1. The ultimate question about the recognition of same-sex marriage is for the whole society to decide, not for judges on putatively “constitutional” grounds. It is a “constitutional” question in quite another sense—that is, it is a constitutive question, about an institution and a relationship that is pre-political, foundational of society itself, and even more basic than our constitutions or political institutions. Therefore the question should always be referred to the people themselves at the polls—and not decided by their legislators, let alone by judges.

2. In deciding the basic question, people should ask themselves, what is marriage? For it is a thing with a nature, and a purpose. Marriage has always been understood, throughout human history, as a comprehensive union of a man and a woman, grounded in their complementary natures—a couple of the kind that is capable of generating offspring, and being father and mother to them. The law of marriage has always fostered and protected this singular kind of relationship that is capable of natural parentage, and the only relationship fully capable of parentage of any kind, if “fathering” and “mothering” are understood as distinctive contributions. Were it not for the fact that the sexual union of men and women regularly produces children, marriage would not exist at all. Its existence and its character are in accord with the nature of that union.

3. Same-sex marriage advocates have so far been unable to give an answer to the question “What is marriage?” that does not result in the complete collapse of all shape and form to the institution. That is to say, if men can marry men, and women marry women, we no longer know what the institution is, or what it is for, or what its boundaries are, or who is to be ruled in and who is to be ruled out as eligible to participate in it. Polygamy is back; polyamory is in; even incestuous relations are impossible to condemn. This is not a slippery-slope argument. It is the observation of an explosion bursting a levee with a wall of water behind it.

4. Such a change to the institution of marriage does indeed affect everyone. Our society has already done great damage to the institution of marriage thanks to easy divorce; thanks to abortion, contraception, and a widespread moral relativism about relations between the sexes; and thanks to social policies that make fatherhood optional when children come along. Marriage needs shoring up, not a “redefinition” that is actually a destruction.

5. Some advocates of same-sex marriage are “marriage abolitionists,” who see the ultimate goal as a legal order that has no category called “marriage,” and same-sex marriage as a way station on that road. They at least know where they are going. But it is not a destination we should seek. Marriage between men and women makes families, and it is right and proper for the law to foster and protect it.

6. A common argument in favor of same-sex marriage is that laws against it are just like the old Jim Crow laws against interracial marriage. In 1967, the Supreme Court struck down such laws, calling the right to marry a “fundamental freedom.” But those laws interfered with marriage by introducing an irrelevant ingredient—race—as though it were a necessary one. That is, those laws used state power to redefine marriage, a natural institution, for artificial purposes. Now, it is the advocates of same-sex marriage who wish to use state power to redefine marriage, to make the word mean something new and thus change its nature, by removing its central ingredient, the coming together of a man and a woman to make a family.

7. That 1967 decision of the Supreme Court was universally accepted, practically without a peep of protest, because every decent person would have been ashamed to argue that blacks and whites cannot marry. No denunciations of the decision came from any pulpits. It will not be so if same-sex marriage is nationalized by the Supreme Court. It will be Roe v. Wade all over again. Every growing, thriving, and theologically flourishing religious community in America today is part of the movement to defend the historic understanding of marriage, and they won’t be surrendering their principles. Their theologies may differ, but they share a common moral reasoning about the nature of marriage. And the defense of marriage can hardly be called an “establishment of religion” when it is agreed to by evangelical Protestants, Catholics and Orthodox Christians, and Mormons, Muslims, and Orthodox Jews alike.

8. These diverse believers also share a quite reasonable fear that in a country that has adopted same-sex marriage, their religious liberty is threatened. For believing what their traditions have always believed, they will be condemned as bigots, and subject to discriminations and pressures. Religious dissenters from the new dispensation, in many tens of millions, will be second-class citizens, and will be chased out of many professions and avenues of business if they will not abandon what their faiths teach them about marriage. Their hospitals, schools, and charitable organizations will be pressured to drop their religious scruples, and to silence their moral witness.

So, I concluded, the destruction of marriage as an institution, its replacement by we-know-not-what, and a mortal blow struck at the religious freedom that our country has always prized, are prices too high to pay for this revolution in the law of marriage. The American people know this, and that’s why they’ve gone to the polls and defended marriage every time they’ve been asked. We should keep asking them, I said.

One of the other speakers on the program was Hayley Gorenberg, an attorney with Lambda Legal, which actively litigates on behalf of same-sex marriage. Ms. Gorenberg spoke before I did, and in her prepared remarks said the following about the alleged injustice of “walling people out of central rights”:

The first [same-sex] marriage cases, if you look them up in law school textbooks, they’re short, they are settled in a matter of a couple of sentences, and you have judges saying things like “well, I looked in the dictionary, and this is what it said marriage was.” We’ve moved a long way from then. We have further to go. . . .

In terms of what the government may say about whether gay people can have their full rights, there is a core, very-easy-to-understand question about who’s getting hurt here and is anybody getting hurt, by giving people their equality. And the fact is, that nobody else’s marriage is going to be hurt or has been hurt by gay people having their equal rights to protect their families as others want to be protected, to protect their children as others want to protect their children. Tradition is not enough to sustain discrimination. Never has been, never should be, under the Constitution. It wasn’t enough to sustain discrimination in marriage based on race, it wasn’t enough to sustain discrimination in marriage that said women should be property, even though all of these things were traditional. Tradition falls when we truly engage with these factors and ask ourselves the question.

In the Q & A that followed prepared remarks by the seven speakers, I reiterated my third point above, that when marriage is destroyed and rebuilt in order to accommodate same-sex couples, there is no principled basis on which to limit marriage to couples. Particularly if the change comes about in courts of law, which prize consistent reasoning by analogy, the precedent of same-sex marriage will mandate, by parity of reasoning, the legalization of polygamy, polyandry, and polyamory.

Following this repetition of my argument, Gorenberg responded as follows:

With regard to the slippery slope, that’s the burgeoning [sic] of the dam, or you know, whatever it might be, if we draw out our metaphors about what it would mean to let same-sex couples marry, should they choose to, these rankings of incest and polygamy and where does it stop?—well, where it stops is when you actually look at the governmental definition of marriage, you know, as it’s laid out.

It is a binary institution, okay, it’s a two-person institution, which means that our marriage laws are drawn up to talk about all kinds of substitute decision-making, custodial choice, that kind of thing, so that if, for instance, there’s a couple that are married, and one of them dies, who gets custody of the children? Generally, you know, it’s the other person in the marriage. If there is somebody who dies intestate, and they don’t have a will, what happens? You know, you look to the other person in the marriage. If somebody’s incapacitated and decision-making needs to happen in the hospital, you look to the spouse. If there were seventeen spouses, that would be entirely unclear. That’s not how our marriage laws are drawn up. They’re drawn up, it’s a binary institution. Something else like polygamy is something else. So when we’re talking about something like entrance into marriage on an equal footing, we’re talking about entry into a binary institution, and a whole raft of laws that feed into marriage recognize that that is the case.

The attentive reader will already have noticed Gorenberg’s self-contradiction. Alas, time ran out in our brief program at Rutgers before I could regain the floor and point it out to her.

She had begun, in her prepared remarks, by calling on a standard of “rights” that cannot be defeated by appeals to “tradition.” And she had mocked judges who, in the early decisions on the case for same-sex marriage, had simply turned to a dictionary definition of marriage.

Yet, in her response to my point about plural marriages, Gorenberg herself turned immediately to tradition and to received definitions. Marriage just is a “binary institution,” she asserted, and changing that fact would entail all sorts of inconveniences. (The historic existence of polygamy in many places is proof that these inconveniences are not insurmountable, but this did not slow her down.)

Why mere tradition was now owed such automatic allegiance, she did not pause to explain. Now the prospect of altering a “whole raft of laws” associated with marriage filled her with horror and incredulity. She seemed quite oblivious of the fact that she was making my argument for me. Where was her concern about changing all the details and complexities of a forest of family law planted thick with assumptions about husbands and wives, mothers and fathers, always of opposite sexes?

In her nimble way, having shed the drag-chute of principled consistency, Hayley Gorenberg demonstrated the great strength of the movement for same-sex marriage. She did not have anything to offer in answer to the questions “What is marriage? What is it for? What are its boundaries? Whom should it include?” She does not need answers to such questions. All she needs is an argument for the moment, for the cause, for the victory she wants right now. If her argument is all sound and fury, signifying nothing, that is not her concern. The cause is self-justifying.

With the institution of marriage and the future of the family on the line, the rest of us don’t have that luxury. And perhaps the race will not go to the nimble, but to the slow and steady.

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

Receive Public Discourse by email, become a fan of Public Discourse on Facebook, follow Public Discourse on Twitter, and sign up for the Public Discourse RSS feed.

Support the work of Public Discourse by making a secure donation to The Witherspoon Institute.

Copyright 2011 the Witherspoon Institute. All rights reserved.

Yet alongside this extreme heterogeneity due to faculty specialization, an almost equally extreme homogeneity prevails among the faculty politically. The social sciences and humanities display more ideological conformity than one is apt to find in almost any other workforce in the economy. This ideological unity produces a range of narrow, specialized courses, too many of which ring the familiar changes of “progressive” grievances regarding race, class, gender, and sexual orientation. Throw in a commitment to “diversity” that is only skin-deep, and it is increasingly hard to take university faculty—as a group—very seriously as disinterested pursuers of truth.

Turn the university to another angle, and one sees another set of problems: administrative bloat, increasing use of poorly paid adjunct faculty, and empty “mission statements” about “excellence” while instructional quality suffers. Turn it a few more degrees and see over-reliance on student evaluations, rampant grade inflation and pressure to raise graduation rates, plus appeasement of students as “customers” and fierce competition to attract them with increasingly posh residence halls, food courts, recreational facilities, and entertainment opportunities. Turn it yet again and watch costs rising much faster than inflation for those students and their parents, coupled with opaque admission and financial aid systems, and cumbersome bureaucracies that teach unintentional lessons in caprice and contradiction. One more turn to a new angle: now one glimpses the alcohol-fueled “hook-up” culture, a joyless pursuit of joy with hearts and souls in the balance while faculty and administrators ignore what’s going on under their noses, as student affairs staff piously preach a faith consisting of two moral doctrines of surpassing inadequacy, “consent” and “safe sex.”

Over the quarter century since Allan Bloom published The Closing of the American Mind—a book still worth another look—the “higher ed wars” have raged unabated across all these fronts. On some, progress has begun, thanks to off-campus institutions such as the National Association of Scholars and the Intercollegiate Studies Institute, academic ventures such as the James Madison Program in American Ideals and Institutions at Princeton or the Tocqueville Forum on the Roots of American Democracy at Georgetown, and student-led initiatives such as the Love and Fidelity Network. But the high ground is still held by the forces responsible for ideological uniformity, illiberal curricula, rising costs, moral default, and institutional irresponsibility. And seated in the high citadel, secure against almost any siege tactics, are the tenured faculty of the university.

These are the figures in the bull’s-eye of Naomi Schaefer Riley’s criticism in The Faculty Lounges, and Other Reasons Why You Won’t Get the College Education You Paid For. Riley, a former Wall Street Journal writer, author of God on the Quad, and the daughter of academics, sees most of the pathologies of the university as traceable to tenure itself. Why are so many academic departments so ideologically homogeneous? Why are assistant professors so hard at work producing so many books and articles, for so few readers, on narrow subjects of such doubtful value? Why are teaching loads so light for so many of the permanent full-time faculty at many universities? Why is it so hard to clear out the “deadwood” of lazy or incompetent teachers in the ranks of senior faculty? Why are so many classes taught by adjunct faculty with no substantial role in the life of the institutions where they teach? Why are curricula, graduation requirements, and available courses chopped up into such a crazy quilt of incoherent academic programs? Why is it so hard for university administrations to reform or shut down underperforming or misdirected academic units, and to reallocate resources? The answer to each of these questions is: tenure. (Riley’s title might be best understood if its third word is taken as a verb, not a noun.)

The case for faculty tenure is that, by protecting professors from arbitrary and willful dismissal for the exercise of their independent judgment, it shields academic freedom and thus ensures the intellectual vitality of the university. Tenure protects freethinking faculty in their research, and in any speech in which they might engage outside the university. And a corps of tenured faculty ensures the governance of the institution according to authentic intellectual norms that guarantee the quality of the curriculum and pedagogy. Or so the argument goes.

But the tenure system makes the faculty themselves the gatekeepers of intellectual life, without much serious constraint on their decisions to hire, tenure, and promote their junior colleagues other than their own sense of what is right and fitting. This is a recipe for power without responsibility, anywhere self-interest conquers ethics, as it all too commonly does. The price is paid by junior faculty, adjuncts, graduate students being trained to be the next generation of professors, and undergraduate students frequently subjected to shabby teaching of obscure courses by inaccessible, uninterested senior faculty who would rather be pursuing their research. And all this without much evidence that academic freedom would seriously suffer if universities jettisoned what is effectively a job-for-life system. The common reassurance that tenure “was never meant” to be protection for incompetent and/or abusive employees is cold comfort when we observe how uncommon it is for the worst of the lot to lose their jobs or suffer any serious consequences. And for conservative professors (like her own father) who believe they would be the first victims of a liberal establishment in the absence of tenure, Riley quotes the sympathetic education scholar Chester Finn: “Protecting 411 conservatives is insufficient reason to retain a tenure system. Because it’s protecting 400,000 liberals too.”

Riley’s short book is a splash of cold water in the face of anyone who has thought of tenure as the crown jewel of American academe. In fact, her argument may be even better than she claims, as the thought keeps recurring, long after one has finished the book, that problem after problem in the university is either partly or wholly caused, or exacerbated, by faculty tenure. Johns Hopkins professor Benjamin Ginsberg argues, in The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters, that a proliferation of “deanlets” now eats away at the substance of faculty governance of the university. It is certainly true that administrative staffing and expenses have grown faster than instructional staffing and spending in recent years, and that universities have become more bureaucratically sclerotic, with reaccreditation busywork, program reviews, “assessment” of “learning outcomes,” and “strategic plans” aplenty. But faculty governance of the university has, for the most part, been surrendered to administrations rather than captured by them. Research has overtaken teaching; curricular specialization has overtaken liberal education; senior faculty holding one another accountable has been overtaken by a negligent “live and let live” ethic. Is it any wonder that parents, taxpayers, board members, and legislators doubt the good faith of faculty so insulated from the kind of performance accountability that prevails in the rest of the economy? Is it any wonder that many university administrations have responded to these doubts by ginning up the appearance—albeit seldom the reality—of institutional accountability through endless streams of committee meetings, reports, and “assessments”?

As costs have risen, universities have become more adept at all sorts of flimflam to attract customers, to compete for top billing in the annual U.S. News and World Report ranking, to throw up a smokescreen around their pricing practices that should make airlines envious, and to appeal for more government subsidies for financial aid on the dubious grounds that more and more Americans “need” a college degree. The effect on anxious families of college-bound youngsters is hilariously recounted by Andrew Ferguson in Crazy U: One Dad’s Crash Course in Getting His Kid into College. But why is the modern university presented to prospective students and their parents as four (or five or six) years of fun and games, with the off chance of collecting an actual education on the way to the sheepskin? Probably because the only people permanently part of the institution—the faculty—have done so little to persuade anyone that a coherent education is what it’s all about. They’ve gotten away with that because of tenure. Riley says early in the book that “tenure is not the [only] reason why college costs so much,” but maybe the dots are not all that hard to connect. After all, as she rightly remarks later on, “Tenure has skewed the incentives so that the people who should have the most concern about the economic and educational sustainability of the institution—the people who hope to be there for decades to come—actually have the least.”

