Kagan’s entire response: “There is no federal constitutional right to same-sex marriage.”

Not much wiggle room there, you might think. Indeed, some Kagan supporters have cited this response in denouncing suggestions by critics that she might support a new right to same-sex marriage. So can we chalk Kagan up as a vote against same-sex marriage when she faces the issue as a justice? Well, no.

Cornyn clearly intended to ask whether Kagan’s personal view was that the U.S. Constitution should be interpreted to guarantee a right to same-sex marriage. But Kagan, when pressed later for clarification of her response, suggested somewhat opaquely that she had only been summarizing case law and public opinion. “I previously answered this question briefly, but (I had hoped) clearly, saying that ‘[t]here is no federal constitutional right to same-sex marriage,’ ” Kagan wrote in a March 18, 2009, letter to then-GOP Sen. Arlen Specter of Pennsylvania, now a Democrat. “I meant for this statement to bear its natural meaning. Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.”

Conservative blogger Ed Whelan, in National Review Online’s Bench Memos, accuses Kagan of “trying to bamboozle Senator Cornyn” and “mislead the public” by implying in her initial response – the better to “advance her candidacy for a Supreme Court nomination” – that she personally opposed recognizing a right to same-sex marriage.

Kagan’s subsequent response to Specter, adds Whelan, head of the Ethics and Public Policy Center, was an effort to dig herself out of a hole by giving “an entirely implausible account of what the ‘natural meaning’ of her first response was. (A truly Clinton-esque performance.)”

Whelan also claims that “there’s every reason to believe that Kagan, if confirmed as a justice, would indulge her ideological bias and vote to invent – indeed, quite possibly provide the decisive fifth vote to invent – a constitutional right to same-sex marriage.”

I’d bet Whelan a hot-fudge sundae that Kagan will not to do that – but only if he gives me 3—1 odds.

Part of the basis for Whelan’s prediction is his related claim that Kagan’s actions on gay issues as solicitor general “have operated to undermine the very federal laws that she has been duty-bound to defend,” in particular the federal Defense of Marriage Act and the law excluding openly gay people from the military.

Has Kagan really undermined those laws? That’s a subject for another post. For now I can only say – as a Kagan admirer who wants to see her confirmed – that “Clinton-esque” seems a fair characterization of her responses to Cornyn and Specter alike.

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The nominee was John Roberts, now the chief justice. The critic was the comparably brilliant and charming Goodwin Liu, a University of California (Berkeley) law professor. He is now the most resolutely liberal of President Obama’s judicial nominees.

Indeed, the 39-year-old Liu’s sweeping vision of court-ordered social justice, though within the mainstream of legal academic opinion, puts him markedly to the ideological left of all 41 Senate Republicans, at least half of the Democrats, and 80 percent or more of voters, I’d guess.

Putting aside his ideology and his less than two years of legal experience outside the academy, Liu is an admirable candidate for the federal Appeals Court seat in California that he will fill if confirmed. The Rhodes scholar and former law clerk to Justice Ruth Bader Ginsburg has an inspiring son-of-Taiwanese-immigrants life story. Plus, people like him.

So how should Senate Republicans and moderate Democrats respond to Liu’s nomination, now set for a Judiciary Committee hearing on April 16? Defer to the president? Vote no? Stall? Filibuster?

More on that below. First, a look at Liu’s writings and speeches, which conservative legal analyst Ed Whelan has collected, linked, and exhaustively analyzed in multiple posts on National Review Online’s Bench Memos blog.

•Racial preferences without end. In 2003, in a panel discussion held by the progressive American Constitution Society for Law and Policy, Liu — who later chaired the group’s board — called for reviving a constitutional justification for racial preferences for African-Americans in government employment, education, and contracting that would likely expand and extend such programs for many, many decades into the future.

The idea is what Liu described as "remedying societal discrimination as a justification for affirmative action." This rationale, rejected by the Supreme Court since 1989, is broader in important ways than the "educational diversity" rationale for preferences in university admissions that a 5-4 Court majority adopted in 2003.

Liu thereby embraced an idea that, Justice Lewis Powell warned in a 1986 opinion, could make "discriminatory legal remedies that work against innocent people… ageless in their reach into the past, and timeless in their ability to affect the future."

Indeed, Liu spoke of "societal discrimination" as synonymous with "historical discrimination," which, he could have noted, was committed mostly by people who died long ago. And he asserted — more than three decades after affirmative-action programs were initiated as temporary remedies for ongoing discrimination — that the need for such preferences "has only just begun" and that "the cumulative effects of societal discrimination will take a long time to remedy."

A very, very long time, if Liu and his allies continue to pretend that the huge gaps in educational performance that are the main cause of racial inequality today can be closed by discriminating against Asians and whites; by conscripting school children to integrate distant schools; and without far greater efforts by black parents to get their children to study.

Goodwin Liu’s sweeping vision of court-ordered social justice probably puts him markedly to the ideological left of at least half of Senate Democrats and 80 percent of voters.

•Reparations for slavery. Liu suggested in a 2008 panel discussion about responsibility for the slave trade that Americans generally, "whatever our lineage, whatever our ancestry, whatever our complicity, still have a moral duty to… give up [something] to make things right… whether it is the seat at Harvard, the seat at Princeton. Or is it gonna require us to give up our segregated neighborhoods, our segregated schools? Is it gonna require us to give up our money? It’s gonna require giving up something." The graduate of Stanford University and Yale Law School did not discuss the extent to which courts should order people to comply with this "moral duty."

•Racial balancing in schools. Liu co-authored a 2005 law review article lamenting the 1974 Supreme Court decision, Milliken v. Bradley, that ended court-ordered busing of children between mostly black cities and mostly white suburbs to desegregate schools. In the article, he also supported vouchers and charter schools, but only if they promote racial balance by reflecting "the racial and socioeconomic diversity of the metropolitan area — not the local school district — where they are located."

•Welfare rights. In "Rethinking Constitutional Welfare Rights," a 2008 Stanford Law Review article, Liu argued that courts should play an "interstitial" role in requiring governments at all levels to provide "education, shelter, subsistence, health care, and the like, or… the money these things cost" to needy people.

Although creating welfare programs should be mainly a legislative function, he wrote, courts should "leverage the legislature’s own publicly stated commitment to welfare provision" by reviewing and sometimes invalidating "apparent qualifications on that commitment." When judges think that "our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine," Liu wrote, they should push laggard legislatures to spend more generously or equitably. He suggested that courts should strike down, for example, Congress’s method of allocating federal funds for the education of poor children among states and California’s "antiquated and inequitable system of school finance."

•Gay marriage. Liu joined 16 other law professors in a 2007 amicus brief urging the California Supreme Court to rule that the state’s failure to give the same respect (as well as the same benefits) to same-sex marriage as to man-woman marriage violated the state constitution’s guarantee of equal protection of the laws. The brief implied — without explicitly stating — that the traditional definition of marriage also violates the U.S. Constitution. If Liu is confirmed to the U.S. Court of Appeals for the 9th Circuit, that issue could soon come before him in the major gay-marriage case now pending in federal District Court in San Francisco.

•Judicial power to reshape society while overruling major Supreme Court precedents. "Some [say] that courts, and more broadly law, can only do so much to change society, that some things, some problems are best left to politics and not principle, and that to believe otherwise is to indulge a hollow hope," Liu said in another American Constitution Society panel, in 2004. "I want to disagree with this view…. If we work hard, if we stick to our values, if we build a new moral consensus, then I think someday we will see Milliken, Rodriguez, [and] Adarand be swept into the dustbin of history."

Rodriguez is the 1973 Supreme Court precedent that required judges to defer to local and state control of public school funding and programs; Adarand, in 1995, subjected racially preferential federal programs to judicial "strict scrutiny." To be sure, overruling Adarand would reduce judicial power to strike down racial-preference programs, which are highly unpopular. But Liu’s overall approach would vastly expand judicial power at the expense of democratic governance.

