Substantive Equal Protection and Homosexuality
Substantive due process is only one technique of activism in the Court’s repertoire. More recently, the Fourteenth Amendment’s guarantee of equal protection of the law, designed to protect the newly freed slaves after the Civil War, has become another uncontrollable source of judicial power. Since all law makes distinctions, it is possible to say that all law denies equal protection to persons on the unfortunate side of the line that has been drawn. To invalidate all such laws would make anarchy a constitutional requirement. The Court, therefore, has chosen which interests are subject to equal protection analysis and which not. Once again, the Court, rather than the legislature, makes the law.
In the name of equal protection, the Court may be on the verge of another extra-constitutional venture – the normalization of homosexuality. Nothing in the Constitution speaks to the question. Historically, homosexual conduct has been left to the moral decisions of the people and their elected representatives. In Bowers v. Hardwick (1986) the Court narrowly held, in keeping with the longstanding constitutional understanding, that a state may make homosexual sodomy a criminal offense. The vote was only five to four, however, and one member of the majority later publicly regretted his vote.
The dissent by Justice Blackmun, which had come within a hair of being the majority opinion, stated with startling boldness and clarity that the informing principle of the Constitution is radical individual autonomy. Chastising the majority for arguing that prior privacy right cases related to the protection of the family, Justice Blackmun stated: “We protect those rights [associated with the family] not because they contribute in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. ‘[T]he concept of privacy embodies the “moral fact that a person belongs to himself and not others nor to society as a whole.”’” No greater endorsement of radical individual autonomy or of sentiment more disintegrative of society has ever before been articulated in a constitutional opinion. The family has no value beyond its importance to the individuals in it, which means, if it means anything, that neither the husband nor the wife need stay in the relationship if greater personal gratification is to be found elsewhere, whether through abandonment, adultery, or, if one is finicky, divorce. If the individual belongs only to himself, moreover, there is no moral obligation to obey the law or to take part in national defense; there is no obligation to family, neighbors, nation, society, or to anything outside one’s own skin.
Ten years later the Bowers majority opinion was abandoned in Romer v. Evans (1996). A few cities in Colorado, reflecting the new political and cultural power of homosexuals, enacted ordinances prohibiting discrimination on grounds of sexual orientation as well as on grounds of race and sex. Even private persons who believe strongly that homosexual conduct is immoral or prohibited by religion were forbidden to act on those beliefs. In a statewide referendum, Coloradans adopted a constitutional provision that precluded local governments from making homosexuals a favored class. The Supreme Court, however, held that this denial of special status to homosexuals violated the Equal Protection Clause of the Fourteenth Amendment. The theory was that homosexuals were impermissibly burdened if they had to secure special protection, equivalent to that afforded racial minorities, at the state rather than the local level. The law could be explained, the Court said, only by animosity toward homosexuals. The opinion closed with the preposterous assertion that the amendment “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.”
To the contrary, every constitutional or statutory provision at the state or the federal level does what the Colorado amendment did – it removes from some groups the capacity to alter the law at the local level. If one took the Court’s majority’s assertions seriously, as a dissent noted, state constitutional provisions prohibiting polygamy would violate the equal protection principle. Since certain states were admitted to the Union only on condition that they have such prohibitions that could not be revoked without the consent of the United States, would-be polygamists would have to persuade the entire nation, and not simply the voters of a single state. Matters are even worse than that, however. Under what appears to be the majority’s rationale, it is difficult to see how any state or federal statute could be constitutional. They all remove discretion from localities. Since the Court has now held that the denial of special status to homosexuals is unconstitutional, Bowers probably must be taken to have been silently overruled.
The Court paused in its normalization of homosexuality in Boy Scouts of America v. Dale (2000). By the narrowest of margins the Court held that the Boy Scouts, which it called an “expressive association,” have the right under the Speech Clause of the First Amendment to bar an open and activist homosexual from serving as an assistant scout master. Homosexuality was viewed as inconsistent with the morality the Scouts sought to inculcate. The Court overturned the judgment of the New Jersey Supreme Court which required, by strained reasoning, the retention of an assistant scoutmaster under a state law banning discrimination on the basis of sexual orientation in places of public accommodation. The author of the dissenting opinion, Justice Stevens, offered one argument disavowed by the other three dissenters. He called the popular disapproval of homosexuals “atavistic” and “nourished by sectarian doctrine;” the Boy Scouts’ policy was “the product of habitual ways of thinking about strangers;” and, he concluded: “If we would guide by the light of reason, we must let our minds be bold.” The other dissenters rightly observed: “Whether the group [whose policy is challenged] appears to be in the vanguard or rearguard of social thinking is irrelevant to the group’s rights.” Correct as that proposition undoubtedly is, it is difficult to reconcile with the Court’s general practice where “vanguard” – New Class – social thinking is involved. It is tempting to think that the Court majority believed that opening the Boy Scouts to an adult homosexual activist would frame a general rule courting seduction and pederasty in other cases, a possibility the public would not accept.
