So, the U.S. Supreme Court has declared gay marriage a constitutional right (something that would disturb the actual writers of the constitution, but I digress).  Is there anything left to distinguish “marriage” and “sexual relationship with tax benefits and implicit (though entirely fictional) social approval”?

I do wonder what would happen if states revisited the concept of “covenant marriage“:

Once married, a husband and wife are expected to commit to a lifetime partnership. However,the law recognizes that some couples will want to separate or divorce. The covenant marriage provisions require a spouse to first obtain counseling and then prove one or more grounds for separation or divorce as listed in the statute. This is the key difference between the two types of marriage: in essence, a spouse has to prove fault by the other spouse. The grounds for legal separation are: Adultery by the other spouse; commission of a felony by the other spouse andsentence of imprisonment at hard labor, or death; Abandonment by the other spouse for one year; physical or Sexual Abuse of the spouse or of a child of either spouse; the spouses have lived separate and apart for two years; or habitual intemperance (for example, alcohol or drug abuse), cruel treatment, or severe ill treatment by the other spouse. The reasons for divorce exclude this last ground but include the other four.

Keep in mind that absent a legal divorce, remarriage is impossible.

Imagine if a state abandoned its current marriage scheme and replaced it entirely with near-permanent covenant marriages.  Imagine if it even treated foreign marriages (entered into in other states) with the same seriousness, meaning that divorces would not be permitted but for one of the causes above.  Such a law would have a legitimate interest: social stability and the provision for children.  Since gay people are permitted to adopt, the state has a legitimate interest in maintaining and enforcing the stability of any marriage relationship.

Granted, this would raise interesting questions of federalism.  But let’s say some maverick state like Texas decided to completely abolish its current marriage scheme, replace it with covenant marriage, outlaw divorce except for certain causes (as described above), and yet make this available to all persons or potential unions (whether gay, straight, or even polyamorous).  What would happen?  Clearly, many would simply drive across the border to some other state to get a quick divorce.  But what if other nearby states then followed suit (just as they did by enacting legislation defining marriage as between one man and one woman)?  Spouses desiring quicker, no-fault divorces may have to travel to Nevada or California to get those divorces.  But even then, imagine if Texas went a step further and disallowed remarriages in the absence of a showing of fault justifying the divorce of all prior marriages (this would raise constitutional “full faith and credit” objections, but set that aside for the sake of argument).  Then some divorcees would have to travel to other states to get second marriage licenses.  This could all be gender/orientation-neutral, of course, but a big hassle to those who desire “flexibility” to end their marriage.

If a state went this route, I wonder how many people (gay or straight) would decide to get married at all in such a state.  Marriage rates would probably decline (even dramatically) in such states, except among religious communities and the most serious of secular relationships.  But, wouldn’t those unions be stronger?  And if so, would more potential spouses (particularly women) be inclined to demand covenant marriage from their partners to avail themselves of this stability for themselves and their children?

At the very least, this would be a way for a state to voice some form of dissent to the recent Supreme Court decision in Obergefell v. Hodges.  The state would essentially be saying, “ok, Supreme Court, you’ve had your fun, but now we will create a form of marriage even stronger than before, so strong that it would be nearly disadvantageous to go through with it.”  Overall, would this be a good thing or a bad thing?

Speaking for myself, a few weeks ago I would have told you that I’d consent to gay marriage if we could take away no-fault divorce (essentially making all marriages covenant marriages).  I believe marriages across the nation would be far more strengthened by a sense of permanence than by a sense of “at least we’re a man and a woman.”

Just a thought experiment, roll with me…

What if, in the American Civil War era, it was the North that insisted upon permitting slavery whereas the South opposed slavery?  So, in that vein, let’s say that the northern states began to seek to impose pro-slavery or slavery-compromising legislation upon the southern states through the federal government and supreme court, and then the southern states seceded from the United States on the grounds that they would not permit the northern states to impose their unjust pro-slavery national laws upon them.  The southern states create a confederacy which will protect each state’s ability to outlaw slavery (or not) and no other state will be able to impose legalized slavery upon them.