Riley’s alternative to tenure is a system of renewable multi-year contracts for faculty. This should not radically alter the lives of good teachers and scholars, but it could set off a cascade of deep changes for the better in institutional life. If such a system were instituted, with the burden on faculty to show they had performed as teachers devoted to the missions of their institution, universities might make their way back to a reinvigorated sense of what they’re supposed to be about. Pay might have to go up for some professors—tenure’s job security is worth a good deal, after all—but so might teaching loads in many fields where research “productivity” is actually productive of very little substance. A lot of the insecure adjuncts might be brought in from the cold and made more fully members of the professoriate, once administrations don’t have to worry any longer about locking in the employment of full-timers for life. The faculty-administration wars might be brought to a peaceful end, with faculty once more rising from within the institution to assume the duties of deans and provosts for short terms, and the class of “deanlets” and “adminicrats” not seeming so distinct and clueless any longer. Grade inflation might be tamed, teaching might be honestly assessed, and high graduation rates might no longer be considered an obviously good thing.

Is there any chance of a revolution against tenure taking place on a large scale? It’s hard to see how. Those who have tenure now cannot be deprived of it without a breach of contract, and moving to a system of renewable contracts with new faculty would entail a long and uncomfortable period of transition until the old guard is fully retired. Moreover, a large number of universities would have to resolve to jump into a partly unknown future together—perhaps all the Ivies together, or the whole California system, could get the ball rolling, but individual institutions would be loath to go first, for obvious reasons. Still, Naomi Riley’s The Faculty Lounges makes a compelling case that “better the devil you know than the devil you don’t” is not always a wise proverb.

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute. He is Professor Emeritus at Radford University, where he held tenure and chaired the Department of Political Science for fifteen years.

Receive Public Discourse by email, become a fan of Public Discourse on Facebook, follow Public Discourse on Twitter, and sign up for the Public Discourse RSS feed.

Support the work of Public Discourse by making a secure donation to The Witherspoon Institute.

Copyright 2011 the Witherspoon Institute. All rights reserved.

President Garvey’s stated reason for separating the sexes into their own buildings, starting with the incoming freshmen in the fall of 2011, is to combat the pattern of binge drinking and “hooking up” among the students, and the consequent risks to body, mind, and soul of these behavior patterns. He made no claim that separate living arrangements would magically cure the ills he diagnosed. But why contribute to the problem when you can at least foster solutions?

It ought to be surprising that Catholic University ever experimented with co-ed housing. But this essay will not be about the University’s decision to reverse course on student residential policy.  It will instead be about a revealing remark made by one of the opponents of the decision.

Elsewhere in the District of Columbia, at George Washington University, law professor John Banzhaf announced that he intended to sue Catholic University for sex discrimination under the District’s Human Rights Act. Banzhaf, a formidable nuisance as a litigator, told Inside Higher Ed that separating the sexes was like a return to the old evil of “separate but equal” in racial segregation:

“Suppose a university decided that there would be less racial tension if all the blacks were in a black dorm, all the whites were in a white dorm,” Banzhaf said. “Each one is, quote, getting their own dormitory, and maybe some of them would be happier that way. But surely no one would suggest that it’s lawful.” The statute does not require that a certain population be disadvantaged for an action to be illegal; the simple act of segregating the genders is enough, Banzhaf said.

Banzhaf may have a case under the D.C. Human Rights Act, or he may not. That will be for others to decide. But this parallel of his, between race and sex, is what should catch our attention. His argument, as a matter of justice and moral right, is only as good as the proposition that sex is just like race when it comes to our treatment of others. Banzhaf is sure that if it would be wrong to separate the races into different dormitories, even into facilities of identical quality, it would be equally wrong to separate the sexes.

But is sex just like race? Let us take it as given that justice demands a legal order that is, as the first Justice Harlan put it 115 years ago in Plessy v. Ferguson, “color-blind,” taking no notice of anyone’s race when it comes to his status or treatment in law and public policy. Would we say, in the same way, that the law should be “sex-blind,” taking no notice of the fact that some persons are men and others are women?

Even the Supreme Court has not gone this far. In perhaps its furthest-reaching sexual equality decision, United States v. Virginia (forcing Virginia Military Institute to admit female students in 1996), the Court still maintained that an “exceedingly persuasive justification” for treating the sexes differently would pass constitutional muster, in circumstances where racial distinctions would not. Considerations of privacy, safety, decency, and the virtue of members of both sexes would seem to be sufficient justification for separating the living accommodations of young men and women in college. The possibility that a policy of separation might run counter to the desires of many college-age men and women might only prove the justice of it.

And none of these considerations, turning on the risks and probabilities of sexual activity, with all the spin-off concerns about alcohol consumption, sexual assault, pregnancies and possible abortions, disease transmission, and plain old-fashioned “relationship problems,” would even merit our attention if we were asking whether the races should be separated. The best Professor Banzhaf can do is imagine that “racial tension” might be employed as a ground for separating the races. Our problem, when it comes to mixing or separating the sexes, is a bit more complicated than that, and begins with something rather the opposite of “tension.”

Banzhaf’s blithe parallel, however, of treating sex just like race is lately a favorite rhetorical turn of the campaign for same-sex marriage. The Supreme Court ruling cited by those making this argument is Loving v. Virginia (1967), in which the justices unanimously struck down the law of that state (and, by implication, those then remaining on the books in fifteen other states) against “miscegenation,” or inter-racial marriage.

The state of Virginia attempted to defend its policy by arguing, among other points, that the law treated both races equally, since it forbade whites to marry blacks, and blacks to marry whites, and assessed penalties under the law without regard to the race of those convicted. One hears similar defenses of marriage as a conjugal union between a man and a woman when the argument is made that the law treats heterosexual and homosexual alike, securing identical marriage rights to persons of either sexual orientation—to marry someone of the opposite sex. Is this formal-equality argument valid in both cases, or neither, or in one but not the other?

Chief Justice Earl Warren, writing for the Court in the Loving case, saw through the state’s claim to treat the races with formal equality when he noted that because the law prohibited “only interracial marriages involving white persons”—not, for instance, a marriage between a person of African descent and one of Asian descent—it was evident that the law was “designed to maintain White Supremacy.” In like vein, the advocates of same-sex marriage treat the argument that “gays and lesbians too can marry persons of the opposite sex” as a cruel joke, and focus on the fact that they are not permitted to marry the persons they wish to marry. Thus, their complaint runs, there seems to be some “Heterosexual Supremacy” at work in the determination to preserve marriage as it has always existed, as a union of man and woman.

As Chief Justice Warren pointed out, the anti-miscegenation laws of Virginia and other states “proscribe[d] generally accepted conduct if engaged in by members of different races,” and thus interfered with a “freedom of choice to marry” on grounds that were simply irrelevant to the marital relation: race, and race alone. If not for the laws against inter-racial marriage, a man and a woman of different races would have enjoyed the freedom to marry in the ordinary course of things, barring other difficulties that are relevant to the marital relation (age of consent, consanguinity, and the freedom of a single person who would not be committing bigamy by entering a new marriage).

But Warren’s reasoning makes no sense except on the tacit presumption of another consideration, so integral to the marital relation that in 1967 it did not occur to him to state it, although it is implicit in his phrase “generally accepted conduct”—and that is, that the two persons free and capable of marrying are a man and a woman. Virginia and other states, in their anti-miscegenation laws, had interfered with a natural relationship by introducing something—race—that was at right angles to it. To rule out bigamy, or to regulate the age of consent, or the degrees of permitted consanguinity—all these place conditions on the freedom to marry that are oriented toward the fulfillment of marriage’s purposes. But introducing race into those conditions injects another purpose—racial “purity”—into the institution, forcing it to serve an end alien to itself. When unmarried, unrelated adult men and women choose to marry, they enter into a relation that is good in itself, a relation of opposite-sex individuals capable of the kind of union, and the only kind of union, that naturally produces offspring. The laws of marriage can and should facilitate, regulate, and solemnize this relation, and provide that it endure. But when political authorities permitted some marriages, and prohibited others, on racial grounds, they were interfering with it in pursuit of goals foreign to its nature, and acting unjustly in two ways, both in their racial discrimination and in changing the meaning of marriage. They were, in short, instrumentalizing marriage as a tool of state policy rather than honoring its nature and fostering it as what it is.

The advocates of same-sex marriage attempt a Loving-style “freedom of choice to marry” argument when they challenge the laws now in place to restrict marriage to opposite-sex couples. In its 2009 ruling in Varnum v. Brien, for instance, the Iowa Supreme Court noted that in 1998 the state legislature had acted for the first time to “define marriage as a union between only a man and a woman.” The court went on to say that “except for [this] statutory restriction,” the same-sex couples applying for marriage licenses would have “met the legal requirements to marry in Iowa.”

But such a statement is flagrantly facetious. The Iowa legislature did not introduce a new, orthogonal consideration into the law of marriage in 1998. It did not, in fact, make new law at all, but only codified an age-old understanding, consistent with the nature of marriage itself, precisely in order to ward off a bizarre new challenge hitherto unheard of—the applications, and litigious responses to denied applications, of same-sex couples seeking to marry. Only the determined campaign of those who would redefine marriage had prompted Iowa legislators—and by now, the voters in 30 states who have amended their constitutions—to say anything at all in the law about the sex of those who are permitted to marry. In the normal course of things up until the last two decades, the law did not bother to state a “restriction” that was understood to be no restriction at all but merely a natural fact: men and women get married, but men and men or women and women do not.

Today it is those claiming a specious “freedom to marry” who make a claim at odds with the institution’s nature and alien to its purposes. It is they who would instrumentalize it by a redefinition, a destroying and remaking, that puts marriage to a new kind of work in the service of state policy. For race and sex are not, in the final analysis, really just like one another at all.  Race is an interesting cluster of facts about ancestry, history, culture, and geography; we can let it get in the way of human relations by making too much of it, or thinking about it in wrongheaded ways. We can, and for many purposes should, let it alone entirely.

Sex, on the other hand, is fundamental to our relations with one another. We cannot let it alone.  We cannot wish away its normal fruits of attraction, passion, and the generation of offspring, or its intimate connection with virtue and vice, wisdom and folly. Catholic University’s President Garvey is right to treat the relations of the sexes in the college population as a matter of the utmost moral gravity, justifying measures that would be intolerable if race were the difference under consideration. So too, in the debate over marriage, we must not be led astray by farcical assimilations of sex to race, as though differential treatment along those two dimensions were exactly alike, when they are not.


Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

Receive Public Discourse by email, become a fan of Public Discourse on Facebook, follow Public Discourse on Twitter, and sign up for the Public Discourse RSS feed.

Copyright 2011 the Witherspoon Institute. All rights reserved.

It was simple: my correspondents were academics, writing from within the establishment of American higher education, where it can be very uncomfortable to speak out against the idea of same-sex marriage. Are people’s jobs on the line if they dissent? This is harder to say with certainty, and the circumstances will not be the same everywhere. The deadly combination of unchallenged liberal presumptions and casual intimidation of dissenters is probably at its worst in the most prestigious universities, which set the tone for the rest of the country, on this issue as on many others. But in all except the most resolutely religious colleges, there is no doubting that the default position of the American academy is to dismantle the institution of marriage and remake it on a new basis. The result is a good deal of self-silencing—self-exile into the “new closet” on issues involving sexuality—not just by students but by faculty, too. The path of least resistance turns out to be the path of no resistance. For institutions that claim to be homes of diverse views and free inquiry in the pursuit of truth, this creeping orthodoxy is a sign of wounded institutional integrity and failed leadership.

The same harm to institutional integrity, and the same ethical failure of institutional leaders, is now publicly on display in the most elite precincts of the legal profession. On April 18, the press reported that Paul Clement, former solicitor general in the last administration, would take up the cause, so contemptibly abandoned by the current administration, of defending the Defense of Marriage Act in federal litigation, with Clement’s firm, Atlanta-based King & Spalding, engaged by the House of Representatives.

One week later, on April 25, King & Spalding’s chairman Robert Hays announced that the firm was withdrawing from its representation of the House, apparently leaving DOMA’s defense without legal counsel in federal court. Notwithstanding the blandishments of Mr. Hays about “inadequate” vetting of the decision to take the case, it was evident to everyone that this retreat was made under pressure, with the gay advocacy group Human Rights Campaign leading a concerted political and economic campaign to bring the firm to heel. Within an hour or two on the same day came the news that Clement was decamping from King & Spalding to take new employment at Washington’s Bancroft law firm, and intended to continue his representation of the House, and of the interests of the United States, in the DOMA litigation. In his letter of resignation from King & Spalding, Clement describes his conduct as the only “honorable course,” saying he was driven by “loyalty to the client and respect for the profession” of law. “Defending unpopular positions is what lawyers do,” he wrote, adding that the “adversary system of justice” and “the rule of law” itself are at stake. Clement finished by quoting the late Griffin Bell, once a King & Spalding partner as well as attorney general in the Carter administration: “You are not required to take every matter that is presented to you, but having assumed a representation, it becomes your duty to finish the representation.”

Supporters of the Defense of Marriage Act were quick to hail Paul Clement’s courage, and he certainly deserves praise for his unhesitating decision to do the right thing. But it detracts not at all from Clement’s rectitude to remark that there was nothing heroic in it. He did what any lawyer would do who conformed his actions to the time-honored ethical norms of his profession. Lawyers and law firms accept and reject clients for all sorts of reasons, including moral affinities and moral objections, political sympathies and ideological opposition. But once a lawyer has been engaged as a client’s advocate, a relationship is created for which words like “duty” and “honor” are exactly the right ones. Clement rightly understood that this duty demanded he sacrifice any competing claims on his loyalty of his law partners, and leave the firm. What this cost him we cannot know, but again, his action was an ordinary sort of courage, not an extraordinary sort.

What is extraordinary, and therefore worthy of more of our attention, is the behavior of King & Spalding and the leadership of its chairman Robert Hays—as well as the behavior of the political activists at the Human Rights Campaign and elsewhere who embarked on an open campaign of intimidation that is morally reprehensible in a constitutional republic.

It appears, from other cases taken on by King & Spalding, such as its pro bono representation of unlawful enemy combatants detained at Guantanamo, that the firm’s politics lean leftward. But again, lawyers and law firms accept and decline clients and causes for many reasons, and political ideology is not an illicit ground of such choices. Knowing this might inform one’s judgment if one of its partners ran for public office, or were nominated for attorney general, and it might incline certain clients to seek representation there or to go elsewhere. But it is not in itself blameworthy to undertake the representation of clients and causes of whom others disapprove. As Paul Clement himself said, this is what lawyers do—and what someone in the profession must do, if the adversary system of justice, central to our rule of law, is to function well.

What is blameworthy—indeed, squarely inimical to the norms of legal practice—is for a firm’s leaders to buckle under political pressure and abandon a client they have agreed to represent. King & Spalding’s withdrawal may even have violated various codes of legal ethics. But even if no codified norms were breached, the firm’s decision to bug out on advocating the constitutionality of DOMA is deeply troubling as a failure of institutional responsibility. And it is not merely the law firm as an institution that should concern us here, although the firm is one kind of institution (and the larger it is, the more “institutional” any firm looks). It is the institution of the law itself that is at stake. Mr. Clement might seem to have been engaging in hyperbole when he remarked in his resignation letter that the rule of law was harmed by the firm’s decision. But he was not.

Those of us who are not lawyers, hope never to need one, and enjoy a good joke at the profession’s expense might be loath to admit it, but the rule of law depends to a great degree on the probity of lawyers and judges. Law graduates, when admitted to the bar, become “officers of the court,” and this is no quaint honorific like “esquire.” Each time they assume the burden of advocacy for a client, they also take on a duty to the court of the jurisdiction in which they practice on the client’s behalf. The lawyer is the conduit through which the client’s interests are communicated to the court, and, in the opposite direction, through which due process is meted out to the client. Just as the judge is expected to have no conflicts of interest in the case before him, the lawyer representing a party is expected to have no interest whatsoever that can be distinguished from those of his client. The judge must be disinterested in the outcome, but the advocate must have, and appear to have, an identity of interest with the client and cause on whose behalf he advocates. Once assuming this burden, his own private, competing impulses to separate himself from his client must vanish from his calculations, for his duty is a public one, vital to the provision of due process, and, for that reason, is of the utmost solemnity.

