Gay Marriage: Politicians, Not Justices, Should Decide

After getting a lift from a federal judge, gay marriage heads to the Supreme Court. But Paul Campos says it's a political, not judicial, issue.

Gay marriage supporters listen at a public rally on Wednesday, Aug. 4, 2010 in West Hollywood, Calif. (Adam Lau / AP Photo)

One of the acronyms spawned by the Internet is IANAL, which stands for “I am not a lawyer.” This abbreviation is used by non-lawyers who participate in cyber-debates about what are supposedly questions of legal interpretation, such as, for example: Does the 14th Amendment prohibit states from refusing to recognize the legality of same-sex marriages? People who employ it are usually apologizing for their lack of legal expertise, while still hoping to contribute something useful to these debates.

Such apologies are unnecessary. The question of whether the 14th Amendment prohibits states from banning same-sex marriage is identical to the question of whether Justice Anthony Kennedy thinks the Supreme Court should require states to recognize same-sex marriage. This is because, when the Supreme Court eventually decides the outcome of Perry vs. Schwarzenegger, the case in which a federal judge this week struck down a ban on gay marriage as unconstitutional, we can be almost certain that Justices Alito, Roberts, Scalia, and Thomas will vote to reverse the outcome of the district court’s ruling, while Justices Breyer, Ginsburg, Kagan, and Sotomayor will vote to uphold it.

The question of same-sex marriage is a purely political question, which has no meaningful legal component whatsoever.

That means that Kennedy, a once-obscure California lawyer who was put on the Supreme Court by Ronald Reagan, gets to decide if same-sex marriage becomes legal in the 45 states that currently do not recognize it. In other words, answering the question of whether laws prohibiting same-sex marriage are unconstitutional doesn’t require one to interpret the Constitution—it merely requires that one interpret the likely behavior of Anthony Kennedy.

Now it’s a standard feature of American politics to bewail this situation, while complaining about “judicial activism.” According to this view, judges should not decide controversial questions of public policy by invoking vague pieces of constitutional language, such as the due-process and equal-protection clauses. (Both were employed in Perry by Judge Vaughn Walker, who found there was no “rational basis” for prohibiting same-sex marriages.)

These complaints are themselves vulnerable to a couple of criticisms. First, the complaining tends to be quite selective in an obviously partisan way. For example, it’s very difficult to find conservative foes of “liberal activist judges” who are also willing to criticize the conservative wing of the Supreme Court when it invokes vague constitutional language to strike down campaign-finance laws, or undermine affirmative-action programs, or determine the outcome of a presidential election.

This, however, is a relatively minor quibble. To point out that people are inconsistent in their willingness to criticize judicial activism might reveal their hypocrisy, or stupidity, or both. But it is not necessarily a criticism of the argument that judges should avoid making activist decisions.

A much deeper criticism is that the argument that judges should not decide controversial political issues by invoking vague constitutional language in expansive ways is itself every bit as much a political argument as the position it attacks. To see why this is so, consider two controversial questions: Should every state be represented in the Senate by two senators, regardless of population? And should federal tax rates be raised?

Any lawyer can tell you that the answer to the first question is almost completely constrained by the law, while the second is almost completely unconstrained. Every judge in America might believe, as I do, that the non-representational structure of the Senate has become very bad for American politics, but every judge will tell you that the law requires every state to have exactly two senators, and that nothing can be done about this without first making a fundamental change to our law (by amending the Constitution).

The question of whether federal tax rates should be raised presents the reverse situation: Any judge will tell you that the law has nothing to say about the answer to that question. The first question is a question of law, while the second question is a question of politics—or, to put it another way, the first question can become a question of politics only if we are willing to consider changing the law in a way that would make it one.

The invocation of vague constitutional language to decide controversial political issues—that is, judicial activism—consists precisely in treating political questions as if they were questions answered by the Constitution. Now opponents of judicial activism can offer all sorts of arguments why this is supposedly a bad thing. But note that none of these arguments will be legal arguments, in the sense that it’s a legal argument to point out that the Constitution requires each state to have two senators.

Given that judicial activism is a central feature of our legal culture, all arguments against it (or for that matter in favor of it) are political arguments, and indeed are no different, in this respect, than arguments about what tax rates should be.

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That said, it presents something of a challenge to construct an argument in favor of a system that gives a single unelected lawyer the power to determine the outcome of a great national controversy. Or, to put the question more directly: Is there a rational basis for the kind of judicial review that leads to conclusions such as that there is no rational basis for the law struck down in Perry?

This is another way of asking why Anthony Kennedy’s views on whether same-sex marriage should be legalized ought to count more than those of all his 310 million fellow citizens combined. The question of same-sex marriage is a purely political question, which has no meaningful legal component whatsoever. (In other words, being a lawyer gives you no advantage over anyone else in getting the answer to this question right.) Indeed, perhaps the most plausible defense for this type of social engineering by judicial fiat is tradition—i.e., that’s just how we’ve always done things in America. Which is rather ironic, given that this is exactly the same argument employed by the opponents of same-sex marriage.

Paul Campos is a professor of law at the University of Colorado at Boulder.