Vol. 28 No. 5 (August 2018) pp. 59-64GAY RIGHTS AND THE CONSTITUTION, by James Fleming, Sotirios Barber, Stephen Macedo, and Linda McClain. St. Paul, MN: Foundation Press, 2016. 463 pp. Paper $35.00. ISBN: 978-1-634-60268-6.
Reviewed by Paul Chen, Department of Political Science, Western Washington University. Email: paul.chen@wwu.edu.
When GAY RIGHTS AND THE CONSTITUTION (hereinafter referred to as GRC) came out, it looked like the perfect book for my legal philosophy seminar. I wanted to focus on the coming clash before the U.S. Supreme Court between gay rights and religious liberty, a clash created by the Court itself. In full disclosure, I requested to write this review because, having used the casebook twice for my seminar, I felt I was in a good position to assess its usefulness and benefits for other instructors.
Quoting from the Preface, the editors note that “[d]espite dramatic changes in American constitutional law regarding sexual orientation over the last two decades, and despite the general public’s keen interest in these changes, a brief collection of the leading judicial opinions has yet to be published.” GRC was intended to “fill this need,” and the editors “have tried to make it accessible to a wide range of students, scholars, and educated citizens with no specialized background in constitutional law” (p. iii).
GRC is a casebook, which is usually intended for use in post-graduate law courses, with content consisting primarily of edited legal cases to “show[] the evolution of judicial doctrine in a particular area of the law” (p. iii). But in addition to functioning as a casebook, the editors also wanted GRC to “look[] beyond judicial doctrine” and try to “connect the gay rights debate to issues of longstanding importance about the best conception of the form of democracy embodied in the Constitution, the Constitution’s basic normative properties, the principles of individual liberty and equality, and the role of the judiciary” (p. iii).
GRC succeeds in accomplishing these stated aims. It is suitable for use in both law school and undergraduate courses. As a casebook, which tend to focus on “black-letter law,” GRC introduces law students to legal doctrines “involv[ing] a broad range of substantive issues, like the jurisprudence of personal liberty, equal protection, freedom of association, free exercise of religion, and freedom from establishment of religion” (p. iii). But it is also suitable for undergraduate courses, which tend to have a broader liberal-arts focus.
I heartily commend GRC to others for adoption, and greatly appreciate its normative thrust. It goes beyond legal doctrine and does a superb job of situating the debate over gay rights within broader political and moral issues. My own approach to grappling with such issues concurs with the editors’ statement that “interpreters can’t avoid making moral judgments when applying constitutional provisions of these kinds” (pp. 23-24). Another selling point is GRC’s conciseness: at only 430 pp., it is one-third the length of most law-school casebooks.
The first part of Chapter 1 provides “an introductory essay on the gay rights revolution in the U.S.” (pp. 1-24), followed by the OBERGEFELL decision (pp. 25-62). The editors’ brief overview of the gay rights movement from the 1950s to the present is helpful for readers unfamiliar with that background. They describe the subject of “gay rights and the Constitution… as a unique window into many of the most fundamental constitutional, political, moral, and religious questions that divide Americans” (pp. 2-3), a view with which I agree.
Reserving Chapter 2 for later summary in this review, Chapter 3 offers a crash course on the [*60] Court’s civil rights and civil liberties jurisprudence, and more specifically, its equal protection and substantive due process jurisprudence. GRC covers in 20 pages “the Supreme Court’s decisions regarding economic liberties, racial discrimination, and federalism,” and its “decisions protecting personal liberties…, like the right to intimate association, the right to decide whether to terminate a pregnancy, and the right to marry” (p. 88). The editors conclude the chapter by summarizing the development and ongoing debate over the levels of scrutiny applied in these cases (pp. 106-109).
In Chapter 4, after explaining how the due process and equal protection bases for protecting gay rights became intertwined (pp. 111-115), and then analyzing the competing due process-based approaches to fundamental rights and more recent liberty interests (pp.115-123), the editors reprint the (pre-same-sex marriage gay rights cases – BOWERS V. HARDWICK (1986), ROMER V. EVANS (1996), and LAWRENCE V. TEXAS (2003) – which reflect the struggle between the different approaches (pp. 124-178). The remaining 50+ pages in Chapter 3 are judicial decisions addressing same-sex marriage by state courts (pp. 178-222 – BAKER V. VERMONT (1999) and GOODRIDGE V. DEPARTMENT OF PUBLIC HEALTH (2003)) and federal courts (pp. 228-82 – UNITED STATES V. WINDSOR (2013), BASKIN V. BOGAN (2014), and LATTA V. OTTER (2014)). Inserted between the state and federal same-sex marriage cases is Attorney General Holder’s letter to Congress explaining the Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act (pp. 223-228).