These and other Liu assertions would — unless he somehow dispels their clear meaning in his confirmation testimony — provide senators who strongly disagree ample justification for voting against him. As Liu himself correctly suggested in opposing the nominations of Roberts and Samuel Alito, senators have no duty to defer to the president’s choice of a judicial nominee whom they consider ideologically unacceptable.

It would be a shame, however, if Senate Republicans were to deploy procedural gimmicks against Liu. It would be a bigger shame if they were to emulate the Democratic leadership’s virtually unprecedented strategy of filibustering admirable, outstandingly well-qualified conservative Bush nominees such as Miguel Estrada and Peter Keisler. A filibuster seems likely unless Republican leaders, who have so far been silent on the subject, see it as a political loser.

One reason to give Liu an up-or-down vote is that like all lower-court nominees, he will pledge to obey Supreme Court precedents and he would, at worst, have only so much room to write his personal views into the Constitution without being outvoted by Appeals Court colleagues or reversed by the justices.

A second reason is that the stalling, filibusters, and sometimes-vicious character assassination that have polluted the confirmation process are leaving judicial vacancies unfilled for too long and are degrading the quality of the judiciary by scaring off some of the best potential nominees.

Third, many Republican senators forcefully denounced as unconstitutional the Democratic filibusters of Bush’s nominees. Could they unblushingly turn around and filibuster Obama’s nominees?

Yes, they could. Republican senators cannot be expected to disarm unilaterally. Not unless Democratic leaders first make a meaningful pledge not to filibuster future Republican presidents’ nominees absent truly extraordinary circumstances.

Seven moderate Senate Democrats made just such a pledge as part of their May 2005 "Gang of 14" agreement with seven Republicans. Might Senate leaders leverage the coming battle over Liu into a broader agreement to give all judicial nominees a fair shake? Hope springs eternal.

This article appeared in the Saturday, April 3, 2010 edition of National Journal.

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So why do I see the decision as an unfortunate exercise in judicial imperialism? Let me count the ways. Then I’ll touch on how it could be a harbinger of the constitutional innovating that we might see if the next president engineers a strong liberal majority–a likelier prospect than a strong conservative majority–on the U.S. Supreme Court.

First, the California court’s 121-page opinion was dishonest. This was most evident in its ritual denial of the fact that it was usurping legislative power: "Our task … is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership … but instead only to determine whether the difference in the official names of the relationships violates the California Constitution [emphasis in original]."

This was a deeply disingenuous dodge, if not a bald-faced lie, to conceal from gullible voters the fact that the decision was a raw exercise in judicial policy-making with no connection to the words or intent of the state constitution. It is inconceivable that anyone but a supporter of gay marriage "as a matter of policy" could have found in vague constitutional phrases such as "equal protection" a right to judicial invalidation of the marriage laws of every state and nation in the history of civilization.

To be sure, this was not exactly a bolt from the blue. The steady accretion of both state and federal judicial power since the 1950s has left a malleable mass of hundreds of precedents straying ever-further from the original understanding of the constitutions and laws they purport to be "interpreting." This made it easy for the California court to take the leap–as the Massachusetts Supreme Judicial Court had done in 2004–to overriding the state’s voters on gay marriage in the guise of enforcing "the ultimate expression of the people’s will."

But President Franklin Roosevelt’s indictment of the conservative U.S. Supreme Court of the 1930s, which struck down much of the New Deal, fits here as well: "The Court … has improperly set itself up as … a superlegislature … reading into the Constitution words and implications which are not there, and which were never intended to be there."

The California court’s majority descended into especially slick sophistry when it suggested that the many gay-rights reforms that the state’s elected branches had already adopted were not a reason to let the democratic process work but rather a mandate for judicial imposition of gay marriage. The message to voters in other states may be: If you give the judges an inch on gay rights, they will take a mile.

Also disingenuous was the majority’s vague dismissal of the powerful argument by opponents of judicially imposed gay marriage that the made-up constitutional principle underlying the decision would also–if seriously applied–require the state to recognize polygamous and incestuous marriages among adults.

Chief Justice Ronald George’s majority opinion exuded impatience bordering on contempt for the government by the people that is the foundation of our democratic system. California’s voters and elected branches had already made great progress toward full legal equality for gay couples. They enjoyed all of the state-law rights and privileges of marriage except the name, which 61.4 percent of the voters had reserved for heterosexual couples in a 2000 ballot initiative. California’s domestic-partnership laws were more generous to gays than the laws of almost all other states and almost all nations.

But to the majority, this domestic-partnership-but-not-gay-marriage compromise–also advocated by Barack Obama, Hillary Rodham Clinton, and John McCain–was "a mark of second-class citizenship." George analogized domestic partnerships to the "separate but equal" laws of the segregated South, including laws making interracial marriage a crime in some states until they were struck down by the U.S. Supreme Court in 1967. (The California court, admirably, had voided that state’s ban on interracial marriage in 1948.) The chief justice thus insulted the voters–not to mention all three presidential candidates–and treated California’s denial of official benediction as the legal equivalent of the Jim Crow South’s system of grinding oppression.

This is not to deny the importance to many gay couples and their children of being officially recognized as "married." They should be treated as married. But to decree this by judicial fiat has large costs to democratic governance. Judicial power to override the deeply felt values of popular majorities should be used sparingly, to enforce clear constitutional commands or redress great injustices, not deployed whenever the judges think they can improve on the work of the elected branches or accelerate progressive reforms already under way.

Also troubling is the majority’s eagerness to move beyond enforcing substantive rights into dictating what words the government must and must not use: Same-sex couples, the majority ruled, have a "fundamental right … to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships."

This urge to regulate government speech resonates with the logic of those federal judges who have sought to strip "under God" out of the Pledge of Allegiance. Can court-ordered erasure of "In God We Trust" from U.S. currency, and perhaps a judicial rewrite of the National Anthem, be far behind?

Also troubling is the majority’s eagerness to move beyond enforcing substantive rights into dictating what words the government must and must not use.

It’s true, as defenders of the California decision stress, that the justices there and elsewhere are politically astute enough to avoid flying too boldly into the teeth of public opinion; that Gov. Arnold Schwarzenegger has accepted the decision; and that California’s voters will have a chance to override it, if they choose, through the state’s ballot initiative process. All of this mitigates the affront to democracy. But it is still an affront, no less for the fact that three of the four majority justices are Republican appointees.

And while conservative judges are not above displacing democratic choices with made-up constitutional law (see my July 7, 2007, column, p. 12), that urge seems stronger on the Left.

Looking to the future of the U.S. Supreme Court, a sharp lurch to the right seems unlikely. Even if McCain wins the presidency and ends up replacing liberals John Paul Stevens and Ruth Bader Ginsburg–who at 88 and 75, respectively, are the oldest justices–an enhanced Democratic majority in the Senate would no doubt block any strong conservative nominees to replace them.

A Democratic president, on the other hand, would probably have a free hand to appoint the sort of justices envisioned by Obama, who opposed the nominations of Chief Justice John Roberts and Justice Samuel Alito. Obama has suggested that his criteria would not be fidelity to constitutional text or modesty in the use of judicial power, but rather "what is in the judge’s heart" and "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy."

Based on the wish lists published by liberal judges and law professors, justices who fit Obama’s description might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more.

As a policy matter, this prospect worries me less than it does my conservative friends. I support legislative adoption not only of gay marriage but also of Medicaid abortions and some other policies on the liberal wish list. And I would not much miss the death penalty, "under God," or "In God We Trust."

But I am concerned about the gradual, relentless strangulation of Abraham Lincoln’s vision of ours as "government of the people, by the people, for the people," by judges who see constitutions not as binding law but as invitations for judicial rule.

I am also struck by the official list of "Attorneys for Respondent" joining amicus briefs supporting gay marriage in the California case. It included more than 700 lawyers, law firms, and legal groups. Justice Antonin Scalia had a point in complaining 12 years ago, when his colleagues struck down a Colorado ballot initiative in the name of gay rights, that they were enforcing not the Constitution but rather "the views and values of the lawyer class from which the Court’s members are drawn."

