I have a mishmash of topics I’d like to discuss in connection with Obergefell, but first I’d like to remind readers that I have discussed the legal issues relating to same-sex marriage quite extensively in earlier posts, albeit posts that pertained to earlier cases.
The first topic is fundamental rights, equal protection, and levels of scrutiny. The recurring issues in connection with laws burdening gays include: is the problem with the law that it violates a fundamental right, or that it violates equal protection? If it violates a fundamental right, then we are automatically at the highest level of scrutiny. If it violates equal protection, then we have to decide what level of scrutiny we are in; if classifying people as homosexual is a suspect classification, then we are in strict scrutiny. The interesting point here is that it has been very tempting for people to assume that all the laws which burden gays, including the marriage laws that preclude same-sex marriage are problematic because they violate equal protection, a claim which then invites the inquiry as to what level of scrutiny we are in. But if we look at the past Supreme Court cases, it appears that the only one which exclusively relies on equal protection is Romer (the case in which Colorado amended its constitution to forbid antidiscrimination statutes that protected gays), and in that case, no heightened level of scrutiny was involved: the Court in essence held that no legitimate end (for example, conserving antidiscrimination resources for higher priority forms of discrimination) could be credited as rationally related to the means adopted, and thus the only end must be to facilitate discrimination against gays as such, an illegitimate end. The other signature cases, Lawrence (sodomy laws), Windsor (the Defense of Marriage Act), and Obergefell (marriage laws which do not permit same-sex marriage) all depend either primarily or exclusively on Substantive Due Process.
The reason why this is important is that it does shift the discussion in ways that make the case for the majority in Obergefell much stronger. While conservatives have always been troubled by all substantive Due Process case law, none of them with the exception of Justice Thomas, who is perhaps the purest originalist on the Court, has unequivocally rejected the notion. But the Court has an old line of cases invoking substantive Due Process which say “you can’t prevent so-and-so from getting married.” Of course, the specific descriptions of who is and is not covered by this argument is not written in the constitution at all: it’s a non-textual right implicit in the constitution’s guarantee of liberty. My point is simple: who’s to say that gays are not covered by this fundamental right? That is, the “plucked from nowhere” quality of this right seems no better or worse than any of the other marriage cases which were decided against states. The much stronger position here for the opponent would be to say that all such decisions have been ludicrous because they pluck marriage rights from nowhere. Once you concede that any of the marriage rights cases are legitimate, it’s very difficult to see what justifies objecting here.
Some have complained, quite cogently, that states regulate marriage in all sorts of ways, prohibiting incestuous marriages, for example, and that if those laws presumably are constitutional, how could laws limiting marriage to opposite sex couples not be? But I think this cuts the other way: I think we will find, in the very long run, that laws prohibiting incestuous marriages are unconstitutional because, marriage. Such laws surely would not survive strict scrutiny in a world in which genetic testing is an option, and the prospects for standing in the way of the marriage juggernaut by relying on moral notions looks bleak indeed.
Another question is: why is it that conservatives make the kinds of arguments they do? Here I must assume some degree of familiarity with the arguments made in various cases. My first hypothesis is that conservative jurisprudence is a species of legal positivism of the John Austin variety. This should be contrasted with views that hold that law is the expression of the concept of natural justice, or an evolving social consensus about the nature of justice, say. For Austin, laws are essentially commands by a sovereign. In order to know whether something is lawful or not, you must know who the sovereign is and what they commanded. The emphasis on sovereignty suffices to explain the conservative jurist’s preoccupation with democracy, for in a republic, a non-monarchy, the sovereign would have to be the People Themselves. Now in these kinds of cases, we’ve really got two different sovereigns sharing power: the People of [state] and the People of the United States. The emphasis on commands helps to explain the resistance to contextual (by which I mean non-explicitly textual) constitutional provisions. Marriage is not mentioned in the Fourteenth Amendment. Nothing is said except that one cannot deprive someone of life, liberty or property without due process of law. A very natural way to construe this following either an understanding of English as used at the time of ratification or an understanding of what kinds of laws the ratifiers of the Fourteenth Amendment were troubled by (the notorious Black Codes after the Civil War) would be to say that there could be no executions, prison sentences or fines without some sort of trial (and perhaps no takings by eminent domain without some government process for same). There is no obvious way from that to “therefore gays can marry” if we imagine the words as a command issuing from a sentient being. If that sentient being was concerned about same-sex marriage and uttered these words, its communication skills are sorely lacking.
There are many philosophical reasons for being enamored with legal positivism, the largest being its austerity both metaphysical and epistemological. Originally, legal positivist views were especially attractive to progressives because of the propensity of the Court, roughly from after the Civil War to before the Great Depression, to find non-textual libertarian principles lurking behind the text, and to use them to invalidate laws which burdened business. (This is, to this day, perhaps the easiest way to tell if someone is conservative or a libertarian: ask them what they think of Lochner). Naturally, conservatives were enamored with the legal positivism earlier championed by progressives because it served to shelter not only progressive economic legislation from judicial attack, but conservative moral legislation as well (especially abortion laws).