First question: in this situation, would you prefer that the confederates (southerners) win the civil war rather than the union northerners?  In other words, would you root for the pro-slavery north or the anti-slavery south?

Second question: if we took away the issue of slavery altogether, would you prefer confederacy or our current federal government?  What’s better, each state left to decide its own fate, or a national government deciding once for all?

Now, in this hypothetical, keep in mind that if you said you prefer a strong federal government, someone listening might call you a “racist” for supporting a form of government that once supported slavery.

Just a thought…

Professor Matthew J. Franck gives us an excellent history of the state of abortion law in the United States in the context of the Judge Sotomayor hearings.  The sad fact is, many Americans do not know that “Supreme Court jurisprudence has manufactured a right to unfettered abortion right up to the time of the child’s birth.”  Professor Franck asks and answers, “How did Americans become so confused on this issue and how did the Supreme Court end up where it has?”  I highly recommend reading his full article, but I’ll provide some highlights here. 

He quotes the confirmation hearing Q&A:

Read the rest of this entry »

Courtesy of The Believer’s Guide to Legal Issues:

The fact that she got such a laugh when she said “judges don’t make law” reveals the state of affairs in our judiciary (not to mention among Duke University law students, which are not unlike the majority of other law students across the nation).  You can expect more undemocratic law-making to come when she is confirmed.

Professor Matthew Franck provides a nice counter-point to Professor Seidman (as quoted in my last post):

Mike,

For my part I find the president’s account of the role of “empathy” in judging to be alarming, and I would welcome Judge Sotomayor’s repudiation of his arguments—if I believed her. Frankly, I don’t.

I think I know what you mean by the “official version” of what judges do. I agree with you that “applying law to facts” is too simplistic to capture the nuances of what Felix Frankfurter called “judicial judgment.” But if it’s not where I would stop, it’s not a bad place to start. And if you mean to say that the political convictions of judges are either a) inevitably a part of their legal judgments or b) desirable elements of the same, then I disagree. Certainly their political convictions are not desirable elements in judicial judgment, and to the extent that they inevitably creep in, they should be minimized as close to the vanishing point as possible by every conscious effort a judge can muster.

Judge Sotomayor, in the speeches from which she now flees unconvincingly—sorry, I mean which she now assures us were misunderstood—takes the view that gender and ethnicity influence the convictions of the judge, which in turn influence legal outcomes. Like the president, she celebrated this rather than worrying about it. Now she sings a different tune.

Is she a cynic? Perhaps so. Bill Bennett said to me on his radio show this morning that at least we can take comfort from the fact that views like the president’s and Judge Sotomayor’s (before this week) are understood to be unacceptable to the American people when a bright light is shone upon them. I think that’s right.

I would agree with Professor Franck that the Court’s political judgments and other characteristics (race, gender, economic theories, etc.) must be (and can be) minimized and such issues left to the legislature.  The problem comes when a truly indeterminate case arises.  In those rare cases, the Court must make a judgment where the legislature has not yet made a judgment (this is the point that Judge Sotomayor pretends does not exist, and Professor Seidman castigates her for that).  Hopefully, the Court’s judgment in those instances can be overruled by the legislature so that democracy will prevail over the judge’s opinions (which is why it is so dangerous for the Court to willfully interject its opinions as constitutional law, which cannot practically be undone).  One of the problems is that Courts are all too willing to find an “indeterminate” case where a principled answer does exist.  Additionally, where the Court must make a decision in an indeterminate case, I would hope that the judges have something more than “I’m a wise latina woman” on which to base their decision.  It is at this point that I would probably part ways with just about every law professor in the nation: I believe that the truly indeterminate cases are rare and can nevertheless be decided by objective principles rather than mere willful power. 