Some state courts besides New Jersey’s are ahead of federal courts in enacting the program of the intelligentsia under state constitutions. The high courts of Hawaii and Vermont, for example, have held same-sex marriages or the equivalent to be a right guaranteed by their state constitutions. The Vermont Constitution was adopted in 1793, and it is impossible to imagine that its ratifiers intended to invalidate any law that recognized marriage as a contract between a man and a woman only. The Hawaiian public responded with an amendment to their constitution overturning the decision; Vermont’s constitution is quite difficult to amend and the legislature capitulated and enacted something called a “civil union,” which carries the same benefits as marriage. Sooner or later the U.S. Supreme Court will be presented with the issue, and the outcome is far from clear.
Radical Feminism
Radical feminism, an increasingly powerful force across the full range of American institutions, overrode the Constitution in United States v. Virginia (1996). The Court held, seven votes to one, that the Equal Protection Clause required the Virginia Military Institute to admit women. VMI had been an all-male military college for over 150 years and had coexisted peaceably with the Equal Protection Clause for 128 of those years. VMI provided “adversative methods” of training, a program that was extremely rigorous mentally, physically, and emotionally. The admission of women is changing the nature of the institution. Minor changes in atmosphere are due to such things as the need for separate bathrooms, curtains on barrack windows, and the relaxation of discipline (so that young men who need rigorous discipline can no longer receive it at VMI). More serious is the new applicability of Title IX, the federal law dealing with sex discrimination. Sexual harassment, whether real or marginal, is now a major issue, as it is at almost all coeducational schools. Surveillance has been increased, though perhaps not sufficiently: VMI is experiencing the novelty of a pregnant cadet
and is now under fire for proposing to dismiss both the woman and the man who caused the pregnancy. Not surprisingly, cadets no longer interact as before. Camaraderie has declined as young men, fearful of harassment charges, often avoid speaking to women. Women who can do six pullups are accepted as equals by male cadets, but the large majority of women who cannot are rebuffed. Whether one views these changes as wholesome or otherwise, it is clear that the VMI decision substantially changed the nature of the institution. After the service academies at West Point and Annapolis admitted women, they too had to relax their training standards to accommodate the mixed student body.
In his dissent in United States v. Virginia, Justice Scalia destroyed the majority’s argument:
Much of the Court’s opinion is devoted to deprecating the close-mindedness of our forbears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. … The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society’s law-trained elite) into our Basic Law.
Scalia understated the anti-democratic course the Court has taken. The Justices are not inscribing smug assurances or the current preferences of our society into the Constitution; those preferences are embodied in the laws the Court declares unconstitutional. The counter-majoritarian preferences adopted by the Court, moreover, are not simply those of a law-trained elite, but those of a wider cultural elite. If only a law-trained elite were involved, the Court would lack the support necessary to enable it to revolutionize the culture.
VMI is only one example of a feminized Court transforming the Constitution. Feminists and their allies persuaded Congress to propose for state ratification an Equal Rights Amendment requiring governments to treat men and women equally: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” There was an initial wave of state ratifications. Who could argue that women should be treated less favorably than men? But sober second thought caused people to realize that men and women cannot be treated identically in all respects. And few wanted judges to make the delicate and evolving cultural distinctions and to freeze their musings into constitutional law. The no-difference principle made eminent sense applied to different races. Black, Asian, and white persons can be treated identically by government, but men and women cannot – or at least nobody wants that outcome. There appears to be a remarkable lack of enthusiasm for such innovations as integrated bathrooms or women on submarines.
The ERA was not ratified by the requisite number of states, even though feminists persuaded Congress to enlarge the time for ratification to make success more likely. The subject might have been thought closed, but it was not. The Supreme Court, using the Equal Protection Clause, has, case by case, effectively enacted the substance of the ERA. The Court is, in fact, cementing into place through constitutional rulings the current views of the Justices and the New Class as to the proper relationship of men and women in our culture. The VMI decision is only the most egregious of many such cases enacting the rejected ERA and thereby deforming the Constitution.
Lifestyle Socialism
The evolution of the American Supreme Court over the past three-quarters of a century has matched the change in New Class interests. If we follow Kenneth Minogue in identifying the culture war as dividing those favoring and those opposing the socialist ideal or impulse, then, as he points out, the movement has been away from socialism as a guide in economic affairs to a socialism of the culture – “lifestyle” socialism. That is one useful way of marking the distinction between the Court majority under Chief Justice Earl Warren and the current Court majority.