Thus the King & Spalding skedaddle is more than an unseemly ditching of a client in order to escape the heat of political pressure. It is a blow to the institutional integrity of the legal system, and this would be true even if the abandoned party were not the United States itself. The firm will rightly suffer in reputational terms, but is no doubt big and established enough to survive the self-inflicted wound.

But what is behind this unexpected caving of such a large and well-esteemed law firm? If King & Spalding’s leaders exhibited cowardice and a failure of integrity, it is worth our noticing that they were bullied into it by the organized enemies of DOMA, led by the euphemistically named Human Rights Campaign (HRC). It is increasingly clear that the movement for same-sex marriage has no regard for the ethical norms of institutional integrity that ordinarily govern the processes of republican self-government in the United States.

The day after King & Spalding was reported to be taking the DOMA case, the HRC launched a high-pressure campaign to force the firm to reverse its decision. This was too much even for the liberal editors of the Los Angeles Times, who oppose DOMA but recognize a principle when they see one. Ditto the editors of the Washington Post, who chastised HRC after the success of its campaign of intimidation.

But intimidation—“mau-mauing the flak-catchers,” Tom Wolfe memorably called it—is now the default tactic of same-sex marriage advocates. What else, for instance, explains the antics of now-retired federal judge Vaughn Walker, who wanted to broadcast the Proposition 8 trial in California, and then broke his promise—and his legal duty—to keep the trial’s video record from public view? What else explains the instantaneous denunciation of all opponents of same-sex marriage as “haters”? Resistance to such intimidation, in the name of the ethic of institutional integrity, is fast becoming the duty of all persons in positions of institutional responsibility, whatever their private views on homosexuality or same-sex marriage. When we witness such principled resistance, as in the case of Dean Evan Caminker’s decision to stick with Ohio Senator and alumnus Rob Portman as the commencement speaker at the University of Michigan’s law school—despite the outcry of those who object to Portman’s 1996 vote for DOMA as a House member—we should applaud it heartily.

A sage older colleague of mine is fond of saying that integrity is something you can have just by deciding to have it. But you do have to decide. It’s that easy, and that hard. But those who would sacrifice ethics and the integrity of our institutions to the victory of a political cause must be sharply rebuked by fair-minded conservatives and liberals alike.


Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

Receive Public Discourse by email, become a fan of Public Discourse on Facebook, follow Public Discourse on Twitter, and sign up for the Public Discourse RSS feed.

Copyright 2011 the Witherspoon Institute. All rights reserved.

One of the most impressive legacies of Abraham Lincoln is his fidelity to the Constitution, and his subtle understanding of the roles and responsibilities of the officeholders in the various branches it creates. Lincoln would not begrudge the lawful process of returning runaway slaves to their masters, because the Constitution protected the slaveowner’s right to his property. Likewise he held back the coercive force of the Emancipation Proclamation where the Union’s civilian authority was intact or had been restored, understanding his deed as an exercise of a president’s war powers in a military theater, not the act of a dictator over the whole country.

But Lincoln was no shrinking violet when it came to advancing legitimate claims of executive power—or when it came to denying the pretensions of the judicial branch to have the “last word” or an “ultimate authority” in interpreting the Constitution. From the moment he first commented on the Supreme Court’s infamous Dred Scott case of 1857, Lincoln declared that the other branches were not obliged to conform their actions to the Court’s claims that free blacks could not be citizens and that Congress could not outlaw slavery in federal territories. So as president, Lincoln had his secretary of state issue U.S. citizens’ passports to free black Americans, and he signed an 1862 law restoring the prohibition of territorial slavery. And, acting on his own understanding of what the Constitution authorized in the crisis of the Civil War, Lincoln ignored a writ of habeas corpus, issued by Chief Justice Roger Taney, that ordered the release of a Confederate recruiter and saboteur held in Union military custody in Maryland.

Whatever one thinks of the specific stands Lincoln took on the meaning of the Constitution, he has remained the most prominent “departmentalist” in American constitutional history—taking the view that each “department” or branch of the federal government has its own independent responsibility to interpret the Constitution—and correspondingly as the preeminent critic of judicial supremacy, the misbegotten doctrine that holds that our nation’s governing charter means whatever a majority of the Supreme Court says it means. Lincoln’s view has been an increasingly beleaguered one in recent decades, however, continually under assault by the Supreme Court itself and by those who find political refuge in the shelter of overreaching judicial power.

Last week, the Obama administration—speaking through Attorney General Eric Holder—announced that it would no longer argue in the courts for the constitutionality of Section 3 of the 1996 Defense of Marriage Act (DOMA), which declares that only a legal union of a man and a woman can be considered a marriage under federal law. Mr. Holder indicated that the department’s attorneys would “advise courts in . . . pending DOMA litigation” that in the administration’s view “Section 3 is unconstitutional.” There were some critics whose immediate reaction was to say, “wait, where does the president get off doing the courts’ job of judging the constitutionality of a law?” Others, who learned their constitutional law from Lincoln, recognized the legitimacy of a president’s acting on his own understanding of the Constitution, and of whether a law measures up to it. But they noted rightly (as Gerard Bradley did here at Public Discourse) that there is something curiously amiss with the administration announcing that section 3 of DOMA is unconstitutional while still having the Department of Justice and other federal agencies enforce its terms until and unless a “final judicial finding” declares the act invalid, or Congress chooses to repeal it. Can such a Janus-faced approach even be squared with the chief executive’s oath to uphold the Constitution? It is a fair question, forced on the administration by its own ill-considered action.

Professor Bradley also has ably commented on the transparent opportunism of the administration’s essentially political (rather than legal) judgment in this matter. The Justice Department’s official statement, and the Attorney General’s letter to Speaker of the House John Boehner, preposterously claim that there is no “reasonable” defense to be made of the constitutionality of DOMA. Here the administration takes advantage of a word with equivocal meaning. In common parlance, many people would take “that’s reasonable” to mean “we accept the reasons given as correct or persuasive ones.” But in the terms of art used in constitutional law, an argument is considered “reasonable” not as a final assessment of its rightness but as a preliminary assessment of whether we can conceive of rational grounds for a certain view being held at all. By confounding the latter with the former, the administration announces in effect that its political judgment, that barring same-sex marriage is wrong, will suffice as a constitutional judgment, that no one can legitimately consider it right. But on any meaning of “reasonable,” it is the Obama administration that has so far given no substantial grounds for rejecting the view taken by overwhelming congressional majorities, and a Democratic president, in DOMA’s enactment.

Mr. Holder further muddies the waters with another kind of opportunism. Up until now, he says, his department has defended DOMA (however grudgingly) in federal judicial circuits where the “rational basis” test, the least stringent standard for assessing constitutionality, has been the legal yardstick applied by the judges to laws classifying by sexual orientation. Now, however, an opportunity has arisen in the Second Circuit, “which has no established or binding standard for how laws concerning sexual orientation should be treated.” This gives Messrs. Obama and Holder an opening to press for a more stringent “heightened scrutiny” standard. But if the administration believes there aren’t even “reasonable” grounds for denying federal recognition to same-sex marriages, then it should not have had to wait for such an opening, but could have pressed its view in any federal court at any time.

While the president’s “personal” position on same-sex marriage continues to “evolve,” his administration has announced a view of the Constitution that tells us all we need to know about where Mr. Obama wants the country to end up. If Section 3 of DOMA is unconstitutional, for instance, what of Section 2, which relieves states of the obligation to recognize same-sex marriages entered into in other jurisdictions? This is not currently under any legal challenge to which the administration must respond, but its constitutional argument against Section 3, such as it is, works just as well against Section 2. Shouldn’t the administration advise the states that it will not come to their aid with legal arguments when this too is challenged? And will it enter the federal case challenging California’s Proposition 8, with an amicus brief urging its unconstitutionality? This too would seem to follow from the position the administration has now taken.

Continued enforcement of a law the president considers unconstitutional—but which he invests no political capital in attempting to repeal in Congress. An administration spinning its wheels in the federal circuit courts until an “opening” appears in one of them to maneuver more freely in the absence of precedent. An obvious muddling of political with legal arguments when it finally seizes the opportunity. A refusal to go the whole distance that logic requires while the president muses aloud about how his view is “evolving.” The pattern is revealing: Obama is the “un-Lincoln,” a president who would rather hint, and wheedle, and pine for an eventual Supreme Court ruling in favor of same-sex marriage, than forthrightly assert the equal standing of each branch of government to act on its own understanding of the Constitution. He makes no challenge to the reigning doctrine of judicial supremacy. Obama is instead the Court’s courtier, surrendering the dignity of his office, and the legislative power of Congress, to a hope that the Supreme Court too will “evolve” in its view, change the effective meaning of the Constitution, and foist same-sex marriage on the American people with an authority more difficult to challenge than that of a mere president.

Hopeful advocates of same-sex marriage should be disappointed in the president’s political cowardice. Opponents should be disgusted with his partisan legal tactics, but take heart from the fact that Mr. Obama is reduced to the expedient of such maneuvers. With popular majorities in three-fifths of the states having rejected same-sex marriage, and nothing but defeat at the polls awaiting any president who comes out squarely for it, this president is desperate to satisfy his liberal base on this issue at the least risk to himself. “Let the judges take the heat” is the motto of the left’s culture warriors. After all, for two generations the Supreme Court has been “taking it” over the abortion issue. Surely the justices can “take it” over same-sex marriage as well.

From every angle—political, moral, and constitutional—Mr. Obama’s low cynicism is breathtaking. Perhaps the advocates of same-sex marriage are content with “any means necessary.” But no one, on either side of this issue, should confuse our current president with his great predecessor from Springfield.


Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

Become a fan of Public Discourse on Facebook, follow Public Discourse on Twitter, and sign up for the Public Discourse RSS feed.

Copyright 2011 the Witherspoon Institute. All rights reserved.

Professor Epstein, 46, has been charged with third-degree incest for carrying on a sexual relationship over a three-year period with his daughter, now 24. From what little has emerged about the case, there are no charges that the relationship antedated the daughter’s eighteenth birthday, nor has it been alleged that the sexual relations were other than consensual. (The daughter herself has not so far been charged with a crime, however.) So powerful is the contemporary opinion that “consenting adults” may engage, in private, in any acts that commit no “harm” (narrowly understood in almost purely physical terms) to the parties in question or to others, that some observers have merely shrugged indifferently at the Epstein case, while others have striven to find grounds for condemning such incestuous acts but finally confessed their failure to find them.

After briefly describing the facts of the Epstein case, UCLA law professor Eugene Volokh asked, “Should it be illegal, and if so, exactly why?” The comments from his readers were not, in the main, terribly edifying. Volokh’s UCLA colleague Stephen Bainbridge cited the ethicist Leon Kass’s phrase “the wisdom of repugnance,” and said there was “definitely an ick factor” at work in his judgment of the case. But beyond this instinctual support for an ancient taboo, Bainbridge had little else to offer. And such an “ick factor” may be all most people can summon upon learning of this case. The taboo being so ancient, so much a part of “second nature” in people’s moral make-up, it has gone unarticulated for so long that when the need arises to articulate it, we may find ourselves speechless.

William Saletan made perhaps the most successful attempt to articulate a reason for condemning even consensual adult incest. He rejected the oft-cited risk of hereditary birth defects as a reason to prohibit incest, because such a risk is not present in some incestuous relations and is easily obviated in others. And violence and exploitation could not be said to be at work in truly consensual cases of incest between adults. Saletan finally settled, without much further elaboration, on calling incest a “cancer of the family” because it perverts already-existing relationships between family members.

It does indeed. Saletan might have consulted the analysis offered in C.S. Lewis’s 1960 book The Four Loves had he wished to develop the point. Lewis’s four forms of love are affection (the Greek storgē), friendship (philia), sexual or romantic love (eros), and charity or Christian love (agapē). Here we may stick to the first three—the “natural loves,” Lewis calls them—and observe that they are not so much variations of one thing as different species of love. Each has its own integrity, and is in an important way constitutive of human happiness. Some overlap among or progression through the various loves is possible, of course. Married couples, for instance, may begin as friends, become lovers, and finally find their relationship cemented in bonds of affection, that “humblest love” that as often as not involves a great deal of “taking for granted.”

But while such overlap is appropriate in some instances, in others it is inappropriate—indeed, it can be an outrage to mix loves or for one to intrude upon another. The relations of children to parents, and of siblings to each other, the most basic of familial ties, are intense and lifelong relations of affection, in which great variations on storgē are visible. Such close kinship, grounded in nature or even only in law and custom (as with step-siblings, for instance), is often its own justification and support. Surely many of us have been heard to say something like, “I don’t much like him, but I’m obliged to love him, because he’s my brother.” Introduce the element of eros, however, and affection is not reinforced; it is destroyed, and replaced by something unnatural to the relationship in its proper sense. The human good of parent-child love, or of sibling intimacy, is sacrificed to a misplaced passion that cannot achieve its own rightful end.

Much more could be said on this score, about the natural hierarchies, duties, and trusts that are shattered by incest, even between “consenting adults.” But the recent discussions of this matter reveal how decayed is our moral vocabulary for considering it, how nearly lost is any understanding that our various loves have their natures and purposes, which must be respected if those loves are to conduce to our happiness. Only such decay can account for the failure to grasp that a man cannot be a father to his lover, or a lover to his daughter.

The degradation of our moral sense about these things has been driven by the elevation of eros above all other loves, by the reduction of eros almost entirely to sexual behavior alone, and by a notion of untrammeled freedom to seek sexual satisfaction. In this development, the Supreme Court has played a pivotal destructive role. In its 2003 decision in Lawrence v. Texas, invalidating laws against homosexual sodomy, the Court referred to “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” As Justice Anthony Kennedy went on to say:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

As I had occasion to write several years ago in the context of another case of incest, if this is sound constitutional reasoning about the “liberty” protected by the due process clause, then it is as sound for the invalidation of incest laws as it is for the invalidation of sodomy laws. By declaring that a law prohibiting a sex act between consenting adults could not even pass the “rational basis” test, the least stringent of the constitutional standards the Court applies, Justice Kennedy in fact invented a kind of super-fundamental right to the sexual satisfactions of one’s choice, so long as one had a willing partner (or partners) past the age of majority. While a federal circuit court and a state supreme court have attempted to divert the reach of the Lawrence precedent from its obvious impact on incest statutes, their arguments unconvincingly deny the plain inferences to be drawn from Justice Kennedy’s reasoning.

Saletan insisted that there is “a rational basis to forbid” incest, even when it is the act of consenting adults—although he seemed also to want to leave his own moral strictures largely unenforced in such cases. The burden of his argument, however, was to distinguish between homosexual relations and incest, giving moral approval to the former while retaining condemnation of the latter. Indeed, as a supporter of same-sex marriage, Saletan argues that while incest is a “cancer” that eats away at the family, homosexuals should be encouraged to marry in order to “form . . . stable famil[ies].”

For our present purposes we can leave aside the question whether same-sex couples can form unions that deserve to be called “marriages,” or whether homosexual relations correspond to the nature or purposes of any of the “natural loves,” as Lewis called them. (On the nature of marriage, see the articles collected here on the debate begun recently by Sherif Girgis, Robert P. George, and Ryan T. Anderson.) What we must notice is that Saletan’s strictures against incest rest on moral arguments of a kind that the Supreme Court has already rejected in the Lawrence case. Above all other considerations, the Court has elevated autonomy, choice, a freedom from being trammeled in one’s private preferences regarding intimate matters of sexual partnering, and even a freedom from being “demeaned” by public disapproval in law or policy of one’s choices in such matters. A majoritarian moral preference for the integrity of the family cannot, in this arena, claim a “rational basis” in the law as against the autonomous choices of free individuals to disregard that integrity if it suits them. There is no such thing, by the inexorable logic of Lawrence, as “the family.” There are only “families,” constituted by the choices of individuals to make them, unmake them, and bend their purposes to their own will.

