Lifewatch: Judges Uncaged

The scene might have arisen in a comic novel: professors of classics and political philosophy crossing swords in a court of law, arguing over whether the Greek word tolmema means merely an act of “daring” and “enterprise,” or whether it refers to an act of “audacity,” of shamelessness, of deep immorality. But this is exactly the kind of dispute that is flaring now into the academic equivalent of a firefight in a courtroom in Colorado.

On one side, a notable group including John Finnis, Robert George, David Novak; and on the other, worthies such as Martha Nussbaum, John Boswell, Stephen Macedo. And the question is whether the rejection of homosexuality reflects one of those “religious” biases, steeped in the superstitions of Judaism and Christianity—so steeped, in fact, that it cannot be reconciled with a more advanced notion of the Constitution, as a document safely purged of any moral traces, lingering from a Jewish and Christian past. Or, might it be that the rejection of male homosexuality runs back, beyond Christianity, to Plato and Aristotle? Tolmema was used by Plato in the Laws, in a reference to homosexuality, and Professor Nussbaum has summoned her wit—and her classical learning—to insist that Plato attached no such sense of the odious and shameful to homosexuality. This strange dispute grows more heated and bizarre with each move—and we will no doubt hear more of it later, as it works itself into a Broadway play.

What prompts this outpouring of wit—and the occasional parody of genius—is the litigation over Amendment 2 in Colorado. Last November, that amendment to Colorado’s constitution passed in a referendum by a vote of 813,966 to 710,151. The aim of the amendment was to brake the tendency, spreading through the State, to treat “gays” as a class of victims on the same plane as groups suffering discrimination on the basis of race, religion, or gender. And so the Amendment sought to forbid governments and authorities at all levels—from the State to school districts—to enact and enforce

any statute [or ordinance] whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of, or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

It was plain, from the text, that the Amendment did not license an active regimen of criminal enforcement to seek out and prosecute homosexual acts. It merely forestalled legislation that would work in a sweeping way to forbid or punish all acts of “discrimination” against homosexuals. That kind of legislation could strike at domains of privacy and the free exercise of religion: It might deny people the right to discriminate in the sharing of their homes with people whose “sexual” engagements they find objectionable on religious or moral grounds. Amendment 2 merely established that these kinds of objections may still be plausible and legitimate.

It was only to be expected, of course, that this Amendment would be challenged in the courts. But what could not have been expected, even in these times, was that a Supreme Court in Colorado should be willing to overturn a constitutional amendment on the basis of reasoning as empty and contrived as the reasoning that the judges brought forth in this case. Lest we forget, this Amendment was itself adopted by the people of Colorado as part of the constitution, the fundamental law, of the State. And yet, the Supreme Court was willing to credit the notion that this new part of the constitution was incompatible with a principle that was even more fundamental yet in the Basic Law of the State—namely, a “right not to have the State endorse and give effect to private biases.”

The “bias” the Court spies is apparently a leaning away from homosexuality. But it would be necessary to remake the dictionaries in order to reduce this disapproval of homosexuality to the standing merely of a “private bias.” The condemnation of homosexuality has been part of a doctrine, publicly taught, publicly shared, by Christians and Jews, and by communities registering their understanding in the laws. None of that is to say that the traditional teaching here is unproblematic. Nor would it suggest that this teaching cannot be exposed to a serious, philosophic questioning. But this traditional teaching could hardly be reduced to the standing of a “private bias” without calling into question, for the same reason, almost all parts of our statutes. For the opponents of Amendment 2 contend that all arguments about “morality” are merely expressions of private taste or religious belief. And, of course, every law implies an understanding of right and wrong. We might as aptly say, then, that the laws on civil rights, or the laws that confine marriage to human beings, rather than couplings of humans and animals, are all the reflection of merely “private biases.”

That implication must be evident even to lawyers regarded in Colorado as supreme jurists. But the judges did not expend their genius on only one line of argument. They managed to produce, also, this striking novelty: that Amendment 2 violated a deep commitment to “equality” in the constitution of Colorado, because it deprived gays and lesbians of an equal standing to participate in the political process and advance their interests through the law.

What is so breathtakingly original in this construction is that the Court finds this subtle denial of political rights without the aid of any of those measures that used to awaken our sensitivities: The Amendment disfranchises no one. It offers no literacy tests or contrivances to block voters from the polls. It removes, from no person, the right to vote, to run for office, to contribute money or buy advertising to support any candidate or any proposition put before the voters in a referendum. In fact, the Court’s argument is persistently embarrassed by the fact that, by most measures—education, income, and even political involvement—gays usually stand among the higher ranks. But the deep inanity of the argument might be revealed if we took the words of the Court and put, in place of gays and lesbians, some “sexual orientations” that even gays are not willing to defend. Let us suppose that the voters of Colorado passed another Amendment, which bars any legislature from treating, as a “victimized class,” people who engage in sex with small children or with animals. And then the Court fills in the blanks and says:

[The] right to participate equally in the political process is clearly affected by [the Amendment], because it bars [people who engage in pederasty and bestiality] from having an effective voice in governmental affairs insofar as those persons deem it beneficial to seek legislation that would protect them from discrimination based on their sexual orientation.

In any courtroom outside of Colorado, the argument, cast in this form, would reveal its own vacuity. In Amendment 2, a judgment of constitutional gravity was registered by the people of Colorado: It was a judgment about the kinds of ends that were not legitimate for a legislature to incorporate in its policy and enforce with the powers of law. The voters of Colorado affirmed a decision to respect the rights of people, especially in private settings, to honor their own convictions about homosexuality. They sought to confirm this private right, against the willingness of local legislatures to invade these domains of privacy and moral judgment.

The judges in Colorado are as able to grasp these elementary points as jural primates anywhere else. It is not that they are deficient of wit, but overflowing with craftiness and tolmema. The Supreme Court in Hawaii has similarly used the equivalent of an Hawaiian Equal Rights Amendment in order to challenge the refusal, under the current laws, to issue marriage licenses to couples of the same sex.

These cases spring from different parts of the country, but they seem to be reflecting currents tending in the same direction. They are also being directed by a common set of managers. The judges are not necessarily in touch with each other, coordinating their moves, but their decisions are evidently connected by the rudiments of a common doctrine, and an awareness, commonly shared, of the way in which the concepts of the law may be used as levers in moving the country toward the same end. If these decisions remain in the hands of judges, a minor revolution in the law is being prepared for us.

The only way of averting this result is to remove the politics of homosexuality from judges. The matter can be brought back to the arena of politics and public discourse, where it becomes possible to appeal to the moral sense of the larger public—the public that does not share the prejudices of the judges on homosexuality, the public that produced the victory, in Colorado, for Amendment 2. There is every reason to believe that a comparable majority would support a similar constitutional amendment, which simply refuses to find, in the American Constitution, a right of homosexual marriage. There is also reason to believe that an amendment of that kind would pick up support quickly in many other States. And even if it does not advance overnight to adoption, its very presence and momentum could alter the political landscape—including that terrain in which judges sit. A moral point could be made, against the drift of the judges, and we may find that the surest remedy to this malady, cast up by the courts, is a “republican remedy.”


Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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