t do that. Today our schools are about as segregated as they ever were. Even liberals (especially liberals?) don’t want their children attending schools with significant black populations. They move to virtually all-white suburbs. If they can afford it, they enroll their children to essentially segregated private schools. They will do anything to avoid the consequences of the school integration they so fervently support on an intellectual level. I know of no exceptions. The more honest liberals will come clean and tell you that they are not prepared to sacrifice their children on the altar of racial of integration. In other words, integration is for other people.Thus the decision in Brown failed to accomplish its stated purpose. On the other hand, as a nation we have suffered a considerable negative impact from Brown.

The massive population shift from cities to suburbs and exurbs has created urban sprawl, pollution, excessive fuel consumption and major congestion. Surely Brown is responsible for some, if not a major part, of this population shift. The cities left behind suffer an eroded tax base with poorly run municipal governments, falling property values, and major crime problems. Look at Detroit, Washington DC, Cleveland, Gary Indiana, St. Louis, Newark and others for proof. Was Brown worth it, considering it didn’t accomplish what it was supposed to?

Now thanks to modern jurisprudence, we have “equal protection” run riot. It will not stop unless we stop it. Some European countries have decreed that primates should enjoy the same rights as humans. As day follows night we will see a right to trans-species marriage come along.

LA replies:

I remind Mr. Zarkov of Robert Locke’s bet with me that by the year 2020 marriage with a domestic animal will be legal in at least one state of the Union.

Alan Roebuck writes:

At VFR, Professor Roosevelt said,

…as public opinion shifts on same-sex marriage, eventually it will be right as a matter of constitutional interpretation for the Supreme Court to say that denying same-sex couples the right to marry violates the Equal Protection Clause.

This reminds me that I wrote an essay, published at Intellectual Conservative and in the form of an open letter to Professor Roosevelt, responding to his earlier essay on same-sex marriage. I wrote:

Therefore, to sum up, this is your position, at least judging by your article:

The unlimited expansion of rights is so obvious a good that no argument need be made to support it. The only question is at what stage in the process of debate a specific right is to be granted legally, to avoid arousing too much opposition among the general public. And if a judicial decision expands rights, then only a supermajority of the vote can nullify it. Therefore, for example, if a judicial panel gives homosexual couples the right to be called “married,” even if only by a 4-3 vote, then only a supermajority of the votes (of ordinary people) can nullify this decision. A close vote only counts when judges support rights, not when ordinary people oppose them.

But voters are closely divided between liberal (pro unlimited expansion of rights) and conservative (anti unlimited expansion of rights), and therefore a supermajority vote against a right is a practical impossibility. And given that the judiciary generally enacts liberal policies, your position guarantees that the liberal positions will win. The judiciary is, overall, a ratchet that only turns one way: at most, judges sometimes refuse to grant rights this time, but they almost never permanently remove rights. Why would they, given your premise (evidently shared by the majority of judicial theorists) that the expansion of rights is a quasi-sacred enterprise?

More importantly, your position would put an end to self-government. In your view, it is only judges who have the right to decide moral issues having to do with the expansion of civil rights. But since morality has to do with what people ought or ought not to do, all morality is concerned with rights. And therefore you are asserting that liberal morality must rule as soon as a supermajority no longer opposes it. If a local jurisdiction does not wish to honor liberal policies, they will be forced to do so by your principle that traditional ways of ordering society must give way to liberalism as soon as the vast majority of the nation does not support these ways. You simply assume without any argument that the expansion of rights (i.e., liberalism) is so fundamental and obvious a good that ordinary people are not allowed to stand in its way.

At this point you may be saying, “Roebuck wants majority rule, but what’s he going to do when the majority votes for something dreadful? He’ll have no choice but to go along with the majority.”

But there is a third possibility, in addition to rule by an unaccountable elite or rule by the mob: Rule by tradition. Tradition does not bow to the will of today’s fickle majority, nor does it respect the latest fads among the elite. Tradition, properly understood, is flexible (contrary to what many think), yet it changes only slowly. It is rooted in the wisdom of our people accumulated over time, yet it recognizes that God, not man, is the Supreme Being, in which case reality is not whatever we think or want it to be.

Posted by Lawrence Auster at August 20, 2009 01:37 PM | Send