Whatever the fate of Professor Epstein, his case forces us to choose between alternative courses of reasoning regarding the morality we embody in our law. Do we believe in the “autonomy of the person,” as a constitutionally protected freedom to live as though human relationships were clay in our hands, to be molded as our desires imperiously demand? Or do we believe that sexuality, love, and family are things that constitute us, possessing their own natures and purposes and calling us to answer to them? On our choice between these two understandings, much of our future happiness depends.


Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

Copyright 2011 the Witherspoon Institute. All rights reserved.

As Robert Lowry Clinton showed in his recent Public Discourse article “Elitism and Judicial Supremacy,” the idea of a “living Constitution,” which seems to have originated about a century ago in the thought of Woodrow Wilson, has been seized upon by progressives in recent decades as the vehicle for social changes that could not possibly be achieved by persuasive appeals to public opinion and the electoral and legislative processes of majority rule. Ironically, Wilson conceived of the living Constitution as a way of liberating presidential leadership, which would usher in social changes precisely through the rhetorical reshaping of Americans’ expectations of their government.

In Wilson’s political science, the Supreme Court was indeed the final arbiter of constitutional questions, but he did not expect it to be a force for change in its own right, so much as an enabler of those changes brought about by powerful presidents who achieved a mastery over both public opinion and the legislative agenda of the Congress. For the most part, the proper job of the judiciary was to hold its power in abeyance, and to clear the path to hitherto unforeseen uses of national political power rather than to throw up new obstacles in government’s way. Adhering to the founding generation’s understanding of the Constitution would make it impossible for presidents to engage in this leadership of public opinion, Wilson and his fellow progressives thought—and impossible for the American political system to adapt successfully to the modern age.

It is only in the last six decades or so that American liberals have come to see the living Constitution as an idea that centers on the possibilities of judicially driven social and political change. Today’s heirs of the progressive cause are grateful to a Supreme Court that has actively intervened to make America (in their view) a better place, by making the Constitution seem to say things that no one understood it to say in those generations that wrote its great provisions. But there remains, among the advocates of a living Constitution, a palpable anxiety regarding the idea’s philosophical and political legitimacy. It is hard to justify an approach to constitutional interpretation that makes an unelected, life-tenured judiciary a transformative institution, authorized to frustrate the popular will in order to advance a vision of a better democracy. It is hardest of all when the animating principles of that vision seem wholly unconnected to the historic traditions of the American constitutional order, traditions to which the alternative jurisprudential school of “originalism” so strongly appeals. The task of today’s defenders of the living Constitution, then, is somehow to convince the American people of the idea’s “conservative” credentials, as both true to our traditions and capable of constraining judicial behavior and rendering it trustworthy.

This is the task that University of Chicago law professor David A. Strauss sets for himself in The Living Constitution, a short, pithy new book written to be read by any intelligent citizen and not just by legal scholars. Strauss is at great pains to demonstrate the intellectual and practical failures of originalism, and to show the consistency of the Living Constitution approach with the constraining principles of our legal traditions, while celebrating its results as cultivating the progressive flowering of a more just society. But his negative case against originalism, when it is not merely self-contradictory, rests on straw-man arguments that have been refuted many times. And his positive case for the Living Constitution is an attempt to give the radicalism of modern judicial decisions a veneer of conservative respectability that is quite unconvincing.

Originalism, says Strauss, is fundamentally flawed because it is “often impossible to uncover what the original understandings” of the Constitution were two centuries ago; because “the task of translating those understandings so that they address today’s problems” is frequently an intractable one; and because originalism cannot give an answer to the question, “Why should we be required to follow decisions made hundreds of years ago by people who are no longer alive?”

No originalist claims that all questions of the Constitution’s original meaning, or of its appropriate application in new settings, are easily answered. But Strauss surely exaggerates the magnitude of these difficulties, and fails to come to grips with the form of originalism that is prevalent today—the search for original meaning, which holds that the text of the Constitution has a meaning of its own, independent of the views (either the intentions or the understandings) of any particular individuals involved in making or ratifying its provisions. The point is to espy the “regression toward the mean,” as it were: the meaning of a constitutional provision that is the best account that can be given of its principled purpose, in the context of a coherent whole into which it fits as a constituent part, serving the comprehensive intention of the generation responsible for it. Strauss wrongly claims that originalists have to be historians, and “better than historians,” capable of absolute certainty regarding “the precise question presented by the case before them.” To the contrary, as in the interpretation of contracts, wills, and statutes, the originalist judge needs only those tools long used by the interpreters of legal texts, and identified in the 1760s by the English commentator William Blackstone: “the words, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law.”

But Strauss does not really believe originalism poses such insuperable difficulties. He is instead serenely confident that he knows what will and will not result from an originalist approach, declaring with an air of certainty that if the Supreme Court took such an approach, segregated public schools would be legal, women could be treated unequally, the Bill of Rights would not apply to states, legislators could represent wildly different proportions of the electorate, and most modern regulatory legislation would have to be held unconstitutional. Strauss may even be right about some of these conclusions, but what is striking is that he claims to know what results originalism would have, in a book that argues that originalists cannot know such things themselves.

Making his positive case for the Living Constitution, Strauss claims that it is only “the common law approach” applied to constitutional interpretation. It is an approach, he says, that is guided by slowly evolving precedents, and thus the judges are constrained: “Present-day interpreters may contribute to the evolution—but only by continuing the evolution, not by ignoring what exists and starting anew.” But what if the precedents do not provide adequate guidance, in a wholly new kind of case, or in an underdeveloped field of the law, or in a case where the precedents seem to the judge to have gone down a blind alley or failed to keep up with changing social realities? Then, says Strauss, “there is a legitimate role for judgments about things like fairness and social policy.”

And it is just here that the radicalism of the Living Constitution peeks through the conservative cloak in which Strauss attempts to wrap it. For he never gives an account of what “fairness and social policy” demand, other than what feels right to the judge deciding a case. And he never gives an account of why a federal judge’s sensibility about the demands of fairness should prevail over the sensibilities of democratic majorities, when the Constitution does not give a fairly unequivocal or discernible command that the majority will must be overruled. When briefly considering the obvious objection that he is recommending something fundamentally undemocratic, Strauss replies that “it is not the common law approach that makes our system undemocratic. What makes our system undemocratic,” he explains, “is judicial review: the practice of allowing the courts to have the last word on most issues of constitutional law.” (For “most issues,” read “all the really important ones.”)

But where did that “practice” come from? As Professor Clinton rightly noted, it does not spring in some authoritative way from the Constitution, and it cannot be found in the earliest precedents of the Supreme Court such as Marbury v. Madison. There is no originalist basis for judicial supremacy, for the “last word” on the meaning of the Constitution to belong to the judiciary. The only basis there can possibly be is Strauss’s own “common law approach” itself, which in truth has little affinity with the authentic tradition of the common law, and would be better described as a gradualist project of judicial usurpation. For the project’s admirers such as Strauss, the gradual usurpation of constitutional power by the judiciary has had largely happy results, and that is sufficient justification for the Living Constitution. Apart from this frank result-orientation, all the arguments for the living Constitution are circular, for the same reason that all the arguments against originalism are self-defeating.  And that is that once one ceases to speak of the law by reference to the integrity of its own original meaning, it is not long before one begins to talk nonsense instead, just as one speaks nonsense when saying “up” in outer space where there is no gravity.  In both cases one has come unmoored from any reference point independent of one’s own willful choices.

But Strauss does have one more argument against originalism, what he calls “Jefferson’s problem,” referring to Thomas Jefferson’s belief that “the earth belongs to the living” and that one generation cannot govern the next. Strauss badly misunderstands Jefferson, who wanted new constitutions drafted every nineteen years because he was an originalist who worried that, if our institutions did the right thing and abided by the constitution’s original meaning, later generations would find themselves subject to obligations they had no part in imposing on themselves. Strauss does not alert his readers to the cogent response to Jefferson by his much wiser friend James Madison, who reminded him that while the use of the earth may belong to the living, “the improvements made by the dead form a charge against the living who take the benefit of them.”

Our constitutional republic is ours to preserve, to alter, or to destroy. But it is also an inheritance, and the good work of our forebears in making it so beneficial to us imposes an obligation on us to treat it as a charter of government with an integrity of its own, and a meaning that is given to us and not made by us. It is the estate bequeathed us by our fathers and mothers. We may make our own improvements on it, but we the living must begin by understanding our debt to the dead. The “living Constitution” is premised on the rejection of such an indebtedness, and ultimately of constitutionalism itself.


Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Their repeated exclamation “not that there’s anything wrong with that!”—invariably uttered with far less passion than their denials—is a socially conditioned response. Somewhere they have learned that it is unacceptable to cast aspersions on homosexuality, and that the politically correct response is to say (as Jerry does at one point, albeit rather too excitedly), “People’s personal sexual preferences are nobody’s business but their own!” Jerry and George struggle to suppress what they really think with what they have been taught to think is “enlightened opinion.” Call it the Seinfeld Effect.

Seventeen years later, the advocates of same-sex marriage are making “people’s personal sexual preferences” everybody’s business, and are counting on the Seinfeld Effect to suppress what most Americans really think about same-sex marriage. They are waging their struggle, after all, not just in courts of law but also in the court of public opinion, and the advocates’ success with certain judges will not be secure unless most Americans are with them. So how are they doing?

A CNN/Gallup poll released on August 11 found that 52% of respondents supported and only 46% opposed same-sex marriage—a result widely trumpeted as the first time a majority expressed this view. But in an important finding, a North Carolina firm called Public Policy Polling discovered that its method of automated polling or “robo-calls,” in which respondents interact on their phone with a computer-controlled interview system rather than a human interviewer, yields significantly higher numbers of Americans who oppose same-sex marriage.

The robo-call technique has been pioneered by pollster Scott Rasmussen, who has racked up an impressive record of accuracy in the highly competitive business of predicting election outcomes. Using this same system, Public Policy Polling—whose head actually favors gay marriage—found in a poll released on August 13 that a mere 33% of respondents favored same-sex marriage, while a full 57% opposed it. (This is a result the firm’s head deplored, but defended as accurate nonetheless.)

What’s going on here? If we take both polls as accurate, each in its own way, then we can say that one-tenth (or more) of Americans oppose same-sex marriage but are extremely hesitant to say so to another person, even a stranger conducting a telephone survey. Yet they will express their disapproval in the complete anonymity of a “robo-call” survey—or, from what we have seen so far, the voting booth.

This finding shows that while support for conjugal marriage is widespread, it is also fragile and falling victim to a phenomenon known among public opinion researchers as the “spiral of silence.” The late German political scientist Elisabeth Noelle-Neumann coined this phrase, and used it as the title of a book 30 years ago. W. Phillips Davison summarized her theory as follows:

Most people are able to estimate (although not always correctly) what majority opinion is on most issues, or whether a particular opinion on an issue is gaining or losing ground. Those who see their own views as becoming more widely accepted tend to voice these views in public, and with increasing confidence. Those whose opinions seem to be losing ground are reluctant to speak out. The silence of the “losers,” in turn, increases the confidence of the other side. Finally, only a hard core is willing to defend the minority opinion in public.

One need not believe in what Noelle-Neumann called a “quasi-statistical” sixth sense to see  her point. The conformity of crowd behavior has been observed almost as long as there have been crowds, and, for most people, the smaller and weaker one feels one’s own position to be, the harder it is to maintain it.

Noelle-Neumann’s “spiral of silence” theory doesn’t treat only the increasing dominance of opinion that already commands a majority, but can also account for any opinion that is “gaining ground.” But how does an opinion gain ground, if it begins as the minority view? On this she had less to say. But others who have studied the mass media can help us out here. Communication scholar Jim Kuypers, for instance, has written of the rhetorical phenomenon known as “framing”:

Framing is a process whereby communicators, consciously or unconsciously, act to construct a point of view that encourages the facts of a given situation to be interpreted by others in a particular manner. Frames operate in four key ways: they define problems, diagnose causes, make moral judgments, and suggest remedies. Frames are often found within a narrative account of an issue or event, and are generally the central organizing idea.

There can be little doubt that the dominant institutions in the American news media—the leading newspapers, magazines, and television network news divisions—have been at work for years in framing the question of same-sex marriage in ways that advantage its advocates. In the dominant media “frame,” for instance, it is always the opponents (and never the supporters) of same-sex marriage who are described as employing the controversy as a “wedge issue,” the implicit moral judgment being that those who push such controversies to the forefront are being divisive and working to destroy the harmony of the American community by pitting neighbor against neighbor. The advocates of same-sex marriage are never described in similarly loaded language, although the radicalism of the proposition that men can marry men and women can marry women is self-evident.

The danger for traditional marriage’s defenders, then, is that media framing of an issue can, over time, push many Americans into a “spiral of silence,” in which they will first experience the Seinfeld Effect of publicly suppressing their opinion that there is “something wrong” with same-sex marriage, then prevaricate even with strangers surveying them on the phone, and finally acquiesce, however reluctantly, in a fait accompli foisted on them as a “constitutional right” by activist judges.

On the marriage issue, there will no doubt always be a sizable “hard core” of defenders of conjugal marriage, particularly though not exclusively among the most orthodox religious believers. But there is a “soft middle” in American public opinion on this question, comprised of those who oppose same-sex marriage but fear that their views are losing ground and are hopelessly retrograde in a changing world. What steps can be taken to stiffen their resistance? Is some form of “inoculation” possible?

Inoculation is more than possible. Noelle-Neumann’s spiral of silence is dependent on both the experience of isolation and the fear of isolation. “My view is different from everyone else’s around me” is the opinion-killer for many people, even when the perception is a false one. Defenders of the institution of marriage need to know that they stand, not merely with more like-minded contemporaries than they suspect, but with countless generations of thoughtful people—husbands and wives, fathers and mothers, philosophers and lawgivers, prophets and priests—who believed as they believe.

They also need to know that, however few or many they are in their immediate social surroundings, they have the best arguments at their disposal for the preservation of that tradition: That marriage would not exist were it not for the fact that men and women have children, and it is good that they have them together and rear them together. That on the whole it is best for children to be raised, wherever possible, by their natural mothers and fathers in intact, lifelong familial relationships. That marriage’s nature is not infinitely malleable in response to our will, but is the shaper of our relations as much or more than it is shaped by them. That the reshaping of marriage to “make room” for same-sex couples leaves it vulnerable to every other claimant who wants similar space in the institution, including the polyamorous—and so the reshaping is, in truth, the effectual abolition of marriage. That the defenders of tradition should suffer no embarrassment if their moral views about the law of marriage find confirmation in the tenets of their religious faith, however much they are vilified as irrational bigots by a federal judge.

To these powerful arguments the advocates of radical change in the institution of marriage can oppose nothing but an appeal to sentiment, and the force of the Seinfeld Effect. They expect their fellow Americans to shrug and say, “so they want to get married—not that there’s anything wrong with that.” We must offer instead a firm but loving refusal to shrug at this revolution in our political and cultural life.


Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute. Gwen Brown is professor emerita of communication at Radford University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Such an advocate is Judge Vaughn Walker of the U.S. district court in San Francisco. After two and a half weeks of trial in January, and a day of closing arguments in June, he finally delivered his ruling and opinion in Perry v. Schwarzenegger on August 4, overturning California’s Proposition 8, an amendment to the state constitution adopted by the people in November 2008, declaring that “only marriage between a man and a woman is valid or recognized in California.” The California Supreme Court, in May of that year, had overturned an earlier popular referendum protecting marriage (that had only statutory status) on grounds that it violated the state constitution. And so the people of the state, against the odds and facing elite opposition, amended that constitution just six months later. Judge Walker has shifted the ground of the controversy to the federal constitution, and has flung wide the door of the federal courts to embrace (he hopes) some of the worst sophistical knavery that has been seen in quite some time in the pages of American jurisprudence.

