Sunday, April 5, 2009

Legal *Philosophy*

Hurray for Iowa!  The national conservative reaction to the decision by Iowa's Supreme Court to strike down a gay marriage ban was predictable.  Never mind that it's a ruling on a matter that doesn't concern them at all in a state with whose constitution they're almost certainly entirely unfamiliar, they're outraged!

Illusory Tenant linked to this little tidbit by one of National Review's legal eagles, Ed Whelan.

The tone reminds me of remark Paul Krugman made, christening the Republican Party the "party of Beavis and Butthead. . ." The name refers to the Republican penchant for picking line-items they didn't understand out of bills and preceding to snicker at them.  No explanation of their position, really, just sneering derision.

In this case, I'm especially intrigued by the crack about "the deceptive rhetoric of living-constitutionalist judges."

I would imagine Whelan considers himself to be that most noble of legal philosophers, the originalist.  It is a philosophy so sound, its proponents seem to spend most of their time describing what they're not (e.g. Randy Koshnick who'll tell you as many times as you can stand to hear it that he's not an "activist").

In any case, originalists, as nearly as I can tell, claim to focus on the "plain language of the law."   That falls a little short in this case as it's very difficult to read "except for the gays" into a constitutional clause that simply says "equal protection."  

In these cases, originalists attempt a procedure of divination whereby they determine the "intent" of the framers of the law.  Clearly, when the Iowa constitution was ratified, nobody wanted to grant equal rights of any kind to same-sex couples.  Homosexuality was widely viewed as a morally-degenerate aberration and nobody would've considered a homosexual relationship equal to a heterosexual one.

Most Iowans, in fact, remain similarly (though likely less virulently) bigoted to this very day.  So why would the Iowa Supreme Court overrule a bunch of modern bigots based on a law written by a bunch of victorian bigots?  It seems odd when you think about it but only if you don't think about it much.

The difficulty with the originalist position in this case is that it requires the jurist to favor the framers' prejudices over their ideals.  

Their ideals were equally clear.  If they had intended to allow simple majority rule on matters of civil rights there would have been no need for an equal-protection clause in Iowa's constitution. The fact that equal protection was included suggests that they were enshrining Iowa's progressive social tradition into its founding document.

But they probably hadn't quite gotten there on the gays so why wouldn't we freeze their meaning at the moment the ink touched the page.  Personally, I think it's because that would be ridiculous.

A constitution is a piece of paper but a law is a rule.  Courts exist because those rules are constantly being applied to new and unique situations.  It's the court's job to consider the implications of that rule in light of current circumstances, not simply read it back.

In the case of homosexuality, it's been decades since the American Psychiatric Association and the American Psychological Association both declared the belief that same-sex attraction is aberrant to be tragically inaccurate.

Faced with a mounting body of credible evidence that same-sex relationships are every bit the equal of their heterosexual counterparts, the Iowa Supreme Court was going to overrule the framers either way.  The choice was how.

They could overrule archaic prejudices and interpret the clear meaning of a law meant to ensure equal protection to all of Iowa's citizens in light of the clear intrinsic equality of same-sex relationships. Or they could overrule those progressive values, subjugate the spirit of equality and pretend that the set of circumstances before them did not actually exist; that it was the 19th century and they knew nothing more than their great-great grandparents did when they drafted the constitution. 

I'm very glad the Iowa Supreme Court ruled as they did.  It's probably wiser to rule for present and future generations.  Past ones tend not to take as much notice.