Obergefell may go the way of Bowers, but these things take time

A 5-4 ruling by the Supreme Court is enforceable law, so for the foreseeable future, every state in the United States will be issuing marriage licenses to same sex couples, including two men, and two women. The sky is not going to fall, millions of marriages of a man to a woman each year will not be impeded or tainted. If God is really angry, he is speaking with a still, small voice, not through a fire or a storm or an earthquake.

But Justice Kennedy's high-blown speculative verbal legerdemain is just as weak and begging for criticism, appearing as The Opinion of the Court, as it would be in the event Kennedy had been writing a dissent. The damage to constitutional jurisprudence has been significant. The First Amendment still protects our right to publicly detail what is wrong with the decision. Kennedy himself observed "The law doesn't belong to a bunch of judges and lawyers, it belongs to you."

Fundamentally, the entire line of cases from Goodridge to Obergefell suffers a consistent deformity. Once this string is pulled, the entire fabric comes undone. The courts have failed to answer the basic question, what is this "marriage" thingy that gays claim to have been denied?

No man, and no woman, has been denied access to marry a person of the opposite sex. If that IS what marriage IS -- the union of a man and a woman -- then the claim that same-sex couples have a "right" to a marriage license becomes an oxymoron. Attempts have been made to "construe" marriage as something other than what is on the statute books, particularly in the Goodridge decision: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others." Really? Why? What for? This, standing alone, robs marriage of any substance or meaning at all. But only by doing so have the courts been able to construe that a distinct set of persons have been "denied" the "benefits" of "marriage."

A significant difference between advocating the civil rights of racially distinct demographics -- whether a racial minority, as in the U.S., or a racial majority, as in the old Republic of South Africa -- is that "black" human beings were categorized AS black to deny them rights enjoyed by all other citizens, but "gay" human beings have had to assemble themselves AS a distinct demographic in order to make a colorable claim that they have been discriminated against. Racial laws contemplated that race meant something, and deliberately singled people out by race. Marriage laws, on the other hand, do not exclude those human beings defined as "gay" from marriage. Rather, people who presented themselves AS gay made the claim that they have been denied access to marriage, because what the law recognizes as marriage is something they personally find to be icky and unrewarding.

Discrimination on the basis of sex is, in general, invidious, because we now know that women make perfectly competent attorneys, doctors, engineers, senators, or whatever else. However, there is no aspect of human life in which discrimination on the basis of sex is so relevant as... sex. There is nothing so different about men and women as their sexuality, and therefore, there is nothing so rational as discrimination on the basis of sex when it comes to marriage. This doesn't mean that either sex is entitled to be top dog -- just that it makes perfect sense that a man who marries would marry a woman, and a woman who marries would marry a man. Two men might be business partners, or fishing buddies, or two women, or one of each -- it wouldn't really matter. But marriage has always been about the specific ways that men and women are distinct and different.

The species homo sapiens sapiens, like every species more complex than a sponge, is heteronormative. Indeed, sexual hormones and attraction only exists because two sexes with distinct and different roles in reproduction is a great evolutionary strategy, providing more flexibility in trying out different gene combinations, and facilitating more rapid adaptations to changing conditions. Whether homosexuality is an abomination before the Lord is of no concern to the civil law. What is a valid concern for the civil law is that homosexuality is, for the species, an irrelevant statistical outlier, that the law need not take notice of.

Human society may well have moved beyond evolution, so well do we control our own environment and suppress the many pathogens and natural conditions that would ruthlessly sort out the better survival characteristics from the the weaker ones. We value each individual as an individual. For those who happen to have a biochemistry focused on individuals of their own sex, this is the only life they have to live, and there is no reason to make it difficult for them. But there is no reason to call a "marriage" that which patently is not a marriage. The relevant categories, when it comes to marriage, are men, and women, not heterosexuals and homosexuals.

When the Supreme Court ruled in Bowers v. Hardwick that state laws imposing criminal penalties for private consensual homosexual contact were perfectly constitutional, they court strayed from its own line of precedents and made a grievous error. Those who believed the court was wrong did not collapse and say "The court has ruled, this is the law, we shall never say otherwise again." Rather, they went to work, studying applicable precedents, monitoring other decisions that might point the way to a reconsideration, looking at factual situations that might provide the basis for another case. Eventually, such a case was accepted by the court, and Lawrence v. Texas made the finding that no, such state laws violated the constitutional right to privacy.

