Same-Sex Marriage, the Judiciary, and Democracy

My response to comments on my Same Sex Marriage Roundup post grew sufficiently in length that I decided to make it a post.

ppnl asked,

How do you feel about the fact that mostly this “new right” is being delivered by judicial decree rather than legislatively? After all it would be hard to argue that many (any?) people alive at the ratification of the constitution would believe they were granting Gays the right to marry.

[Well, we’re really talking about those who were alive at ratification of the 14th amendment, but point taken].

Lance responded,

The framers didn’t see the constitution as “granting” rights. They saw all rights as “inalienable…

And he courts added,

Well yes but this “new right” of same sex marriage was not balanced by the democratic process. The courts pretty much trashed most of the representative democratic process in reaching this decision.”

So here are my thoughts.

As Lance said, the Founders thought rights are inalienable, not granted. The question then becomes what things are included in that set of inalienable rights. Hamilton’s argument against a Bill of Rights was that you can’t make a complete listing, but any list created would be seen as a complete set, excluding other rights. And indeed that wrong interpretation he warned of has come to pass.

But properly understood, when it comes to inalienable rights the democratic process has absolutely no legitimacy. You can’t determine inalienable rights by a vote of the demos or of its representatives. And properly understood, the constituency of the Supreme Court is the Constitution itself, not the people. So while judicial decision-making is a highly imperfect process for distinguishing inalienable rights, it’s about as good as we can humanly do. As Justice Jackson said, ” “We are not final because we are infallible, but we are infallible only because we are final.”

All of the same-sex marriage judicial decisions so far have been decided on equal protection grounds. We agree there is an inalienable right to equal protection of the law, but what does that mean in practice? It’s not simply logical to assume that we would sometimes get it wrong in practice, it’s an inescapable conclusion of our understanding of human nature and the tendency toward bigotry against difference that we inevitably will get it wrong in practice sometimes. And at those times it is “emphatically the province and duty” of the Courts to disregard the democratic process.

So while I wish the demos had been more on the ball in protecting equal rights, I am not at all bothered by the courts stepping in to correct the demos’s constitutional error. Nor, contra he courts, do I see this as a “trashing” of the democratic process; rather, as I see it, an illegitimate democratic outcome is a trashing of the Constitution.

The difficulty here in the conflict between democracy and judicial review is not theoretical, then, but there is a practical problem: the danger that the demos will be so committed to its unequal treatment of others that it will refuse to go along with the Court’s ruling. Yet history seems to suggest that when the Court is right, the public eventually goes along. Because the Court has, as Hamilton said, neither the purse nor the sword, only judgement–the greater the quality of that judgement, the more likely the demos is, in the long run, to be persuaded.

Consider the responses to Brown v. Board of Education. That decision led to riots and massive resistance by states and localities. And yet today you can’t find any serious person of any ideological camp that argues it was the wrong decision. With sufficient time for reflection, the demos was persuaded by the Court’s logic.

And I think the same is true for same-sex marriage, except that it is far far less divisive than was integration. The demos is increasingly persuaded that denial of SSM is a denial of equal protection. Amazingly, the change is not simply inter-generational but intra-generational as well.

I predict that there will be wailing and gnashing of teeth when the Supreme Court finally makes its definitive ruling, but no riots and few serious attempts at resistance.

About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
This entry was posted in Laws, The Supremes and tagged , , , . Bookmark the permalink.

28 Responses to Same-Sex Marriage, the Judiciary, and Democracy

  1. pierrecorneille says:

    Excellent essay.

    There is something that bothers me about the “progress of history” approach to this issue, where anyone who differs is “against history,” which itself is the last true goal toward which everything proceeds and from which there will be no return or regression. There’s a certain assumption in that phrasing of things that seems to suggest all we have to do is call something “modernity,” and then it is therefore unassailable. (This isn’t directed at you, James. It’s something I’ve seen at OT repeatedly from one commenter there and I feel like a jerk whenever I confront him on it. And I’m not sure I’m not being a jerk. So I guess I’ll just complain behind his back and take the snark to a more jerkified level.)

    But in this case, it’s an outcome I like. And I’m amazed at how quickly how access to legally recognized same sex marriage appears to be gaining support. My only real regret is that I wish I had been on board and accepting of the rights of gay people (and accepting of gay people themselves) long before I eventually came around. In my younger days I was very anti-gay and even supported Colorado’s Amendment 2 (which Romer v. Evans overturned).

  2. lancifer666 says:


    I was always for same sex civil unions, but I resisted granting them “marriage” status. Then one day I had an argument about it with a friend that pointed out that I had no logical reason, if I was granting “unions” the same legal status as marriage, to insist that the word “union” be used if the participants were of the same sex.

    After getting very angry I realized that he was right. That for some emotional reason I was attempting to keep the word marriage for people “like me” and withholding it from people that were “different” than me.