This article appeared in the Saturday, May 24, 2008 edition of National Journal.

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What will the legal landscape look like in 10 years? Make your predictions and place your bets.

In a widely acclaimed book full of revelations about behind-the-scenes battles over the Court, Jan Crawford Greenburg, now of ABC News, says that after decades of disappointment, conservatives have finally won the day. The appointments of Alito and Chief Justice John Roberts will produce a "profound and lasting alteration," Greenburg writes in Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. They and their allies will now engineer "one of the most fateful shifts in the country’s judicial landscape in a generation … with repercussions as yet unimagined," she predicts.

"I’m not holding my breath," retorts Benjamin Wittes in The New Republic Online. Wittes, an author and a guest scholar at the Brookings Institution who until recently wrote the nation’s smartest legal editorials for The Washington Post, highly recommends Greenburg’s book (as do I) for its "genuinely spectacular" reporting. But he dissents from her view that Bush has set the stage for an era of conservative hegemony.

To advance this intriguing discussion, I offer specific predictions below and invite others to offer theirs.

First, the gist of the Greenburg-Wittes debate: She foresees that the 56-year-old Alito will tip to the conservative side those big 5-4 decisions that O’Connor had tipped to the liberal side. In addition, she says, the 52-year-old Roberts is more persuasive, more energetic, and no less conservative than his predecessor as chief justice. Third, both new justices have such strong conservative principles and legal minds that they are unlikely to drift leftward as have other Republican appointees, including John Paul Stevens, O’Connor, Anthony Kennedy, and David Souter. But Roberts and Alito are also more collegial and less confrontational than conservative Justices Antonin Scalia and Clarence Thomas, and thus less likely to alienate their more moderate (and liberal) colleagues.

Wittes responds that an improbable number of stars must align to bring about a dramatic transformation. The Court still has only four conservatives, he points out. Kennedy, now the key swing justice, has voted with the liberals on four of the five hottest issues, as detailed below, and is only shakily allied with the conservatives on the fifth. Roberts and Alito, unlike Scalia and Thomas, have not so far acted like conservative warriors itching to mow down forests of liberal precedents. To the contrary, the chief justice says his goal is to promote greater consensus by deciding cases on narrow, relatively uncontroversial grounds.

Then there are the wild cards. While liberal Justices Stevens and Ruth Bader Ginsburg are 86 and 73 years old, respectively, Scalia and Kennedy are both 70. Who will outlast whom? And who will fill any vacancies?

A nice debate. But it’s time for hard predictions. Here are mine, on the five (currently) hottest issues.

Abortion. The Roberts Court has already voted in a big abortion case, on the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003. But we probably won’t know who won until June.

Pro-choicers noisily fear, and pro-lifers hope, that the Court will uphold this congressional ban on a late-term abortion procedure likened by critics to infanticide because the fetus is destroyed when mostly outside the womb. In the process, many predict, the justices will overrule a major 2000 decision striking down a very similar Nebraska ban. O’Connor was the fifth vote then. Alito is now, and this will be the first salvo in a conservative assault on Roe v. Wade.

My predictions are different: The Court will indeed uphold the federal "partial-birth" ban—thanks to the Alito-O’Connor swap—but only by construing it so narrowly that it will have very little effect. And the Court will never overrule Roe v. Wade.

Specifically, the justices will limit the federal ban to "D&X," or dilation and extraction, abortions, the most grisly late-term procedure, and exempt "D&E," or dilation and evacuation, abortions, which are much more common. The Court may also carve out an exception to the ban for those exceedingly rare cases in which more than a few medical experts consider D&X safer than D&E. The justices will narrow but stop short of overruling the 2000 Nebraska decision.

During the argument on this case, Roberts seemed to be pushing for a narrow interpretation of the federal ban. Such a split-the-difference approach might appeal to the conflicted Kennedy; he is the fifth pro-Roe vote, but he wanted to uphold the Nebraska "partial-birth" ban. In future cases, the justices will narrow Roe v. Wade (as they started doing in 1992) but strike down any state laws making it difficult for most women to get abortions.

Race. The justices have already cast their votes in a major race case. During a December 4 oral argument, five member of the Court seemed poised to strike down programs that promote integration in the Louisville, Ky., and Seattle school systems by considering students’ race in assigning them to schools. The Alito-O’Connor swap will prove decisive here as well.

But will the Court issue a broad declaration casting grave doubt on the constitutionality of all government affirmative-action preferences? Or will it hand down a more fact-bound ruling that these two programs are not "narrowly tailored" enough?

I predict a narrow ruling. That’s the direction Kennedy, who in the past has joined conservatives on racial issues—with reservations—seemed headed during the argument. And while Roberts and Alito clearly don’t like racial preferences, they do preach judicial restraint. So I’d be surprised to see either, let alone both, join Scalia and Thomas in an absolutist, color-blind-Constitution assault on affirmative-action programs and precedents.

I also predict that in years to come the Court will strike down some but not all governmental preferences based on race, while sharply limiting the 2003 O’Connor opinion that has been the high-water mark for affirmative action. This 5-4 decision upheld the very large preferences used by the University of Michigan’s law school.

The new justices will circumvent this precedent without overruling it. That won’t be hard to do. They need only take seriously the logic of a related 5-4 decision issued on the same day. It struck down the similar but less-well-camouflaged preferences used by Michigan’s undergraduate school. All eight justices besides O’Connor saw her distinction between the two programs as cosmetic and logically incoherent. So a conservative (or liberal) majority could use either precedent to trump the other.

Religion. Alito and Roberts will probably strike down fewer holiday nativity scenes, Ten Commandments displays, and student-initiated prayers than the O’Connor Court did. The Pledge of Allegiance ("under God") is safer now. So are publicly funded vouchers for students to attend religious and other private schools.

But this would hardly be a lurch toward theocracy. The Court’s religion-clause precedents are a logically inconsistent mishmash of mushy moderate compromises. O’Connor upheld vouchers and tipped this way or that in other cases based on minute distinctions. Kennedy, too. He would block any dramatic move to the right. And neither Alito nor Roberts seems bent on making one.

Gay rights. For all of the sound and fury, the Court is not the most important actor here. It has no power to review states’ same-sex marriage laws and—barring a liberal takeover—will not invent a federal right. It has issued a grand total of three rulings on the constitutional rights of gay people. All were of mostly symbolic importance. The third, in 2003, overruled the first by striking down the very few remaining state bans on homosexual sodomy. Five members of that majority remain. The new justices would not have joined them but won’t go out of their way to overrule them.

Presidential power. Here, Alito and Roberts could make a big difference. They have manifested fairly broad views of presidential power. But they would need a fifth vote to prevail.

Since 2004, Kennedy has joined O’Connor and the four liberals in three rulings rebuffing Bush’s sweeping claims of unilateral power over anyone he labels an "enemy combatant." Without yet confining Bush very much in practice, they have drawn lines that he may not cross. Those lines may not hold if one of the justices retires this year and if Bush can get his kind of nominee through the Senate. But the odds against both of those things happening are very long.

If you want to bet against these predictions, please send me yours. They will be sealed in a marble vault until July 2017 and then opened to pick winners and losers. Stakes and judges to be identified before unsealing. But although I lean to the Wittes view, I would not want to place a big bet against Greenburg. A hot-fudge sundae, perhaps?

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On gay marriage, the "Marriage Protection Amendment" that Bush is pushing would bar not only activist judges but also the people and their elected representatives from ever allowing gay couples to marry. So states where public opinion may someday come to favor same-sex marriage would find their hands tied by the Constitution. This from the party that purports to champion states’ prerogatives in matters of local concern.

On the estate tax, Republicans (and some conservative Democrats) want Congress to abolish all taxes on inherited wealth, to the point of encouraging people who never work to live high on vast, untaxed bequests. This from the party that purports to champion work incentives.

The whole gay-marriage/estate-tax show is mainly symbolic, of course. The Marriage Protection Amendment has no chance of adoption. And the campaign for complete abolition of the estate tax has little chance. But if there is poetic justice in this world, the Republicans’ revealing choice of symbols will backfire by spurring independent swing voters to sweep them from power.

