"Conservative" Judicial Activism for Gay Marriage: With Amici Like These, Who Needs Enemies?


A group of distinguished conservative public servants, policy makers, and political operatives has signed an amicus brief saying the US Constitution requires the states to redefine marriage. They argue that this is the truly conservative position—but it takes quite a bit of logical contortion to accept their argument.

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Thirty years ago, public opinion on same-sex marriage was like public opinion on the iPhone: it didn’t exist. Starting with Gallup in 1996, and Pew in 2001, polls have tracked Americans’ changing views on the validity of same-sex marriage. Gallup tells us that 55 percent of Americans supported same-sex marriage in May of 2014. That’s more than double the 27 percent who answered affirmatively in 1996. Pew shows a similar trend beginning in 2001: opposition to same-sex marriage has fallen from 57 percent to 40 percent, and affirmation has risen from 35 percent to 52 percent.

Three overlapping groups have been reluctant to embrace this trend: white evangelicals, political conservatives, and Republicans. While support for same-sex marriage among these populations has risen modestly since the 2001, it lags far behind the national average.

But that may soon change. This spring, the Supreme Court will hear arguments in Obergefell v. Hodges about whether the Constitution requires every state to recognize same-sex relationships as marriages. A formidable group of conservatives, moderates, and libertarians has written an amicus brief to the Court, asking the Court to reverse its holding in US v. Windsor (2013) that the federal government may not “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws,” and instead strike down the laws of any state that continues to define marriage as a union between a man and a woman.

The signers consist of a “who’s who” of Republican establishment figures and operatives. Led by former Republican National Committee Chairman Ken Mehlman, the group includes not only moderate Republicans such as former New York City mayor Rudy Guliani, Maine Senator Susan Collins, and libertarian philanthropist David Koch, but also more surprising figures such as the former governor of deeply red Utah, Jon Huntsman, former senator and Clarence Thomas mentor John Danforth, and RedState co-founder and Federalist publisher Ben Domenech. There are also a slew of high-level political operatives associated with Republican candidates past and present, including top aides for John McCain, Jeb Bush, and Mitt Romney.

Obviously, this brief was drafted with more than Justice Kennedy in mind. Supported by references to Edmund Burke, Alexis de Tocqueville, and Barry Goldwater, the brief is signed by amici supportive of “traditional conservative values” and “limited government.” They declare themselves deeply concerned about family values and the institution of marriage, religious liberty, and judicial restraint. It is a manifesto designed to make same-sex marriage advocacy seem safe and appealing for conservatives who have not yet seen the light.

The Argument and Its Weaknesses

The argument of the brief is straightforward. First, our judicial system as well as our political and cultural traditions have long recognized marriage as a fundamental right. Second, an entire class of Americans has been irrationally and unjustly precluded from exercising this fundamental right. Therefore, a proper reading of the Fourteenth Amendment requires the Court to overturn all state marriage laws that define marriage as the union of husband and wife.

What are conservatives to make of this argument? To be sure, an important component of active and responsible citizenship is a willingness to consider and reconsider long-held positions on matters of fundamental concern, such as marriage. If the authors of this brief are to be believed, true conservatives will need to rethink some significant aspects of what conservatism actually entails.

Some of their argument is undoubtedly tactical in what it omits. Consider, for example, their selective appeals to stare decisis, the respect for precedent in judicial decisions. Amici would have their audience accept reasoning from federal circuit courts (the Fourth, Seventh, Ninth, and Tenth) that have ruled for same-sex marriage. The contrary rationale, and precedent, from the Sixth Circuit’s ruling, they imply, can be safely ignored. Stare decisis is very important for Windsor’s description of the difficulties faced by same-sex couples, we are told. Yet stare decisis is simultaneously unimportant enough that the brief does not even mention Windsor’s holding that states have the authority to determine their marriage laws.

Some aspects of the brief are puzzling, even contradictory. Amici describe marriage’s importance and its history as a “venerable institution” and state that such institutions should not be lightly changed. They insist that “embracing marriage for same-sex couples would not change the institution of marriage,” before claiming the change would strengthen the institution. Despite the recent debacle in Indiana and Arkansas, amici also assure us that civil marriage for same-sex couples “need not” endanger religious liberty, citing a host of robust legal protections that are already failing to protect those who aspire to conduct their lives according to their religious convictions.

