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Monday, May 16, 2005

Establishing A Priesthood Of The Law

Update: Many of you might think I am overreaching here, but this is a comment that Dingo left on my post about the Nebraska decision:
Yes, well reasoned. Justified with constitutional precepts and backed with case law.

And show me a decision that you can't drive a truck though. That is the nature of the beast. Try to show me a law that is completely 100% constitutional. This is all about degrees of grey.
If no law is completely constitutional, then we have created a government system in which every law is subject to judicial revision if a judge feels so moved. This is the definition of a tyranny. I do not want to live this way.
End update

Regardless of what you think of the immediate effect of Justice Bataillon's decision announcing that the citizens of Nebraska had no right to amend their constitution to preserve a historical definition of the institution of marriage, we should all contemplate this precedent with great sobriety.

The Supreme Court consists of nine individuals. Federal Appeals are usually heard by three judges, and Justice Bataillon is one man. Thus only thirteen people now have assumed the burden of defining marriage for a nation of close to 300 million people. It is their values and their judgements, and only their values and their judgements, which must now speak for an entire nation. Nor is this a unique and restricted circumstance; all laws involve value judgements and often require the creation of special classes. If thirteen people have the power to overrule 300 million in this instance, has not a long tradition of checks and balances been vastly shifted in favor of the federal judiciary?

It is difficult to find any logical limit on the scope of this assumed judicial power save that of the judiciary's own self-restraint. To entrust a nation to the self-restraint of such a small number of people is a hazardous proposition. Can a representative form of government survive such an assumption of power by a judiciary appointed to lifetime positions? There is a great deal more at stake here than the resolution of the specific question. Whether or not the decision is upheld or struck down, it is unlikely that the Supreme Court will reverse its position in Romer v. Evans, and unless it does, the same imbalance of power remains.

MSNBC recognizes the scope of the decision as it affects the right of the citizenry to regulate marriage:
Meanwhile, the debate among lawyers is over how widespread the Nebraska ruling’s effect will be, assuming it is upheld by the appeals court and the Supreme Court.

If, as Bataillon ruled, the Equal Protection Clause of the Fourteenth Amendment does not permit Nebraska to limit legal recognition of marriage to man-woman couples, then the question is: does any state, through its legislature or by referendum, have the power to limit marriage to man-woman couples?
The obvious answer is no. Unless this decision is overturned no state will have the right to restrict marriage to opposite-sex couples. For that matter, whether any state will have the right to restrict marriage to just two people is now a genuine question. The problems and concerns Justice Bataillon noted with Nebraska's amendment would affect those in joint arrangements But there are much, much larger issues involved in this judicial trend.

First, the Priesthood.
Judge Bataillon followed the precedent of Romer v. Evans, in which the Supreme Court ruled that the intent of Colorado's Constitutional Amendment 2 violated the First and Fourteenth Amendments. Justice Kennedy, writing for the majority:
A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest....

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.
In that ruling, the Supreme Court of the United States assumed the right to judge both the intent behind a state's constitutional amendment and whether the goal of the constitutional amendment itself served a "proper legislative end."

In the Nebraska case, Justice Bataillon ruled that Nebraska's voters, in passing a constitutional amendment to enshrine the historical definition of the marriage within their constitution, did so with punitive intent and so passed a Bill of Attainder. He also ruled that the voters of Nebraska created a class with no proper legislative purpose with the intent of discriminating against that class. Whether the voters of Nebraska created a class or merely constitutionally recognized an existing one is an issue. What is not disputable is that in passing the amendment the Nebraska citizenry clearly intended to preserve the historical status quo of marriage.

The scope of Justice Bataillon's formulation (not that it is not somewhat consistent with Romer) is massive. A huge majority of law creates classifications. For example, any law extending state-paid health benefits to poor people creates a class of specially privileged people, and by exclusion, a class of less privileged people with less rights under state law. If federal judges have the veto right over all such classes, then they have become high priests of the law with practically unlimited powers to shape the application of the law from each township on up.

