Lifewatch: Outflanking the Judges

“If we could first know where we are,” said Lincoln, “and whither we are tending, we could then better judge what to do, and how to do it.” When he spoke those words, Lincoln was convinced that the “tendency” of the country was being formed by a concert of politicians and judges, to remove every legal inhibition on the spread of slavery.

In the chilling echo of that experience, we now find a remarkable concert of judges at all levels, state and federal, with the intention of breaking down every legal barrier to the acceptance and the promotion of homosexuality. The Supreme Court in Colorado strikes down a referendum that would amend the constitution of the state on the matter of “gay rights.” The purpose of that amendment was not to make sodomy a crime once again, but merely to sustain the right of people, in their private settings, to respect their own, adverse judgment on homosexuality. The implausible reasoning churned out by the Court was reviewed in this space last month. But since that time, a panel of the federal Court of Appeals in the District of Columbia drew on the same premises in striking down the policy of the Navy to exclude, from the Academy in Annapolis, people who have professed their homosexuality. Once again, a moral conviction on homosexuality, maintained over a few thousand years by Jews and Christians, and imparted as well by the Greek philosophers, is reduced to nothing more than a private bias. Three federal judges, all appointees of Jimmy Carter, have now announced that the aversion to homosexuality is an unaccountable, unreasoned prejudice, which cannot provide “any rational basis” for denying membership in the armed forces.

And, of course, several months earlier, the Supreme Court of Hawaii took the first steps in preparing the public mind for the acceptance of homosexual marriage. The Court held that a lower court could not dismiss out of hand the claim that it was unconstitutional for the law to confine legal marriage to two people of different sexes. The higher court remanded the case to a lower court, but it strongly suggested that the traditional laws were incompatible with the Hawaiian version of the Equal Rights Amendment; for the law does make a discrimination based on sex when it denies a marriage license to some couples because they happen to be of the same sex. In this way, the Court confirmed what opponents of the ERA claimed long ago — and which the supporters had vigorously denied — namely, that an Equal Rights Amendment would remove the legal barriers to homosexual marriage.

If matters proceed now in this cast set by the Court, a question would arise under the Full Faith and Credit clause of the Constitution (Article I, section 1): Would other states be obliged to honor a gay marriage sanctioned by the laws of Hawaii, as they would be obliged now to honor the marriages legally performed in other states? It is an arguable question, but the burden of proof would shift to those who would claim that the marriage need not be honored. In that event, the judges of one state could accomplish, in effect, the “nationalization” of homosexual marriages. Gay couples would merely need to fly to Hawaii for the ceremony. But that modest requirement would trigger the reflexes of judges like Jon Newman in Connecticut, and so we should not be surprised to hear arguments of the following kind: Under the current laws, only gay couples rich enough to afford a trip to Hawaii may have access to the “right” of homosexual marriage. The State of Connecticut preserves that inequality through its refusal to recognize gay marriage. By holding, then, to its traditional policy, the State of Connecticut denies to poor gay couples the equal protection of the laws. And so, inventive judges, using arguments they have been shameless enough to use in the past, could override the laws that refuse to recognize gay marriage.

The judges are found in different locales, drawn from different backgrounds, but they are joined by a common outlook, and they are animated toward the same ends. Without the need to pass notes to one another, they are moving in harmony as though they had been arranged, with a deft touch, by the same choreographer. The evident design of their moves is to give Providence a helping hand. Their immediate object is quite plain, finite, and readily within their grasp: They need but one vote to overturn the ruling of the Supreme Court in Bowers v. Hardwick (1986), the case in which the Court refused to strike down the laws on sodomy that still survived in about half the states. A series of bold, provocative decisions by the judges, on the matter of homosexuality, is likely to propel at least one of those cases to the Supreme Court, and any one of them will make it necessary for the Court to revisit Bowers v. Hardwick.