Those dissatisfied with Obergefell would be perfectly correct to take the same approach. Change will not come quickly. Seventeen years passed between Bowers and Lawrence. Sixty years elapsed between Plessy v. Ferguson and Brown v. Board of Education. There are many variables, but this is a time for careful examination, not for supine depression or angry impotent expostulation. History is not linear, it meanders, swirls, eddies, and unfolds. Forward, but perhaps not in a straight line, is the way to go.

Having and Holding our Right to Privacy: The Constitution as a Jurisdictional Document

“Griswold v. Connecticut became about privacy; what if it had been about equality?”

The short answer to this question: the ruling would have had no anchor in the actual language of the Constitution of the United States. It would also have generated an unfathomable ethical and judicial quagmire.

The question is posed in a rather chimaerical article written by one Jill Lepore, and published in the New Yorker dated 25 May 2015.

Griswold was a landmark case in which the United States Supreme Court ruled 7-2 that a Connecticut law, forbidding doctors in the state to prescribe or dispense or even discuss contraception with their patients, violated the federal constitution. The ruling rested heavily on a line of constitutional analysis begun by Justice Louis Brandeis in his dissent to an early wiretapping case, Olmstead v. United States, asserting that “The makers of our Constitution … conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men.”

When the case was decided in 1928, a majority of justices ruled that wiretapping a private telephone line did not require a warrant from a court, because telephones were not mentioned in the 4^th Amendment language providing “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” That might be a surprise to most Americans living today, who routinely understand that the government cannot tap our phones without a warrant.

Over time, Brandeis's dissent has come to be accepted. Griswold was a landmark case in establishing that individuals and families do have a right to privacy that the government may not generally enter into. The court's previous wiretapping precedents were overturned in Katz v. United States, a 1965 ruling that “Because the Fourth Amendment protects people, rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure,” and “The Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements.”

Other landmarks which rested on the right to privacy included Roe v. Wade and Lawrence v. Texas, establishing that it was no business of The State to intrude on intimate decisions as to termination of a pregnancy up to the point of viability, and that statutes imposing criminal penalties for sodomy or other sexual acts between consenting adults were also beyond the constitutional authority of government.

Lepore bemoans that Griswold, for one, was decided “not on the ground of a woman's right to determine the timing and the number of her pregnancies but on the ground of a married couple's right to privacy.” So far, this would seem to be a distinction without a difference. A woman's right to determine the timing and the number of her pregnancies would have to be explicitly and specifically enumerated to be a right of constitutional caliber, and there is no such language. But, the right to be left alone is broad, and can easily encompass making sensitive, intimate decisions, whether made by a woman, a man, or a couple making the decision together. The result does establish in fact a woman's right to determine the timing and number of her pregnancies, because it is an intimate, private decision.

But Lepore is seeking ex post facto to regroup a whole series of practical liberties under the category of “equality,” because the right to privacy does not sustain the cause that really concerns Lepore: same sex marriage. Her starting point is Obergefell v. Hodges, the case currently pending decision in the United States Supreme Court, challenging an Ohio statute defining marriage as the union of a man and a woman. As is common in the media, Lepore flippantly and erroneously refers to the statute as “a same sex marriage ban.” It is no such thing.

One cannot ban what does not exist. If it were possible to commit an act called “same sex marriage” with or without the formal recognition of the state, a statute providing a criminal penalty for “same sex marriage” would of course be a “ban.” But a statute defining what marriage is, for purposes of issuing a marriage license, is not a ban, it is an affirmative definition. The fact that some people would like to do any number of other things, or associate in any number of other ways, that are not what the state defines as marriage, is no ban at all.

In fact, the right of individuals attracted to persons of their own sex, rather than to those of the opposite sex, to act on this attraction so long as it is with a willing partner, was established by relying on the right to privacy. The word “sodomy” does not appear in the constitution. The essence of a right to privacy is, that it is none of the government's business exactly what you are doing, only that it is your decision, not the government's. Lawrence was a sound, conservative application of well established precedent. But the right to privacy in no way provides a foundation for a constitutional mandate that states MUST license a same sex couple, and call that a marriage. Lepore betrays the modern American fallacy of believing that if one only tries hard enough, the constitution will deliver a right to whatever one has set one's heart on obtaining.

In fact, the Constitution of the United States of America is not a surrogate for Santa Claus, it is a concise jurisdictional document. Unlike many unwieldy 20^th century constitutions, which attempted to set forth at great length and in detail each and every empirical right and duty and limitation on everything the writers could think of... our constitution sets forth in a few pages what powers are granted to the newly-established federal government, what powers are explicitly denied to the federal government, what powers the founding states agreed to surrender, that is, powers that all states entering into the union are forbidden to exercise, and powers reserved to the states, or to the people (which are definitely two different things).