Chapter 5 “sketches emerging conflicts between protection of constitutional rights for gay[s]…and First Amendment claims of freedom of association and religious liberty” (p. v). The cases included in this section are as follows: BOY SCOUTS OF AMERICA V. DALE (2000), CHRISTIAN LEGAL SOCIETY V. MARTINEZ (2010), HARPER V. POWAY UNIFIED SCHOOL DISTRICT (2006), REYNOLDS V. UNITED STATES (1878), EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON V. SMITH (1990), BURWELL V. HOBBY LOBBY STORES (2014), and ELANE PHOTOGRAPHY V. WILLOCK (2013). The impending clash still awaits being addressed by the Supreme Court, as its latest ruling in MASTERPIECE CAKESHOP V. COLORADO CIVIL RIGHTS COMMISSION (2018) has basically averted a direct collision.
The editors conclude GRC with a brief Epilogue – “What’s Next?” (pp. 429-431) – in which they state that “the Court and the country will have to confront three sets of issues (all discussed in Chapter 5) in the foreseeable future: issues related to the clash between gay rights (not only to marriage but also to protection against discrimination) and free exercise of religion; issues related to transgender rights; and issues related to plural marriages, or polygamy” (p.428).
Finally, returning to Chapter 2, this chapter stands out because the editors defend their own normative views on “whether the constitutional status for gay rights, including marriage equality, is consistent with the Constitution’s founding principles” (p. 63). After first introducing readers to their concept of public reasonableness (pp. 64-72), defined as a “practice of justifying political decisions with reasons that appeal to widely supported moral values, such as liberty, equality, and justice, and widely shared ‘public purposes,’ like national security and prosperity” (p.64), the editors then state: (1) “This chapter argues that leading figures of the founding generation were centrally committed to public reasonableness as a governing political principle” (p. 64); and (2) that the concept of public reasonableness is an “essentially secular understanding of what counts as a reason in public and judicial deliberation [that] traces back to the American founding” (p. 65).
The editors defend their thesis for Chapter 2 in three steps. First, they argue that Publius in the FEDERALIST PAPERS endorses public reasonableness as the basis for political decision-making (pp. 74-80). Second, they argue that Publius supports a normative [*61] approach to political-decision making that embraces “objective standards of rightness and goodness” (p. 83). Third, they argue that Publius endorses a special role for the judiciary, which is ultimately expressed in the power of the courts to strike down legislation via judicial review (p. 85). Regarding the question of “whether liberty and equality guarantee gay rights” (p. 86), the editors state first that “[t]he Supreme Court has answered yes”; and secondly that “[t]o the extent that THE FEDERALIST speaks for the Founding, the answer is clearly yes” (p. 86).
Even for instructors who may disagree with GRC’s position on gay rights, I would still recommend the casebook: first, for its concise consolidation of the key judicial decisions; and second, for posing insightful questions that invite readers to engage in the substantive political and moral (and not just legal) debate that surrounds the topic. The editors’ extensive notes and questions after each case are excellent for class discussion or as essay prompts.
When using GRC in my legal philosophy seminar, I had students grapple with the editors’ conception of “public reasonableness” as the basis for government decision-making, and their definition of it as “widely supported moral values…and widely shared ‘public purposes’,” which I took to be not only the thesis of Chapter 2, but the crux of GRC as a whole. In the spirit of the substantive engagement that I mentioned earlier, I want to highlight three questions I raised with my students regarding points made in GRC. My purpose is to illustrate how intractable, yet essential, these important normative questions are to public decision-making. Such questions are, in my view, the most useful, meaningful, and interesting to discuss with students.
My first question concerns a footnote in Chapter 2 that spans three pages and consists of over a full page of text (fn. 8, pp. 66-68). The editors’ overall point in the footnote, I think, is that “[l]ogically, no normative conclusion follows from a historical fact” (p. 66). They basically affirm the is-ought fallacy, the idea debunked by philosopher David Hume that we can derive moral imperatives from empirical facts. In this case, the editors refute the argument made by traditional marriage proponents that, because marriage has historically been practiced heterosexually, that is the correct or true view of marriage, which ought not be changed. The editors rightly state that “[a] definition of marriage established everywhere for millennia could be wrong when measured against the truth…. If there is a truth about marriage, then that truth can’t depend on what this or that social convention might hold about marriage” (p. 67).
