The Fundamental Dishonesty of an Antidemocratic Movement
If one knows the history of the same-sex marriage debate, the opening paragraph of this editorialized report in the DesMoines Register strikes an odd note:
Basic fairness and constitutional equal protection were the linchpins of Friday’s historic Iowa Supreme Court ruling that overturned a 10-year-old ban on same-sex marriage and puts Iowa squarely in the center of the nation’s debate over gay rights.
The redefinition of marriage in Iowa took a peculiar path, indeed, beginning in 1996:
- The Supreme Court of Hawaii declared a right to same-sex marriage.
- Although the state legislature ultimately circumvented the court, the federal government passed the Defense of Marriage Act to limit the ruling’s implications for other states.
- Individual states, including Iowa, passed laws affirming that marriage is definitionally a relationship between people of opposite sex, typically with the intention of securing the protection of the public policy exception interpreted to exist to the full faith and credit clause of the Constitution. In essence, if a state explicitly does not recognize same-sex relationships as marriage, the Constitution cannot force it to treat as valid a same-sex marriage enacted in another state, so states like Iowa made their understanding of marriage explicit.
- The Iowa judiciary has taken that statutory affirmation of preexisting principles as an occasion to redefine marriage in the state according to the judges’ preference.
In a direct way, the judges of Hawaii exported their activism across state lines not in spite of laws designed to prevent such a thing, but because of those laws. The process does nothing so clearly as illustrate the extent to which democracy is becoming an (at most) dilatory control on the implementation of the social system preferred by the powerful. All that is required is for the powerful to couch their diktats in some mutable principle introduced in a high-level legal source (e.g., the Constitution); the most common such principle is “equal protection,” but there may be others that are as yet unexplored.
In an interesting conversational thread on RI Future, commenter Brassband points to this mechanism when he questions the following sentences from the Iowa court’s ruling (PDF, page 16):
The process of defining equal protection, as shown by our history as captured and told in court decisions, begins by classifying people into groups. A classification persists until a new understanding of equal protection is achieved. The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.
As a matter of grammar, what the court argues, here, is that a society may consider groups to be different in some legally allowable way until a particular individual or several individuals perceive discrimination and take the matter to the courts, and the judges — “free from the [social] influences” under which we ordinary humans labor — declare in their favor. Rhode Island College professor Thomas Schmeling subsequently puts that perspective in the company of a fundamentally sacerdotal yet “well-respected theory” that judges rule based on hunches that are justified in the fact that a jurist “not only has his/her own preferences but is also acquainted with constitutional principles, precedents, the views of other (and higher) court judges, so it’s not totally subjective.” Schmeling goes on to state the matter in terms of his own take:
… I think the Court here is actually making a sensible point, one which which you may well agree. Here’s my read:
1. The legislature creates a classification. (let’s use bans on interracial marriage as an example). That classification will remain until two things happen:
a. somebody becomes convinced that the classification creates an inequality (one that violates equal protection) and challenges it in court.
b. A court invalidates it.
Now, the legislation presumably embodies society’s understanding of what “equal protection” requires, which (as in the case of bans on interracial marriage) may be nothing more than its irrational prejudices. If the courts do nothing more than reflect that understanding, it will never find any classification violative of equal protection and the court will have failed to fulfill its duty. (Do you agree so far?)
If the legislature’s/society’s judgement/prejudices accurately reflect the principle embodied in the Constitution’s equal protection clause (state or federal…there might be a difference)…there is no problem.
However, if the legislature’s/society’s judgement departs from an accurate understanding of equal protection, that’s a problem. To do its job, the court must obviously get beyond this judgement. To do this, the court must be “free from the influences that tend to make society’s understanding of equal protection resistant to change”. That is, the court should not simply reflect the views of the people and/or the legislature, it must uncover the “true” principle behind the equal protection clause, and use that principle to judge the classification.
If the members of the court simply say “I think equal protection clause should embody MY prejudices”, I think we’ll agree that the court has departed from its proper role.
If, on the other hand, the Court adopts a principled interpretation of the clause (which must, of necessity be independent of the prejudices of the judges AND of the prejudices of the legislature/society), the court has fulfilled its proper role.
Consider for a moment who has been excluded from the interpretation of equal protection’s “‘true’ principle”: the judges’ personal views don’t apply, the relevant legislators’ personal views don’t apply, the people’s personal views (as expressed democratically) don’t apply, and certainly the personal views of those who penned the Fourteenth Amendment back in 1868 don’t apply. So from whence — by whom — is it determined that the true meaning of the equal protection clause requires that the true meaning of marriage be something other than what it has always been understood to be — a relationship between men and women?
Ah, there’s the nub. The reality is that, like the interstate process of bouncing judicial rulings, the whole thing is a performance to enact the preferences of an elite class as written into the “hunches” of judges. On the page following the above quotation, the Supreme Court of Iowa states:
The same-sex-marriage debate waged in this case is part of a strong national dialogue centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans.
The whole dance — costumes, streamers, stage props, and all — is a distraction from the truth that the “particular class of Iowans” are not excluded by “state action,” but by definition and by the way in which they choose to live their lives.* They are excluded by the fact that humankind has recognized a natural distinction of the intimate relationships into which men and women enter and sought to guide those relationships in the direction of social health — as understood not through contrived experiments, but by centuries of observation and social evolution — through an institution called “marriage,” which it acknowledges and privileges as something unique.
Our nation’s founders pursued representative democracy as a means of layering social control such that the most basic and profound questions would not become subject to immediate battles of power, but would require engagement of the process and efforts toward persuasion. Progressives’ broad-based campaign has been to corrupt process for their own ideological benefit, and it will spell calamity whether the masses respond with a forceful expression of the only forms of power that remain to them or by stepping back and watching their civilization collapse out of an aversion to conflict.
* I am not invoking, here, the “homosexuality is a choice” declaration. I’m merely pointing out that — quite reasonably — homosexuals opt to form their lives around their affections rather than a traditional family structure.