Three Propositions

These difficulties aside, amici’s target audience must also accept three propositions to fully embrace their limited government, family values, and judicial restraint case for same-sex marriage.

The first is the belief that genderless marriage is the best arrangement for marriage laws as a policy matter. The second is the notion that proponents of conjugal marriage have no facts, evidence, or rational basis for a marriage policy that prioritizes the unique importance of joining a husband to a wife to raise the children that their union may produce. The third is the identification of the Supreme Court as the ultimate arbiter of policy matters, and of social science, selective precedent, and personal experience as the best way to determine the Constitution’s meaning.

The authors of the brief strain to reframe the issue in conservative terms. They argue that we should change the definition of marriage to include same-sex couples because marriage promotes values like “responsibility, fidelity, commitment, and stability,” and inviting more people to participate in marriage will strengthen rather than weaken the institution. Moreover, marriage protects children, they remind us. Thus, every good conservative must see that a ruling for traditional marriage would undermine this protection by stigmatizing the children of same-sex partners.

What amici do not offer in their account is a grounded definition of what a marriage actually is.

While the brief makes several references to our nation’s historical commitment to marriage, every reference it cites is built on a conception of marriage that, in addition to fidelity, commitment, and stability, includes sexual complementarity. That component of marriage—reflecting a belief that a father and mother uniquely contribute to their children’s well-being—has been inexplicably left out of the brief. Its irrelevance to the debate is assumed and unargued. What is argued, however, is the harm that will accrue to children if public policy “stigmatizes” marital relationships that by definition exclude a father or a mother. Amici thereby ask their conservative friends to endorse the quixotic position that public policies that acknowledge the importance of a child being raised by her father and mother are more harmful to that child than actually not being raised by that father or mother.

No Room for Disagreement

Surely it is the case, one might think, that reasonable people can disagree about the competing merits of revisionist and conjugal conceptions of marriage. Not so, if amici are to be believed: Not only is the traditional view of marriage mistaken, but such a position is irrational, based on “unexamined and unwarranted assumptions,” and “ungrounded, archaic, and obsolete beliefs.”

Thus, even those signers of the brief who previously opposed same-sex marriage, and other respected figures such as President Obama before his own evolution, must have been motivated only by “deeply held social, cultural, and religious tenets.” Such tenets, perhaps sincerely held by fair-minded people but lacking even a minimum level of rationality, are on an increasingly isolated and obsolete side of the “debate.” Some ideas, it seems, go bad with time. The revisionist side, if amici are right, consists of advocates of a more genuinely conservative approach, marked by facts, evidence, and a better sense of a neo-Hegelian appreciation for being on the emerging side of History. Apparently, the authors of this brief see no tension between conservatism and progressivism. One is wise to regard with suspicion any approach making exclusive claims to rationality such that one can then ignore or misconstrue any and all contrary positions.

If conservatives can be persuaded that eradicating gender complementarity from society’s preeminent and pre-political building block is the right thing to do, and that those who demur hold to a position that is not merely mistaken but irrational, there is one last step the authors of this brief propose. That step is acknowledging that a commitment to judicial restraint is best realized by judicial supremacy, and the most vital questions affecting all the people must be settled irrevocably by that eminent tribunal. Amici argue that the proper role of the courts is, after all, to police governmental overreach. Who better than the courts to decide what counts as overreaching and who is right when the legislative and judicial branches conflict? That the courts themselves are part of government and thus not immune from overreach is not considered.

Amici further contend that what the Constitution means cannot be determined by the words chosen and ratified by its drafters, but rather by what today’s judiciary understands to be optimal legislative policy. As amici have argued, once the optimal policy is determined, the Constitution unveils its meaning. “In light of these [policy] conclusions, amici believe that the Fourteenth Amendment prohibits States from denying same-sex couples the legal rights and responsibilities that flow from the institution of marriage.” First comes the policy preference of an unelected elite, then the constitutional interpretation, and finally the imposition of the policy on those poor citizens who thought they were competent to address these matters through the democratic process.

This is more than a departure from responsible jurisprudence and originalism; it is a betrayal of any semblance of limited government grounded in the consent of the people.

With amici like these, who needs enemies?

Micah Watson is associate professor of political science at Union University.

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