    I admitted my irrational and bigoted mistake and have tried to use it as a “learning experience” to check to make sure that I am not holding positions based on emotion and intellectual laziness.

  3. James Hanley says:


    I agree with you about the teleology of historical “progress.”

    There is something about promulgating a theory everyone is equal that seems to set up a persistent pressure towards recognizing and eliminating ever more on-the-ground inequalities. In that sense, I suppose, there’s a sort of teleology. But the idea that this is an inevitable trend, or especially the idea that somehow this trend is how the universe was meant to unfold…those are really problematic claims; wish fulfilment, I suppose.

  4. pierrecorneille says:

    In a weird way, I was on board with gay marriage before I personally became welcoming toward gay people. Around 1996 or 1997, I came around to believing that prohibiting ssm was a denial of basic liberty. I kept that belief to myself at the time, but if I had stated, I would have said something like, “I don’t approve of that lifestyle, but they should still have the legal right to marry.”

    I try to use my own mistake similar to the way you use yours. I also try to use it as a reminder that I am not so brave and courageous as I sometimes like to style myself. It is one thing to be for ssm right now, when that’s what seems to be the trend and when, at least in my case, I work in an environment and live in a social circle that are welcoming toward gays. Also, it’s easy to be brave on the internet, with the anonymity I enjoy. But it’s another thing to the stand when it’s unpopular.

  5. Dr X says:

    Yes, excellet essay, James.

  6. lancifer666 says:


    Your essay also point out what I consider the greatest flaw in the US system. We grant those nine Justices ultimate power to decide what everyone else is, or isn’t, free to do.

    “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”

    I probably needn’t point out all of the times in history that those nine humans have visited grave injustice unto the people of our nation. And almost as disturbing is how often their decisions on fundamental rights and other important issues are decided by a vote of five to four.

    But I must admit that I have no suggestion for a replacement for the function the Supreme Court fulfills.

  7. hanleyse says:

    After getting very angry I realized that he was right. That for some emotional reason I was attempting to keep the word marriage for people “like me” and withholding it from people that were “different” than me.

    I also try to use it as a reminder that I am not so brave and courageous as I sometimes like to style myself.

    That pretty well sums up the amazing snowball effect we’re seeing in the collapse of hetero-only marriage, doesn’t it? For a lot of us, realizing there was no rational basis for opposing gay marriage came long before we could work up the nerve to buck the weight of public opinion. But public opinion doesn’t weigh so heavily on one side any more, so standing for equality requires no more than the paltry amount of courage that even I can muster.

    I was tempted to add the image of undermining the dam of tradition that holds back the river of justice, but that really would be too teleological, wouldn’t it? Not to mention sappy, which might be worse yet.

  8. ppnl says:

    The reason I asked is because I have been reading some of Timothy Sandefur’s posts on judicial restraint. I think he would make us all a suspect class deserving of strict scrutiny. That could do more to limit government power than anything else.

    I also like that he basically called Bork a progressive. That’s gonna leave a mark.

    And he gives liberty primacy over democracy. Exactly right. We keep trying to build democracies in places like Iraq and Afghanistan but without guaranteed protection of liberty a democracy is a disaster waiting to happen.

    But still I’m not sure how to make a coherent theory of how the courts should interpret the constitution. Maybe just requiring strict scrutiny is enough.

  9. ppnl says:


    ” Your essay also point out what I consider the greatest flaw in the US system. We grant those nine Justices ultimate power to decide what everyone else is, or isn’t, free to do. ”

    But what is the alternative? Somebody has to have the last word on what is legal. It would be weird if that person was not a judge.

  10. lancifer666 says:


    Yeah, that’s why I said I didn’t have a better idea.

  11. ppnl says:

    Well ok but if there isn’t an alternative then calling it a flaw does not seem accurate. In fact I see the separation of powers as a stroke of genius. The court is separated from both the immediate forces of political passion of the legislative branch and the force of arms of the executive branch.

    And I really did miss your last line. Sorry.

    In practice the worst decisions by the court has been in support of the other branches of government. The best decisions has been when it stood up and said no to them. So while they could in principle go rogue that has not historically been the problem. “Rogue court” has historically been the charge in cases from Loving v. Virginia to Lawrence v. Texas.

    So I really don’t see it as a problem. If anything the court should be even more separated from the other branches. As I see it that is part of what Timothy Sandefur is saying when he suggests ending judicial restraint. It is an odd position for a republicanish type to take but I think he has a point.

  12. pierrecorneille says:

    I cited Sandefur in the conclusion of my dissertation. And even though I was generally critical of him there, I think there were some members of my committee who would have preferred I’d not engaged him at all.