Lepore asserts that “The Constitution never mentioned sex, marriage, or reproduction,” BECAUSE “the political order that the Constitution established was a fraternity of free men who, believing themselves to have been created equal, consented to be governed. Women did not and could not give their consent: they were neither free nor equal.” This summary has a lot of empirical truth to it, although a cursory examination of what women actually attempted and accomplished during that period suggests that it falls well short of complete accuracy. But as an explanation for WHY the constitution never mentioned sex, marriage, or reproduction, it is speculative to the point of sheer petulance.

The details of any specific aspect of life, then existing or later to be invented, the details of human biology and social relations, are for the most part not enumerated, because that is not the purpose of the document at all. If the government is authorized to act, then it has the power to act. How the legislature or executive branches exercise that power is discretionary. If the legislature is denied the power to act, then no matter how good or just or right or true or desirable some citizens may believe a law to be, the government is powerless to enact such a law. If it does so, then it becomes the duty of the courts to declare it null and void.

Perhaps more ominous, Lepore's statement would effectively rule out any possibility that the issues of evident concern to her may be resolved by constitutional litigation in the federal courts. IF it is true that the constitution says nothing about sex and marriage BECAUSE the Framers deliberately left them out in the belief that women didn't matter (although in truth men have a good deal to do with sex, and marriage, and reproduction), then it would take a constitutional amendment, not a well written legal brief, to make any change in this omission.

Lepore's style and framework echoes to some extent Samuel A. Marcosson's poorly conceived book, Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives. Marcosson does a decent job of debunking the more outlandish aspects of “Original Intent” as the sole basis for constitutional jurisprudence. He opens with a most amusing chapter about how Thomas might have ruled on Loving v. Virginia, since “Original Intent” would tend to support Virginia's right to enact laws against inter-racial marriage, but Thomas himself lived in Virginia with a wife who, by the laws of the state, would be considered “white,” while Thomas himself would be classified as “black.” (Mr. and Mrs. Loving, the plaintiffs who sued the state, were actually a “white” man married to a “black” woman). Where Marcosson runs lemming-like over a cliff is when he counterposes that the correct question for constitutional jurisprudence should not be “Is it original?” but “It is legitimate?”

The term “legitimate” is so elastic, and is so capable of different and even opposite understandings in the mind of each beholder, that as a standard for expounding a constitution it is no standard at all. It is merely a license to do whatever any given sitting judge believes to be good and right. There is a reasons courts rely on precedent. The citation of precedents can become a tangled mess, but at least they provide some semblance that federal district courts will apply the same law, the same way, to similar sets of facts, all over the country. When new issues come up, of course, district court rulings are all over the map, which is why appellate courts, and the Supreme Court, set binding precedents that will insure uniformity in the future.

Questions were raised after the Affordable Care Act was passed, asking where in the constitution it says that congress can require an individual to buy health insurance. That is a legitimate question – legitimate in the sense that ANY exercise of power by congress MUST be granted by the constitution. All other powers are denied to congress by Amendment X. But the answer is quite simple. Congress has explicit power to regulate interstate commerce. For better or for worse, the delivery of medical care is almost entirely interstate commerce now. If it was about Doc Jones coming out of his apple orchard, saddling up his horse, and riding down the road because Sally just ran over to say that Ma was having her baby, congress would have no jurisdiction at all.

The same is true of setting a federal minimum wage. At the time the constitution was written, almost all commerce was in fact intrastate. Thus, congress had no power to enact such a law. By the dawn of the 20^th century, virtually all commerce was in fact interstate, or international. The constitutional powers of congress didn't change, but the fraction of economic activity that fell within the jurisdiction of congress to regulate had grown enormously.

“Essentially, the Constitution is inadequate” Lepore insists. That is an assertion unsupported by facts, but if true, recourse through the courts is closed, so her entire argument would be a nullity, rather than merely wrong.

Lepore wants what she wants, and is willing to cherry-pick any argument that will deliver the desired results. That is, up to a point, an inevitable and honored component of an adversarial court system. Unless there is a live controversy between two parties, courts have no jurisdiction to act. Generally, neither party much cares what the constitution provides for, what they care about is the material result for themselves personally. But it is the job of the courts to apply lasting general principles in order to determine what each party is legally and constitutionally entitled to. An article asserting enduring values is cheapened when it is reduced to “so how do we get what we want?”