The question I posed to my students is this: if the editors and other proponents of marriage equality reject the “truth about marriage” as based on social conventions or historical practices, then what basis would they cite to support their own definition or understanding of the truth about marriage? They certainly cannot claim that their view is correct or true simply because their definition deviates from social convention or historical practice, a proposition that would be just as false as the opposite. By affirming the is-ought fallacy, we recognize that any congruence (or incongruence) between our current or past social practices and the truth about that such practices is merely coincidental. (In lieu of social convention, what the editors propose is the concept of “public reasonableness” as the only proper and moral basis for public decision-making. But I will reserve my discussion of that concept for my third question.)
The editors rightly state that social conventions are one thing, and that truth about reality is another; the two are logically independent. Yet in some sense, most of us seem to want, and even strive to make, our social conventions – not just on a public scale in terms of government action, but also on a private scale in terms of our individual choices and day-to-day behavior – to be consistent with how we think things truly are as well as with how we think things ought to be (i.e., morally). Social conventions and practice are not completely separated from our understanding of truth and morality: we always act based on what we believe, whether those beliefs pertain to physical reality or moral truth. [*62]
The editors realize that it is not enough to merely claim that our conceptions and practice of marriage have changed over time. For some marriage equality proponents, this may be the only premise needed to justify their position. These proponents would argue that, because marriage has been conceived of and practiced differently across different times and cultures, we can conceive of marriage however we wish, based on the view that the positive law is changeable at will. But if that is correct, then there is no substantive moral reason either to change the conception of marriage from how it has been conceived before. If a majority of the population so desires, then we can and should change marriage. But then equally valid is the contrary argument that, if the majority does not want to do that, then we should not.
As the editors themselves state in the footnote in Chapter 2: “everyone…would agree that, in general, social conventions can be morally wrong and should be changed for the moral better where feasible” (p. 67). I completely agree that that is the proper basis for changing our social practices. The question is, then, how do we know when we should change our social conventions so that they are morally better? It should not be that a segment of the population, even a majority of it, merely wants to change the practice. I believe the editors would agree with that.
The second question that I posed to my class is this: do the editors themselves appeal to historical practices or social conventions to support their moral claims about marriage, despite their disavowal of that approach? In the very last paragraph in GRC, they approvingly quote Publius for his “faith that government by ‘reflection and choice’ is possible and that ‘a blind veneration for antiquity, for custom, or for names’ need not overrule the public’s ‘own good sense’” (p. 431). But the editors themselves seem to cite for support, in at least three instances, sources that might be construed as manifesting “a blind veneration for antiquity, custom, or for names.”
First, their normative thesis presented in Chapter 2 seems to rely centrally on their claim that Publius in THE FEDERALIST strongly supports their concept of public reasonableness as the proper moral basis for public decision-making. But what explains their veneration for THE FEDERALIST? It seems that the editors enlist Publius for support because they place credence in the judicial practice of citing THE FEDERALIST as one of the most revered and authoritative sources in the social practice of law. Are they, in a sense, basing their moral claims on social (or in this case, legal) conventions?
Another instance in which the editors seem to appeal to social convention and historical practice for support occurs in the prominent footnote in Chapter 2. When the editors propose a solution to the debate over marriage equality, they defer to the courts to settle the matter, based it seems on “that longstanding political practice in the United States – longstanding tradition, if you will – [that] addresses…these questions to the federal judiciary” (p. 67-68). Their appeal to the courts seems to rest on a historical basis that they avowedly reject: namely, that the Supreme Court should rule on this issue because it has done that in the past.
Another instance in which the editors seem to appeal to social convention and historical practice for support is the claim that their defiance of conventional marriage rests on a social practice that they esteem. In Chapter 2, the editors state that “the West from the beginning has valued truth over convention and associated the dissenting individual with truth” (p. 82). This again seems like an appeal to a tradition or practice, namely of honoring dissenters who deviated from the mainstream. Likewise, as stated previously, the editors argue in the footnote that our social conventions serve as no basis for determining what we ought to do, because those social conventions change as society changes. Are they then suggesting that we ought not base our view of truth on the changing nature of social conventions, because that is the nature of our social conventions to change as society changes? If, indeed, our practices and conventions don’t dictate the rightness of what we do, then can’t we do anything we want, regardless of whether it is [*63] consistent with social conventions, including following our social conventions and practices as well as not following them?
The third question that I ask my class is this: is GRC’s conception and definition of public reasonableness coherent? In Chapter 2, the editors define public reasonableness as “widely supported moral values, such as liberty, equality, and justice, and widely shared ‘public purposes,’ like national security and prosperity, as well as common experiences about causes and consequences and ways and means” (p. 64). That definition seems to necessarily entail some kind of numerical majority or consensus about such values and purposes.
