Ducking the Prop 8 case would not promote democracy in the same-sex marriage debate

Michael McConnell is a distinguished scholar, law professor (currently at Stanford Law School, my alma mater) and jurist (he served on the U.S. Court of Appeals for the Tenth Circuit). He is also a friend of Power Line which, I understand, he started reading back in 2002, our first year.

McConnell has written a Wall Street Journal op-ed about the two same-sex marriage cases the Supreme Court will hear next week. The first case involves the constitutionality of California’s Proposition 8, which provides that “only marriage between a woman and a man is valid or recognized”; the second involves the constitutionality of the Defense of Marriage Act (DOMA).

McConnell argues that the Supreme Court should decline to decide the Prop 8 case on the theory that the parties defending its constituionality lack “standing” to do so (the State of California refused to defend Prop 8). As for DOMA, McConnell argues that the Court should strike it down as an unconstitutional intrusion on the power of States.

Ed Whelan, another long-time friend of Power Line, has written a rebuttal to McConnell’s op-ed. In my opinion, Whelan has the better of the argument on both “standing” to challenge Prop 8 and the constitutionality of DOMA.

I want to add my thoughts about what seems to be the animating theory behind McConnell’s view of the standing issue — that no matter how the Court decides the merits of the Prop 8 case, it will interfere with a democratic sorting out of the same-sex marriage issue. He writes:

If the justices hold that California’s Proposition 8, which provides that “only marriage between a woman and a man is valid or recognized,” is unconstitutional, this will end the deliberations and impose a single national definition of marriage on us all. The court cannot reach this outcome without branding the views of the other side as either “irrational,” if it employs the lower, rational-basis level of judicial scrutiny, or “bigoted” and hateful, which would justify heightened judicial scrutiny. That is not the path to national reconciliation, and it does not show respect to the diverse views on this divisive issue.

But if the justices hold that there is no constitutional right to same-sex marriage, this also imposes an answer of a sort. It would reflect the Supreme Court’s considered judgment that in the eyes of the Constitution, same-sex relationships may be treated as morally different from (and inferior to) heterosexual relationships. Such a decision would set a precedent for the foreseeable future. It would embolden opponents of same-sex marriage and deprive proponents of one of their most potent moral claims in the political process—that the denial of marriage rights offends American values of equality.

I think I see where McConnell is coming from, but find the second paragraph unpersuasive. To uphold the democratically reached decision of the people of California would not stunt the democratic process. The Supreme Court would merely hold that Prop 8 does not offend the Equal Protection Clause of the Fourteenth Amendment. In doing so, presumably, it would conclude only that California’s ban on same-sex marriage is not irrational (hardly a ringing endorsement) or that the ban is not founded on bigotry (also no endorsement, though proponents of same-sex marriage obviously would prefer that those who disagree with them be so branded by the Court).

Proponents of same-sex marriage would remain free to argue a ban is offensive because, among other things, it produces inequality. Not every law that produces inequality violates the Equal Protection Clause; indeed, most don’t. The Court’s decision could reaffirm this obvious point.

So I think Whelan is right to say that “the answer. . .the Supreme Court would be providing in holding that there is no constitutional right to same-sex marriage, and the precedent that it would set” is “that the question whether or not to redefine marriage to include same-sex couples is a matter that the Constitution leaves to the democratic processes.” And, as Whelan notes, this is a view that McConnell ably defends in the opening paragraphs of his op-ed.

UPDATE: You can read Prof. McConnell’s response to Whelan’s post, and Whelan’s reply, here.


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