Gay marriage. Many religious conservatives see homosexual acts as sins. And many other people fear that gay marriage would somehow harm an institution that has been a cornerstone of civilization for thousands of years.

I disagree. In particular, the notion that gay marriage would tempt straight and monogamous people to become gay or promiscuous seems far-fetched. So does the idea that gay marriage — which would move not a single child from a traditional household to a gay one — would be bad for children.

Nonetheless, Republicans are right to say that courts have no business revolutionizing marriage over the opposition of the people and their elected representatives. That’s what the Massachusetts Supreme Judicial Court has already done and a few other state courts seem poised to do. Such judicial imperialism is undemocratic and divisive.

To capitalize on the backlash, Republicans argue that only a federal constitutional amendment can prevent activist judges from twisting the law either to impose gay marriage outright or to force all states to honor gay marriages recognized by any state.

I doubt that. There is no chance that the U.S. Supreme Court’s current majority will find a right to gay marriage in the Constitution. And while a few more state courts may well impose gay marriage, the way to prevent such judicial fiats is to amend state constitutions. Nineteen states have already done that, and seven more may do it soon.

Republicans, of all people, should not be seeking a federal constitutional amendment to dictate what state law must be. Nor should they be interfering with future electoral majorities in states such as California, where the Democratic-controlled Legislature has already voted to legalize gay marriage. (Gov. Arnold Schwarzenegger vetoed the bill.)

But let’s assume for the moment that Republicans are right to say that in the long run it will take a federal constitutional amendment to keep lawless federal courts out of the gay-marriage business. My colleague Jonathan Rauch (who sees no need for any amendment) has drafted language that would do the job:

"Nothing in this Constitution requires the federal government or any state to recognize anything other than the union of one man and one woman as a marriage."

Why have Bush and other Republicans insisted on far broader language, designed to pre-emptively disable the democratic process for all time? Because this campaign is not about principle. It is about pandering.

Estate tax. Abolishing the estate tax would cost the government $20 billion to $40 billion per year in revenue at a time of dangerous deficits. It would be a gift to the richest of the rich at a time of widening income inequalities. And it would incentivize idleness by promoting an aristocracy of inherited wealth rather than accomplishment.

This is not to deny that Congress should ease the burden that the peculiar operation of current law would impose on families that are not exactly stinking rich. The estate tax is set to disappear in 2010 and come back with a vengeance in 2011. As of then, the maximum exemption from the tax would be only $1 million, down from $2 million today. And the top rate would be 55 percent, up from 46 percent today.

Many Democrats oppose all efforts to set an exemption more generous than $1 million or a top rate below 55 percent. This is unreasonable. A $1 million inheritance is not what it used to be. Split among three heirs and invested in bonds, it would bring in about $17,000 a year. Try living on that.

Congress could set the exemption at $2 million or perhaps even $5 million without substantially increasing the number of heirs who would seize the chance to spend their lives goofing off. A more generous exemption would also reduce the pressure now felt by a few family businesses to sell out in order to raise enough cash to pay the tax.

But such pragmatic reforms would not satisfy the estate-tax abolitionists. Consider Nobel Prize-winning economist Edward Prescott, a professor at the W.P. Carey School of Business at Arizona State University. If his case for abolishing the estate tax is the best that a Nobelist can do, then the case is weak indeed.

"We can only grip the neck of our vibrant economic goose so tightly before it eventually dies and quits laying those golden eggs," Prescott asserts in a Wall Street Journal op-ed. Someone should tell him that the estate tax has been on the books for 90 years without strangling said goose.

Then there is the singularly silly "double taxation" complaint. Why, asks Prescott, should people have to pay a second tax on "hard-earned money, which has already been taxed once"?

One answer is that the real burden of the estate tax falls not on those who have already paid the income tax but on heirs who have typically done no work at all to create the wealth being taxed. A second answer is that the estate tax is often the only tax ever paid on unrealized gains from appreciated stocks, real estate, and the like. A third answer is that what matters is the aggregate tax burden, not the number of different taxes that comprise it. Indeed, even if the estate tax were abolished, most paychecks would still be taxed at least six times: First come payroll deductions for FICA, Medicare, and state and federal income taxes. Then we pay sales taxes and property taxes and others out of what’s left.

Estate-tax abolitionists also suggest that wealthy people may "just quit working sooner than otherwise," in Prescott’s words — or spend their money as fast as they can — if their heirs would have to share the leavings with Uncle Sam. Well, I have yet to encounter a parent who retired prematurely or bought a yacht because his estate would be taxed after death. Far more numerous, I suspect, are children who retire very prematurely to live on their inheritances.

The complaint that the estate tax forces sales or breakups of cash-poor family farms and other businesses seems wildly overstated. Abolitionists have been stumped when challenged to come up with examples involving family farms. In any event, people who inherit any kind of family business can defer full payment of the tax for 14 years at minimal interest rates. And minor reforms could exempt virtually all small farms and family businesses.

The abolitionists do make one valid point: The estate tax is highly inefficient because numerous loopholes and high rates have created a vast and wasteful lawyer-accountant estate-planning tax-avoidance industry. But the best ways to avoid such waste would be to close some of the loopholes; to lower the top rate to, say, 40 percent for all but the most enormous estates; and to raise the exemption for small estates. In any event, simply abolishing the estate tax might only spur those lawyers and accountants to busy themselves exploiting loopholes in the income tax.

Finally, abolitionists stress that the revenue from the estate tax is small potatoes in an $11 trillion economy and that we need to overhaul our entire system to tax consumption more and savings less.

Well, sure. But a deficit-ridden government needs to get those billions from somewhere. As for overhauling, "The tax system is like an old creaky house that should be extensively modified," says Brookings Institution economist William Gale. "But simply repealing the estate tax would be like bashing in the roof and doing nothing else."

The post Opening Argument – Gay Marriage and the Estate Tax appeared first on Stuart Taylor, Jr..

So says columnist Charles Krauthammer. Not so fast, contends my colleague Jonathan Rauch: "The U.S. Supreme Court is unlikely to impose one state’s gay marriages on the whole country."

Since columnists disagree, let’s go to the scholars. Professor Lea Brilmayer of Yale Law School sides with Rauch: "Marriages have never received the automatic effect given to judicial decisions. They can be refused recognition in other states without offending full faith and credit," she said in congressional testimony on March 3. But others agree with professor Larry Kramer of New York University’s law school, who wrote in 1997, "States cannot selectively discriminate against each other’s laws, [and] Congress cannot authorize them to do so."

This debate is of more than academic interest. Much of the energy behind the Bush-backed proposal to ban gay marriage by constitutional amendment comes from fear of nationwide imposition of gay marriage by a kind of judicial chain reaction. The same fear gave birth to the federal Defense of Marriage Act of 1996, known as DOMA, which authorizes states to ignore gay marriages performed in other states, and the "little DOMA" laws in 38 states, which declare their intent to do just that.

Is this fear of a nationwide, judicially engineered redefinition of marriage plausible? Yes, somewhat, although it’s likely to take several years if it happens at all. Is the proposed constitutional ban on gay marriage a justifiable response? No, emphatically. There are ways to get the courts out of the gay-marriage business without tying the hands of future voting majorities who may — and, I hope, will — eventually come to see gay marriage as good for us all.

The most direct and sweeping way for the Supreme Court to impose gay marriage is also the least likely. That would be to legalize gay marriage everywhere by announcing that the 14th Amendment’s equal protection clause (or the due process clause, or both), which the Court used in 1967 to strike down laws against interracial marriage, can no longer tolerate the man-woman definition of marriage that has been a cornerstone of civilization for the past few thousand years.

Last June’s decision in Lawrence v. Texas, which used the due process clause to strike down all state laws making it a crime to have gay sex, led Justice Antonin Scalia to suggest in a bitter dissent that the Court had set the stage to declare a right to gay marriage. But there is a big difference between ruling that gays cannot be branded criminals and ruling that they must be given the privileges of marriage. Few serious analysts expect the justices to take that big a leap unless and until public opposition to gay marriage softens to the point that they could pull it off without provoking a firestorm.

