Timothy Sandefur states that a Progressive jurisprudence lists certain fundamental rights but leaves “off equally valid freedoms for no good reason.” He argues that using heightened scrutiny for some freedoms, and not all, “flows from the political preferences of the legal elite, not from the text or principles of the Constitution.”
I respectfully disagree. Democracy, not the beliefs of the “legal elite,” informs our freedom. Not only should the Court respect the legislative process that protects minority rights, the Court must also rely on an ongoing process of interpretation that considers the Constitution’s text, our history and traditions, and the will of the people. A Court that completely discounts democracy will lose all legitimacy and fail to be effective.
As I touched on in my original Cato Unbound post, there are agreed-upon liberties explicitly listed in the Constitution that the Court must step in and protect when democracy fails. For liberties that are vague, it is not up to judges to define on their own. Judges must not only consider the text of the Constitution, history and precedent, but also the “evolving public understandings of the Constitution’s values,” which are “pressed by political leaders and ordinary citizens throughout history.”
The very topic of this debate proves this. Judicial review is not explicitly provided for in the Constitution but thanks to Marbury v. Madison, it is now accepted “as a permanent and indispensable feature of our constitutional system.” But the public had to accept this role for the Court. The Court draws its authority on constitutional questions from the public’s acceptance. As Archibald Cox wrote in The Role of the Supreme Court in American Government, “the power of the great constitutional decisions rests upon the accuracy of the Court’s perception of this kind of common will and upon the Court’s ability, by expressing its perception, ultimately to command a consensus.”
Liberty Evolves Through Democracy
It’s true that throughout history, there have been unfair and unjust decisions. But the Constitution has always remained the same; what’s different is the interpretation of the Constitution based on the will of the people. That’s why we must have faith in the people to correct the errors of the past, as David Upham asserts.
Harvard Law Professor Michael Klarman wrote,
To risk putting the point somewhat cynically, the Court identifies and protects minority rights only when a majority or near majority of the community has come to deem those rights worthy of protection. Judicial review operates only within the parameters established by the social, political, and ideological context within which judges function. Thus it was possible for the Court to invalidate racial segregation in public schools in 1954, not 1944; sex discrimination in 1971, not 1961; abortion restrictions in 1973, not 1963; and restrictions on radical political affiliation and speech in 1965, not 1955.
The area of substantive due process actually corroborates, not contradicts, this point. Consider the 1942 case Skinner v. Oklahoma. Oklahoma had a statute that required “habitual” criminals to be sterilized. The Court struck down the state law as a violation of basic liberty. It was a departure from the court’s ruling in the 1927 case Buck v. Bell, in which the Court upheld state sterilization of individuals it deemed “unfit.” What had changed in the 15 years that altered the Court’s interpretation? It had become well-known that Nazi Germany was using sterilization techniques, and it influenced society’s view and the Court’s view.
Building on these cases came the right to privacy formulated through Griswold v. Connecticut, Planned Parenthood v. Casey, and Roe v. Wade. When Griswold first articulated the right to privacy for married couples to use contraceptives, only two states in the country had laws banning contraceptives. Similarly, when Roe was decided in 1973, public opinion had already shifted on the abortion issue. Seventeen states had passed laws easing abortion regulations at the time, and opinion polls immediately after the ruling showed that a majority of the public supported the Court’s decision.
This brings me to the movement for marriage equality. To address Mr. Sandefur’s concerns, I do agree with the decision in Lawrence v. Texas, although personally, I wish it had been more sweeping and granted full protection for LGBT individuals. Justice Anthony Kennedy wrote the majority opinion, in which he said that the Texas anti-sodomy law “demeans the lives of homosexual persons” and violates the right to liberty under the 14th Amendment. But he also said that the ruling “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” In other words, he wanted to be clear that the decision did not mean marriage equality.
Lawrence v. Texas was decided as it was because that was the only way the Court’s decision could maintain legitimacy in 2003. Let’s remember in the 2004 presidential election, 11 for 11 state referendums banning marriage equality passed. Of course, Lawrence v. Texas left in place a foundation to build upon, for when the time came that the public was ready to grant full equality and liberty to LGBT individuals. That was Justice Antonin Scalia’s fear in his Lawrence dissent, in which he wrote about Justice Kennedy’s words, “Do not believe it.”
During the last 10 years, the gay rights movement has changed the hearts and minds of the majority. The time has come for the Court to extend full equal protection and liberty rights to the LGBT community. Fifty-two percent of Americans now support the legalization of marriage equality. We can see this reflected in last year’s Supreme Court decision in United States v. Windsor, and now in five recent federal court decisions in favor of marriage equality. In the most recent ruling, striking down Virginia’s ban, U.S. District Judge Arenda L. Wright Allen not only found the ban unconstitutional under the substantive due process right of a freedom to marry, but also as a violation of equal protection rights.
The people have made it clear that denying marriage equality is a denial of liberty and equal protection. That’s a far cry from 50 years ago, when every state criminalized homosexual sex. Back then, even my former employer, the American Civil Liberties Union, did not object. But now, when the Supreme Court grants cert in one of these cases, a marriage equality ruling will not only be legitimized, it will be expected.