An act of moral will
US court’s gay marriage decision subordinated judicial restraint to justice and equality — and so it should have
The White House is illuminated in celebration after the Supreme Court ruled that the Constitution guarantees a right to same-sex marriage, on Friday, June 26, 2015, in Washington. (AP Photo)
The United States Supreme Court made history last week when it held that the 14th amendment to the constitution — enshrining the twin mandates of “due process” and “equal protection” under the law — requires states to recognise gay marriage. The issue was bitterly divisive. As often happens, Justice Anthony Kennedy ended up casting the decisive fifth vote, subordinating judicial restraint to the requirements of justice and equality. So he should have. And so it will be remembered.
In the midst of celebration, however, it’s worth pausing to take seriously the view on the other side: to cast the four dissenting opinions in their most generous light — instead of resorting to defamation or caricature — and examining, with precision, why their reasoning fails. Charitably construed, the dissenting opinions are about two forms of humility. First, there is the institutional humility of the judiciary, the branch of government least directly accountable to democratic forces, and thus, on a certain worldview, most prone to abuse its power. In this respect, the dissenting opinions take a noticeably optimistic view of the democratic process. They imagine a political landscape in which deliberation and lawmaking were flourishing — the status of gay marriage was being negotiated how, in a democracy, it ought to be negotiated: democratically — until the Supreme Court decided to step in.
Beyond institutional humility, the dissenting opinions also emphasise the importance of moral humility. On this front, Chief Justice John Roberts wrote with particular solemnity, and dismay. Of the majority opinion, he had this to say: “[T]he court invalidates the marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”
It’s an important question. Who do we think we are? In this case, as in so many, the two sides answered this question in radically — though predictably — different ways. I want to suggest that at some level, this difference underscores the tension between conservative and progressive worldviews more broadly.
To begin with, Chief Justice Roberts, speaking for conservatives, clearly meant his question rhetorically. In posing it, the idea was to suggest that the majority is confused about “who they are”, about what the Supreme Court should and should not feel licensed to do. In other words, Chief Justice Roberts clearly thinks the court arrogated to itself an outsized amount of decision-making power. Who are you — five men and women in 2015 — to decide that the hundreds of generations before you got this question so achingly wrong? How easy it can be to dismantle castles, and how difficult to build something new, much less something better, in their place.
What’s interesting about this approach — calling for humility in the face of longstanding practice — is that the central virtue cuts both ways. Conservatives, after all, have no monopoly on humility. Progressives also strive to be humble. They just have in mind a different style of hubris.
If Chief Justice Roberts is concerned that the majority too blithely disregarded the wisdom of past generations, Justice Kennedy, speaking for progressives, articulates the mirror-image concern. He worries that deference to past generations — which is, in the dissent’s view, exactly the antidote to hubris — can become an independent source of hubris, insofar it ascribes to long-dead men and women the very sort of moral omniscience that Chief Justice Roberts worries about the court ascribing to itself. As Justice Kennedy put it, “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the 14th amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
On this view, the risk of feeling too sure that previous generations were mistaken is less severe, ultimately, than the risk of feeling too sure they were not. To observe, as Justice Kennedy does, that injustice is not always discernible “in [its] own time” is therefore to make a profound claim about the importance of moral will. If injustice is not always known by those who live in its shadow, then, by extension, asking which values have reigned historically, or even which values reign today, will never suffice to answer hard moral and political questions. If injustice cannot always be seen, then deciding whether something is unjust requires examining more than what can be seen. It requires asking, in the highest-minded sense of the phrase, what ought to be. Not getting lost in what has been, or simply what is.
It may be tempting to describe the recent victory for gay marriage as a natural extension — a mere codification — of change that has already taken hold in the social world. From this perspective, the fundamental defect of the dissenting view is alienation from reality: they seem, simply, boorishly, and perhaps indefensibly, out of touch.
I want to caution against this description. The problem here is not that the dissent failed to see the writing on the wall, that it failed to embrace the truth about love and family life and individual dignity that has come to light in the last few decades. In other words, the problem is not that the dissent failed to appreciate what is as opposed to what was. The problem is that it failed to ask what should be. Unlike the majority, the dissent approached the question of gay marriage with no moral imagination — indeed, with a conscious absence of it. Towards the beginning of his opinion, Chief Justice Roberts excoriates the majority’s holding as “an act of will, not a legal judgment”. Yes, and deftly so. That is — and will be remembered as — its triumph.
The writer is a visiting fellow at the Information Society Project, Yale Law School.
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