The stealthier way to promote gay marriage, and the way that is most feared by opponents, would be the full-faith-and-credit two-step: Step one is for the justices to watch from the sidelines while state courts in Massachusetts and perhaps elsewhere use their state constitutions to impose gay marriage upon their own electorates. Step two would be for the Court to require that other states recognize those marriages and, in the process, to strike down all of the defense-of-marriage acts.

Brilmayer and some others say the justices will not take step two. And the traditional judicial interpretation of the full faith and credit clause is on their side. While the norm has always been for states to recognize marriages celebrated in other states, "the full faith and credit clause has never been understood to require recognition of marriages entered into in other states that are contrary to local ‘public policy’ [representing] deeply held local values," as Brilmayer testified. Under this "public policy" doctrine, states have been free to disregard marriages in other states between first cousins, people too young to marry in their home states, people who remarried after quickie Nevada divorces, and (before 1967) people of different races.

But Brilmayer’s views are disputed by dozens of law review articles arguing that DOMA, the 38 state DOMAs, and (many add) even the long-standing "public policy" doctrine, are all unconstitutional, at least in the gay-marriage context. Gay-advocacy groups have prepared a well-orchestrated litigation campaign to use the full faith and credit clause to force recognition of gay marriages across the country. And Justice Anthony M. Kennedy has provided them with powerful ammunition with his majority opinions in both Lawrence and the 1996 decision in Romer v. Evans, which used the equal protection clause to strike down a Colorado referendum barring adoption of gay-rights laws anywhere in the state. Both decisions held that animus against homosexuals — which Scalia called "moral disapprobation" — is an irrational and illegitimate basis for some, if not necessarily all, anti-gay laws. It would not be a great leap to extend this logic to strike down DOMA and its state-law clones, and then to carve a gay-marriage exception into the public policy doctrine.

"The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law," Justice Oliver Wendell Holmes Jr. once said. In that spirit, I prophesy that Kennedy, his four more-liberal colleagues, and possibly Justice Sandra Day O’Connor, will seek to promote gay marriage but will proceed cautiously, with their fingers to the winds of public opinion. They may begin by issuing narrowly drawn decisions enforcing state court judgments — which other states have almost always been required to honor — such as judicially approved property settlements in divorce decrees growing out of Massachusetts gay marriages. And when these justices sense that the time is ripe — assuming that those who remain on the Court have the votes — they will apply the full-faith-and-credit two-step to ban states from discriminating against other states’ gay marriages in any way.

This prospect leaves me quite conflicted. While I strongly support gay marriage, I oppose its imposition by judicial fiat. And while judicial activism at its best can build public consensus for long-overdue reforms, I am concerned that the courts have increasingly crossed the line from exercising healthy activism into usurping legislative powers, disdaining representative government, and casually casting aside tradition in the guise of interpreting the Constitution.

So I have some sympathy for the idea of amending the Constitution to prohibit any judicial decision construing that document to require recognition of any gay marriage. (The problem of state courts in Massachusetts and elsewhere inventing state constitutional rights can and should be handled at the state level.) Because amending the Constitution is a grave step that risks unintended consequences, I am not yet ready to support that approach, as long as the Supreme Court proceeds cautiously and incrementally on gay marriage. But a sudden, broad decision requiring all other states to honor Massachusetts’ gay marriages, for example, might persuade me that the time has come to reclaim some of the rights of the people to govern themselves.

By no stretch of the imagination, however, is the proposed amendment behind which Bush has placed his prestige an appropriate way to protect representative government. Quite the contrary. The first clause of the so-called Musgrave amendment (sponsored by Rep. Marilyn Musgrave, R-Colo.) would impose a uniform federal definition of marriage upon the whole country: "Marriage in the United States shall consist only of the union of a man and a woman." This amounts to an anti-democratic, anti-federalist effort to ban all state legislatures, for all time, from experimenting with gay marriage — even if and when most voters in most states come to support gays’ right to wed. And public opinion appears to be headed in that direction: Although polls still show voters opposing gay marriage by a ratio of about 2-to-1, the numbers appear to be softening over time. Especially significant is that young voters are far more open to gay marriage than old ones.

In this sense, the president’s position on gay marriage has something in common with that of the Massachusetts court: Neither is willing to defer to democratic governance. While the court has imposed its definition of marriage on today’s voters, Bush seeks to impose his own definition on their children and grandchildren. 

The post Opening Argument – Bush Has The Wrong Remedy to Court-Imposed Gay Marriage appeared first on Stuart Taylor, Jr..

Many committed gay couples want very much to marry. A legislative vote giving them that right would cause no harm, except to psyches skewed by anti-gay animus — and those persons would remain free to express their moral disapproval. The arguments that gay marriage would damage traditional marriage by tempting people who might otherwise be straight and monogamous to become gay or promiscuous are extremely weak. So is the claim that gay marriage would be bad for children. Even assuming the much-disputed proposition that kids are better off in traditional than in gay households, legalizing gay marriage would not move any child out of a traditional household. Rather, it would bring the stability, respectability, and legal benefits of marriage to millions of children who are already being raised by gay and lesbian couples.

The constitutional question is much harder. The main reason is that a decent respect for government by the people should lead courts to defer to popularly enacted laws that embody deeply felt values — including laws that make no sense to the judges — unless the laws violate clear constitutional commands or fundamental rights. It is frivolous to claim that the marriage laws of every state and every civilization in the history of the world violate any clear constitutional command. And it is a stretch to claim that they flout fundamental rights.

The Massachusetts Supreme Judicial Court gave no deference to popular government in its November 18 decision, in a 4-3 vote, to legalize gay marriage. The court’s wording suggests that it is prepared to go even to the point of ordering the state to call same-sex unions "marriage" rather than, say, "domestic partnerships" endowed with the same legal benefits.

Nor was there much prudence in this decision, which will take effect next May. The backlash it has provoked could conceivably prove powerful enough to set back the gay-rights movement for decades. In addition to energizing a push in Massachusetts to overrule the decision by amending the state constitution, the court has given new impetus to the proposed "Marriage Amendment" to the U.S. Constitution, a blunderbuss so broadly worded that it might block even state legislatures from legalizing gay marriage.

Recent history suggests the power of the backlash. After the Hawaii Supreme Court and an Alaska court had signaled their intentions to legalize gay marriage, the citizens of both states overruled their courts in 1998, by 2-1 ratios amending their constitutions to ban same-sex marriage; 35 other states passed laws defining marriage as the union of a man and a woman; the federal Defense of Marriage Act decreed that federal law would not recognize any state’s same-sex marriage and that no other state need recognize such a marriage. Just this year, national polls showed a sudden drop in support for gay civil unions — from 49 percent in May to 37 percent in August — after the U.S. Supreme Court’s June 26 decision in Lawrence v. Texas, which used unnecessarily grandiose language to strike down an oppressive Texas law criminalizing gay sex acts. And while gay marriage has more support in liberal Massachusetts than in most places, a national poll by the Pew Research Center last month showed respondents opposing gay marriage by 59 to 32 percent.

Gay-marriage advocates have brought their cases under state constitutions because they fear that the U.S. Supreme Court would overturn any decision using the U.S. Constitution to legalize gay marriage. The justices have no jurisdiction to second-guess state courts’ interpretations of their own constitutions.

In fairness to the Massachusetts court, its well-crafted opinion was a legally plausible extension of judicial precedents interpreting the Massachusetts Constitution and the U.S. Constitution alike, especially Lawrence. But those precedents had already gone too far down the road of ramming judges’ personal policy preferences down the throats of the voters, in the guise of constitutional interpretation.