Perhaps the most surprising thing in the judge’s opinion is his declaration that “gender no longer forms an essential part of marriage.” This line, quoted everywhere within hours with evident astonishment, appears to be the sheerest ipse dixit—a judicial “because I said so”—and the phrase “no longer” conveys that palpable sense that one is being mugged by a progressive. But Judge Walker’s remark here is actually the conclusion of a fairly complex argument. The problem is that the argument is not only complex but wholly fallacious.

Judges, especially those of the lower courts, know that their innovations in constitutional law are best armored by an appearance of continuity with history and precedent. And so Judge Walker begins by reminding us that the right to marry has long been considered “fundamental” in our jurisprudence. And so it has, for those—namely couples of men and women—considered capable of entering into the relationship of marriage. Are the same-sex plaintiffs in the Perry case asking then for a “new” right, or for admission without unjust barriers of discrimination to the enjoyment of an old one? At first glance it looks like the first of these is the case. But any road that leads to the second conclusion will be smoothest for the judge-advocate’s purposes, since it will provide that much-desired appearance of continuity with the law’s long history.

Yet how to pave that road? By distinguishing between the “core” attributes of the institution of marriage and those that are only incidental, those historical attributes that have been abandoned without harm to what is essential about marriage. Many American states, for instance, once considered race an important attribute, so that racial difference was a barrier to the formation of a marriage. But race is now universally understood not to matter, and the Supreme Court even said in 1967 that the Constitution did not tolerate such a legal rule.

By the same token, says Judge Walker, the doctrine of coverture, in the common law, in which a wife’s legal identity was subsumed by that of her husband as the superior partner in the marriage—that too has been abandoned by a more modern understanding of the sexes as equal partners. Thus, concludes the judge, there has been a “movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles.” And this has not been an essential change in the “core” of the marriage institution, but merely a shedding of an extraneous characteristic, thanks to “an evolution in the understanding of gender.”

And now watch carefully, for here the fallacious reasoning enters the equation. When “the genders” are no longer “seen as having distinct roles,” it is revealed that at marriage’s “core” there is ample space for same-sex couples too. Since “gender no longer forms an essential part of marriage,” indeed since it never really did, “plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.” There, you see? There is something eminently conservative about the admission of same-sex couples to the marital bond. What could we have been thinking, denying them this right for all these centuries?

Judge Walker seems to have committed the fallacy of composition—taking something true of a part and concluding that it is also true of the whole of which it is a part. If it is true that “gender” no longer matters as it once did in the relation of husband and wife, he reasons, therefore it no longer matters whether the relation is one of husband and wife; it may as well be a relation of husband and husband or of wife and wife, since we now know that marriage is not, at its “core,” a “gendered institution.” But restated in this way, it is quite plain that the judge’s conclusion doesn’t follow from his premises. To say that the status of men and women in marriage is one of equal partners is not to say that men and women are the same, such that it does not matter what sex their partners are. The equalization of status is not the obliteration of difference, as much as Judge Walker would like to pretend it is.

Once having admitted same-sex couples to the ranks of those holding the “fundamental right” to marry, the judge has easier sport in his sights, manipulating the “levels of scrutiny” that so afflict modern constitutional law, and concluding withal that the voters who approved Proposition 8 acted without any “rational basis” for their decision to preserve marriage in the only form in which our law has ever known it. Now conservatism gets a hiding from Judge Walker: “Tradition alone . . . cannot form a rational basis for a law.”

Well, yes, to be sure. Tradition must give its reasons—though in the common-law legal tradition, it is novelty that usually bears a heavier burden in this respect. And is it really as easy as the judge thinks to dismiss a “tradition” so bound up with commonsense understandings of nature, of human flourishing, of the purposes of marriage and family? Confidently sweeping aside such understandings, Judge Walker declares that “moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.”

This is a very telling conjunction. Once it would have been thought to strengthen the case for a law, that it rested on the moral views of the lawmakers, if no countervailing right against being governed by such views could be adduced. And it would have been a matter of no legal suspicion whatsoever that the moral views informing a law found confirmation in widely held religious views as well. For such moral principles are not articles of faith, in the sense of being specially revealed to the elect or the faithful. They are the conclusions of trains of reasoning about right and wrong, and about human ends and the fitness of the means to them. In language we might borrow from Plato’s Euthyphro, the moral norms that govern marriage are embraced by the pious not because they are mysterious commands of an inscrutable divine will, but because they are rationally knowable as good in themselves, and for this reason find support in the dictates of faith as well.

But for Judge Walker there is an odor of illegitimacy about merely “moral” views expressed in legislation, especially when morality finds support in religion. Thus he declares that Proposition 8 expresses only a “private moral choice,” not a considered public morality. And thus in his tendentious “findings of fact” (about the purpose of which, see this editorial in National Review), he makes the astonishing claim—purporting to be a fact found at trial, not a judgment of his own—that “religious beliefs that gay and lesbian relationships are sinful . . . harm gays and lesbians.”

Perhaps here, in this nadir of absurdity, we have found the real fundament of the judge’s thinking. Citizens who wish to defend the institution of marriage as they and their families have known it all their lives, and for countless generations, are irrational bigots. Worse still, if they are moved to act because of the union of their faith with their moral opinions, they are crazy religious folk, bent only on harming others whom they merely “dislike” on grounds that cannot possibly be defended before a tribunal of right-thinking people. And those others, the same-sex-couple plaintiffs? They must be rescued from the “harm” to their feelings that results from their exclusion from a historic civil and moral institution that has never hitherto been thought to have been built for them.

That Judge Vaughn Walker evidently cannot grasp what an effrontery his opinion is to the faith, the morals, and yes, the feelings of the vast majority of his fellow Americans is the final irony of his ruling in Perry v. Schwarzenegger. But perhaps he can be taught a lesson about the violence he has done to the rule of law, and to the United States Constitution.  His fellow citizens, more accustomed than he to governing themselves by canons of reasoned judgment, may have to teach the lesson, if his superiors on the bench will not do so.


Matthew J. Franck is the director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

Copyright 2010 the Witherspoon Institute. All rights reserved.

DOMA cannot be properly understood outside its historic context. Congress passed DOMA, a statute that is as simple as it is brief (consisting of barely more than 350 words), to prevent this judicial tyranny. DOMA did just two things: in section 2 it permitted states to deny recognition to any “relationship between persons of the same sex that is treated as a marriage under the laws” of another state; and in section 3 it defined “marriage” for purposes of all federal laws and regulations to be “only a legal union between one man and one woman as husband and wife.”

Neither section took any notice of which state institutions might be responsible for introducing the recognition of same-sex marriage. But the law as a whole was a response to the looming threat, by then already met and rebuffed in Hawaii, of judges imposing the agenda of same-sex marriage on the country, state by state. Indeed, in the event that democratic action caused same-sex marriage to become widely accepted, and recognized in the law in most of the states, one might expect DOMA to be repealed in its entirety. But that would be for Congress to do, following the actions of other elected legislatures at the state level. And in 1996, when DOMA was passed, no state legislature had seen fit to upend the entire meaning and history of marriage by fabricating the fraud of permitting persons of the same sex to “marry.” In the fourteen years since DOMA’s passage, only one legislature (New Hampshire’s) has acted to authorize such marriages entirely on its own, while another (Vermont’s) did so only after being pushed as far as same-sex ‘civil unions’ by its state’s judiciary. And in every state in which the question of permitting same-sex marriage has been put directly before the people, it has been rejected by popular majorities, in most cases acting in their sovereign capacity as constitutional lawgivers. The sine qua non of same-sex marriage in the United States has been the tyranny of the American judiciary, while republican constitutionalism has been fighting a rearguard action.

One of Judge Tauro’s defenders might say that since it has already been decided that same-sex marriages may take place in Massachusetts, the only question before Tauro’s court was whether the federal government could decline to treat same-sex couples as married when the state has so treated them. “The authority of the Commonwealth,” after all, has “recognized same-sex marriages among its residents,” he noted. But what “authority” worked this recognition in Massachusetts? Why, its judiciary, of course, which has infamously frustrated the operations of democracy at every turn.

Thus it takes a certain cool nerve for Judge Tauro to argue that DOMA broke with a tradition of federal restraint from meddling in “states’ areas of sovereign concern,” and to say as well that “DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations,” when DOMA predated the Massachusetts judiciary’s invention of a right to same-sex marriage by seven years. Who was it who set the collision course? Not the bipartisan national coalition that enacted DOMA as a purely defensive measure, and not the sovereign peoples of the states or their elected representatives who are responsible to them for the shape of their constitutional orders, and who have acted to preserve authentic marriage in the law. No, it has been the judicial ideologues who have determined to attack the defensive bulwarks of sovereign power, and to play at being sovereigns themselves.

It is worth noting, as Ed Whelan has done, that the Obama administration (guided by Solicitor General Elena Kagan, now nominated to the Supreme Court) explicitly abandoned the argument that marriage is tied to procreation and that Congress might thus decline to recognize state-sanctioned same-sex marriages. But had the argument been preserved, there is no reason to believe it would have prevailed in Judge Tauro’s court. He was plainly intent on building the next story of the same-sex marriage edifice on the foundation built by the usurper jurists who have come before him. And like his predecessors, he has found it necessary to beg important questions and to hold others’ views “irrational” without any real ratiocination of his own.

Quoting Supreme Court precedent, for instance, he allowed that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law. . . .” The ellipsis is his, but it conveniently conceals that even the Justice who originally said this (John Paul Stevens) knew that the traditional view of morality espoused by democratic majorities does prevail, unless a countervailing constitutional ground for overturning it is produced by the law’s challengers. Judge Tauro provided no such ground, but was content to leave the impression that “legislating morality” is not, in itself, possible in a constitutional democracy. This he himself contradicted, holding that Congress is bound by “historically entrenched practices”—that is, traditions of its own making that he invested with moral significance—and also expressing high moral dudgeon about the putative motivations of the legislators who crafted DOMA, presuming to instruct the Congress in precepts of constitutional morality. It is only judges, it seems, who may use the law for purposes of legislating morality.

Judge Tauro is certain, for instance, that DOMA somehow “targets” persons of a certain “sexual orientation” as members of a “group of which [Congress] disapproves”—indeed, has an “animus” against—and which it therefore wants to “disadvantage” in the law. But this is not what DOMA is about at all. Instead it is the mildest of all possible measures that Congress could have taken to defend marriage as human civilization has always known it. It attempts to cabin a judicial revolution in those states in which it occurs, and to head off the sorts of claims that would spread the revolution, such as same-sex couples moving from one state to another and saying that, after all, in their former domicile they had jointly filed their federal income taxes as married.

There is no “animus” in such legislation. But Judge Tauro sees nothing else, because he has already concluded that the difference between same-sex couples and opposite-sex couples is “a distinction without meaning.” Of that moral conclusion the judge is quite sure, but there is no telling what is the ground of his certainty. All we know is that “traditional morality” cannot stand against it. Perhaps it is novelty alone that suffices for the victory of one moral view over another. But who made our judges the pioneers of society’s moral “advancement”? And if, thanks to some other judicial pioneers, polygamy comes to be legalized in one of the states, would it be permissible for Congress to legislate that only monogamous marriages were recognized under federal law? Or would that too be “a distinction without meaning”? Time may tell that tale as well.

Judge Tauro’s rulings were restricted to section 3 of DOMA, concerning the status of same-sex couples under federal law and policy in states permitting them to marry. But his logic would hold section 2 on interstate recognition unconstitutional as well, notwithstanding his repeated view that states may determine the right to marry in different ways. Holding that no rational distinction can be made between same-sex married couples and opposite-sex married couples, the judge “finds that DOMA induces the Commonwealth to violate the equal protection rights of its citizens.” True, he predicates this holding on the fact that, under Massachusetts law, there already are same-sex married couples. But it is a short step from such reasoning to the conclusion that, if one such Massachusetts couple moves to West Virginia, their new domiciliary state cannot rationally deny them a recognized status that their former state already accorded.

“Married in Massachusetts, married everywhere” is the conclusion Judge Tauro invites. And it is but one more step beyond that to “marriageable in Massachusetts, marriageable everywhere,” with the equal protection clause becoming the source of a federal constitutional right of same-sex couples to marry. This is the outcome almost certain to come from the federal trial of Perry v. Schwarzenegger in California, where the sovereign act of Proposition 8 hangs in the balance and a decision is expected any day from Judge Vaughn Walker. But Judge Tauro, in his smaller way, has signaled his own eager enlistment in the revolutionary vanguard of the American judiciary, ready to instruct the little people, who used to be the self-governing citizens of the United States, in the moral categories commanded by progress.

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.
An earlier version of this article misstated the number of states in which same-sex marriage has been adopted by legislative action.

More recently, Thomas Geoghegan argued in the New York Times that the filibuster is unconstitutional.  First, he says the framers of the Constitution were generally against supermajority requirements, and included just a few such requirements for special purposes in the Constitution; therefore the Senate filibuster, not specially authorized in the Constitution, is contrary to their intentions.  Second, Geoghegan notes the vice president’s power to cast a tie-breaking vote in the Senate, a power that is vitiated when the 60-vote requirement prevents a tie vote from ever happening.  And third, the Constitution requires only a bare majority as a quorum to do business, yet the filibuster requires the supporters of a major bill to muster 60 votes.  Thus the filibuster violates the Constitution.

These are less than convincing arguments.  Geoghegan downplays the provision in Article I, Section 5 of the Constitution that authorizes each house of Congress to “determine the Rules of its Proceedings.”  The Senate has chosen a set of rules that prize the power of senators as individuals to shape and to slow down debate in the chamber, while the House has chosen rules that streamline debate and advantage the majority party.  How can the Senate’s conformity with the letter of the Constitution be declared “unconstitutional”?

Klein keeps the focus on the alleged unfairness of minority power, and the impact on accountable and effective governing.  But Geoghegan’s argument has resonated more strongly with critics of Senate obstructionism, because the American people will always respond to an appeal to the Constitution—even a strained one unsupported by the text.  What Klein and Geoghegan have in common is a sense of outrage about the Republican Senate minority’s ability to traduce (in their view) the most fundamental principle of democracy, majority rule itself.

But is the filibuster anti-democratic?  Or is it, in purpose and effect, an aid to legislative deliberation, and in that sense a valuable contribution to democracy?  A good case can be made for the filibuster, when it is used prudently on the most important matters.

Before judging the value of the modern filibuster, consider its history and its present shape.  In contrast to the House of Representatives, where the duration and openness of floor debate on each bill are tightly controlled by the Rules Committee and the majority leadership, the Senate has always prized the freedom of action of the individual senators, to speak at length during debate and to turn the deliberations on a bill in new directions by way of amendments.  The only mechanism routinely used to control floor debate is the “unanimous consent agreement” (UCA), which limits the time each senator may speak and forecloses certain kinds of amendments.  But as its name indicates, each UCA must be accepted by every senator, any one of whom may say “no” and keep his options open.  Where there is no UCA, a filibuster remains a live possibility, and a single senator, having gained the floor (yes, think James Stewart in Mr. Smith Goes to Washington), can talk until either he or his colleagues give ground on the disputed legislation.

By the late nineteenth century, the use and abuse of the filibuster had become a famous and often controversial feature of Senate practice.  In 1917, the Senate adopted Rule XXII, instituting the system of “cloture” to end debate.  Now there were three ways that Senate debate could be brought to a conclusion: the UCA, cloture, or the exhaustion of any senators pursuing a filibuster.  Initially cloture required two-thirds of those senators present and voting.  In a 100-member Senate with 51 senators making a quorum, this could require as few as 34 senators, but when major legislation was on the floor, one could expect 90 or more senators to be present, requiring 60 or more to vote for cloture.