Lepore knows that the constitutional ground for a mandate that states must license, regulate and tax same-sex couples, and call that a marriage, is weak. She particularly knows that a line of privacy cases provides no support at all. So, she tries to cheapen the whole notion of privacy. Lepore quotes, accurately enough, from arguments that women's suffrage would “open to the intrusion of politics and politicians that sacred circle of the family.” That could be termed an appeal to the “right to privacy,” but Lepore finds no argument that the constitutional right to privacy bars a state from extending to women the right to vote. She merely tosses around the term privacy, in general, without reference to actual constitutional impact. Whether to propose or ratify a constitutional amendment is, by its very nature, not subject to judicial review. The power of the judiciary to declare a statute null and void lies in the language of the constitution itself. The proposed amendment could not be ratified by reference to the existing constitution, nor, if ratified, could it be nullified.

Still Lepore is determined to besmirch the word and concept of privacy, so she ends up arguing that the philosophy of Roe v. Wade has its origins in the Victorian era, and is bound up with the idea that the home lies outside of politics and that women, therefore, ought not to vote. It did take many decades of effort to get the word “male” out of the constitution, and that is because it had been written into the constitution. No court could remove it, only two-thirds of both houses of congress, and three-fourths of the state legislatures, which, in the end, was accomplished.

Lepore comes roaring back with the complaint that “No one mentioned the Nineteenth Amendment, or the idea of equal rights for men and women” when the court ruled that states may not ban the use of contraception. Well... that may be because the Nineteenth Amendment is about the right to vote, and only the right to vote. She may wish there was more to it, but its not there. It also may be because there is nothing in life in which men and women are so unequal as when it comes to sex. Men can prevent themselves from impregnating a woman, but a man cannot become pregnant. (And no, “trans-men” either are not yet men, or have not yet become men, if they are pregnant – but that is a tempest in a teacup for another time.) It is theoretically possible for a woman to sexually assault a man, but it is extremely rare and difficult.

There was a real basis in the language of the Constitution to assert a right to privacy, but no language from which to assert a right of men and women to be equally free of pregnancy, or able to become pregnant. As the old saying goes, only women can have babies, because God knew that men couldn't handle the pain. Lepore even speculates that Roe v. Wade should have been decided, not on the right of a woman to make an intimate private decision, but on her right to equality with men in the matter of pregnancy!!! (Outside of elite circles that take such abstract nonsense seriously, the reader begins to wonder what the New Yorker editors were thinking when they accepted this diatribe).

Perhaps Lepore agrees with the attorney who proposed some years ago in an incongruous New York Times Op-Ed that a young man who is informed that his girlfriend is pregnant should have 90 days to renounce his father hood in writing, in which case the pregnant woman can carry the pregnancy to term, knowing she will have no child support from the father, or agree to an abortion? That level of narcissism is easily refuted, but only by recognizing that “the equal protection of the laws” does not empower the law to render everything in life perfectly equal.

When a young man (or a dirty old man, for that matter) lies down with a fertile young woman, he knows that conception is a possibility, and that for nine months the developing zygote, blastocyst, embryo, fetus, will be growing inside the woman's body, and nowhere else. Not only do all the risks and pains of carrying a pregnancy to term fall on the woman, but so do all the risks and pains of choosing to terminate the pregnancy. By no means can these be transferred from her to him. Thus, it is her decision, and only her decision. Once a child is delivered, if the woman wants to put the child up for adoption, there is no reason daddy should not have first claim.

Although equality between men and women in most commercial and social spheres is now well established in law, labor organizations have for more decades than not resolutely opposed an open-ended Equal Rights Amendment, because in fact women have a different bone structure than men, different musculature, and, e.g., if an overseer of farm labor in the fields could require women to carry weights just as heavy as men, serious injuries could result without recourse. It takes a scalpel, not a bludgeon, to get the details right so that the most equal opportunity reasonably achievable is the result. The law of unintended consequences tends to fall on the poor and the unskilled, but might even have some backlash for the more educated, prosperous, and privileged. Of course nobody does manual labor any more right? Nobody who counts, anyway. The opportunities to twist a well intentioned law for miserable greed are the reason high-profile lawyers are paid so well. (My apologies to those lawyers who labor, unheralded, in the vineyard of day to day work for those who simply need some help negotiating the complexities of the statute books.)

Lepore's crusade for perfect equality deems destruction of an American citizen's right to privacy to be an acceptable level of collateral damage. Thus, she quotes Martha Minnow of Harvard Law School that “the family is not mentioned in the Constitution.” Indeed it is not, but nowhere does any court decision endow families with protected rights. Rather, individual persons have rights, and when those persons enter into family relations, each family member retains their right to be secure in their persons, houses (generally the family home), papers, and effects (often family furniture, the family car, etc.). It is the choice of individuals to enter into families, and the police powers retained by the states to enact a body of family law, that make families relevant to constitutional jurisprudence.

