EDITOR’S NOTE:Gerard V. Bradley is a professor of law at the University of Notre Dame and a noted scholar in the field of constitutional law as well as law and religion. On April 13, Bradley testified before the Senate’s Judiciary Committee’s Subcommittee on Constitution, Civil Rights, and Property Rights about the dangers state and federal laws banning gay marriage face from judicial activism. He cautioned Congress against the “wait and see approach”–to act now, by amending the Constitution, to protect traditional marriage. His testimony, as prepared, follows.
The first popular political pundit in American history was a wry Irishman named Dooley. At the height of his powers around the year 1900, Mr. Dooley was impossible to caricature. He was a caricature, literally the pen and ink mouthpiece of journalist Peter Finley Dunn. When I was in law school 25 years ago, one of Dooley’s aphorisms was often thrown about my constitutional-law class. “The rulings of the Supreme Court,” Dooley declaimed one day out of the side of his mouth, “follow the election returns.”
Back then, maybe they did. But one does not hear Mr. Dooley’s aphorism in con law classes anymore. The Supreme Court no longer (if it ever did) seeks its cues from popular beliefs and articulated political power. Quite the contrary; the modern Court defines itself as anti-majoritarian, as the bulwark of minority interests, over and against what the “people” prefer. For a generation the Court has said that it is the forum of principle, not of politics; that its concern is rights, not collective interests; that it means to vindicate principles of justice, no matter how unpopular they might seem to be. The Court styles itself as supremely nonpolitical. The Court more and more views popular beliefs about moral matters–such as marriage–very suspiciously. As often as not, the Court brands such beliefs mere political facts, if not outright prejudices.
I do not mean to endorse all that the Court has said of itself over recent years. My point is that, as far as we can tell, that is the way the Court sees itself. And, if we want to get an idea of what the Court is likely to do about same-sex marriage, we better get an idea of how the Court understands its role these days in our constitutional order. Only then can we see whether Dooley’s aphorism makes sense anymore.
Some people say today that there is no need for a constitutional amendment defining marriage as the union of man and woman. They say that the need (if once there was one) disappeared with the recent electoral setbacks for the same-sex marriage movement. (Kansas last Tuesday being the most recent example.) But electoral setbacks for claims of minority rights foundering upon popular “prejudice” are no caution sign for the modern Court. They are signs that the Court is more, rather than less, likely to step in to settle matters. The people who say that an amendment is no longer necessary do not really understand what the Court thinks its job in our system is.
I think that the Court, partly because of the way popular referenda are going, is going to take a same-sex marriage case soon. That is the signal sent by the Court in Lawrence v. Texas, 539 U.S. 558 (2003). The Lawrence Court made a radical statement about constitutional protection for homosexual relationships. Precisely against what it viewed to be widely held, but nonetheless benighted, prejudices against homosexuals, the Justices declared that homosexual acts may constitute a person’s identity. Sexual conduct “can be but one element in a personal bond that is more enduring.” Id. at 567. Penalizing these acts could, the Court also said, lead to “discrimination both in the public and the private spheres.” Id. at 575. Is exclusion from marriage a form of “public” discrimination against homosexuals? The Lawrence Court said that “persons in a homosexual relationship” have a right to the same constitutional liberty when it comes to marriage, procreation, and family that “heterosexual persons do.” Id. at 574.
The dissenting justices argued that such reasoning would “dismantle[] the structure of constitutional law” that has permitted legal marriage only between a man and a woman. Id. at 604 (Scalia, J., dissenting). It is hard to deny the force of this observation.
Lawrence was the classic circumstance of modern judicial intervention: popular prejudice is said to underwrite to a law targeted at a politically defenseless group. The Lawrence raised the stakes higher. Lawrence made legal treatment of homosexual relationships practically a litmus test of our country’s commitment to justice. The matter there at issue, the Court said, went to the heart of such constitutional ideals as equality, respect for individuality, liberty. The prognosis for political correction of this injustice is poor; see, e.g., the recent election results on same-sex marriage.
Lawrence v. Texas confirmed signals first sent by the Court in the case of Romer v. Evans, 517 U.S. 620 (1996). There the Court first shared its deep suspicion of traditional attitudes towards homosexuality. The Romer Court concluded that “animosity” towards homosexuals was at the root of the challenged Colorado law. Id. at 634. The Court spoke of a “bare . . . desire to harm a politically unpopular group”–homosexuals–and how that is never a legitimate constitutional basis for law. Id. at 634-35 (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)).
That is exactly right: “a bare desire to harm” someone or some group is not a good reason for a law. It is not a reason at all. It is just a feeling of hostility or anger. The question is, of course, whether that is all to say about traditional attitudes towards homosexuality.
The Lawrence majority did not exactly say what it would do about same-sex marriage. (On the other hand, the majority recognized well enough where its reasoning pointed, and issued disclaimers about whether same-sex marriage was implied by its ruling.) In my judgment, however, there can be little question that by setting up the case the way it did–as one of endangered fundamental rights, gasping for life in a sea of politically dominant prejudices–the Supreme Court has all but bound itself to take up the same-sex marriage question, and soon. To do otherwise would, I think, leave the Justices open to charges that they had betrayed the Court’s own professed ideals.