In the 1970s two changes took place in the cloture system.  First, Rule XXII was amended to require three-fifths of all serving senators, not merely all those present, thus setting the bar at 60 votes for cloture in every case (when all Senate seats are filled).  This is a target easier or harder to hit than the old one, depending on the circumstances—but probably easier when a truly significant bill is on the floor.  Second, under Democratic majority leader Mike Mansfield, a “multi-track” system for moving legislation was devised, so that if a bill was threatened with a filibuster it could be sidetracked, while other legislation proceeded to floor consideration.  Previously, with legislation on the Senate calendar, a filibuster stalled current business, producing a bottleneck until the filibuster was resolved.

Mansfield and his colleagues probably thought their multi-track innovation would render the filibuster a relic of bygone days, since it would no longer prevent the Senate from considering business on the floor.  Instead it unleashed a torrent of filibusters—or more precisely a torrent of threats, consisting of announcements of an intent to filibuster.  The threat did not need to be made good, because each such announcement came to be treated as triggering the necessity of a cloture vote.  This new political environment is the reason why we never actually see a Mr. Smith-style filibuster, and yet we are told that on bill after bill, a filibuster must be brought to an end by a 60-member cloture vote.  Multi-tracking is not the only cause of this ubiquity of the “ghost filibuster” (in Geoghegan’s phrase); sharper partisanship also makes a contribution, as the minority party feels less obligation to loosen its grip on obstructive power.  But multi-tracking is probably the sine qua non of the modern 60-vote threshold for getting major things done in the Senate.

On many pieces of major legislation, the sponsors or majority leadership will now presume the threat of a (never-to-be-performed) filibuster, and file for cloture at practically the same moment a bill is cleared for movement on the floor.  Then begins the “whipping” for votes not to reach the simple majority for passage, but to reach the super-majority of 60 votes just to control debate and make a vote on passage possible.  This preemptive cloture-seeking can inflate the numbers of so-called filibusters, leading to somewhat different statistics on the frequency of the threat, depending on who is counting and what measure is used.  Yet no one doubts there has been a sharp increase in recent decades in the employment of threatened filibusters and the need for cloture votes to bring the Senate to final votes on bills.  The majority could conceivably reduce these numbers by forcing senators to make good on the threats by “doing a Mr. Smith.”  But there is a powerful incentive to leave well enough alone, thanks to the fact that each party has had its turn in the minority on a regular basis.

But is all this minority power justified?  Geoghegan complains that “[f]orty-one senators from our 21 smallest states—just over 10 percent of our population—can block bills” in the Senate.  True enough: according to the latest Statistical Abstract of the United States, the smallest 21 states contain 11.2% of the nation’s people.  But if cloture were blocked by 41 senators from the largest 21 states, they would represent 77.4% of the nation’s population.  In terms of majority rule in the Senate, the cases are identical.

But the contending sides in a cloture battle are never so neatly distributed as in these hypotheticals.  If we turn instead to our actual partisan division, we find that the 59 Democratic senators represent 36 states and 74.9% of the population, while the 41 Republicans represent 27 states and 48.7% of the population.  (Numbers total more than 50 states and 100% because thirteen states have senators from both parties.)  Before we conclude that their strength entitles the Democrats to unilateral control of the debate on every bill, note that the Republicans represent more than half the states and just a little less than half the population.  These are sizable proportions to be considered, especially when taking up important legislation.

The goals of a minority can vary from blocking legislation altogether, to offering amendments constructively altering a bill’s shape, to merely having sufficient time on the floor to build a public case against the majority’s agenda.  When the majority cannot command (or cajole its way to) 60 votes, it must give ground to the minority and attempt to find the distance each side must travel to reach an accommodation.  This is the essence of deliberation, and it has the potential to be regularly conducive to better legislation, understood as laws acceptable to a near-consensus of the American people.  The more significant the legislation, the more desirable is such a deliberative process.

What would be lost with the elimination of the filibuster?  We saw a glimpse of the answer in the Christmas Eve vote on health-care reform in the Senate.  Senator Harry Reid, the majority leader, engineered the all-Democrats cloture vote to produce a tightly controlled debate on final passage of a bill that few senators could possibly have read, to which no senator had a realistic opportunity to offer meaningful amendments, and which was conducted in an appallingly short time allowing practically no true debate among senators by which they could persuade one another or communicate with the American people.  If Sen. Reid had set out to reproduce the worst features of debate in the House of Representatives on its worst days, he could not have done better.  Each house of Congress has its peculiar virtues and vices as a legislative assembly.  Deliberation and consensus-building are not the distinctive features of the House of Representatives.  And there is no reason to desire two such chambers with the same deficiencies in this regard.  Every proposal so far advanced to “reform” the filibuster promises exactly that outcome.

Republicanism does rest on majority rule.  But decent republicanism also honors minority views, and gives a hearing to those voices that lack the power of command but possess the potential to persuade.  When Scott Brown won in Massachusetts, he brought this decency back to the United States Senate.  If the Senate is to aspire to its self-awarded title as “the world’s greatest deliberative body,” it will welcome his arrival and leave its fusty old filibuster tradition firmly in place.


Matthew J. Franck is Professor and Chairman of Political Science at Radford University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Sen. Coburn: You’ve been asked a lot of questions about abortion. And you’ve said that Roe v. Wade is settled law. Where are we today? What is the settled law in America about abortion?

Judge Sotomayor: I can speak to what the court has said in its precedent. In Planned Parenthood v. Casey, the court reaffirmed the core holding of Roe v. Wade, that a woman has a constitutional right to terminate her pregnancy in certain circumstances. In Casey, the court announced that in reviewing state regulations that may apply to that right, that the court considers whether that regulation has an undue burden on the woman’s constitutional right. That’s my understanding of what the state of the law is.

Sen. Coburn: So let me give you a couple of cases. Let’s say I’m 38 weeks pregnant and we discover a small spina bifida sac on the lower sacrum, the lower part of the back, on my baby, and I feel like I just can’t handle a child with that. Would it be legal in this country to terminate that child’s life?

Judge Sotomayor: I can’t answer that question in the abstract, because I would have to look at what the state of the state’s law was on that question and what the state said with respect to that issue. I can say that the question of the number of weeks that a woman is pregnant has been—that approach to looking at a woman’s act has—was changed by Casey. The question is, is the state regulation regulating what a woman does an undue burden? And so I can’t answer your hypothetical, because I can’t look at it as an abstract without knowing what state laws exist on this issue or not. . . .

The judge’s answer to the senator’s question was miles wide of the mark, and indicated either that she does not know the truth about the constitutional law of abortion in our country, or that she is willing—for whatever reason—to mischaracterize the matter before a national audience. Senator Coburn had an opening here that cried out for exploitation, but he passed it by for the moment.

The next day, however, he returned to this subject, taking Judge Sotomayor through another brief exchange and pointing out to her that “the truth is, ever since January 22nd, 1973 [the day Roe was decided], you can have an abortion for any reason you want in this country,” and that the stage of one’s pregnancy at the time does not matter at all. The senator was perhaps too kind to the judge, when he might have leaned in and said with quiet intensity, “Why don’t you know this?”

But the sad truth is that too few Americans know this, even those with legal credentials. In 1994, Kathleen Sullivan, a prominent scholar of constitutional law who went on to be dean of Stanford Law School, wrote in The New Republic that Roe v. Wade left it open to states to “criminalize abortion” in the “last three months of pregnancy,” and even to “treat it as murder” when a pregnancy had passed the point of fetal viability. Sullivan was quite wrong—as I pointed out in a letter to the magazine that she did not attempt to rebut—but the myth she propagated has remarkable staying power.

When I pointed out, in a blog post at the American Principles Project, how wrong Judge Sotomayor was in her answer to Sen. Coburn’s hypothetical, a commenter on the site challenged me to back up my statement that the legal regime in America is one of abortion-on-demand throughout the nine months of pregnancy. This tutorial is my reply to such doubters.

First we must turn to Roe v. Wade, the case that draws many thousands of protesters to the steps of the Supreme Court each January 22 in the March for Life. As John Hart Ely, a pro-choice liberal who like Kathleen Sullivan went on to be Stanford’s law dean, wrote a few months after Roe, the ruling was “bad constitutional law, or rather . . . it is not constitutional law and gives almost no sense of an obligation to try to be.” Indeed, one of the most notable things about Roe, as then-Justice William Rehnquist said in dissent, was how much it smacked of “judicial legislation.” In a summary of the Court’s holding that fit that description perfectly, Justice Harry Blackmun wrote:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

This is the famous “trimester framework” of Roe. And the focus of all misleading commentary that seeks to portray Roe as “moderate” or a kind of “compromise”—between the claims of women seeking abortions and the claim of any state seeking to protect prenatal life—is on those words in Blackmun’s paragraph (c) that say the state may “even proscribe” abortions after viability. Surely, some say, this refutes any notion that Roe meant “abortion on demand” throughout the entire course of pregnancy. The fact that, “in appropriate medical judgment . . . the preservation of the life or health of the mother” might justify exceptions being made to such a proscription did not seem to obviate the prohibitory power of the state altogether.

A few lines after the passage above, however, Justice Blackmun pointed his readers to another case decided that same day, Doe v. Bolton. Whereas Roe concerned a Texas statute broadly prohibiting abortion and dating from the mid-nineteenth century, Doe was a dispute over a Georgia statute only five years old at the time, and reflecting the reformist compromises meant to ease abortion prohibitions that were under way in many states in this period. In Roe—again, immediately following the framework above—Blackmun said “that opinion [in Doe] and this one, of course, are to be read together.”

Let us do just that. Overturning Georgia’s tight standards on when threats to a woman’s health would justify an abortion, Justice Blackmun wrote in Doe that a physician’s

medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.

When such “factors” as these—“emotional, psychological, familial, and the woman’s age”—are all declared to “relate to health” in the “medical judgment” of the doctors who perform abortions, then it may be fairly said that the rule in Blackmun’s paragraph (c) in Roe’s trimester framework is swallowed up by its exception. If a woman would be distraught by the prospect of becoming a mother, if her boyfriend is threatening to leave her, if she would have to cut short her progress through college, if she simply declares to the abortionist “I don’t want this baby”—any reason the doctor will accept is a perfect and complete shield from the state’s prohibition of post-viability abortions, no matter how close to a timely childbirth the mother is, and no matter how good the prospect for a successful birth with a healthy mother and child. In practice, it will suffice if the woman gives the physician no reason whatsoever. He is in the abortion business, and she has to come to him for the “procedure”; plainly her “emotional” or “psychological” state is such that she associates the termination of her pregnancy with a restoration of her “health.” If an official inquiry were to be made by state authorities after the abortion, the physician need cite no more than his “medical judgment” to this effect.

But in fact, no such inquiries have been seriously undertaken anywhere in the country for many years now. The medical and law enforcement communities alike have understood almost from the beginning that abortion on demand was the new legal standard since January 1973. While battles have raged in legislatures and courts over a variety of restrictions on the performance of abortions—regarding the number of physicians who must be present for later-term abortions or whether they must take place in hospitals, spousal or parental consent or notification requirements, informed-consent requirements, public funding of abortions, or the use of particular methods of abortion, such as the grisly partial-birth method—there has never, since Roe and Doe were decided, been any way for a state to prohibit any abortions outright merely by virtue of when in pregnancy they occur or what reasons women give for seeking them.

I make no claim here that Justice Harry Blackmun was intent on bringing about this result when he wrote the majority opinions in both Roe and Doe—though it was in fact their immediate result, and he was certainly content to maintain it afterward. And in the rarefied atmosphere of the Supreme Court, this practical impact was not noticed by all right away. Chief Justice Warren Burger, for instance, concurring in Doe, disputed the “sweeping consequences” predicted by the dissenters, Justices Byron White and William Rehnquist, and wrote: “plainly, the Court today rejects any claim that the Constitution requires abortions on demand.”

But by the time he retired, in 1986, in the last abortion case in which he participated (Thornburgh v. American College of Obstetricians and Gynecologists), Chief Justice Burger confessed he had been sadly mistaken. Dissenting from a ruling that struck down even the mildest regulations of the abortion right after viability, he persisted in saying that “every Member of the Roe Court rejected the idea of abortion on demand,” but he now understood that Roe and Doe had an internal logic of their own that was just being played out, and “regretfully concluded that some of the concerns of the dissenting Justices in Roe . . . have now been realized,” and that “we should reexamine Roe.”

Didn’t that reexamination come in the 1992 case of Planned Parenthood v. Casey? That decision famously jettisoned the Roe trimester framework, replacing it with a less rigid (and therefore even more judicially manipulatable) “undue burden” standard, under which “a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Did that mean that the Court breathed new life into the power of the state during the period after viability? Here is what the joint opinion for the Court by Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter had to say about that subject:

(d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.

(e) We also reaffirm Roe’s holding that “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Roe v. Wade, 410 U. S., at 164-165.

But page 165 of Roe was precisely where Justice Blackmun had also said that its decision must be “read together” with the companion Doe case. Thus Casey silently incorporated Doe’s “anything goes” standard for “health of the mother” that had prevailed since 1973. In an opinion notorious for its mendacity and arrogance in numerous respects—from its treatment of the doctrine of precedent to its vision of the Court’s position in American life—this was one of the most dishonest moments. The language saying the state could “even proscribe” abortions after viability, simply quoted now from Roe, no longer even had the excuse of naïveté that it had had nineteen years before. Abortion on demand through the whole course of pregnancy survived Casey quite unscathed. Not so the many tiny victims of the Supreme Court’s jurisprudence.

If there was any doubt of this, the decisions in the two partial-birth abortion cases in the last ten years should dispel it. In Stenberg v. Carhart in 2000, the Court struck down by a 5-4 vote a Nebraska law prohibiting the method of abortion known variously as “partial-birth” and “intact dilation and extraction,” in which a fetus is drawn through the birth canal feet-first, then its skull punctured and its brains evacuated, the skull then being collapsible and the delivery of the dead child completed. The method has been employed both pre-viability and post-viability, but in any case always late in pregnancy, when the fetus’s head is already quite large.

Nebraska, like other states, had banned only this particular method of abortion and not post-viability abortions in general, leaving other methods of late-term abortion in place that remained legal, and even permitting partial-birth abortion when it was deemed a medically necessary method to save the mother’s life. Nonetheless, the Court’s opinion by Justice Stephen Breyer held the state law unconstitutional largely because it lacked an additional exception for the health of the mother. Justice Breyer paid lip service to the state’s alleged power to ban abortion outright after viability—subject to life-and-health exceptions—but it was evident that he did not take it seriously. All the focus of his opinion was on whether the partial-birth method was safer than other methods in some circumstances for a woman who was going to have an abortion anyway; he never seriously considered the question whether a woman’s health needs were required to justify the obtaining of the abortion per se.

Every state in the Union already knew better, of course, since the days of Roe and Doe, than to attempt an actual prohibition of all post-viability abortions to which there was an exception only for real threats to physical health. Now, in a line of cases that had been litigated over nearly three decades and culminated in Stenberg, it was clear that the Supreme Court would also be the arbiter of abortion technique, with the paramount consideration being the liberation of abortionists from any hindrance on those methods that would most reliably and conveniently produce a dead child, even when that child might live if treated as a patient brought to birth. The right announced in Roe, it was now plain, was an absolute right of a pregnant woman to the death of her unborn child, no matter when or why.

The Congress responded to Stenberg by passing a federal ban on partial-birth abortion in 2003. The federal act, while more precise in its language, closely tracked the Nebraska law overturned in 2000, making an exception for cases in which the procedure was deemed medically necessary to save a woman’s life, but no exception for the sake of “health.” Members of Congress were not fools; they knew that thanks to Roe and Doe, “health” was an “exception” that became the rule, and thus a ban that made such an exception would amount to no ban at all.