But eventually Lepore gets back to her main point: same sex marriage must prevail. Lepore mourns that Lawrence v. Texas was decided on the right of individuals to a sphere of privacy, not on equal protection of the laws. She cites Sandra Day O'Connor's concurring argument that rather than ruling for Lawrence on the basis of his right to privacy, the court should have ruled against the state of Texas on the ground that a man could not be prosecuted for engaging in a particular activity with a woman but could be prosecuted for engaging in that same activity with a man. Unfortunately for the grammatically impeccable argument, it simply isn't the same activity.

Justice O'Connor's tortured reasoning was, evidently from her own words, a desperate attempt to overturn the result of Bowers v. Hardwick, which upheld a Georgia sodomy statute in 1986, without actually admitting that she had been wrong. The second sentence of her concurrence is “I joined Bowers

, and do not join the Court in overruling it.” O'Connor continued to maintain that the Georgia sodomy statute did not violate anyone's right to privacy – and apparently Lepore agrees.

O'Conner's stance was perhaps one of the low points, in terms of honor and integrity, of a judicial career that had many high points. She, and Lepore, draw shamelessly on false analogies to Loving v. Virginia, and Potter Stewart's succinct concurrence. Stewart cut through a great deal of unnecessary verbiage in the main opinion of the court, to say that no law can stand constitutional scrutiny that makes an act a crime, or not, depending on the race of the actor. In the minds of Lepore, O'Connor, Chief Justice Margaret Marshall of Massachusetts, and a host of federal district court judges more anxious to jump on a bandwagon than to think through a constitutional argument, it is therefore equally wrong to make an act a marriage, or not, depending upon the sex of the actor(s).

Many distinctions must be made, because there are many differences to distinguish.

First, Virginia's anti-miscegenation laws made it a crime to marry, whereas state marriage laws do not make homosexual sex a crime (that has been ruled null and void in Lawrence), they merely refuse to issue a marriage license to any combination of persons that does not constitute a marriage.

Second, race is irrelevant to the structure of marriage, while sex is of the essence. Without sex, there would be no marriage. Without race, marriage would be unchanged. The state of Virginia knew darn well that a man subjected to one racial classification, and a woman subjected to another, were perfectly capable of marrying. That is why the state made it a crime to do so. States may have a more substantive reason to define marriage AS the union of a man and a woman.

There is no particular reason that a state could not or should not enact a statute to license, regulate and tax same-sex couples, or issue them marriage licenses. All it means is that a majority of legislators heard an appeal from citizens who would like their partnership to be considered a marriage, and concluded that they could vote to do so, without losing the next election. That in turn means a majority of the citizens of the state are OK with the idea. In the end, civil marriage means the general community has decided to extend recognition and approbation to the couple – which incidentally is not a constitutional right for anyone. IF a state has marriage laws, marriage must be equally available on the same terms to each individual – whatever it is.

One of the constraints, of course, is that a man has no “right” to marry, unless a woman agrees to marry him, and vice versa. Just as the family is not mentioned in the constitution, neither does any article grant rights to couples, or that states shall guarantee to every couple of persons the equal protection of the laws. Persons have protected rights.

Race is an artificial and mutable concept, but the division of the species homo sapiens sapiens into two sexes is fundamental. Our species does come in two types of persons: male and female. There are ambiguities due to the imprecision of biochemistry and genetics, but these are ambiguities of male and female. The only reason sexes exist is that it was a favorable strategy for reproduction, survival, and diversity in the gene pool, many eons before human history.

The only reason sexual passions exist is that, without them, nothing more complex than a sponge would engage in the difficult acrobatics and intrusion necessary to conceive another generation. Sex is, by origin, heterosexual. It therefore makes perfect sense that a state would choose to regulate a fundamental aspect of human biology that is overwhelmingly normative, and treat with benign neglect whatever statistical and biological deviations from the norm might also exist.

It also makes perfect sense that a majority of citizens, becoming aware that a tiny fraction of our fellow citizens form couples differently than the dominant pattern for the species, and that most of us know some perfectly nice, competent people who feel this way, would accede to a proposal to issue them marriage licenses. Its not a constitutional mandate, but it is constitutionally permissible. By some criteria a marriage of a same sex couple would be a legal fiction, but legal fictions are perfectly serviceable for all legal purposes.

For purposes of the civil law, it doesn't matter whether homosexuality is an abomination or not. But nobody is denied the equal protection of the laws just because their personal preference does not conform to the statutory definition of marriage. As her personal contribution to erecting this unstable house of cards, Lepore is prepared to demolish the constitutional guarantees nearly all Americans rely on in one way or another, that we have private lives that are none of the government's business.