The surmise, recorded in this column, is that the judges have seen, in Ruth Bader Ginsburg, the fifth vote needed to overrule Bowers v. Hardwick. (The conjecture is sharpened by the fact that she has replaced Justice White, the author of the opinion in Bowers.) And it is tacitly understood, with knowing glances all around, that this modest step would open the spigots of litigation and create vast new possibilities. On the surface, the overturning of Bowers v. Hardwick would mean only that the States may not make private, homosexual acts into criminal wrongs, and the objects of prosecution. But that decision is likely to come along with a new conviction that there is something deeply unreasonable in the state of mind that would condemn homosexual acts or even withhold from homosexuals the full respect of the law. The overruling of Bowers v. Hardwick would provide the premise for a whole new round of litigation to challenge every lingering trace, in which the law withholds its approval of homosexuality. We can readily expect then a challenge to the laws that refuse to accord rights of adoption to homosexual couples, and of course, the laws that refuse to recognize gay marriage.

All of these things come readily into view as soon as Bowers v. Hardwick is set aside; and that project enlists now the concerted genius of the judges. The drift of the courts can be arrested only by a movement that takes the issue of homosexuality away from the exclusive control of the judges and brings it back into the political arena, as an object of public discourse and public judgment. And so, if the Supreme Court in Hawaii follows through in the decision on gay marriage, no group would appear unreasonable if it came forward at that moment with a response. But that response may deliver a jolt of surprise if it suddenly puts forth a plan to head the courts off at the pass: The resisters may propose a short, simple constitutional amendment to foreclose the enactment of gay marriage. Charles Rice, at the law school at Notre Dame, has struck off the draft of an amendment, which might be confined to one sentence:

Nothing in this Constitution shall require the United States or any State to treat intimate homosexual activity as a protected right or to accord to homosexual relationships any of the legal attributes of marriage.

Whether that is the final form or not, an amendment of that kind could be initiated within the legislatures of the States. And there is not much doubt that the amendment would quickly gather support, especially in the West and the South. That might be quite enough in itself to make judges hold back with a certain prudence. But we are likely to discover, too, that the overflow effect works in both direction: The amendment may be confined mainly to gay marriage, but it would reveal a moral resistance, running deep among the public, and the judges are likely to read it in that way. They are likely to recede then from their willingness to challenge at every point that disposition, firmly planted in the law, in favor of the natural family and normal sexuality.

But what does this have to do with abortion and the pro-life movement? For one thing, of course, everything is connected. It comes as no surprise that the judges who have been most aggressive in rooting out from the law any rejection of homosexuality, are the judges who have been most aggressive in promoting the “abortion liberty.” Whatever chastens them, whatever checks their confidence, diminishes their authority. And what diminishes their authority reduces, in a salutary way, the temptation to be adventurous and brazen.

But at the same time, any political movement that succeeds in chastening the judges, or holding them at bay, will strengthen the political ground for the pro-life cause. A successful campaign, to pass a referendum or an amendment, will bring out people who have not been drawn into politics in the past. And once engaged, they may be engaged more readily again. New connections are established, new networks spring into existence. Along the way, people may discover the concerns that attach them to other issues, on euthanasia or abortion. But even if that recognition is late in arriving, the pro-life movement will be connected to new sources of support, to people who have now become engaged politically. Altogether, the experience offers the movement the chance to tune itself up anew, and deepen its practice in winning.

In the late 1970s, a people’s movement, stirred on by the redoubtable Phyllis Schlafly, managed to stop the Equal Rights Amendment, when the tide for that amendment seemed inexorable. If it was possible to stop the ERA, how much easier should it be to pass amendments, in several states, simply to insist that the Constitution does not entail gay marriage. But with that small step, a barrier could be cast up against the aggressions of the judges. The concert of the judges could suddenly be disrupted and the men and women of the bench would find the occasion for some sober second thoughts. They may also turn their minds to better ways of making their living.

By

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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