In 2007 the federal act was upheld, by a 5-4 vote, in Gonzales v. Carhart, the essential difference being made by the arrival of two new justices on the Court: Chief Justice John Roberts, replacing the reliably anti-Roe William Rehnquist, and Justice Samuel Alito, replacing Sandra Day O’Connor, the chief architect of Casey’s “undue burden” standard. Again the absence of a post-viability “health” exception was at the center of the litigation. Justice Kennedy, who had been one of the authors of the Casey ruling but a dissenter in Stenberg, held for the majority in Gonzales (sometimes called Carhart II) that it was appropriate to defer to Congress’s fact-finding expertise on the contested medical question whether other methods of post-viability abortion were safer for women than the partial-birth method. Above all, it was important that “alternatives are available to the prohibited procedure.” What was never in question in Kennedy’s opinion, however, was the Roe-Doe-Thornburgh-Casey principle that whenever a woman seeks an abortion, no matter how far along in her pregnancy and no matter her reasons, she is entitled to have one by some method that is reasonably safe for her health. The government’s “interest” in the lives of unborn children was reduced, in Justice Kennedy’s opinion, to the wan hope that by banning this particularly gruesome method of abortion, the federal law might induce some women to rethink their choice for abortion and instead go through with childbirth—an effect that might be brought about thanks to the controversy over the procedure itself, which helped raise awareness of the humanity of the unborn child.

It is clear, then, even from this limited victory for pro-life legislation, that the Supreme Court as presently constituted will not countenance an actual legislative ban on a whole class of abortions, defined either by their timing or by the reasons women give for wanting them. Many pro-life activists are in the habit of referring to “abortion on demand,” but may be familiar only with the broadest legal outlines of the phenomenon. Close students of the Court’s rulings over the last 36 years—and many of those close students are also in the pro-life ranks—can assure those activists that the phrase is perfectly accurate.

Pro-choice advocates generally know these facts quite well too, either in basic outline or in detail. They have an interest in knowing, for the citadel of abortion law is their bastion to defend, every way they know how. It is only those Americans who take but a passing interest in the abortion issue who fall into the trap of believing the repeated but wholly insincere rhetoric of the Supreme Court about the power of legislatures to prohibit post-viability abortions. And it is not in the interest of pro-choice activists that Americans in general come to understand the radical nature of the abortion-on-demand regime, which they would surely reject by strong majorities. It is certainly not in the interest of President Obama, who is devoted to maintaining this regime but desires to project a “moderate” image.

Which brings us back to Judge Sotomayor. Judging from her record on the board of the Puerto Rican Legal Defense and Education Fund, she is every inch a pro-choice advocate, and she has been a federal judge for 17 years. She has no excuse not to know what Sen. Coburn was getting at. She has no excuse not knowing that abortion on demand has been the law of the land since January 22, 1973. She has even less excuse covering that up in a nationally broadcast congressional hearing, if she does know it.

Matthew J. Franck is professor and chairman of political science at Radford University and a 2008-09 visiting fellow in the James Madison Program at Princeton University.

Copyright 2009 the Witherspoon Institute. All rights reserved.

Taken together, these now-orthodox teachings on judicial power mean that one of our institutions—the Supreme Court—has an effective authority to change the meaning of the Constitution among its ordinary powers, and the nation is governed by any change thus made. The rest of us have to resort to the extraordinary amendment power of Article V, ultimately securing legislative majorities in three-fourths of the states, and still we may only have given the Court new material it can give almost any shape it likes. A moment’s reflection should suffice to tell us that there is something seriously wrong with this state of affairs.

But there is no basis for any of the elements of this judicial supremacy in the text of the Constitution, in the original understanding of judicial power at the time of the founding, or in the early decades of the Supreme Court’s own jurisprudence. It might be argued that judicial supremacy has acquired some measure of legitimacy in our own day by virtue of popular acquiescence to its terms. To this we may reply in two ways. First, it would be difficult to show that the American people have knowingly acquiesced in judicial supremacy, if by that we mean they have (even tacitly) consented to the periodic alteration of their fundamental charter by willful, unaccountable judges. Second, even if judicial supremacy had been knowingly embraced by the people—rather than merely tolerated by them through a combination of neglect and misunderstanding—the public could nonetheless change its mind at any time. If legitimacy lives on the strength of popular opinion, it can die the same way.

Because of the nature of the Supreme Court’s work—initiated by aggrieved litigants and not the justices themselves, carried on in esoteric language, and seeming to matter much even to politically aware citizens only two or three times a year—the public occasions and opportunities to reconsider the scope of the Court’s authority in our constitutional order come few and far between. One such occasion occurs when a vacancy on the Court must be filled. Now a great deal of attention is fixed on the Court’s business: its past decisions take on fresh importance, its future direction seems to be somehow up for grabs, and interest in the outcome runs very high across all sectors of society. In the conventional account, this is the “one chance” the rest of us have to affect the course of constitutional decision-making until the next such vacancy occurs. That is a dangerously false way of thinking. But it is true that an opening on the Court gives us an opportunity to re-examine why we are in the habit of thinking such dangerously false things—and perhaps the opportunity to change our habit for the better.

The hearings of the Senate Judiciary Committee, in which nominees to the Court appear to testify, hold much promise, even if it is not often realized. Too often the hearings take on an atmosphere made up of roughly equal parts of ignorance, arrogance, grandstanding, and disingenuousness. But they are the process we currently have, and it is difficult to think of another that would serve as well.

Two recent books have considered the nomination process and suggested some reform of it. In Confirmation Wars (2006), journalist Benjamin Wittes so despairs of the testimony of judicial nominees’ shedding any meaningful light on their future behavior as justices that he would dispense with it altogether. Instead, he would have the Senate use its staff to interview nominees in private, on the supposition that “more professional, sharper questioning” would result; and while he urges presidents to “stare senators down” and shield judicial nominees from open testimony, he urges the Senate to throw its weight around too, perhaps by demanding that presidents choose their nominees from a list pre-approved by the majority of the senators.

As Edward Whelan of the Ethics and Public Policy Center argued in a review of Wittes’s book, these recommendations “would likely make the process worse.” Our main trouble, Whelan writes, is that “too few senators have both a sound understanding of what good judging is and an interest in promoting it,” and this defect is not likely to be corrected by delegating more of the process to their staffs and converting their relations with the president into a straight-up political struggle over which names belong on a list of justices-in-waiting.

A deeper problem with Wittes’s argument is that he regards the current process as threatening to the independence of the federal courts. But there is independence, and then again there is independence. What do we mean by it? Much of our current constitutional disorder can be aptly described as a surfeit of judicial independence. Wittes believes that too many senators have gotten into the habit of asking questions that a future justice dare not answer—about his or her view of Roe v. Wade, for instance—because to answer would be to make a “commitment” that contradicts the duty of a judge to be fair and open-minded about the issues brought before them by the parties to a case. But the expression of an opinion is not a “commitment” even when offered under oath, and if a nominee has a professionally considered opinion of a case like Roe, whether he has previously published it or not, there is no sound reason in law or ethics why it cannot be openly stated in a committee hearing if the question is asked. A colloquy on Roe or any other past decision is not strictly necessary, and might not be the best avenue into a fruitful dialogue about the scope of judicial power. But we could do worse. And it is wrong to think of discussions of particular cases as merely result-oriented on the part of senators. While some senators may not get past a concern only with results—thinking of the Court as just a political institution to be won or lost—others may see correctly that cases like Roe are emblematic of major trends in the aggrandizement of judicial power, and can open up a real discussion of the role of the courts in our political life and whether we aren’t paying too steep a price for overinflated notions of judicial independence. The cases, after all, are what it’s all about.

The second book worth mentioning is The Next Justice (2007), by Princeton provost and legal scholar Christopher Eisgruber. Unlike Wittes, Eisgruber does not want to jettison the testimony of nominees before the Judiciary Committee, and he even suggests the sorts of questions he would like senators to ask. Unfortunately, his questions aren’t very good ones. The fault lies in other arguments Eisgruber makes: that judicial restraint is virtually impossible, indeed an indefensible idea; that originalism is a “blind alley” and thus we are stuck with judges imposing their own “values” on the Constitution’s “abstract moral language”; and that we must therefore choose our inevitably activist judges on the basis of “judicial philosophies” that are fundamentally political in nature. (In truth, these arguments are so underdeveloped in his book that “assertions” might be a more accurate description.) Eisgruber attempts to distinguish between “judicial philosophy” and mere political ideology in such a way as make the former seem more respectable, perhaps because he realizes that otherwise his argument is an invitation to relentless political bloodletting over the courts. But on its own terms, his distinction is prone to collapse under the slightest pressure, propped up only by a few decayed institutional norms that hardly amount to very real constraints on the ideological predilections of activist judges.

Simultaneously surrendering to judicial supremacy and judicial activism, Eisgruber concludes his book by calling for the appointment of “moderate” Supreme Court justices. He defines moderation as “an open-mindedness toward novel claims of constitutional justice brought by disadvantaged groups or persons, and a lively and thoughtful understanding of the limits of the judicial role.” This sounds anodyne, not to say anesthetic. But for Eisgruber, like some other scholars who call for “moderate” uses of judicial power, what is meant by “limits of the judicial role” turns out to be a sense of caution about how far the uses of judicial power can be taken before the caterwauling of the people becomes too unbearable for the judges’ ears. It tells us a great deal, after all, that his models of moderation are Justices Sandra Day O’Connor and Stephen Breyer, neither of whom is known for a modest conception of the judicial function that the framers would recognize.

With a scaffolding like this, it is no wonder that most of Eisgruber’s suggested questions seem designed to elicit statements from Supreme Court nominees about their politics. He wants to know what “values or purposes” they would bring to the exercise of judicial review; “when and why” they think “it is a good thing” for judges to use this power; what evidence they can give that they are not “doctrinaire ideologue[s]”; and what they believe about the duty of judges when the constitutional text is “unclear” or when rights are claimed that do not appear in the text at all.

These questions are all about the nominee’s “interior life,” so to speak—about what he or she can dredge up from the stew of inchoate feelings, lifelong prejudices, and more or less coherent ideas that all of us act on in political life. But these matters ought to be of no interest to us. We ought instead to be interested in what our future Supreme Court justices think about the meaning of the Constitution—a thing altogether outside themselves, with its own integrity, content, and history. Eisgruber seems to believe that the occasional difficulty of constitutional interpretation, and the “controversial” character of all answers to the difficult questions, together mean that neutrality and restraint in constitutional law are impossible and/or undesirable. But this is a perfect non sequitur. If the Constitution has its own content and integrity, then there are right answers to the questions the justices face. That the justices often disagree is only a sign that the answers are not easy, or are contested for some good or bad reasons—not that right answers are nonexistent or unknowable.

It does no real violence to Eisgruber’s argument to restate it this way: since all judges will be to some degree bad ones, let us at least have moderate justices, the least bad sort, who are offensive to the smallest number—or at least to Christopher Eisgruber. Thus does he convert a debate over the “next justice” into an essentially political dispute over conservatism, liberalism, and some unhappy medium between them called “moderation.”

We should instead be committed, and urge senators to be likewise committed, to finding out if a nominee has what it takes to be a good judge. Wittes and Eisgruber are right, however, that we will not find that out if senators limit themselves to exacting statements from nominees that they will “interpret the law, not make it,” or that they will play the “umpire” and not try to score for either side in the game. Every nominee will say these things; nearly all will even mean them. Nor should senators try to play a cat-and-mouse game about whether certain cherished rulings are “super-precedents” or whether Congress is owed some measure of “deference” when it has gone through extensive fact-finding procedures in passing legislation. Such lines of questioning do nothing to put a dent in the carapace of judicial power.

What senators owe the public is a frank and searching public conversation about the growth of judicial power over the course of our history. I will not presume here to detail all the sorts of questions that they should ask. But perhaps a good starting point would be to invite the nominee to offer some reflections on Cooper v. Aaron, the 1958 declaration of judicial supremacy we discussed in our first essay. Did the justices in Cooper have a correct understanding of the Supreme Court’s relation to other branches of government? Did they understand the Marbury precedent they characterized as establishing judicial supremacy? What about the apparently contrary view taken by Abraham Lincoln in confronting the Dred Scott ruling? Which view—an authoritative judiciary or the institutional equality of the three branches of government in their own spheres—gives the best account of the Constitution our forefathers entrusted to us?

In the era of judicial supremacy, our whole constitutional system is disordered by the prevailing view that the nation’s governing charter is fundamentally the property of unelected, unaccountable judges with power to shape and reshape it as they see fit. When the Constitution is “community property” again, we will all be much better off, even the justices themselves. In one sense, too much is at stake in judicial nominations so long as we continue to believe this disfiguring myth. We must struggle endlessly over getting the “right” judges—or the “left” ones, as the case may be—until we accomplish the one thing needful, a real renaissance of authentic constitutionalism. Only by raising the stakes in judicial nominations can we have any hope of lowering the stakes in the six dozen or so cases that the Supreme Court decides each year.

Matthew J. Franck is professor and chairman of political science at Radford University and a 2008-09 visiting fellow in the James Madison Program at Princeton University.

Copyright 2009 the Witherspoon Institute. All rights reserved.

A good place to start is with the Supreme Court’s self-understanding—the justices’ own understanding of their power under the Constitution—which turns out to be ahistorical and self-serving. In a unanimous 1958 ruling in Cooper v. Aaron regarding the desegregation of schools in Little Rock, Arkansas, the justices went out of their way to declare as “settled doctrine . . . the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.” The Court traced this doctrine back to the landmark 1803 decision of Marbury v. Madison and said that its “supreme” authority to answer constitutional questions, putatively announced in that case, had “ever since been respected by this Court and the country as a permanent and indispensable feature of our constitutional system.” The Cooper opinion travelled the rest of the way to the logical conclusion: that Supreme Court decisions are “the supreme law of the land,” indistinguishable from the Constitution itself and as binding on other political actors as the charter of government they take an oath to uphold.

Nothing the Court has done or said in the last half century has deviated from this understanding of its unrivalled authority to interpret the Constitution, and the Cooper doctrine was a long time gestating before the justices delivered it in 1958. But it is, or ought to be, a shocking view to take of our constitutional order. Judicial supremacy—the doctrine that the nation’s governing charter means whatever a majority of Supreme Court justices say it means—is profoundly inimical to the separation of powers, to republicanism, and even to constitutionalism and the rule of law themselves. If the Court that gave us Cooper was right about Marbury v. Madison, then we would be entitled to hope that Marbury was wrong about the Constitution. And if Marbury, understood as the Cooper justices put it, was right about the Constitution, we would be entitled to grave misgivings about the goodness of our constitutional order.

The good news is that the Cooper opinion was wrong about Marbury, which in fact set forth a far more limited understanding of judicial power, consistent with the framers’ republicanism and separation of powers. The bad news is that our political system suffers from the disordering effects of judicial supremacy with no easy or obvious way out of the disorder. Both the good news and the bad require some explaining.

First things first. The Constitution never mentions the power that today we call “judicial review,” the power of the federal judiciary to hold acts of Congress or conduct of the executive branch unconstitutional. Even the federal courts’ authority to invalidate state laws is not explicitly laid out in the Constitution but is rather an inference from it. Article VI explicitly requires state judges to prefer the federal Constitution over any conflicting state law or constitutional provision, and the Supreme Court has authority derived from Article III to review state court rulings on such matters. The Court’s power to judge whether its counterparts in the federal government have conformed their actions to the Constitution is likewise an inference from the text, but an inference twice over. First, Article VI declares the Constitution to be the “supreme Law of the Land,” while acts of Congress are said to enjoy that status too, so long as they are “made in pursuance” of, that is to say, consistent with, the Constitution. And Article III gives the federal courts power to decide “Cases . . . arising under this Constitution [and] the Laws of the United States . . .” If these two sources of law come into conflict, what is the duty of a court deciding a case in which both are brought fully to bear on the dispute between the parties? These two clauses of the Constitution take us some distance on our way to “judicial review,” but not all the way.

