Thursday, April 30, 2015

That slippery word "liberty"

A perusal of the transcripts of the oral arguments in Tuesday's same-sex marriage case in the U.S. Supreme Court revealed several odd moments, and one of the oddest occurred at the very opening of John Bursch's argument for the state of Michigan. Here is how Bursch began:
This case isn't about how to define marriage. It's about who gets to decide that question.
Is it the people acting through the democratic process,
or is it the Federal courts?  And we're asking you to
affirm every individual's fundamental liberty interest
in deciding the meaning of marriage.
In the language of U.S. constitutional law, a "liberty interest" typically refers (doesn't it?) to a 'negative freedom' -- a freedom not to be interfered with -- not to a 'positive' right to "decide" something. At least, that has been my impression. From this standpoint, it's not surprising that Justice Sotomayor immediately jumped in and said to Bursch that a defeat for his client (the state of Michigan and its ban on same-sex marriage) would not take anyone's liberty away. 

But Bursch seemed not to be referring to the Fifth and Fourteenth Amendment language about not depriving anyone of liberty without due process. He meant something else. He was asserting that individuals have a "fundamental liberty interest in deciding the meaning of marriage." Can that possibly be right?

In a constitutional democracy (a phrase used by Justice Kagan in the course of the argument), individuals have no "fundamental liberty interest" in deciding policy questions. There is a general right to vote, of course, and there is a right to speak and assemble and to engage in other forms of individual and collective political action, but there is no right to have a direct say on every policy question that governments face, even one as (supposedly) significant as the definition of marriage. After Sotomayor's intervention, the asserted "fundamental liberty interest in deciding the meaning of marriage" pretty much vanished from the argument and the exchanges between the lawyer and the Justices; it may have been so strange-sounding that everyone tacitly let it drop.

Still, behind the odd language about a "fundamental liberty interest in deciding the meaning of marriage," Bursch did have a more intelligible (if not especially convincing) claim: that "the people acting  through the democratic process," not the federal courts, should decide on the definition of marriage. But it's not clear why that should be the case. As Kagan said (though not in these exact words), the Constitution puts limits both on the substantive decisions people can make and on what sorts of questions they get to decide.

No doubt these issues were explored exhaustively in the briefs that were filed in the case (none of which I've read), but the oral argument itself, which could conceivably have turned into a contentious seminar on democratic theory, was too choppy and disjointed to approach anything like that. Plato was mentioned (by Justice Alito at the outset), but the names of no other political theorists, classical or modern, came up in the argument. Maybe their ghosts were hovering around. Or maybe not.


Peter T said...

I read parts of the transcript, prompted by a satirical article asserting that Roberts had to ask about the civil basis of marriage. Michigan seemed to have no substantive case at all. The main theme was that if gay marriage were allowed, some children might grow up thinking marriage was not about procreation, and therefore more marriages could fail.

Alito and Scalia kept mentioning tradition. I was surprised that no-one pointed out that the Court's job is to update traditions as required.

LFC said...

I agree that Michigan has a weak case. At a minimum it has to show a "rational basis" for its law (which I think is in the form of an amendment to the Michigan constitution), and the law probably can't even clear that low hurdle.

Alito and Scalia kept mentioning tradition. I was surprised that no-one pointed out that the Court's job is to update traditions as required.

Yes, this gets to ongoing debates about what the role (or the job) of the Court is. Learned tomes have been written about this, so I won't try to say too much in a comment box.

The U.S. Sup Ct, as may also be the case in some other legal systems, is an uneasy mixture of a legal and a political institution, which is one reason I find it interesting. And of course its cases can at least occasionally have a society-wide effect, for good and ill.

For example, twenty years after outlawing deliberate segregation in public schools in Brown v Bd of Education, the Court held that schools in Detroit, overwhelmingly black in their student bodies, did not have to be integrated with the white schools in the Detroit suburbs unless there was evidence of a deliberate intent on the part of officials to bring about the result of black inner-city schools and white suburban ones. That decision, Milliken v. Bradley (1974), helped condemn an entire generation of African-Americans, esp. in northern cities, to substandard education, and is, I think, one of the worst Sup Ct decisions of the past half-century. (It
was a 5 to 4 decision, with Harry Blackmun, a hero to some because he was the author of Roe v. Wade, on the wrong side in Milliken.)

While the Court's civil-rights jurisprudence has arguably stagnated in certain key respects (as just mentioned, the full promise of Brown was stymied by Milliken, and there are other, more recent examples (e.g. the Shelby County case, weakening the Voting Rights Act), in the area of individual freedom on 'personal-choice' issues, the Ct's jurisprudence seems to have gone, more or less and with stops and starts, in a progressive (for lack of a better word) direction. That has a lot to do w the make-up of the Court and the way Justice Kennedy, often the 'swing' vote, has gone on these issues.

Peter T said...

Is there any better argument than Michigan's out there?

LFC said...

Well, from my reading of the transcript of the oral argument I think Michigan had 2 or 3 different 'arguments'. They were all weak, but the least bad one seemed to me to be (and I'm loosely paraphrasing Bursch as I understood him):

Every definition of marriage is going to include some people and exclude others. Michigan's choice to draw the line where it has drawn it does exclude same-sex couples from marriage, but since every definition will be exclusionary of someone(s), the mere fact of exclusion is not dispositive (or decisive), and while Michigan's basis for this particular exclusion may seem rather questionable, a "rational voter" could conclude that it has some merit, and that's all that is required under the rational-basis test.

I don't think this is a good argument, but strategically it seemed a better line for him to take than getting into the substantive claims about an 'adult-centric' definition
of marriage leading, over time, to a higher divorce rate and a weakening of the bonds betw children and their biological parents. Those claims weren't flying at all.

Whether there are other arguments out there I'm not sure. I think there are probably theological or philosophical arguments (if you want to call them that) resting on some (updated) version of 'natural law', but Bursch had to make legal arguments, and I suspect that what he said was pretty much all there is.