Now, the Prophet.
Justice Scalia of the Supreme Court wrote the dissent in Romer v. Evans. Scalia recognizes that value judgements are an innate characteristic of law and maintains that they ought largely to be considered the right of the voters:
This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality, ante, at 13, is evil....
The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle.
Scalia goes on to note that the majority failed to recognize a distinction between a discrimination that strips individual of general rights and a discrimination that prohibits special rights due to an individual's legal classification:
The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons--for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct--that is, it prohibits favored status for homosexuality.
Scalia closes with an acerbic commentary that this is the value judgement of an elite imposed upon the citizenry:
When the Court takes sides in the culture wars, it tends to be with the knights rather than the villains--and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn.
The logical implications of Scalia's arguments are stunning, and he has now proved prophetic in his warnings.. If the court has the power to decide that the majority of the voters of Colorado were wrong, then surely the court has the power to judge the intent of any such measure creating an exclusion of a class from another favored class.

Consider the scope of this implicit extention of judical range. Any tax law that excludes or prefers certain classes of people creates such a distinction. Any state law that extends special medical benefits to a class of persons, such as those who are poor, creates such a class and such a distinction. Any law that restricts the type of benefits extended under such a law embodies a value judgement that may be legally questioned. (This has happened in Tennessee, and it is one reason that the costs of their TennCare program for the less affluent have expanded explosively.)

Any law that distinguishes a class of people for favorable tax treatment creates such a class. One example is the common state exemptions from property taxes for military veterans. Because homosexuals and women have historically been excluded from military service, such a law does extend a general benefit of which they, as a class, can not take advantage. Progressive tax laws and tax laws creating special benefits for children and dependents extend benefits to entire classes of people based on cultural value judgments. A group representing diabetics might (and probably has somewhere) sued against a state sales tax which exempted food but not the insulin upon which their lives depend. The possibilities for lawsuits under this doctrine are infinite. It is true that this extention of the law has not begun with Romer v. Evans or the Nebraska same-sex marriage case, but perhaps this may serve as a logical warning to stop and reflect at what we have created.

Nor is the pretext under which Colorado's and Nebraska's constitutional amendments have been struck down a meaningful or truly limited one. In Romer the reasoning was that by passing a constitutional amendment the citizens of Colorado made it more difficult and expensive for homosexuals to lobby for special anti-discrimination benefits. This, the Supreme Court decided, constituted an unconstitutional disability under the First Amendment right to assemble and petition for the redress of grievances.

Such a precedent has no effective limitation, as Scalia observed. Any state legislature which passes a law affecting the entire state makes it more difficult for an aggrieved citizenry to lobby for local benefits. Any grouping and creation of contingency of one set of state benefits also deliberately creates the same barrier. This is a common legislative strategy used to limit the effect of lobbying by special interests, and it is usually undertaken with the intention of controlling costs.

For example, under a medical program such as Tennessee's, a legislative provision might be made that no new coverage can be added to the program unless the Tennessee legislature first provides funding from current year income as opposed to raising debt. This has the effect of making it far more difficult for a group of people to lobby for funding of a particular medical treatment, because a legislature must first cut other programs or raise taxes. Yet under the current precedent, if it stands, it is not farfetched that a special class of people (those who are poor and need a particular medical treatment) could convince a federal judge that such a legislative provision infringes their First Amendment rights to petition the government for redress.

By shifting such a large range of potential issues into the judicial sphere of public affairs we also shift the balance of power from the large centrist majority to the smallest and most aggrieved constituencies. We doom ourselves to a war over the judges appointed, because those judges have now assumed expansive legislative powers which they may exercise for a lifetime. Constitutional law is a matter of the constitution, precedent and logic. We should not ignore the logic and the precedents in considering our future.

By prohibiting the establishment of a church in the First Amendment, the United States wished to avoid domination of public affairs by the tenets of a particular creed. They had good historical reasons for so doing. Yet by establishing their own control over the morality and values reflected by the laws in this particular fashion, it is difficult to see how we can avoid the same historical results as those obtained by establishment of a church.