Reasonable people disagree on this, of course, and decades of both conservative and liberal judicial activism have blurred the distinction between legitimate constitutional interpretation and illegitimate judicial fiat. These are not mutually exclusive categories, but points on either end of a continuum. The validity of any constitutional decision is a function of where it falls on that continuum — based on the plausibility of its derivation from the constitution’s text, history, and structure — and whatever balance one strikes in resolving the dilemma identified by Learned Hand in 1958:

"Each one of us must in the end choose for himself how far he would like to leave our collective fate to the wayward vagaries of popular assemblies. For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."

The Massachusetts court was certainly on firmer constitutional ground than its Vermont counterpart was in its 1999 gay-union decision, which it based on a completely irrelevant constitutional clause that had been adopted in 1777 for the apparent purpose of precluding creation of a legally privileged aristocracy. In a bold example of the "let’s-do-it-because-we-can-get-away-with-it" school of jurisprudence, the Vermont court "interpreted" this clause as requiring recognition of either same-sex marriages or "domestic partnerships" with the same legal privileges. The state Legislature went for the "domestic partnership" compromise.

The Massachusetts court, on the other hand, based its ruling on Article I of the state constitution, whose provisions are roughly analogous to the 14th Amendment’s due process and equal protection clauses. The first provision asserts: "All people are born free and equal and have certain natural, essential, and unalienable rights," including "the right of enjoying and defending their lives and liberties" and "that of seeking and obtaining their safety and happiness." The second provision states: "Equality of the law shall not be denied or abridged because of sex, race, color, creed, or national origin." Noting that "the two constitutional concepts … overlap," and are "more protective of individual liberty and equality" than the federal due process and equal protection clauses, the court held that Article I requires a right to gay marriage because the state’s (very weak) justifications for denying it were "irrational."

While the Massachusetts court ignored (as usual) the original intent of Article I, it drew legal support from its own precedents, and moral support from Lawrence’s holding that voters’ moral disapprobation of homosexuality is not a legitimate basis for legal distinctions that discriminate against gays and lesbians. The Lawrence decision "dismantle[d] the structure of [federal] constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions," as Justice Antonin Scalia wrote in dissent.

So why do I think the Massachusetts court went too far? The first reason is that, in my view, Lawrence went too far. The majority’s sweeping endorsement of "autonomy of self [in] intimate conduct" is well grounded in the moral philosophy of John Stuart Mill, but not in the language or history of the due process clause — the provision that the majority relied upon — or any other provision of the Constitution. The Court should have struck down the Texas sodomy statute on the narrower ground used by Justice Sandra Day O’Connor in her concurrence: By banning homosexual but not heterosexual sodomy, and thus singling out "one identifiable class of citizens for punishment that does not apply to everyone else," the Texas statute violated equal protection.

In addition, while withholding from gay couples what the Massachusetts court called the "tangible as well as intangible benefits [that] flow from marriage" is wrongheaded and unjust, it is simply not oppressive in the same sense as is criminalizing gay sexual intimacy. The Massachusetts court was hyperbolic to say that current marriage laws inflict "a deep and scarring hardship" on gays. It was arrogant to hold such laws "irrational," despite their deep roots in our history and popular values and in what dissenting Judge Robert Cordy called society’s effort "to steer … acts of procreation and child-rearing into their most optimal setting." It was ahistorical to imply that gay marriage is a "fundamental right," a doctrine that would also require endorsement of polygamy and adult incest.

And while constitutional scholars have argued cogently in decades past for heightened judicial scrutiny of discrimination against gay people — a politically powerless minority long oppressed by majoritarian prejudice — gays now wield enough political clout to make such arguments somewhat anachronistic.

"The advancement of the rights, privileges, and protections afforded to homosexual members of our community in the last three decades has been significant," as Judge Cordy said, "and there is no reason to believe that the evolution will not continue." Unless the courts keep jumping the gun, and fueling the backlash.

The post Opening Argument – Gay Marriage Isn’t an Issue for the Courts to Decide appeared first on Stuart Taylor, Jr..

For those words, Sen. Rick Santorum, R-Pa., has been widely denounced by many Democrats and some moderate Republicans as a raving homophobic bigot. And it was indeed offensive to so casually associate the millions of decent people who happen to be gay with practices almost universally condemned as immoral.

But Santorum’s remarks are more plausible as legal analysis, in the context of a major gay-rights case now before the Supreme Court, than most critics have acknowledged. Meanwhile, Santorum’s assertion in the same April 7 interview that there should be no constitutional right to privacy reveals an agenda that is more controversial than most of his defenders seem to understand.

The issue in Lawrence v. Texas, which the justices heard on March 26 and will probably decide by late June, is whether to strike down as unconstitutional a Texas law making it a crime to engage in homosexual sodomy. The answer should be yes, and I think it will be. "To criminalize any enjoyment of their sexual powers by a whole category of persons is either an imposition of a very great cruelty or an exercise in hypocrisy inviting arbitrary and abusive applications of the criminal law," in the words of Harvard Law professor Charles Fried, a conservative who was President Reagan’s solicitor general.

But there are at least two ways to strike down the Texas law. And the narrower way would not lead toward the slippery slope of which Santorum warns.

The broad way to strike down the Texas law would be to hold that constitutionally protected privacy includes "the right to be free from governmental intrusion into, and criminalization of, private sexual relations between consenting adults," as the Human Rights Campaign and more than 25 other groups argue in an amicus brief.

Santorum has a point in asserting that such a ruling could put us on a slippery slope toward legalizing some forms of incest, the most repellent of the practices he listed. Indeed, by 5-4, the Supreme Court held in 1986, in Bowers v. Hardwick, that if the Court were to recognize an unqualified right to "voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes" within the home.

To be sure, consensual sex does not violate laws against adultery, bigamy, or polygamy unless it breaches a contract of marriage, which is a state-created privilege conditioned upon a vow to have sex only with one’s spouse and to have only one spouse at a time. And incest is not consensual in the bulk of cases, which involve parental rape or seduction of minor children.

But what about what one law professor delicately calls "Lord Byron’s problem"-consensual sex between an adult brother and sister? (In Byron’s case it was a half-sister.) While that practice would, unlike gay sex, often risk producing children with serious birth defects, the risk is non-existent for infertile women and can be eliminated for others by vasectomy, sterilization, contraception, or abortion. Besides, privacy advocates (and the Court) would surely reject the notion that states can bar people with heritable defects from having children.

Might Lord Byron’s problem nonetheless be outlawed because it has long been despised as repugnant and immoral? Not if there is an unqualified constitutional right to consensual adult sex. And sodomy, no less than sibling incest, has for centuries been subject to "condemnation … firmly rooted in Judeo-Christian moral and ethical standards," as the late Chief Justice Warren E. Burger stressed in a concurrence in Bowers v. Hardwick. Public opinion is moving toward majority support for a right to have gay sex. But it’s not there yet.

So Santorum’s legal analysis was not as outlandish as many have suggested. Indeed, he would have been on the mark had he phrased it like this: If the Supreme Court said you have the right to consensual sex within your home, it would be a giant step toward a right to commit incest with your adult brother or sister and (at least if you are unmarried) to have group orgies.

Many libertarians would counter that the Court should recognize such a broad freedom-of-consensual-sex principle, just as it has long recognized freedom-of-speech principles broad enough to protect hard pornography and hate speech. I would agree. But I suspect that the justices will avoid such a sweeping expansion of the right to privacy, which is rooted in the due process clause. One reason is that-because the Texas law forbids gay couples from engaging in sexual practices that are lawful for heterosexual couples-the Court can strike it down on narrower, equal-protection-of-the-law grounds. Another is that headlines such as "Court Legalizes Sodomy and Incest" would generate a more forceful backlash than "Court Bans Discrimination Against Gay Sex."

The narrow way of striking down the laws criminalizing homosexual (but not heterosexual) sodomy in Texas and three other states would be to rule that even though rarely enforced, they seek to condemn a whole class of millions of gay Americans to lifelong, involuntary sexual abstinence, and to stigmatize them as criminal deviants. Laws criminalizing Lord Byron’s problem have no comparable effect, because few if any people can hope to find sexual fulfillment only with their siblings. And such a ruling could avoid any discussion of the laws in nine other states that ban heterosexual and homosexual sodomy alike. (To be sure, these laws affect gays disproportionately and could be struck down for that reason.)