But no one would claim that either the majority (or a minority) has a monopoly on what is morally right or correct. On one hand, the editors commend the courts, which constituted a political and numerical minority compared to the majority of voters, for upholding marriage equality when supporting it was unpopular. On the other hand, they criticize the dissenting (i.e. minority) justices in the more recent gay rights cases for opposing the Court in upholding marriage equality. The editors affirm that what is popular (i.e., practiced by the majority) can be different from what is right (p. 431). The question is, then, how can we know who is right? There is no consistent rule, either in favor of the majority or the minority, that we can apply to answer that question. Further, does their concept of public reasonableness, which appeals to values that are “widely supported” or “widely shared,” somehow appeal to the majoritarianism that they criticize?
The editors state that public reasonableness “excludes appeals to special interests and sectarian religious authority” (p. 64). But just as one person’s rebel is another person’s freedom fighter, one person’s sectarianism is another person’s secularism. In the Epilogue, the editors offer a few arguments to distinguish the merits of legalizing same-sex marriage from those of legalizing polygamy. But some readers may consider those arguments for rejecting legalization of polygamy just as bigoted as the arguments that were used to reject same-sex marriage. The problem is that when debating controversial and contested issues, we tend to think we know better than those whom we disagree with. In the end, there is no objective, noncoercive way that we can persuade everyone to agree on a single resolution of an issue.
Because of that, I heartily concur with what the editors’ write about the need for good faith – not just our own need to act in good faith, but our need to ascribe good faith to the actions of others. I call this the principle of mutual integrity, which I think is a political imperative in the ongoing success of our democratic government. The editors state:
When the community begins to divide into partisan camps that are unable to see each other’s policies as good-faith (if wrong-headed) attempts to serve public purposes, the political culture is changing from one that can support constitutional democracy to one that can’t – for the Constitution does seem to guarantee that restraints on liberty will flow only from good-faith attempts to serve the public interest” [p. 94].
Even more important than agreeing or disagreeing with the editors’ substantive conclusions presented in GRC, we must always try our best to attribute to others a sincere desire to do what they think is right, just, beneficial, and truly good. Yes, we – any and all of us – may be wrong (and even wrong-headed); but so long as we accord to each other the mutual respect that we hope others will accord to us, I believe that that will go a long way to ensure that our debates won’t deteriorate into one-sided diatribes.
These are thorny and weighty issues, precisely because we are dealing with moral and political values over which there is no end to diversity and disagreement. Even when we all share a common concern and interest in promoting liberty, justice, and equality, we will all disagree about how those ideals should be worked out in specific contexts. But I believe that we can all agree on this: if we are to change our view of anything, including marriage, we should change [*64] it for the better. Because I agree with the substantive moral and political questions that the editors of GRC raise, even if I may disagree with the specific conclusions they offer, I commend GRC as a useful and productive teaching resource for classes covering these issues.
REFERENCES:
Alexander Hamilton, John Jay, and James Madison. 1961. THE FEDERALIST, Jacob E. Cooke,
ed. Middletown, CT: Wesleyan University Press.
CASES CITED:
BAKER V. VERMONT. 1999. 744 A.2d 864 (Supreme Court of Vermont).
BASKIN V. BOGAN. 2014. 766 F.3d 648 (7th Cir.).
BOWERS V. HARDWICK. 478 U.S. 186 (1986).
BOY SCOUTS OF AMERICA V. DALE. 2000. 530 U.S. 640.
BURWELL V. HOBBY LOBBY STORES, INC. 2014. 573 U.S. __.
CHRISTIAN LEGAL SOCIETY V. MARTINEZ. 2010. 561 U.S. 661.
ELANE PHOTOGRAPHY, LLC V. WILLOCK. 2013. 309 P.3d 53 (Supreme Court of New
Mexico).
EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON V.
SMITH. 1990. 494 U.S. 872.
GOODRIDGE V. DEPARTMENT OF PUBLIC HEALTH. 2003. 798 N.E.2d 941 (Supreme
Judicial Court of Massachusetts).
HARPER V. POWAY UNIFIED SCHOOL DISTRICT. 2006. 445 F.3d 1166 (9th Cir.).
LATTA V. OTTER. 2014. 771 F.3d 456 (9th Cir.).
LAWRENCE V. TEXAS. 2003. 539 U.S. 558.
MASTERPIECE CAKESHOP, LTD. V. COLORADO CIVIL RIGHTS COMMISSION. 2018. 584 U.S. ___.
OBERGEFELL V. HODGES. 2015. 576 U.S. __.
REYNOLDS V. UNITED STATES. 1878. 98 U.S. 145.
ROMER V. EVANS. 1996. 517 U.S. 620.
UNITED STATES V. WINDSOR. 2013. 570 U.S. __.
© Copyright 2018 by author, Paul Chen.
