Today’s
marriage-equality decision from the U.S. Supreme Court is a truly watershed
moment for what regular folks would call “liberty.” You know, freedom -- the
right to do what you want as long as it’s not hurting someone else.
In fact, it is
frankly so “duh” obvious to most folks that I know that an adult ought to be
allowed to marry the consenting adult of his or her choice that a non-lawyer
could wonder, as I saw some of my friends doing today on Facebook: “Why the
hell was this decision so close? It was 5-4!”
Here’s why: this
opinion is, from the perspective of this lawyer, actually a big deal – a very
big deal – for reasons that go way past the right to marry. And those who don't want it to be a big deal were fighting hard against it.
See, what the average, non-lawyer folks call “liberty” is not what the U.S.
Supreme Court has traditionally viewed as the definition. In fact, Justice
Thomas wrote in his dissent today:
“The majority claims
these state laws deprive petitioners of ‘liberty,’ but the concept of
‘liberty’ it conjures up bears no resemblance to any plausible meaning of that
word as it is used in the Due Process Clause.”
He then goes on to
treat the majority opinion as if it is from Mars, ultimately concluding that,
as far as he can tell, “liberty” in the constitutional sense doesn’t refer to
much more than “freedom from physical restraint.”
“If it doesn’t
physically shackle you, quit your whining.” OK, he didn’t actually say that,
but he came close.
Likewise, when
Justice Kennedy’s majority opinion said what might appear to you and me as a
reasonable line: “The nature of marriage is that, through its enduring bond,
two persons together can find other freedoms, such as expression,
intimacy, and spirituality,” Justice Scalia came out with this doozy: “Really?
Who ever thought that intimacy and spirituality (whatever that means) were
freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged
rather than expanded by marriage. Ask the nearest hippie.”
(I'll pause for a moment here to say, actually I did! I've always thought intimacy and spirituality are "freedoms." But, then again, even I make hippie jokes, so there's that).
So is this
decision somewhat revolutionary? Does it depart, in any degree, from the
“usual” constitutional analysis? Does it threaten the very notions of freedom
and liberty that make this republic great? Are hippies taking over?
We’ll cut to the
chase: yes, yes, no and no. But for that last one… maybe things got a little
more libertarian than usual?
Justices Thomas and
Scalia have one thing in their corner for this analysis: if you subscribe to their crabbed
“originalist” notion of what constitutes legitimate considerations in defining
the parameters of constitutional rights, then yeah, this decision is, I
suppose, straight-up wackadoodle. The “founders” were not pro-gay-rights in any
sense at all, and the Fourteenth Amendment guarantees of due process and equal
protection were not intended, at the time of its drafting, to extend to
gay Americans.
So that’s where they
are coming from.
Is that what you
think our most constitutional rights are defined by: only what the drafters of
the constitution thought?
Yeah, me either.
But the U.S. Supreme
Court, while not usually adhering to strict “originalist’ thinking, has hardly
been a bastion of rights-expansion. Remember, less than thirty years ago, a
majority of the justices thought it was just peachy for states to criminalize a
blow job depending on the genders of the participants. It took them 17 more
years to fix that monstrosity of a ruling. (Guess the identity of at least two
of the justices that didn’t like the fix?)
Keeping all that
troglodyte thinking in mind, a lot of us lawyer types, steeped in the ways of
“substantive due process” and the extreme limits placed thereon by the Court in
the past, thought today’s decision was going to come down to a not-so-simple
simple question. Although you and your non-lawyer friends might sensibly see
the propriety of banning gay couples from marrying to be pretty damn
indistinguishable from the same issue as applied to racially-based marriage
bars in 1967 in Loving v. Virginia, those of us a little more jaded on the “progress”
of actual liberty – not Justice Thomas-style “liberty” – knew that sexual
preference had never been deemed by the Court to warrant the so-called “strict
scrutiny” analysis that racial classifications have. So we thought that
so-called “rational basis” scrutiny – a much looser standard than “strict
scrutiny” -- would be the test.