The Warren Court was the most political and imperialistic in American history, politicizing every area of law it touched, from antitrust and tax rulings to patent and administrative rulings and on to criminal procedures – and then, of course, to the Constitution. Constitutional or statutory text, legislative intent, precedent, considerations of the separation of powers and the justiciability of issues meant, if not nothing, then next to it. Regardless of precedent or doctrine, the observer knew that the antitrust defendant, the taxpayer, and the patentee would lose, as would a great deal of criminal law enforcement. Politics was a sure guide to outcomes; law was not.
The current Supreme Court is different. It is no longer devoted to economic equality. On subjects like antitrust and taxes, the meat and potatoes topics of the law, this Court is lawyerlike, highly skilled, and politically neutral. The Court no longer displays socialist tendencies in such areas. When a cultural or lifestyle issue is raised in a constitutional context, however, the approach changes: one bloc of four moves invariably to the cultural left and usually picks up at least a fifth vote, to drive the law in that direction. The victories for the jurisprudential conservatives tend to be narrow and defensive. They sometimes manage to keep the law from moving further left – for the time being – but do not restore the law as it was before liberal activism wrought its changes. What we call conservatism on the Court is usually a mere holding action; the liberals set the agenda and the conservatives resist, but rarely roll back prior liberal rulings or advance any agenda of their own. The result is a steady movement, occasionally delayed for the moment, of the Constitution to the cultural left.
The Illegitimacy of Judicial Activism
Judicial activism – the ordering of results not supported by any reasonable interpretation of the Constitution – may be rampant, but it is completely insupportable. Numerous attempts at justification have been made by academic lawyers and by left-wing activist groups such as the American Civil Liberties Union and, more recently, by heated statements from leaders of the American Bar Association. That swing should not be surprising. Some people will always rally around a center of power, particularly if it is the center most accessible to them and it produces the results they want. They are what the Canadian analysts F.L. Morton and Rainer Knopff refer to in their country as the “Court Party.”
The defenses of activism are, despite their pedigree, remarkably simplistic. Departures from the actual Constitution are justified on several grounds: we are so far removed from the framers that the words they used either cannot be understood or have little relevance to us today; there is no reason why the present generation should be governed by men long dead; and we have a “living Constitution” that must be kept abreast of our evolving morality. None of these justifications has any merit whatever.
If it were true that we cannot understand the meaning of the Constitution, the only conclusion that follows is that judges should not exercise any power of judicial review. There would then be no basis for any statement that a statute did not comport with the Constitution, which, according to this argument, is incomprehensible. The judge who nevertheless finds a statute invalid has no basis for that conclusion – unless his unsupported preferences are sufficient. Nobody takes the argument that far. In any event, it is not true that the Constitution has no meaning available to us. Aside from the words of the text, there are the records of the Philadelphia Convention, the state ratifying conventions, and the voluminous written exchanges between the Federalists who favored adoption and the anti-Federalists who opposed it.
As to the second contention, we are not governed by men long dead unless we desire to shrink or abandon the liberties they specified in the Bill of Rights. If we want additional liberties, that may be accomplished by constitutional a
mendment or by statute. Nothing in the Constitution prevents today’s citizens from enacting statutes that specify additional liberties. Most of our guaranteed freedoms are statutory rather than constitutional. One need think only of the statutes governing civil rights, nondiscrimination, labor relations, the rights of the disabled, and so on, to see that point.
The “living Constitution” argument usually proceeds from the observation that society’s morality is evolving and that the Constitution should be interpreted by the courts to reflect that fact. The argument is disingenuous. When a court invalidates a statute, it invalidates the best evidence available of what the society’s morality entails. The evolving morality rationale, which the Supreme Court has used a number of times, is actually no more than a statement that the Court believes the morality it prefers should be enforced. The society is not evolving, only the Court is.
Nobody advances such spurious arguments to justify the Supreme Court in changing the meaning of a statute. These arguments are advanced only with respect to the Constitution, because a constitutional ruling cannot be overturned by the legislature. That fact reveals the antidemocratic animus, the socialist impulse, that lies behind each of these arguments for a Court that is not bound by the original understanding of the Constitution’s principles.
Possible Remedies for Judicial Activism
It is not apparent what, if anything, can be done to bring the American judiciary back to legitimacy in a polity whose basic character and assumptions are democratic. There appear to be four possible routes, none of them encouraging at present, though they differ in the degree to which they offer long-run hope.
Coercing Virtue Page 5
