Thursday, June 27, 2013

On the Supreme Court and Gay Marriage

-First and foremost, read the damn decision. Otherwise you'll be one of those absolutely insufferable people who view every court decision as a 'Gay Marriage Yay!' or 'Gay Marriage Boo!' pantomime. These people have zero conception that there actually is a question of law going on, and that a badly decided case with a desirable policy outcome will create other problems down the road that the pantomime crowd never think about.

You can find a pdf of it here. I heartily recommend reading Scalia's dissent, even if you're broadly happy that gay marriages in one state will now be federally recognised. In fact, you should especially read Scalia's dissent if you're broadly happy with the policy aspects of the decision.

-As I mentioned to you a few months ago, Justice Scalia predicted way back in 2003 that the Supreme Court was going to legalise Gay Marriage, and that Lawrence v. Texas (which overturned the Texas anti-sodomy statue) was merely a prelude to this result, the Court's protestations to the contrary notwithstanding.

Well, the Court this time decided not to settle the Elephant in the Room question of whether for a State to prohibit gay marriage violates the 14th Amendment equal protection clause  (which, if they did, would have decided the issue once and for all). Instead, it was held that for the Federal government to define marriage to exclude gay marriages in states which allowed them was a violation of the 5th amendment because it served no legitimate purpose and thus was a violation of basic due process. From the majority opinion:
DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
In other words, we're not deciding the substantive issue of gay marriage, just one part of it. Roberts wrote separately just to emphasise this point:
But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” ante, at 18, may continue to utilize the traditional definition of marriage. The majority goes out of its way to make this explicit in the penultimate sentence of its opinion. 
In other words - listen up you lower court punks, don't think we've given you carte blanche to insist on gay marriage everywhere.

Scalia mocks the majority super hard for this feint of judicial modesty:
The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are  confined” to those couples “joined in same-sex marriages made lawful by the State.” Ante, at 26, 25. I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578. 
I haven't forgotten Lawrence, you clowns.
Now we are told that DOMA is invalid because it  “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with. 
In other words - at least own up to what you're proposing, rather than maintaining this nonsense that this is all just about the solemn dignity of states to define marriage however they wish (a notion that will last about 5 minutes into the oral arguments for the next case).
I do not mean to suggest disagreement with THE CHIEF JUSTICE’s view, ante, p. 2–4 (dissenting opinion), that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away. 
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. 
If there's anyone in the country who disagrees with the last sentence, I'm yet to meet them.

-Laws are complicated things. I am quite certain that the vast majority of the people who are sure that the Defense of Marriage Act is a hateful piece of legislation designed only to injure gays have not tried to deal with the mess that is overlapping definitions of different terms when the laws of different jurisdictions come into conflict. Even the notion of a 'US Resident' is virtually impossible to get a clear answer on - there's tax residence, and immigration residence, and driving license requirements (which I've heard dozens of answers about) etc. So even if you didn't want to limit the federal definition to exclude gay marriage, there are plenty of other reasons why you might want a uniform definition. Scalia mentions some of them:
To choose just one of these defenders’ arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” Ala. Code §30–1–19(e) (2011). When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.
If you are expecting the boosters of the recent decision to provide you with a clear answer to any of the above questions, I would advise you not to hold your breath.

-As for myself, I find myself broadly disliking the decision, but for conflicting reasons. As a matter of policy, I'm fine with gay marriage. If I were minded to vote (or registered to vote. Or allowed to vote), I'd vote to allow it. So to that extent, while it's not high on my list of priorities, I'm happy enough with the practical aspects of the outcome (subject to the previously mentioned practical concerns).

But I deeply hate judicial activism. It poisons the legal certainty that lets people organise their lives according to well-settled precedent. Democracy may have plenty of flaws, but the makeup of the current Supreme Court seems to have managed to reproduce most of the maladies and perversions, just on a micro scale. We've got 4 (mostly) conservative justices, not all of whom can be relied on to produce politically conservative outcomes, 4 consistently liberal justices who can unfailingly be relied on to produce politically liberal outcomes, and Justice Kennedy playing the role of the entire swing voting electorate -  inscrutable, unpredictable, and of principles that are, shall we say, difficult to forecast. The voters in this case are definitely smarter, but do you think the policies produced are better?

Judicial activism - combining all the disfunction of democracy, but without the benefit of the law of large numbers and De Moivre's theorem!

In other words, judicial activism is just one more manifestation of the many ways that this republic has decayed from the original founders' vision. I second the Moldbug critiques of such a vision, but it's certainly a zillion times better than the monstrosity we're currently saddled with.

At the risk of this post being an 'All-Scalia-All-The-Time' one, I cannot help but excerpt his closing remarks
We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that  comes from a fair defeat. We owed both of them better. I dissent.
As do I.

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