Friday, June 26, 2015

Darwinian Natural Right in the Supreme Court's Gay Marriage Decision

As I have often indicated, the general framework of Darwinian natural right is that human nature constrains but does not determine human culture, and that human nature and human culture constrain but do not determine human judgment.  Consider how that framework applies to the decision of the Supreme Court in Obergefell v. Hodges, in which, by a 5-4 decision, the Court has declared that same-sex marriage is a constitutional right.

The opinions can be found here.  Justice Kennedy delivered the opinion of the majority, with the concurrence of Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Dissenting opinions were filed by Chief Justice Roberts and by Justices Scalia, Thomas, and Alito.

I have written a series of posts arguing that gay marriage can be seen as conforming to Darwinian natural right.  In particular, I have framed my arguments as responses to Robert George, Ryan Anderson, and Sherif Girgis in their natural law argument that gay marriage is not "real marriage."  My posts can be found here, here, here, here, here, here, and here.

From that point of view, my assessment of the court's opinions in this case is complicated, because I partly agree and partly disagree with all of them!

I partly agree with Kennedy's opinion in that I agree with his evolutionary libertarianism in defending the right of gays to marry.  But I partly disagree with his opinion in that I disagree with his claim that the Supreme Court has the ultimate constitutional authority to decide this issue for the entire nation.

I agree with Kennedy that marriage is a human universal that arises from "the most basic human needs" of our evolved human nature (3), and that the "immutable nature" of homosexuals dictates that same-sex marriage is the only path for homosexuals to satisfy their natural desire for marriage (4).

I also agree that gay marriage can satisfy the same natural ends that are satisfied in heterosexual marriage--parental care of children and conjugal bonding--natural ends that belong to "our common humanity" and our natural "pursuit of happiness" (11, 13-15).  I agree as well that marriage is both an expression of our natural individual liberty and "a keystone of our social order" (12, 16).

I also agree with Kennedy that while through most of our cultural history, we have seen only heterosexual marriage as real marriage, we can now recognize that same-sex marriage can satisfy the same natural desires satisfied in heterosexual marriage.  We can also see that legalizing same-sex marriage need not weaken heterosexual marriage (6-12, 17, 20-21, 26).

I also agree with Kennedy that legalizing gay marriage does not deny the freedom of those who oppose gay marriage for moral or religious reasons.  Opponents of gay marriage will be free to live in groups that condemn gay marriage for religious or secular reasons, but they will not be free to use legal coercion to deny the right to gay marriage (27).

On all of these points, I agree with Kennedy's rejection of the argument of George, Anderson, and Girgis that only heterosexual marriage is "real marriage," and that legalizing gay marriage will destroy heterosexual marriage.

I disagree with Kennedy, however, in two ways.  First, I argue that the best way to secure the libertarian right to marry is to privatize it by abolishing governmental licensing of marriage and by treating marriage as based on voluntary contracts enforced just as all contracts are enforced.

In my second point of disagreement with Kennedy's opinion, I agree with the dissenters in this case, who argue that Kennedy's majority opinion is more an expression of moral philosophy than of constitutional law, and that this opinion unconstitutionally assumes that the moral philosophizing of a majority of justices on the Supreme Court must ultimately decide the political debate over gay marriage and thus end that debate.

Constitutional law is fundamental to American political culture in establishing popular self-government primarily through electoral politics and legislative supremacy both in the state legislatures and the national Congress.  By contrast, as Scalia says, "Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court" (2).  If so, then we are no longer a self-governing people.

And yet, Scalia and all of the justices, both in the minority and in the majority, are mistaken in their assumption that when the Court makes a decision like this, there are no constitutional avenues for resisting that decision.

Nowhere does the Constitution say that the Supreme Court is the ultimate and final interpreter of the Constitution.  The idea of judicial review is not even mentioned in the Constitution.  Moreover, there are many constitutional powers that can be used to overturn or to frustrate the enforcement of any Supreme Court decision.  Three-fourths of the state legislatures can ratify a constitutional amendment that overturns the decision.  The Congress can impeach the justices who voted for the decision.  Congress can abolish the appellate jurisdiction of the Supreme Court to decide cases.  The Senate can refuse to confirm any nominee to the Court who refuses to pledge to overcome an unpopular decision.  And, finally, the state legislatures, the Congress, and the President can all assert a right to interpret the Constitution for themselves.

For these reasons, Alexander Hamilton was right to declare (in Federalist number 78) that the Supreme Court has "neither force nor will, but merely judgment."  The Court can try to persuade us to accept its opinions, but it cannot enforce any opinion that is actively resisted by the states, the Congress, and the President.

In deciding whether we agree with the Court's decision, we must exercise our individual judgment about how best to specify the rights and duties of marriage.  That judgment will be constrained but not determined by the evolved human nature of marriage and the evolved human culture of American political institutions and constitutional law.

Ultimately, the cultural evolution of American constitutional law is an evolution in moral philosophy.  Kennedy's opinion is one of the clearest examples of how interpreting the words of the Constitution requires philosophic thinking, and in this case, it's the philosophic thinking of classical liberalism or libertarianism.  Kennedy declares: "the right to personal choice regarding marriage is inherent in the concept of individual autonomy" (12).  This conclusion arises from his exercise of "reasoned judgment" guided by his "new insight" into the "nature of injustice" (10-11).

Justice Roberts identifies this as an exercise in "moral philosophy" that has no basis in the Constitution (19).  But implicitly Kennedy is agreeing with Ronald Dworkin that we cannot interpret the language of the Constitution without engaging in moral philosophy.  (Dworkin's philosophic approach to constitutional interpretation has been elaborated and defended by Sotirios Barber and James Fleming in their Constitutional Interpretation: The Basic Questions [Oxford University Press, 2007].) 

In this case, the judges must interpret the language of the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws."  Words like "liberty," "due process of law," and "equal protection" denote moral concepts, and so if the judges are to think for themselves about the meaning of these moral concepts, they must engage in moral philosophizing.  Those who wrote the Fourteenth Amendment did not clearly define the meaning of those concepts, and thus they left it up to future judges, politicians, and citizens to think about the true meaning of those moral concepts.  There is no reason to believe that when the Fourteenth Amendment was ratified in 1868, the people of the time understood that "liberty" included the right to same-sex marriage.  But it is possible for us today, in thinking about the meaning of "liberty," to discover that it does include that right.  That's what Kennedy is saying, and that's the most interesting feature of his opinion in this case.

Another example of this philosophic approach to constitutional interpretation is George Anastaplo's Constitution of 1787, which suggests that interpreting the actual words of the Constitution requires an exercise of philosophic thinking about the moral concepts conveyed by those words.  But unlike Kennedy, Anastaplo rightly sees that this philosophic thinking about the meaning of the Constitution is an activity for all thoughtful citizens and not just for the nine lawyers on the Supreme Court.

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