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Democracy, rights and marriage equality

SCOTT PIEPHO
Cases and Controversies

Published: September 19, 2014

The campaign for marriage equality broke its impressive unbeaten streak recently in Robicheaux v. Caldwell in which District Court Judge Martin Feldman of the Eastern District of Louisiana ruled that Louisiana’s laws refusing to recognize the marriages of same-sex couples are constitutional. Shortly thereafter, Judge Richard Posner penned a 7th Circuit opinion striking down the gay marriage bans in Wisconsin and Indiana in Baskin v. Bogan.

In a head-to-head between the two judges, Baskin wins easily. Not only is Posner a circuit court judge, he is easily the most influential conservative jurist who is neither on Supreme Court nor named Frank Easterbrook. He was appointed by President Reagan after teaching at the Federalist Society hotbed, University of Chicago Law School. His legal and conservative credentials are impeccable, although he has shown an independent streak of late which will undoubtedly keep him off the high court.

Judge Feldman is simply a federal trial judge. That is plenty impressive in most contexts, but here he pales.

For all the accolades being showered on Judge Posner’s opinion and for all the derision being aimed at Judge Feldman’s, the latter raises an argument about upholding the democratic process that the former dismisses without much analysis.

When Judge Posner confronts the democratic process argument as raised by Wisconsin and Indiana, he says little more than, “[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

According to reports, in the oral arguments regarding the 6th Circuit marriage cases, Chief Judge Jeffry Sutton – who holds the apparent deciding vote – was particularly concerned about the democratic process. The process argument thus may have some substantial weight going forward and should be considered in greater detail.

First, it is worth noting that often when people raise this issue, they don’t mention rights. For example, Judge Feldman begins his opinion in Robicheaux by framing the question as “a clash between convictions regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition.”

The essence of his opinion is that the state has a rational interest in defining marriage via the democratic process. In contrast, as he typifies it, the plaintiffs’ case argues that “if two people wish to enter into a bond of commitment and care and have that bond recognized by law as a marriage, they should be free to do so, and their choice should be recognized by law as a marriage; never mind the historic authority of the state or the democratic process.”

Conspicuously absent from this framing is the fact that marriage confers a set of legal rights and that the American legal tradition, since the passage of the Fourteenth Amendment, holds that the state cannot confer rights to one group and deny them to another without a reason that meets an appropriate standard of review.

While the democratic process is arguably the most appropriate way to define legal rights and institutions, it does not follow that the majority can decide who has access to those legal rights.

For example, the state can and should define public education through the democratic process. Decisions about curriculum, standards, buildings, vocational offerings, and more can and should be decided by the people through their elected representatives or through ballot initiatives. It does not follow that the people should have the power to exclude groups of students from those schools.

This touches a foundational argument about the nature of constitutionalism: is a constitution that protects the democratic process sufficient to protect rights or must it also include affirmative guarantees of rights?

These two visions of constitutionalism literally went to war in the 1860s. The Fourteenth Amendment exists because the side that won the Civil War saw that majority rule by itself is insufficient to guarantee the rights of minorities.

Today, it is exceedingly rare to find judges whose fealty to the democratic process is applied evenly across the board. Justice Scalia, for example, lauds the democratic process when the issue is marriage rights for same-sex couples, but he had no difficulty voting against the democratically elected Congress’s democratically adopted provisions of the Voting Rights Act and the Affordable Care Act. Too often the process argument appears to be little more than a make-weight for judges’ legal preferences.

People of goodwill can differ on whether the state has a sufficient basis for excluding gay people from the benefits of state-recognized marriage. But arguments that the democratic process is an appropriate or sufficient mechanism for making those decisions miss the point of having a constitution in the first place.


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