Wednesday, May 14, 2014

Overreading Schuette's Rhetoric in the SSM Cases

by Michael Dorf

State government lawyers defending state bans on same-sex marriage in the federal appeals courts have recently added a new argument to their arsenal. Last month's Supreme Court decision in Schuette v. Coalition to Defend Affirmative Action, they say, demonstrates the importance of leaving controversial social policy questions to state legislatures. This new argument can be found in the government's reply brief in the Virginia case, as well as in a supplemental letter in the Utah case. Here I'll explain why this argument is misguided.

In my prior blog post on Schuette, I described the majority opinion as a paean to the positive liberty of citizens to make their own decisions about race-based affirmative action. The opinion speaks in general terms. Here's the rhetorical high note:
Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process. 
That language is generic. Substitute "Virginia" or "Utah" for "Michigan", and substitute "judges" for "university officials or faculties", and you have an argument that seemingly carries over quite readily. It's the very familiar argument--these days often captured by Bickel's notion of the "countermajoritarian difficulty" but going back to Jefferson and others in the earliest days of the Republic--that judicial review is undemocratic because it substitutes elite opinion for the views of the People or their elected representatives. If that's true with respect to race-based affirmative action, the state appellants in the SSM cases say, then it's also true with respect to SSM.

How good is that argument? Not very. Taken at face value, Justice Kennedy's argument in Schuette would leave to the electorate such questions as: whether to permit racially segregated schools; whether to permit complete handgun bans; whether to permit organized sectarian prayer in schools; whether to permit offensive speech on the internet; etc. Yet the Constitution as construed by the Court clearly does not leave such matters to the electorate. So why does Justice Kennedy say it would be "unprecedented" to take such matters out of the hands of the electorate?

The answer is pretty plainly context. Justice Kennedy's rhetoric in Schuette cannot be extended beyond the context of that case without blowing up just about all of modern constitutional law--something Justice Kennedy and the rest of the majority cannot have intended.

In Schuette, the Court was asked to rule that the Constitution takes away from the voters of a state in a statewide referendum the decision whether to deploy a practice--race-based affirmative action--that it was already determined was constitutionally optional. The Court said no (and as I said in my prior blog post, I agree with that bottom line, even though I favor affirmative action as a policy matter). So all that Justice Kennedy was saying in Schuette was that it would be unprecedented to take an issue away from the voters of a state when the Constitution permits states to resolve that issue in the way that the voters have resolved it.

Put differently, despite its apparent sweep, the only plausible way to understand the Schuette language I quoted above is as a description of how things work when the substance of legislation does not violate constitutional rights (or some other constitutional limitation). And because the Court had long ago ruled that the Constitution does not require affirmative action (indeed, that the Constitution barely permits it), the absence of affirmative action doesn't violate constitutional rights (or any other constitutional limits).

But of course in the SSM cases, the very question to be decided s whether the denial of SSM violates constitutional rights. And so the Schuette language does not come into play. Suppose that the Court holds that there is no right to SSM. If so, then the Schuette language would knock out an argument that even though a state need not recognize a right to SSM, it cannot move responsibility for SSM from the local level to the statewide level. Given Schuette's rejection of the political process doctrine, that latter argument would fail.

However, the political process argument wouldn't come into play at all if the Court determines that there is a right to SSM--except in the much broader sense that whenever the Court is deciding whether to recognize any claim of right it is cognizant of the countermajoritarian difficulty. But just as it overcame the countermajoritarian difficulty in other contexts, so it would here if, under the applicable tests, the Court concludes that there is a right to SSM. And to resist that conclusion, the states must rely on the arguments that appeared in their briefs pre-Schuette.

Those arguments are looking increasingly foolish.  The mouthbreathing right continues to invoke ugly stereotypes and bogus data about children in support of SSM bans, but for the most part, the civilized anti-SSM bar has been reduced to the following claim: that SSM bans are justified because permitting same-sex couples to marry would (somehow) undermine the efficacy of opposite-sex marriage in addressing accidental procreation. Good luck with that.

11 comments:

Joe said...

The only non "mouthbreathing" (aren't we biting) argument is that we should let the democratic processes have more time. And, personally, I think that has run its course especially in states where amendments are in place blocking easy legislative action.