  13. michaeldrew says:

    ppnl explained himself a bit in comments, but it seems odd to me that he’d think James objects to a judiciary that seeks to vindicate rights by actively replacing the views of demos-driven legislatures about what the Constitution allows and forbids (or fails to allow) with its own views of that, where such replacements advance a view that is closer to James’ than not. I don’t know where James has expressed any attachment to the value of judicial restraint from correcting the constitutional judgments of other branches, though I could just not be aware of when and where that has happened. The question was thus, AFAIK, just a thigh-high, slow fastball right down the middle of the plate for James, and he stepped in and smacked it out of the park. (Which is great!)

  14. ppnl says:


    Um, what? I asked him because I value his opinion and wanted to know. As I know James is libertarianish I strongly suspected he wouldn’t not object to courts protecting expansive individual rights. That isn’t the question. The question is how do you justify it with a theory of constitutional interpretation. Specifically how do you defend this “activist court” from for example Lancifer666’s contintion that giving the courts this kind of power is “the greatest flaw in the US system”.

    I think James is correct in everything he said but I’m not sure he addressed the question completely. It is true that people will grow accustom to same sex marriage. But they could also become accustom to polygamy. Should the court legalize polygamy on the same grounds as same sex marriage? If the courts had legalized same sex marriage in 1885 would people have accepted it then? If not then how can you have a theory of constitutional rights that covers both situations?

    Just look at pierrecorneille’s admission of being anti-gay in his younger years. His change of heart clearly shows that our concept of liberty isn’t some preexisting thing that exists out there as Tim Sandefur would have it. Nor is it a static thing that can easily be contained in a text. Liberty is a necessitously expanding thing that will escape any attempt to describe it.

    I think Thomas Jefferson suggested the constitution be rewritten every twenty years so as to not enslave the next generation. In some sense that is what we are doing.

  15. lancifer666 says:


    I see your point and agree with it.

    As I grow older, and perhaps more cynical, I see the grand ideals and pronouncements of the foundational precepts of various governmental systems as merely flowery words.

    I have found that in most cases, regardless of the system under which you live, it is best to steer clear of the gears of governance when ever possible. I try to keep my head down and go about my business.

    Perhaps the following Chinese curse says it best.

    “May you come to the attention of those in authority.”

  16. James Hanley says:

    I strongly suspected he wouldn’t not object

    I certainly didn’t not.

    Liberty is a necessitously expanding thing

    Oh, we can hope so, can’t we?

    Actually, I’d focus in on equal treatment under the law as necessitously expanding, rather than liberty itself. I’m reminded of grad school, when I first came into contact with anti-liberal left-wing social constructionist types. To them, “liberal” was a conservative (i.e., status quo, heirarichical) white male concept, inherently so because it was created by white males. The liberal description of man as a rational individual being, they thought, was based on white males and required an “other” against which to define itself; that other being non-white, non-male, and so the liberal conception of mankind necessarily excluded women and non-whites.

    I chewed on that for several weeks as they kept repeating that in our political theory seminar, until it finally struck me why they were all full of shit. Even if the liberal concept of mankind does have at its core a white male bias, it makes a claim to the equality of all mankind, so any discriminatory content we put into it is undermined by its claim to universality. It’s ultimately forced to confront the conflict between the core concept of universality and the biased content and recognize women and non-whites as also rational individuals.

    I see equal treatment as precisely the same. Once you establish the principle of equal protection, your actual legal content may not match it, but you’ve created a core concept that people can compare that conflicting content with, and while it may be damned difficult to persuade us that our content conflicts with our principal, the universalizing nature of the equal protection principle makes it harder and harder, over the long run, to keep the affective content of equality restricted.

    Liberty in general, on the other hand, is continually challenged by concerns for order and security, so I doubt that it’s universalizing in the same way.

  17. lancifer666 says:

    Liberty in general, on the other hand, is continually challenged by concerns for order and security, so I doubt that it’s universalizing in the same way.

    I think it is the fundamental tension between security, order and liberty, and one’s relative value of each, that is at the core of most political discourse.

  18. Dr X says:


    I like the word ‘tensions’ in describing political concerns, and I find Jonathan Haidt’s intuitive moral foundations helpful to thinking about the tensions behind political views. Outside the framework of the tensions you note, it’s argued that one moral intuition is the fairness/cheating sensibility. Another is disgust/sanctity sensitivity.

    There are six evolved foundations currently proposed by the theory. You can probably see how each may have been selected by conferring marginal advantages to certain genetic lines.

    The moral sensibilities don’t determine specific policy preferences, but their relative salience in any given individual would affect the weighting of that person’s political concerns, which is why the word tensions seems right to me..

    Frans de Waal’s animal experiments suggest that a fairness intuition may be present in animals besides human beings. If you haven’t seen the video clip of his Capuchin monkey experiment, it’s worth a look.

  19. Dr X says:

    Sorry, James. That was just a link to the Frans de Waal video. I didn’t expect the video would automatically embed.