And even though there
are precious few cases on the books where the non-sinewy methodology of
rational-basis analysis has actually invalidated a law, I think many of us lawyer
types truly believed that it would be employed by a five (or even six) justice majority
to say, in the most basic terms: “Sorry bigoted states. Your marriage laws that
exclude gay couples simply have no rational basis.”
And that would have
been, well, fine. You and I would have gotten the result from the ruling that
we justifiably wanted, and everything would have been as expected. “Yay marriage
equality,” we would all have chanted – you know, except for a few originalist
thinkers on the Court.
It’s a lot
better than that.
Check out a few of
these lines from the majority opinion. There’s the opener:
“The Constitution
promises liberty to all within its reach,
a liberty that
includes certain specific rights that allow persons, within a lawful realm, to
define and express their identity.”
My head exploded with
joy. They’ve never said that “define and express identity” stuff before. Try this too:
“A first premise of
the Court’s relevant precedents is that
the right to personal
choice regarding marriage is inherent
in the concept of
individual autonomy.”
You the non-lawyer
may have just read that and thought, “Yeah. Cool. Individual autonomy, man,
just like the constitution says.”
Let me tell you that
“the concept of individual autonomy” is not a phrase oft-found in Supreme Court
jurisprudence. It's not in the constitution. In fact, I checked on my Lexismachine. It’s NEVER been used
before in a U.S. Supreme Court decision. That’s never, like in ever.
And then there is
this monumental boo-yah to the originalists:
“The right to marry
is fundamental as a matter of history
and tradition, but
rights come not from ancient sources alone.
They rise, too, from
a better informed understanding of how constitutional imperatives define a
liberty that remains urgent in our own era.”
Did you get all that?
“Liberty” isn’t that constipated hunk of 200+-year-old goo rotting in the
colons of the originalists. Rather “rights” come from somewhere else, a place
that includes history, but does not exclude considerations of expanding notions
of freedom From. Our. Own. Era.
That’s now, not
1789, or even the post-Civil War days of the adoption of the Fourteenth
Amendment. Now.
This decision isn’t
by any means the first time the Court has looked beyond “originalist” intent.
But it truly is the first time that I can recall that they got themselves out
of the standard trap that comes from originalist-style thinking. Yes, as I
said, the majority could have done a simple, dyed-in-the-wool exegesis on
“rational basis” scrutiny, found these laws did not survive that scrutiny and
shot them down. Instead, they did a little thesis on liberty.
Liberty, like
freedom.
I fancy my political
leanings as libertarian-ish, but the catch to the “ish” is that I’ve always cared more about
personal individual autonomy
(Hey! There’s that phrase again!) than economic freedoms. When the chips are
down, I vote for whoever is going to stay the hell
out of my bedroom. If they will also stay out of my wallet, that’s a plus, but
it’s not the very first consideration for me.
So my take on
individual rights has never been that they come solely from the government by
way of the constitution. Rather, sure, the constitution enumerates certain
rights, and then there are others, just as fundamental, that we are endowed
with as a free people, for which the government had best have a mighty good reason before infringing upon. They were there before you ever got here, government, and they
will be here in spite of your efforts to trample upon them.
This decision today
is the first time I ever heard a majority of the U.S. Supreme Court speak in
terms that sound more like my view and less like the no-fun/get-off-my-lawn/you-damn-hippies
crew.
Instead of the rack
and ruin predicted by Justices Scalia and the assault upon the strange and cramped definition of “liberty”
used by Justice Thomas, this ruling could be the starting point for actually expanding real freedom, for recognizing
a few other rights in the future -- ones that the founding fathers never heard
of, but ones that are as fundamental to being a decent caring people in the
modern age as the right to marry the consenting adult of one’s choice.
I’ll get pretty far
off-point if I start listing ideas, but you can guess some of the main
candidates for that status. Start with the right to end one’s life when
terminally ill. What's more basic, decent and civilized than that, and more intertwined with the deepest considerations of individual autonomy?
We just became a potentially
vastly more caring people today with a well-reasoned ruling that doesn’t fit
the usual SCOTUS mold. It addresses real liberty, not “liberty” in the eyes of those
who want to restrict it. We’re all a little more free.