The argument here -- just rejected in Idaho -- is doing that in a square peg in a round hole sort of way.

Hashim said...

I agree that Schuette is only of modest help to the anti-SSM side. However, AMK's paean to tradition in Greece seems significantly more relevant (though I have no doubt he'll find some way to distinguish it if he's hell-bent on doing so):

Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that thespecific practice is permitted. Any test the Court adoptsmust acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. County of Allegheny, supra, at 670 (opinion of KENNEDY, J.); see also School Dist. of Abington Township v. Schempp, 374 U. S. 203, 294 (1963) (Brennan, J., concurring) (“[T]he line we must draw between the permissible and the impermissible is one which accordswith history and faithfully reflects the understanding ofthe Founding Fathers”). A test that would sweep awaywhat has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent. See Van Orden v. Perry, 545 U. S. 677, 702–704 (2005) (BREYER, J., concurring in judgment).

Jim said...

As a regular reader, I continue to be puzzled by your overly charitable view of Justice Kennedy's opinion in Schuette. That opinion, it seems to me, is a combination of a laughable attempt to distinguish the Seattle/political process line of cases and rhetoric of the sort you quoted in this post -- i.e., sweeping statements that can't possibly be squared with precedent (e.g., Kennedy's own opinion in Romer) and invite arguments of the sort made by the states in the SSM cases.

Evin Terna said...

then the Schuette language would knock out an argument that even though a state need not recognize a right to SSM, it cannot move responsibility for SSM from the local level to the statewide level. Given Schuette's rejection of the political process doctrine, that latter argument would fail. buy fut coins | cheapest fifa 14 coins | Cheap The ESO Gold| buy fifa coins

喜洋洋 said...

監聽器材
離婚諮詢
監聽手機
財產調查
電話監聽
網路詐欺
女人偷腥
肉體外遇
商業調查
信用調查
婚姻諮商
婚姻問題
老婆外遇
外遇處理
筆跡鑑定
挽回婚姻
老公偷腥
男人外遇
丈夫外遇
婚姻諮詢
感情諮詢
挽回感情
老婆偷腥
工商徵信
商標侵權
市場調查

Cicy said...

Suppose that the Court holds that there is no right to SSM. If so, then the Schuette language would knock out an argument that even though a state need not recognize a right to SSM, it cannot move responsibility for SSM from the local level to the statewide level. Given Schuette's rejection of the political process doctrine, that latter argument would fail.www.phoenixlol.com
英雄联盟皮肤
fifa 14 coins
fifa.mmo18.com

奇堡比 said...

新女性徵信
外遇調查站
鴻海徵信
亞洲徵信
非凡徵信社
鳳凰徵信社
中華新女性徵信社
全國新女性徵信社
全省女人徵信有限公司
私家偵探超優網
女人感情會館-婚姻感情挽回徵信
女子偵探徵信網
女子國際徵信
外遇抓姦偵探社
女子徵信社
女人國際徵信
女子徵信社
台中縣徵信商業同業公會
成功科技器材
女人國際徵信社
女人國際徵信
三立徵信社-外遇
女人國際徵信
女人國際徵信
大同女人徵信聯盟
晚晴徵信

喜洋洋 said...

高雄縣徵信商業同業公會
南部徵信聯盟
外遇觀測站
大愛離婚諮詢網
離婚大剖析
大愛徵信有限公司
尋人專家徵信服務網
女人徵信公司
華陀徵信
離婚協助中心
跟蹤蒐證徵信器材網
抓姦觀測
大愛徵信
溫馨徵信
成功徵信社

aminos lahragui said...


Very awesome post , i am really impressed with it a lot


فوائد الزنجبيل
فوائد الرمان فوائد الحلبة فوائد البصل فوائد الزعتر فوائد زيت السمسم علاج البواسير فوائد اليانسون فوائد الكركم قصص جحا صور يوم الجمعه علامات الحمل تعريف الحب حياة البرزخ فوائد الزبيب

amine lahragui said...


thanks so much for that great blog and thanks also for accepting my links thanks
طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه

aminos lahragui said...



thanks so much i like very so much your post
حلى الاوريو الفطر الهندي صور تورته حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك عجينة العشر دقائق