In 2003 the Supreme Court said that the Texas anti-sodomy law lacked any basis in reason, that no legitimate state interest was involved. It was, the Court speculated, a law which simply meant to harm a politically unpopular group. That would be the basis for any holding in favor of same-sex marriage: no “rational basis” whatsoever for limiting marriage to opposite-sex couples..
This is the federal constitutional ruling circumstance requires us to behold: not a Full Faith and Credit green light to Massachusetts “gay marriage,” but a flat declaration that the Constitution does not permit exclusion of same-sex couples from marriage. Note well: The reasoning of Lawrence v. Texas is no less capable of invalidating a Congressional enactment–DOMA included–as it was a Texas criminal law. All laws in the United States have to pass constitutional muster. And nothing about the defect in Texas’s law was specific to state statutes, to criminal laws, to sexual conduct. Any law which says or implies an adverse judgment upon homosexuality, homosexual sex, or homosexual relationships would seem, after Lawrence, to be presumptively unconstitutional. All such laws lack that minimum of constitutionality–a “rational basis.”
Both parts of DOMA stand in the dock, arraigned by the reasoning of Lawrence: the definition of marriage for all federal purposes, as well as the Full Faith and Credit norm in favor of states resisting the introduction of same-sex marriage by out-of-state judgments.
Someone might say that the Supreme Court is not necessarily going to invalidate traditional marriage laws on the basis of Lawrence. True enough: it is impossible to say with certainty what the Supreme Court is going to do about same-sex marriage. My point is different. My point is that as far as we can predict, the Court has implicitly committed itself to taking, and deciding, a same-sex marriage case soon. It is the kind of case which the Court’s own rhetoric has made it impossible for them not to take. And I think almost everyone would agree that, when the Court takes that case, it could go either way. The question is: what should members of Congress do now about amending the Constitution, if I have described the status quo accurately.
Some who agree that the Court is going to hear a case soon nonetheless oppose an amendment now. “Let’s wait and see” is their counsel. The Court might uphold traditional marriage, in which case no amendment would be necessary. If the decision goes against that tradition, then we can start the amendment process.
There are two kinds of problems with this “wait and see” approach. One kind is more descriptive and political than the other, which is more moral and constitutional. The first (political) type includes at least the three following considerations, which together mean that, on the day after a watershed decision in favor of same-sex marriage, an amendment will be much harder to pass.
Consider that on the day after a watershed decision, same-sex couples will start marrying all over the United States. It will take years to enact an amendment to halt the practice. Tens of thousands of same-sex marriages will have been performed in the meantime. The amendment debate will include the question: what is to become of these “marriages,” and the families grown up around them?
Second. Any watershed decision will contain language such as the Court used in Romer and Lawrence: benighted prejudice has stood in the way of justice long enough. All political and cultural debate about same-sex marriage–including debate over an amendment–will be tilted thereafter by the Court’s high testimony against the gross injustice of traditional marriage.
Third. On the day after a watershed decision, the debate will not be only about marriage. It will be about the Court, its independence, and the political prudence of resorting to amendments to correct what are popularly believed to be judicial mistakes. The day after, pro-amendment forces will be denounced for their attempt to “roll back the Constitution,” to “turn back the clock on human rights,” for attacking the independence of the judiciary, and for tampering with the settled meaning of the Constitution.
The other kind of consideration is more important and more sublime. It has to do with the responsibilities of the United States Congress under our Constitution to make sure the Constitution says what it ought to say. Judicial review is a fair implication of constitutional structure and of the nature of Article III power to resolve cases and controversies according to law. But judicial review is not explicit in the Constitution. Nor does anything in the Constitution imply judicial review of the broad scope we find in Lawrence v. Texas. That case, whatever else one might say about it, looked way outside the constitutional text to find the (arguably) deeper, more profound, meaning of that document.
What’s not arguable is that Congress is the only body authorized by the Constitution to initiate constitutional amendments. Congress may do so either by proposing amendments to the states for ratification (as has been the practice), or by convening a constitutional convention. We have never had a constitutional convention of that sort. It is very likely we never will. Thus, for all practical purposes, Congress is the sole gatekeeper of the only authorized means of amending the Constitution.
The only body authorized by the Constitution to actually enact constitutional amendments is the American people; the people acting through state representatives ratify proposed amendments. Apart from such popular approval there can be no amendment of our fundamental charter.
It seems to me that, like it or not, the Lawrence Court in effect opened a “constitutional convention” on the subject of same-sex marriage. For so long as Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding the constitutionality of Georgia’s sodomy law case), was settled law, there was no possibility that same-sex marriage could be constitutionally required: the defining sexual acts of same-sex couples had no constitutional standing. But Lawrence expressly overruled Bowers. In the course of overruling Bowers, the Lawrence Court made unmistakably clear that its reasoning opened the marriage question for further, and final, constitutional scrutiny.
Perhaps the question could usefully be viewed, then, as this: If there is going to be an amendment to the Constitution about same-sex marriage–making clear that our basic law is “pro” or “con”–which body shall make that call? The Court? Or Congress and the American people?
It is not for me to tell any member of this body that the American people are calling for a federal marriage amendment. You are more than competent to judge that. I offer to you my professional judgment, however, that making a watershed judicial ruling a condition precedent to proposing an amendment to the people is unnecessary as a matter of law, and imprudent as a matter of politics. Why should Congress wait and see whether the Court amends the Constitution first?