Thursday, May 15, 2008

Judging same-sex marriage

The California Supreme Court tore open the debate over same-sex marriage today with a ruling that struck down a state law banning gay marriage. "We cannot find that retention of the definition of marriage constitutes a compelling state interest," the court said, "These statutes are unconstitutional."

California voters will have an opportunity to vote on a state constitutional amendment that will limit marriage to opposite-sex couples, but if it doesn't pass, same-sex marriage will be legal in the Golden State.

Good luck to any other state that refuses to recognize marriages performed in California. The U.S. Constitution requires all states to give "full faith and credit" to "the public Acts, Records, and judicial proceedings of every other State." It's in Article IV, Section 1.

Lawyers may try to persuade the U.S. Supreme Court to interpret the full faith and credit clause to mean that states don't have to recognize California's marriages, but that would require the justices to find that the Constitution means exactly the opposite of what it says.

Granted, it wouldn't be the first time. But people who oppose gay marriage are more likely to seek an amendment to the U.S. Constitution to state unambiguously that marriage in the United States is between one man and one woman.

Today's ruling in California is the latest example of the uncontrollable consequences of the Incorporation Doctrine, the Supreme Court's interpretation of the Constitution that says some rights are so fundamental that no state can be permitted to infringe them without a compelling reason.

Under the original interpretation of the Constitution--in other words, what people understood it to mean when they agreed to be governed by it--the Bill of Rights did not restrict the powers of the state governments. It only limited the powers of the federal government.

After the Civil War the nation adopted the Fourteenth Amendment, which banned any state from denying due process of law to any person, but in a long series of decisions the Supreme Court said this still didn't mean the Bill of Rights applied to the states.

Once everyone who debated and voted on the Fourteenth Amendment was dead, the Supreme Court began to change this interpretation. Early in the 20th century the Court ruled that freedom of speech and the press were so fundamental to the conception of due process of law that they had to apply to the states through the Fourteenth Amendment.

Very gradually, the Supreme Court incorporated almost all of the Bill of Rights into the Fourteenth Amendment. It took decades. The Sixth Amendment right to trial by jury was not deemed "fundamental" enough to be binding on the states until 1968.

Now, here's the catch.

The Supreme Court has held that fundamental rights may be infringed by the states if the states can show a compelling reason. The states may have a rational reason for such a law, the Court has said, but that's not good enough to justify the restriction of a fundamental right. The reason must be compelling.

But what's compelling to you may not be compelling to them. What's compelling to Justice John Paul Stevens may not be compelling to Justice Antonin Scalia. And the selection of "fundamental" rights is equally subjective.

So when the California Supreme Court declared today that there is a fundamental right to marry the person of your choosing and the state has no compelling interest in limiting marriage to opposite-sex couples, the justices were engaging in the kind of subjective balancing act that the U.S. Supreme Court has been performing for something like eighty years.

This kind of constitutional interpretation was the basis for the desegregation decisions of the 1950s and all the decisions striking down state laws that discriminated on the basis of race or gender. It was the basis for all the decisions guaranteeing the right to an attorney, trial by jury, and the right against self-incrimination. It was the basis for all the Court's rulings limiting the power of police to search your home without a warrant. It was the basis for all the decisions establishing, or limiting, a right to privacy.

We have to face the fact that for the entire span of our lifetimes, we have relied on the U.S. Supreme Court to update the Constitution for us. We have not taken responsibility for amending it to say what we now think it means.

That's why judges--and not elected officials--have the power to legalize or ban abortion, to establish or strike down affirmative action, to permit or abolish the death penalty, and to allow or forbid gay marriage.

You might be interested to read "How the First Amendment Came to Protect Topless Dancing," which is an essay published as an appendix to the novel "The 37th Amendment." Or read a short summary of it at this link.

You might also be interested in "Judicial Activism and the Constitutional Amendment on Marriage" as well as "A Retirement Plan for Sandra Day O'Connor" and "Why There is No Constitutional Right to Privacy, and How to Get One" at

Copyright 2008