The end result must be that a small minority, who are utterly immune to the control of people with differing beliefs, may exert veto rights over the smallest details of the public life of the nation. Can individual liberties truly be protected by annihilating the independent powers of legislative bodies? If no special respect is shown by the judiciary to the constitutions of the various states over the actions of their various legislatures, is it unthinkable that such a judiciary would also assume the ability to strike down any federal constitutional amendment if, in their judgement, such an amendment eliminated rights granted under the preceding amendments? By definition, the Supreme Court does have the duty to reconcile conflicting provisions of federal law.

Such questions should now be openly and thoughtfully debated. Citizens of a free state have both the right and duty to examine such questions, to advocate for their freedoms, and to consider the possible future consequences of what seem to be limited questions in the present.

Posted to BNN as well.

Update: Ilona at True Grit is contemplating what's next.

I linked to your excellent post, wrote a bit on my own and started to think...so now what? what do we do besides think about this and wring our hands helplessly?

How does one rein in a runaway judiciary?
-that was me. One week away and I turn into an utter newbie....
Ilona, I'm glad you're back. I am thinking about all this myself. No conclusions yet, but I have managed a migraine.

I think the only way might be to amend the federal constitution itself, and I am thinking how that could be done in such a way as to preserve the good features of our system. An independent judiciary is very important, but it can not be a judiciary with absolute powers.
Great analysis, great post. We have been forced into a judicial tyranny: neutral principles have vanished and confirmation's become the Spanish inquisition--without the soft pillows.

I think Romer's circularity silly, but Scalia muddied it too. The problem with Kennedy's reasoning is he forbids legislative burdens on something not classified as a fundamental right. Kennedy is correct that the circularity disappears if sexual preference is a fundamental liberty under the 14th Amendment--but Romer and Lawrence each explicitly disavowed that holding. And neither Scalia nor Kennedy responded to the questions mutually proffered:

Kennedy: all the contrary examples in your dissent (such as the tax example) fall under "rational basis" scrutiny.

Scalia: all the cases you cite involve discrimination against a suspect class--but you didn't declare sexual preference "fundamental" or discrimination against gays "suspect." [And then Scalia goes on for pages defending the now-overruled Bowers.]

Judicial restraint has a slim chance if the court laments turning "rational basis" review into "strict scrutiny." But, more likely, the Court will "bite the bullet" and suddenly discover that sexual preference is "fundamental" having been around at least since Gore Vidal. Decision over.

Five justices doubtlessly think Romer and Lawrence sufficiently paved the way. And that could be true. The gradual leftward-swing on the Court's even got a name: It's called "the Greenhouse effect," after Linda Greenhouse, the NY Times Supreme Court reporter. After just a few result-oriented, can't-let-voters-vote cases, a Justice is guaranteed favorable press now, and a laudatory obituary sprinkled with words like "matured" "grew" "reached-out," with admiration for the Justice's slow but significant recognition of his duty to expand Constitutional and civil rights to cover the little people. It says so in one of those Amendments!

The result:

--the end of majority rule;

--enshrining "relativism" as a Constitutional protection just as visible and important as "privacy;"

--the repeal of all morals legislation or regulations;

--a flat prohibition on laws based on the "icckk!" factor (and you know what I mean); and

--compulsory membership in Dingo's Church of the Secular St. Dowd.

Better reserve a good pew soon--I hear strict constructionists might be barred from participating--that bunch actually reads the text! Takes way too long.
I am glad you wrote that. I believe that if the Nebraska case reaches the Supreme Court without having been overturned by the appeals court it will be upheld. If the appeals court strikes it with a well-reasoned argument they will probably refuse to hear it to duck the issue.

In his dissent Scalia argued both the inconsistency between Romer and precedent, as well as the underlying problem produced by the fundamental reasoning of the majority. Yes, they wished to establish homosexuality as a protected class under the constitution, so they strained their way into it via the First. Having done so, they have opened the door to a judicial strike of huge classes of legislation.

I didn't miss Kennedy's swipe in Lawrence about the error in Bowers arising from the fact that no actual harm was being produced - it was aimed at Scalia's criticism that in Romer the court addressed no actual harm. The reality is that politics exists even on a body like the Supreme Court.
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