The
law should be principled. That is, it should rest on reason, a reason that
reaches similar answers for similar cases. The passions should be left to
politics. Much that’s wrong with American constitutional law these days is that
it’s result-driven, and the results the justices want are driven by the
passions in the guise of this vague, warm-fuzzy thing called “justice.”
Oliver
Wendell Holmes, Jr. had this to say about justice: “I hate justice, which means
that I know if a man begins to talk about that, for one reason or another he is
shirking thinking in legal terms.” In other words, justice, in this sense, is
about what we want, not about reason.
The
Court’s downfall can be dated from the 1965 case of Griswold v. Connecticut,
when it created a new, hitherto unheard-of right to privacy, because the
justices didn’t like the idea that states could regulate contraception. Since
then, things have gone rather predictably. In the recent case of United States v. Windsor, the Court, in the person of “Catholic” Justice Anthony
Kennedy, reached a principled decision in striking down section 3 of the
Defense of Marriage Act. Except that he didn’t. True—and this is where the
principle comes in—the Federal government probably overreached by trying to
define marriage. Traditionally that’s a state concern. But Kennedy didn’t leave
it at that. Instead, he took the opportunity to lecture us on how bigoted the
lawgivers were for discriminating against gay couple like that. Maybe and maybe
not, but the lecture was gratuitous.
Second,
and more seriously, Kennedy essentially ignored Article III’s “case or
controversy” requirement in order to render this decision. As Justice Scalia
notes, quite correctly, by the time this case got o the Supreme Court, the
parties—Ms. Windsor and, effectively, Mr. Obama—were in collusion, both asking
for the judgment below to be affirmed. For more than 200 years, that would have
been enough for the Court to decline jurisdiction. But Kennedy was so hot to
tell us how we’re homophobes that he pretty much ignored that precedent. Thus,
his opinion is driven by passion, by what he wants to do, not by what the law
commands.
Thus,
I’m looking forward to the day when polygamists seek to overturn legal bans on
polygamy. The Court, heavily influenced by Kennedy in cases such as Windsor
and Lawrence v. Texas, is spouting off a whole bunch of stuff about the
“right to define one’s own concept of existence, of meaning, of the universe,
and of the mystery of human life.” Marriage is no longer about the basic socio-relational
building-block of society that’s geared largely, though not entirely, towards
producing children. Instead, it’s based “on defining one’s own family and
consecrating a union based on love,” in the words of law professor Kent
Greenfield. If we’re going to be principled about this, then, we should allow
polygamous, and even incestuous marriages.
I’m
not kidding about this, and I’m not saying this in order to march out a parade of horribles, which is what most of the Right does when it comes to this issue. If we’re to have same-sex marriage, I genuinely, really do want
us to have polygamous and polyandrous marriages.
Why?
Well,
putting on my historian’s hat, I could say it’s because historically there’s a
lot more basis for polygamy then there is for same-sex marriage. So, a
fortiori, if same-sex marriage is OK then polygamy must be OK.
But
I don’t want to do that. Instead, I want this simply because I want the law to
be principled. It shows that the justices are at least trying to be reasonable
and that the courts, supposedly the last bastion of reason, isn’t really
governed by the passions. I don’t want the Court to say in one breath that
marriage is about
“defining one’s own family and
consecrating a union based on love,”
and then in the
next breath start hemming and hawing and pretending that there are legal
reasons not to allow polygamy, when it refused to even consider that possibility
when it was looking at same-sex marriage,
If
the Court is truly principled, then if it allows same-sex marriage, it must
allow polygamy. If it does that I’ll breathe a bit more easily.
If
the Court just wants to play politics based on a perverse sense of
fairness—perverse because it’s based on an absurd mix of what the justices personally
think is fair mixed in with a bit of who, on the left, can scream the loudest
(them Mormon polygamists tend to be right-wingers, after all, which shouldn’t
make a difference but which I’m betting will), and if the Court is willing to
be as blatant as this, then all hope for the law and reason are lost.
If
you think there really should be a difference between same-sex marriage and
polygamy, I invite you to read Greenfield’s article, in which he pretty much
shoots down the supposed distinctions.