In the Marbury case in 1803, Chief Justice John Marshall did not engage in close textual analysis of these constitutional provisions. He appears to have taken it for granted that they stated well-established principles of constitutionalism and the rule of law. For Marshall, it followed from the fact of a written constitution itself that statutes contrary to its terms are not law at all. Why else bother with writing down a constitution? No other inference was compatible with the right of the people to call a government into being for themselves by such means. But, recognizing that the other branches were equal in authority to the judiciary, each in its own sphere, and that their opinions might naturally differ about constitutional interpretation, he did not move straight from the single premise acts contrary to the Constitution are void to the congenial conclusion the Supreme Court authoritatively declares which acts are void due to their unconstitutionality. An intermediate step, a minor premise, was necessary, and Marshall found it in the principle that when courts must “apply the rule [of law] to particular cases [they] must, of necessity, expound and interpret that rule.” Elsewhere in his Marbury opinion, he declared that the “province of the Court is solely to decide on the rights of individuals.” This is what courts of law do—adjudicate the contested rights of the parties before them—and when they have settled questions of rights, the rulings of courts as to the affected parties are entitled to finality, and to the respect of the other branches. Anything less would endanger the legitimacy and integrity of the judicial function itself.

But the Constitution has a lot to say about matters other than the rights of individuals. It paints in broad strokes regarding the structures of government, the relations of institutions to one another, and the partly competing, partly cooperating powers of those institutions, state and federal. As to these other large matters under the Constitution, there is no reason derived from the text itself, or from the Marbury precedent, to conclude that the judicial power is the authoritative “enforcer” of the Constitution, riding herd on the other branches’ uses of their own powers. For as Marshall observed on another occasion, not every question arising about the meaning of the Constitution makes out a case arising under it that the judiciary alone is fit to resolve. That is, not every question of constitutional power or principle generates a case about individual rights that the Constitution entrusts to the courts. As the old saying warns us, “don’t make a federal case out of it!” To make a federal case out of everything the Constitution says is to fritter away the habits of self-government and make our fundamental law the plaything of unaccountable judges.

These distinctions were once well understood in America’s politico-legal community. While occasional assertions were made that the judges were the “guardians of the Constitution” with a final authority over all interpretive questions, such claims were transparently partisan, and were usually abandoned as readily as they were advanced when political conditions changed. It is doubtless no accident that while the founders’ limited understanding of judicial power prevailed only one provision of federal law (in the Marbury case itself) was ever held unconstitutional. On the second occasion when the Court exercised this power—in the infamous Dred Scott decision of 1857—its ruling was transparently improper, intruding on Congress’s power to govern the federal territories and straining to manufacture a “right” to keep and transport slaves under the due process clause.

Abraham Lincoln saw through the great fraud of the Dred Scott case, identified the tyrannical impulse of the Court, and spoke for the founders’ constitutional understanding in his first inaugural address in 1861:

I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration, in all parallel cases, by all other departments of the government. . . . At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.

Lincoln’s election to the presidency was, among other things, a repudiation of the doctrine of judicial supremacy espoused by his great rival Stephen A. Douglas. Yet in the seven score and nine years since that election, Douglas’s doctrine has become American orthodoxy. With Douglas, our political and legal elites today regard the denial of the binding character of any Supreme Court decision as a betrayal of the Constitution itself; Lincoln’s position is made to sound strange and jangling to our ears, and we are soothed into resigning our government’s weightiest matters into the hands of our eminent philosopher-kings in robes, who are happy to employ such an unchecked power. The Cooper doctrine’s announcement in 1958 only crystallized the final victory of Douglas over Lincoln on this question, a century after their titanic debates in the Illinois senate race. How did this sea-change come to pass?

The answer to that question is necessarily long and complicated. The tale includes some ironies: how the professionalization of legal education and practice damaged the rule of law; how both conservatives and liberals have had their innings fighting for government by judiciary; how “legal realism” and the “living Constitution” taught that judges “make law” no less than legislatures, without the teachers of this doctrine seeming to notice that it makes a mockery of constitutionalism so long as judges remain beyond the reach of ordinary electoral politics; and how the other branches have found it in their interest to transfer their constitutional responsibilities to the “professionals” in black robes. But a key part of the story that is too little noticed is the adoption in the early twentieth century of the phrase “judicial review” to encapsulate the power of the federal judiciary to pronounce authoritatively on the meaning of the Constitution. Once the Supreme Court is in the “review” business, old distinctions are lost, there are no issues of constitutional meaning that don’t “belong” to the justices, and it should be no surprise that political issues never previously thought to have any constitutional dimension calling for the involvement of courts—say, the detention of enemy combatants overseas by our military—are suddenly “discovered” to be grave matters of constitutional law after all, crying out for judicial resolution.

In the modern era of “judicial review,” constitutional law becomes a bloody ground of struggle between the advocates of “judicial activism” and the defenders of “judicial restraint,” and restraint is always fighting a rearguard action. All the natural inertia of the Supreme Court as an institution is toward the continual accumulation of power. Even the emergence of “originalism” as a school of thought challenging the worst excesses of judicial review has not signaled a full recovery of the framers’ constitutionalism. Originalism’s great achievement is to offer the judges compelling reasons for some constraint on the exercise of their power through the discipline of text and history, but nonetheless the great majority of self-described originalists, on the bench and in the academy, seem perfectly at home with the ahistorical doctrine of judicial supremacy, believing that there are virtually no provisions of the Constitution that are unenforceable by judges, and that the rulings of the Supreme Court on constitutional questions, however outlandishly wrong they may be, can be reversed by two means only: by constitutional amendments changing the text that is interpreted, or, one supposes, by a change of mind on the part of the justices.

This near universality of the dogma of judicial supremacy should put us on notice that a great disorder exists in our constitutional system. After all, if the only two methods for correcting the constitutional abuses of the Supreme Court are to change the Constitution or to change the minds of the justices (perhaps by changing the justices themselves), then we may as well admit that we have acquiesced in a judicial power that is itself capable of changing the Constitution, which fairly regularly does just that, unchecked by any countervailing political power.

So long as this state of affairs continues, we invest a lot of political energy in the occasional vacancies that come open on the Supreme Court. Getting the “right” justices is our one and only means of assuring that our preferred vision of the Constitution will prevail in the future, and thus we quite rightly take a keen interest in determining beforehand what the next justice thinks about the constitutional questions that matter most to us. But this attention seems to be a fool’s errand. The life tenure of the justices, and the insistence of nominees on an “independence” that was once the Constitution’s friend but is now its deadliest enemy, mean that we simply cannot assure ourselves of anything about the future behavior of the Supreme Court. The Court today is more important on more questions, more powerful and unaccountable, and less compatible with the authentic norms of the framers’ Constitution, than at any time in our history.

There is nothing for it but a recovery of those authentic norms of republicanism, the separation of powers, and the rule of law. Since this means first and foremost the recovery of a nearly lost set of ideas, and ideas are discovered and rediscovered in the course of talking through our problems, there is no better occasion for getting a start on this business than in the conversation that is prompted by a fresh nomination to the Supreme Court. In the public discourse that results, we might find our way back to the right principles. Could such a fruitful discourse take place?

I’ll attempt to answer that question in part two of this article, to be published on Friday.

Matthew J. Franck is professor and chairman of political science at Radford University and a 2008-09 visiting fellow in the James Madison Program at Princeton University.

Copyright 2009 the Witherspoon Institute. All rights reserved.

The evidence of this “banality of tyranny” (to paraphrase Hannah Arendt) is littered throughout Justice Cady’s opinion. We might point to the court’s blithe unconcern for the actual words of the Iowa constitution, which receive no real analysis at all. We might note, as has legal scholar Robert F. Nagel, that the opinion is full of “clunking vocabulary” and “painfully labored analysis” about whether the statute under challenge is subject to the “rational basis test” or to “strict scrutiny” or to something in between called “intermediate scrutiny.” We might remark on the relentless question-begging and the abrupt ipse dixits that drive the court’s choice of the third of these “levels of analysis” and create a simulacrum of reasoning on the part of judges whose minds were clearly made up before any “analysis” was undertaken. We might say something about the bad faith the judges show their fellow Iowans, whose tolerant attitudes about homosexuality, expressed in previous public policy decisions, are exploited to push their state into a brave new world they continue to resist. Or we might join others who have gasped incredulously at the court’s rejection of any argument for the natural family as the best setting for child-rearing as a mere “stereotype” (and this in a dismissive footnote, no less).

We could broaden the discussion to consider the Iowa supreme court’s general impression of its relationship to its state constitution and to the people for whom and by whom it was made. More than once, Justice Cady’s opinion actually cites the undoubted prospect of failure for the cause of same-sex marriage in Iowa’s democratic institutions as a justification for the court’s intervention on the cause’s behalf on allegedly constitutional grounds. The judges, you see, are “free from the influences that tend to make society’s understanding of equal protection resistant to change.” And so when he follows the lead of the U.S. Supreme Court’s 2003 Lawrence v. Texas ruling (overturning a state law criminalizing sodomy), claiming that “the standards of each generation” are the touchstone for understanding what the Constitution says about equality, we know perfectly well that Cady does not mean that democratic majorities will be consulted for discerning what those standards are. No, “a new understanding of equal protection is achieved” whenever the judges say a new thing on the subject. Adorning the opinion with the standard insincere pledge of a “keen and respectful understanding” of separation of powers that is employed by all judicial activists, Cady all but admits that the Iowa supreme court has just amended the state constitution. This is easily done illegitimately by the judiciary, but is a very hard thing for Iowans themselves to do legitimately through the prescribed amendment process. Cady knows this too, remarking that the people can “shape it over time,” while silently passing over the fact that the judiciary can do it in a few minutes on a Friday morning.

We could talk about all these matters at length, but let us instead consider something else in this “legal astonisher” (to borrow Abraham Lincoln’s description of the Dred Scott case). Let us examine the state supreme court’s peculiar view of the role of moral reasoning in legal decision-making, and of the sources of moral principles.

Choosing, as it does, the standard of “intermediate scrutiny” to test the validity of Iowa’s 1998 marriage-protective statute, the court puts the burden of justification on the state. This maneuver masks the essential weakness of the argument for same-sex marriage, which comes finally to this: because some persons are “sexually and romantically attracted to members of their own sex,” and because some of those persons have entered into “committed and loving relationships” with each other, they are entitled to “the personal and public affirmation that accompanies marriage.”

From this vantage point, the feelings individuals have for one another are the authoritative wellspring of moral principle. Now, only a great fool would deny the connection of love and marriage—they go together like a horse and carriage, as Frank Sinatra famously sang. But emotion and desire, without more, are a treacherous foundation for law and public policy. As Pascal remarked, the heart has its reasons of which reason knows nothing. From society’s vantage point, that’s not good enough. Marriage and family are a moral institution—the teacher of right conduct between the sexes, the school of morality for the young, the founding scene of our moral obligations, the refuge from a wider world where respect for those obligations is a much chancier proposition. These may sound like lofty ideals often unrealized, but that both is the point and is beside the point. Society has an interest—none of its interests is higher—in encouraging the successful formation of marriages and families that point by their nature toward the achievement of these ideals. Within the metes and bounds of the law that expresses society’s conclusions about these matters, the rest is up to us.

Hence it is essential that public policy on marriage turn from love, and from lovers’ felt need for “affirmation,” to consider what reasons can be given for this or that way of arranging the family that makes a claim on our attention. Are all “relationships” created equal? Are all of them equally conducive to human flourishing? Is every way of bringing children into the world, or of rearing them, equally deserving of “affirmation”? How many men and/or women does it take to make a marriage that will perform the functions we want marriage to perform? Are children best prepared for healthy, responsible adult lives with both a mother and a father? Natural or “step-” or adopted? With a mother and a father or with “parents”? How many of each?

The laws of marriage and family, of divorce and custody, are efforts to address such questions rationally, if necessarily imperfectly, with the moral health of each party concerned being something to be optimized to the greatest extent possible. In the nature of things, someone’s preferred notion of a “relationship” that needs “affirming” is always going to be left outside the moral pale, or so one would have thought until now. But on the Iowa court, all such questions, answered slowly and haltingly by G.K. Chesterton’s democracy of the dead, the living, and the yet-unborn—otherwise known as “tradition”—are swept aside by the judges’ solicitude for the “excluded” whose self-esteem is wounded. When desire becomes the foundation for a right, beware. Nothing in what passes for reasoning in Justice Cady’s opinion can stand against the next claimant—perhaps the polygamist—who presents himself as needing affirmation for his relationships. This is not a slippery slope we have before us. It is the sight of a levee breaking in a spring flood.

The Iowa court itself presents an alternative to a feelings-based moral reasoning in the final pages of the Varnum opinion. But it presents that alternative in the most thuggish and intellectually dishonest way. Turning to an argument that was not even made by the county officials defending their duty under Iowa law (and thus should not have been discussed by the court at all), Justice Cady imputes to the state legislature a covert motive behind its marriage-protective statute of 1998: “religious opposition to same-sex marriage.” This is what’s really going on: “religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage.” But this, Cady argues, is constitutionally objectionable for the following reasons: first, there are different religious opinions, some opposing but others approving of same-sex marriage; second, the state government is forbidden to choose between rival religious beliefs; and third, “[s]tate government can have no religious views, either directly or indirectly, expressed through its legislation. . . . This proposition is the essence of the separation of church and state.”

Justice Cady seems not to notice that, by ruling in favor of same-sex marriage, he and his fellow judges, by his own reasoning, have placed the state in the position of endorsing those religious views that approve of same-sex marriage. But that observation only scratches the surface of an argument that is—well, come to think of it—all surface. For the unanimous Iowa court appears incapable of entertaining the most elementary distinction between matters of theology, faith, and worship, on the one hand, and matters of moral reasoning springing from religious conviction on the other. What the opinion calls “religious opposition to same-sex marriage” would more accurately be described as “moral opposition to same-sex marriage springing from religious sources.” It would not go too far to say that religion is the true wellspring of moral thought and action in our civilization. Our own Declaration of Independence—source of what Lincoln called “our ancient faith”—calls upon the Creator as the giver of all our fundamental rights.

Because of the diversity of religious commitments in our society—and because it violates our constitutional morality, and no little part of our dominant religious morality, for anyone to be coerced in matters of faith and practice—we must express our moral opinions to one another in a shared language of reasons and arguments. This does not and cannot mean that the connection of our moral arguments to our religious sentiments is severed when we meet in the public square. But when all the arguments have been aired out, the moral view that prevails at the ballot box and in the legislative halls is entitled to have its way in public policy, barring any explicit constitutional obstacles to its enactment. The “separation of church and state” is not one of those obstacles. If it were, no law with any moral purpose that happened to coincide with the view of any religious community could ever be upheld.

All of this escapes the Iowa justices, whose view seems to be that if a moral argument finds support in any religious commitment, then the promulgation of that argument in law is a violation of the principle of religious disestablishment. This is logically fallacious, historically illiterate, and politically brutish. Recall that juxtaposed with this unremitting hostility to religiously-supported morality is an embrace of the morality of desire. Yet in the Iowa court’s view, religion is itself reduced to mere “feeling,” and so the justices wind up incoherently privileging one kind of feeling over another. Those who desire to marry win out over those who desire to “exclude” them from marrying, and that’s that.

Lost from view is the true ground of our common public morality: reasoned judgment about the natures of things and the good of human persons, families, and communities. About such matters, religion can be instructive (to say the least), while a mere desire to “affirm” our “relationships” cannot be. And so, in both its reductive approach to religion and its empty invocations of feelings, the Iowa Supreme Court has done an injustice to religion, to the possibility of lawful public morality, and—yes—to our relationships themselves.

Matthew J. Franck is professor and chairman of political science at Radford University and a visiting fellow in the James Madison Program at Princeton University.

Copyright 2009 the Witherspoon Institute. All rights reserved.