  20. J@m3z Aitch says:

    No worries; it’s kind of awesome that it embedded, so others can more readily access it. (I’ve noticed I don’t read messages from my college administration that aren’t embedded in the email–once they make it a pdf document where I have to make that one extra click and wait for it to load, I won’t do it.)

    I have seen that video. It’s great when science is also funny. And I’m a De Waal fan. Chimpanzee Politics, Peacemaking Among Primates, and Good Natured were an awakening to me, making me realize that politics is not limited to humans.

  21. lancifer666 says:

    Dr X,

    Fascinating stuff.

    I had a German Shepherd, named Betty, that clearly felt moral outrage when our cats would violate the “cat rules”. She had grudgingly accepted the inequity of a “system” that allowed the cats to get on the furniture, even though she could not, and that the cats were fed tastier canned food, while she ate dry dog food (among other “privileges” enjoyed by the feline members of the family).

    She endured these “species-ist” slights with quiet dignity, if not enthusiasm.

    But she knew that the cats had there own rules, even though they did not in anyway apply to her, like clawing the sofa or jumping up on the kitchen counter top or climbing the drapes etc.

    Should one of the cats violate one of these “cat ordinances” she would go nuts!

    First she would sound the alarm with plaintive high pitched barking, as if to say, “Look what they’re doing!” If you ignored the tattling she would become increasingly agitated, running over to the offending feline and back to you, as if to point out the cat crime in progress.

    If you continued to turn a blind eye to the felonious furball she would spring into vigilante action, nipping at the cat, and then returning to you to again loudly protest the affront, “For God’s sake, can’t you see what they’re doing!”

    I would intervene and stop the “perp” from further offense and this would quell her protests.

    I would usually throw in “Betty, you just worry about the dog rules and let me enforce the cat rules.” Then she would go over to the cat and lurk over them as if to say, “Yeah, and let that be a lesson to you rodent eater!”

    So I am hardly surprised that primates express similar feelings of moral inequity.

  22. Dr X says:

    Hysterically funny, Lance!

  23. ppnl says:

    James Hanley,

    ” Actually, I’d focus in on equal treatment under the law as necessitously expanding, rather than liberty itself. ”

    Really? I see it as only a tool for enforcing individual rights. Equal protection is important but is so far from sufficient that I can’t see where you are coming from. An imposition on free speech that affects everyone equally is technically worse than an imposition on free speech that only impacts a small class. I would say equal protection is only a test for making violations of individual rights visible.

    I am not gay nor do I have any close gay friends. Yet from my earliest days thinking about it I have never understood why it should be a government issue. For me it isn’t about treating people equally but simply about people minding their own business.

    Government should have to justify what it does even when it does it to everyone equally.

  24. J@m3z Aitch says:


    It’s not about what I see as necessary or desirable. It’s what I see as having an internal force that drives it. Lack of equal protection–when one of our foundational principles (however much observed in the breach rather than reality) is “all mean are created equal”–has that internal force. Because when the law favors you over me not because of our actions but because of our status (male v. female, white v. black, Christian v. atheist, etc. v. etc.) the “hey, that’s not equal!” claim has real force. And it’s hard to find a persuasive justification for it.

    But suppression of the speech of all of us? That’s an equal denial of liberty, and it’s not hard to find justifications (national security!).

    In brief, equal violations of liberty may be harder to eliminate than unequal violations of liberty.

  25. ppnl says:

    ” Because when the law favors you over me not because of our actions but because of our status (male v. female, white v. black, Christian v. atheist, etc. v. etc.) the “hey, that’s not equal!” claim has real force. And it’s hard to find a persuasive justification for it. ”

    I agree and that is why I see it as a test for when an individuals rights are being violated. But it simply isn’t sufficient for protecting liberty in general. For example Lawrence v. Texas could not be decided on equal protection grounds. Without this decision equal protection would never have become an issue in same sex marriage. You need substantive due process or game over for SSM.

    The objection that I have against Bork and Bork lite (Scalia) is exactly that they would find a way to let government do whatever it wants. By reducing substantive due process they greatly expand state power. The irony here is that people who object to government power are the strongest supporters of of these two.

    It is my understanding that the only reason equal protection is so heavily used today is that the slaughterhouse case gutted part of the 14th amendment. It is only with the rise of the civil rights movement that equal protection became a stand in for privileges and immunities in certain specialized cases.

    Government powers are suppose to be enumerated while individual rights are not. Yet judicial restraint effectively reverses this.

  26. Thank you a bunch for sharing this with all of us you really realize
    what you’re talking about! Bookmarked. Kindly additionally seek advice from
    my web site =). We could have a hyperlink alternate
    arrangement among us

  27. Matty says:

    Well I don’t know about anyone else but *I* think that last comment says everything that needs to be said.

Comments are closed.