Setting aside the idea that people adopt the jurisprudential theory that gives them the political results they want (which probably should be set aside here, because I don’t think that you can get a consistent partisan result by adopting a particular jurisprudential theory and applying it consistently across the board) I can think of one reason why conservatives might find legal positivism attractive. Scott Alexander has argued that the best way to understand the difference between progressives and conservatives is in terms of a “Thrive or Survive” hypothesis. The easiest way to express this idea is: imagine that the Zombie Apocalypse had come. What would you need? “First and most important, guns. Lots and lots of guns.” But it doesn’t end there. Will you need to limit the extent of your support for the unproductive? You betcha! Will you need strong leadership and strong defensive capabilities? Indeed. Will you want to indulge women’s reluctance to reproduce? No way: the survival of the species is at stake. Should you welcome total strangers from who knows what other tribe with open arms? Are you nuts? They might kill you! Scott Alexander quickly shows that almost every political position you can think of looks more conservative if viewed in light of the Zombie Apocalypse (or, put differently, from the perspective of an assumption of maximum risk and maximum scarcity).
By contrast, progressives operate on the assumption of maximum abundance and maximum security. Should you cruelly cut off the less-well-off? Why would you! Should you waste money on defense? Of course not! Will taxing the rich, which might diminish the efficiency of the economy, do enough harm to worry you? No way: the economy is a goose that not only lays golden eggs, but has amazing superpowers–it’s essentially indestructible. Should you replace strong and fast leadership with rule by consensus after exhaustive discussion? It’s only fair that everyone have a say. What could go wrong? Of course the real world cannot be characterized crudely in terms of whether it is a basically risky, resource-scarce place, or if it is a basically benign, abundant place–this is emotional processing we’re talking about, not an (impossible in any case) overall assessment of “what the world is like.” (By the way, my use of the phrase “resource-scarce” as a conservative, not progressive, assumption may strike you as puzzling insofar as environmentalism resides on the Left. But actually, it makes sense that [mainstream] environmentalism resides on the Left: it presupposes that there will still be plenty if we make some sacrifices for the sake of the environment; it’s the conservative who thinks that if we restrict greenhouse gases, the economy will collapse and we’ll all starve in the dark. For a glimpse of the fundamental optimism of mainstream environmentalism, see the last few minutes of Watchmen. Radical environmentalism is another matter, but then again, I don’t think Scott Alexander’s model explains radicalism of the Left or the Right anyway.)
What on earth does any of this have to do with legal positivism? Simply this: conservatives who embrace legal positivism seem to be drawn to slippery slope arguments. “If we commit ourselves to this principle, look what can happen if we rigorously apply it ever after?” For example, the principle “the judiciary can invalidate laws.” Does that open the door to a fascist world in which we are ruthlessly governed by nine (five, actually) wise elders, who will act against our interests and grind us into the dust? It does indeed. Will anyone actually walk through that door? That’s another question entirely. The power of slippery slope arguments depends, implicitly, on a causal assumption: that people act on the principles they adopt, and that people will continue to act on them even when the consequences of doing so are manifestly bad. This deeper assumption seems intuitively plausible to conservatives; to progressives, it seems manifestly ridiculous. Put it this way: if my principle is P, and it is already true that if P, then Q, and Q is bad, well adopting P is a terrible mistake if the prospect of actually drawing the inference to bad Q can be seen on the distant horizon. But why worry? the progressive says. We don’t have to infer to Q today, and at the moment P looks like a useful temporary expedient. What happens when it begins to look like we will have to infer to Q? Simple: just modify the original principle which reads “P” to a new principle “P but not Q.” Crisis averted. This is why slippery slope arguments mean nothing to progressives; their force depends on the causal assumption that inferences drawn will lead to action, and that principles once committed to can never be revised.
Since that’s not obviously always the case, why would the conservative tend to think otherwise? Here’s the Scott Alexander hypothesis: cognitive and deliberative resources are superscarce too. “Look, we’ll cross that bridge when we get to it.” “No! We won’t have time to do anything but follow the implications of the rule now because we can’t spend all our time thinking and deliberating about our rules… after all, the zombies are coming!” “Huh? What zombies? We’ve got all the time in the world. Doesn’t everyone spend all their days engaged in political debate, legal reasoning and philosophical reflection? I know I do! Hand me another grape from the Horn of Plenty over there and lets talk about this.”
(If you haven’t noticed, Scott Alexander’s hypothesis has implications for class analysis too: the lower on the class hierarchy you are the less revolutionary you are likely to be. Which explains why the Republican Party so often adverts to populist rhetoric and accuses Democrats with remarkable success of being elitists.)
There are other reasons for thinking that legal positivism is plausible, but its attractions for conservatives in particular are a bit puzzling, given that, in other settings, one would think a conservative would be more attracted to natural law notions of justice, while progressives would be skeptical of them, along with anything else that clashes with an overall commitment to Enlightenment Anticlericalism. The virtue of the hypothesis is that it traces the attraction of an austere and elegant theory to a style of thinking informed by a need for simplicity and fast, infrequent decision-making. Progressives like to think that the real reasons for conservative styles of thinking are either to conceal their service to nefarious interests, or else stupidity (c’mon, don’t you basically think exactly that, Gentle Reader?). But perhaps the truth is that for conservatives, the world is simply a darker and scarier place than it is for progressives. As you shop at your Whole Foods for arugula while reading the New York Times on your iPhone, in the nation with the largest GDP on earth, not wondering about whether you will become unemployable and poor, and not risking your life to protect people who speak Arabic, you might think that such a vision calls for therapy.
Then again, it may be that your perspective is conditioned by circumstances exceptional in the extreme, exceptional even within your own country.