Georgetown Law professor Louis Michael Seidman sums up the Sotomayor testimony perfectly during this online debate:

Speaking only for myself (I guess that’s obvious), I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

Bravo, Professor Seidman.  His remarks adequately express why I was so frustrated listening to Judge Sotomayor pretend that all she would do is “apply the law to the facts” without a hint of ideological bias or underlying philosophical presupposition.  It was like a big “emperor’s new clothes” charade–everyone in the room knew it wasn’t true, but no one would say it. 

I expect that I disagree with Professor Seidman on a great deal of legal and political philosophy, but he is right on this–even first year law students know that judges bring philosophical “baggage” with them to their cases.  And so they should.  I may disagree with Professor Seidman on what is the appropriate “baggage” to bring, but we both agree that for Judge Sotomayor to pretend that she has none is nothing less than perjury. 

The ultimate example of Sotomayor’s chicanery in these hearings is that she keeps pointing to her “record.”  Senator Schumer has chimed in by insisting that she hasn’t “made” any law in her entire record. 

Her “record” of case decisions thus far, of course, is the result of her being subject to the review of a higher court (and also of her aspirations to become a Supreme Court justice). When she is in charge as a Supreme Court justice, she will get to set the course with no oversight and no higher position to which she can aspire. That’s when we’ll see her true philosophy put into action. And that is why she’s trying to ignore her speeches and point to her “judicial record”, which has little bearing on what she’ll do when she’s cut loose from the shackles of a higher court and future confirmation hearings. Her speeches reveal the philosophy she will actually employ.

That philosophy is of the “critical legal studies” school of thought, which ultimately claims that all judicial decisions are biased and cannot help but be so, and that judges therefore should make the law whatever they think is “just” (though in my opinion they have no viable framework for determining what justice is, so they just do what they want). Judge Sotomayor is unlikely to show much restraint as a Supreme Court justice, notwithstanding her alleged “record” as a subordinate judge.

When someone has to say one thing in one context where he/she is bound by rules and oversight, and then that person says something different in a context where he/she is free to say whatever he/she wants, which do we think is more honest?

I’ve been watching the Senate confirmation hearing for Obama’s nominee to the U.S. Supreme Court, Sonia Sotomayor.  I’d like to point something out quickly.

Democrats typically ask about a judge’s “respect for precedent” as code-speak for “do you respect Roe v. Wade and will you follow it?”  Democrats don’t like to ask the latter question because it reveals their fierce dedication to abortion.  However, during the Reagan administration, Democrats defeated the nomination of Judge Robert Bork, citing, among other things, that Judge Bork (allegedly) would have decided Brown v. Board of Education (the case that integrated public schools and overturned the “separate but equal doctrine”) differently than it was decided. 

Here’s the rub: Brown v. Board of Education was a departure from precedent.  Further, there was no precedent dictating the result in Roe v. Wade.  Democrats like departure from precedent when they agree with it.  They don’t like departure from “their” precedents.  (I’ll admit that Republicans do the exact same thing, though they typically argue that they want judges to depart from bad precedent and return to an original understanding of the Constitution, not create new and unpredictable law like the liberal justices do.) 

In the hearing today, Judge Sotomayor made the disingenuous statement when questioned about her opinion about one case, “that’s the settled law so I’d be bound to follow it [as a Supreme Court justice].”  That simply is not true.  As a Supreme Court justice, there is no enforceable obligation to stare decisis.  The Court can plainly reject past cases, as it did in Brown v. Board of Education, whenever it wants to.  When she is made a Supreme Court justice, she will do whatever she wants to do, and she’ll decide to overturn any precedent she doesn’t agree with (and try to get four other justices to do the same thing).  For her to claim that she will blindly follow precedent as a Supreme Court justice flies in the face of the entire history of the United States Supreme Court. 

Of course, she will follow precedent when it suits her, and Roe v. Wade is certainly one of those precedents.  She is also sure to use the “empathy” that President Obama said he expects, whatever “empathy” even means.