The argument for striking down the Texas law is far stronger than was the Court’s basis in 1996 for using the equal protection clause to void a Colorado ballot referendum that would have barred enactment of any state or local laws against anti-gay discrimination in employment, housing, and public accommodations. (It would have also repealed all existing gay-and-lesbian-rights laws.) That 6-3 decision, Romer v. Evans, held that states cannot "make [gays] unequal to everyone else," and that the Colorado provision "lacks a rational relationship to legitimate state interests" because it "seems inexplicable by anything but animus toward the class that it affects."

Santorum, a devout Roman Catholic, said in the April 7 interview that he is driven not by animus but by his conviction that "this freedom"-which I read to mean the freedom to engage in any sex outside of traditional marriage-is "antithetical to strong, healthy families." There may be a modicum of truth here. But in an era of rampant adultery, divorce, unhappy marriages, spousal violence, child abuse, deadbeat dads, premarital sex, birth control, out-of-wedlock births, and working couples whose kids spend most waking hours in day care centers, it seems far-fetched to list gay sex as one of the real threats to the traditional family.

Speaking of slippery slopes, Santorum’s assertion on April 7 that the "right to privacy … doesn’t exist in my opinion in the United States Constitution" would take the law in a direction far more objectionable than would the "right to anything" that he is so worried about. By explicitly rejecting Griswold v. Connecticut, the 1965 decision that established the constitutional right of married couples to use contraceptives, Santorum suggested that states should be free to ban contraception, period. And his apparent goal of overruling the entire 80-year line of right-to-privacy decisions would not only be a step toward allowing states to criminalize all premarital and extramarital sex; Rick Santorum’s America might also be a place in which states would be free to mandate sterilization of convicts and retarded people.

Santorum did not mention those issues specifically. But the right to privacy that he assails was the main basis for the Court’s rulings in Skinner v. Oklahoma, in 1942, banning forced sterilization of certain convicts; and Pierce v. Society of the Sisters, in 1925, guaranteeing parents the right to choose private or religious schools for their children. (Pierce could be, but was not, based on the First Amendment independent of the right to privacy.) How would Americans like to see those decisions overruled?

The post Santorum on Sex: Where the Slippery Slope Leads appeared first on Stuart Taylor, Jr..

Unlike most Vermonters (and most Americans), I agree that we should extend the full protection of the law to same-sex partnerships. As the court put it: "The professed commitment of two [gay] individuals to a lasting relationship of mutual affection … provides stability for the individuals, their family, and the broader community." And as my colleague Jonathan Rauch has written (in The Washington Post): "It has never been clear to me why discouraging gay relationships in favor of sex in parks and porn shops is good for the American family, or anyone else."

But where do the five unelected justices of the Vermont Supreme Court get the authority to override the value judgments that have for centuries been embedded by the people’s elected representatives in the marriage laws everywhere?

The Vermont court’s answer is chapter I, article 7 of the state’s constitution: "That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are only part of that community."

It’s clear that none of the Vermonters who adopted this clause in 1777-apparently for the purpose of ruling out any privileged aristocracy-dreamed of extending the benefits of marriage to same-sex couples. No matter. "Out of the shifting and complicated kaleidoscope of events, social forces, and ideas that culminated in the Vermont Constitution of 1777," Chief Justice Jeffrey L. Amestoy held for the court, "our task is to distill the essence, the motivating ideal of the framers."

Citing precedents involving such matters as Sunday closing laws and a fence-repair statute, Amestoy distilled the ideal that laws must have "a just and reasonable relation to the legislative goals." Then he reasoned that the legislature’s restriction of the legal benefits of marriage (access to spousal insurance benefits, property and inheritance rights, and the like) to couples of opposite sexes was not reasonably related to the state’s asserted goal of promoting the link between procreation and child-rearing, because many same-sex couples raise children while many husbands and wives do not want children.

Thus did the judges read their values into a 223-year-old document, while solemnly professing that their ruling reflects not "the private sensitivities or values of individual judges," but rather "judicial restraint and respect for tradition."

So is this a classic usurpation of legislative power by judicial fiat? Actually, it’s a fairly close call, in my view. The distinction between judicial fiat and legitimate constitutional interpretation is more one of degree than of kind. After all, the U.S. Supreme Court has for a century been striking down laws based on constitutional "interpretations" that probably would have amazed the Framers.

In recent decades, such judicial activism has come most conspicuously from the liberal side, in decisions such as Roe vs. Wade (1973) and its precursor, Griswold vs. Connecticut (1965), which cited "emanations" and "penumbras" from various constitutional provisions to come up with a right for married couples to use contraception. But conservatives have also taken liberties with the Constitution’s text and original intent, especially in the recent line of decisions invoking emanations and penumbras from the 10th and 11th amendments to void acts of Congress that authorize individuals to sue states for monetary damages.

Moreover, some decisions that seemed at first to flout original intent have since achieved broad acceptance. Brown vs. Board of Education, which desegregated the public schools, is almost universally applauded for breathing life into a 14th Amendment guarantee-"the equal protection of the laws"-that had long seemed an empty promise. But when it came down in 1954, Brown drew criticism from constitutional scholars who noted that the Congress that drafted the 14th Amendment had also segregated the District of Columbia schools. Griswold is now politically unassailable. And even Roe, a constitutional interpretation so far-fetched that it offended even some supporters of liberal abortion laws-while galvanizing a furious anti-abortion movement-has become entrenched to the point that (polls suggest) most voters do not want it overruled.

In short, consistent adherents to the Constitution’s text and original intent are a vanishing breed, and the notion that constitutional rights evolve over time is woven deep into our body of constitutional precedent. Nor is it unreasonable to find in this body of precedent, and in the underlying principles of liberty and equality, some measure of protection for gay rights. Although the Supreme Court ruled (wrongly, in my view) in Bowers vs. Hardwick in 1986 that states could constitutionally punish homosexual acts, it sounded a very different note 10 years later, in Romer vs. Evans. Striking down a Colorado ballot initiative that would have prohibited the state and its localities from outlawing discrimination against homosexuals, the Court asserted that states "cannot make [homosexuals] unequal to everyone else," and cannot "deem a class of persons a stranger to its laws."

Some scholars plausibly argue that the Court should sweep away all forms of official discrimination against homosexuals-a traditionally powerless minority victimized by majoritarian prejudice-as violating equal protection of the laws. And the "freedom to marry has long been recognized as one of the vital personal rights," as the Supreme Court held in 1967 (in Loving vs. Virginia) in striking down laws against interracial marriages.

So why let judicial restraint get in the way of fairness for gay couples? And given that the U.S. Supreme Court does not seem ready to bite the bullet, why shouldn’t those of us who want committed same-sex couples to have the benefits of marriage applaud the Vermont Supreme Court for trying to use its own constitution to make it happen?

One reason is that the Vermont Constitution is a less plausible vehicle for gay rights than the federal equal protection clause, which the Supreme Court has prudently avoided pushing to the limits of its logic. A second reason is the risk of feeding the popular backlash that already threatens to retard the public’s growing acceptance of legal protections for gay couples. A more fundamental reason is that-absent violations of clearly enumerated constitutional rights-a decent respect for our democratic traditions, and for the opinions of our citizens, should ordinarily lead courts to defer to popularly enacted laws that reflect deeply felt values.

Chief Justice Amestoy alluded to the risk of backlash in rejecting Justice Denise Johnson’s forceful argument that the Vermont court should simply order the state to issue marriage licenses to same-sex couples: It was "instructive," Amestoy noted, that the voters of Hawaii had amended their state constitution in 1998 to block a similar move by the Hawaii Supreme Court, which had indicated in 1993 that it was preparing to order the state to recognize gay marriages. The 1993 decision-and the concern that other states might have to recognize gay marriages performed in Hawaii-also provoked 30 states and Congress to pass anti-gay-marriage laws. (Californians will vote on March 7 whether to join them.)

The Vermont court can hope for a happier ending, Amestoy suggested, by aiming for a "catalytic" effect on the "system of democratic deliberation." Thus did he leave it to the legislature to devise a remedy, while suggesting the less controversial option of "domestic partnership" as an alternative to same-sex marriage.

Perhaps the legislature-now torn between those demanding full recognition of gay marriage and those calling for defiance of the court-will come to a reasonable compromise. But even if it does, I fear the court has gotten too far ahead of public opinion, at too great a potential cost, for too modest a benefit to gay couples.

A lot of people who are not homophobes, and who oppose job discrimination and other forms of bias against gay people, do not see the traditional law of marriage as discriminatory. They are not ready to accord same-sex couples the same status as husbands and wives. Many of them will (I believe) eventually come around to supporting marital benefits for gay couples. But will they be brought to that view sooner by a ruling that puts the brand of unconstitutionality on a revered tradition-and that seems less like a measured interpretation of constitutional text than a naked exercise of judicial power?

The post Legal Affairs – A Vote For Gay Marriage – But Not by Judicial Fiat appeared first on Stuart Taylor, Jr..

The inspiring thing about Romer v. Evans is the Court’s overdue embrace of simple justice for gay people, through fee majority’s assertion that states "cannot make them unequal to everyone else" or "deem a class of persons a stranger to its laws."

If the courts build on this foundation with wisdom and restraint, and if the nation receives it with respect, Romer may foster social tolerance as well as legal equality. It does not necessarily portend a line of decisions that will run roughshod over the free-association fights of people who are offended by (or simply uncomfortable with) homosexuality, nor will it push Heather Has Two Mommies into public school curricula.

The troubling thing about the 6-3 Romer decision is that the majestic generalities of Justice Anthony Kennedy’s majority opinion are surrounded by such crude, superficial, and evasive legal reasoning- along with slurs tarring the voters of Colorado as bigots-as to lend credence to the dissenters’ complaint that this is "an act, not of judicial judgment, but of political will."

The risk is that the glaring flaws in me majority opinion-compounded by the distortions that pervade Justice Antonin Scalia’s elegantly vitriolic dissent- might help spur a backlash akin to the one that followed Roe v. Wade, an equally weak attempt at judicial reasoning. This could damage the Court’s moral authority and even, in the long run, set back the cause of gay rights.

We won’t know for a decade or so, until the effects have rippled through our law and culture, whether the good in this decision will eclipse the bad.

The Court seems at least arguably collect in its specific holding that Colorado violated the equal protection clause in adopting Amendment 2, a ballot referendum that would have prohibited the state and its agencies and localities from adopting gay rights laws, and wiped out all existing ones. These include local ordinances in Denver, Aspen, and Boulder that bar discrimination against homosexuals in private employment, housing, and public accommodations, and an executive order that bans employment discrimination by the state itself. Adopted by a 53-47 percent vote in 1992, Amendment 2 would have become part of the state constitution, had it been allowed to take effect.

Justice Kennedy, borrowing from an amicus brief filed an all-star cast of constitutional scholars- Laurence Tribe, John Hart Ely, Gerald Gunther, the late Philip Kurland, and Kathleen Sullivan-makes a decent start at explaining why Amendment 2 is unconstitutional:

It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protections across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence….A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

But Kennedy fails badly in his cursory stab at the challenging task of forcing the ruling into the framework of the Court’s constitutional jurisprudence.

He ignores, as though it did not exist, the Court’s lamentable 1986 decision, Bowers v. Hardwick, permitting states to make it a crime to engage in homosexual conduct. That seems a lot tougher than the types of discrimination sanctioned by Amendment 2. And while Hardwick technically involved only a due process claim, nothing in it suggested that equal protection analysis would have led to a different result.

The Romer opinion is also unpersuasive in claiming-with little more than a passing reference to its "sheer breadth"-that Amendment 2 fails traditional "rational basis" scrutiny. Kennedy peremptorily brushes aside the state’s claims that it was justified both by the need to protect the free-association rights of landlords and employers who have moral or religious objections to homosexuality, and by the goal of focusing scarce resources on fighting discrimination against other groups, deemed by the voters to be more deserving of protection.

Rather than carefully explaining why these reasonable objectives fell short of supporting the harsh and sweeping impact of Amendment 2 in uniquely blocking gays from seeking equal protection through the ordinary law-making process, Kennedy offers the conclusory assertion that "the amendment seems inexplicable by anything but animus" toward gays, and by "a bare… desire to harm a politically unpopular group." In so saying, Kennedy descends (as the dissenters complain) into "insulting" Colorado’s votes.

Those who voted for Amendment 2 were not all homophobic bigots. Some no doubt shared the free-association concerns advanced by the state; some worried that proliferation of gay rights laws might equate personal or religious objections to homosexuality with racial bigotry; some feared that such laws might foster cultural trends promoting homosexuality to their children; some wanted to avoid adding homosexuals to the list of groups lining up for affirmative action preferences; some were misled by the bumper-sticker distortion that Amendment 2 would only foreclose "special rights" for gays.

If the majority opinion is bad, the Scalia dissent, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, is ultimately worse.

And while Kennedy does not respond to Scalia’s cascade of insults-"terminal silliness", "preposterous", and so on-he must have been tempted to call the dissent "deceptive", or perhaps "disingenuous".

The Dissent descends deep into distortion in asserting that Amendment 2 "prohibits special treatment of homosexuals, and nothing more" and "merely denies them preferential treatment (emphasis added). This implies that all it would have done is stop gays from getting the sort of affirmative action that is sometimes used to prefer minorities and women over equally or better qualified whites and men.

Nonsense. Amendment 2 would expressly have barred any and all laws and policies "whereby homosexual, lesbian or bisexual orientation, conduct, practices, or relationships shall… entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination" (emphasis added).

Scalia rests his mischaracterization of Amendment 2 on two weak props. The first is an implicit suggestion that all anti-discrimination laws give "special rights" and "preferential treatment" to the protected minorities, in the sense that a black person who is fired for being black has a civil rights remedy unavailable to an ugly person fired for being ugly, or a short person for being short, or a drug addict for using drugs.

But this is tantamount to describing laws against racial discrimination as creating "special rights" for black people. And Scalia’s use of such language is especially misleading in a world in which the employment-at-will doctrine is dead-buried (in Colorado) under a web of laws that bar discrimination on the basis of age, military status, marital status, pregnancy, parenthood, custody of a child, political affiliation, and physical or mental disability, not to mention race, creed, color, national origin, and sex. Such protections against discrimination are (in Kennedy’s words) "taken for granted by most people either because they already have them or do not need them."

Scalia’s second bogus rationale is his claim-based on an ambiguous footnote in the Colorado Supreme Court’s 1994 opinion-that, even if Amendment 2 were upheld, " ‘general laws and policies that prohibit arbitrary discrimination’ would continue to prohibit discrimination on the basis of homosexual conduct as well."

But Scalia stops conspicuously short of saying that Amendment 2 would, for example, have left a lesbian who was fired on account of sexual orientation the option of suing her employer for "arbitrary discrimination." And to the extent that Scalia implies that gays might still have had some such protection, his analysis is hard to reconcile with the language and logic of Amendment 2.

Scalia could very plausibly argue that the Court should not strike down Amendment 2 without first, at least, asking the state supreme court to clarify the amendment’s effects on other state laws. Instead, he resorts to bumper-sticker jurisprudence-not to mention the usual overheated fulminations.

Perhaps the best hope for Romer is that-as with the far more compelling case of Brown v. Board of Education-its flaws in terms of judicial reasoning will be overshadowed in the long run by its value as a symbolic affirmation of simple justice for a group long victimized by discrimination and prejudice.

This may be one of those rare times when the Court should assume the role of moral conscience to the nation. But when it thus puts its credibility and legitimacy on the line, it should try harder to ground its rulings in constitutional language, theory, and precedent, and to persuade, rather than insult, the electorate.

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