Not so fast?

Gay Marriage Ruling Is Conservative, and Wrong

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

The U.S. Court of Appeals for the Sixth Circuit's refusal to declare a constitutional right to gay marriage is wrong. But it isn't wrong in any simple way. The opinion isn't grounded in homophobia or bias. It isn't grounded in head-in-the-sand originalism. The decision, written by George W. Bush appointee Judge Jeffrey Sutton, is grounded in a theory of judicial restraint -- and not even judicial restraint generally, but a very modest theory of judicial restraint appropriate to appellate courts that are subordinate to Supreme Court precedent. So if you want to explain why the opinion is wrong, you can't just say, "Gay marriage should be a basic right." You have to explain why the court should have said so despite the Supreme Court's unwillingness thus far to reach that conclusion.

The first step is to give the conservative view a fair hearing. When I say "conservative," I don't mean reactionary or family values or any other particular partisan position; rather, I mean the Burkean conservative view of judicial restraint that was developed by such constitutional liberals as professor (later Justice) Felix Frankfurter. According to the judicial restraint view, legislatures should be empowered to make the laws as they see fit -- and the courts should not interfere.

During the time in which the theory was first being developed, Progressive-era legislatures passed minimum-wage and maximum-hour laws, which property-protecting, libertarian-leaning courts struck down. Liberals such as Frankfurter wanted both to explain why this was wrong and to ensure that the judiciary didn't block Progressive reform. The answer was the theory of judicial restraint, built by Frankfurter out of pieces borrowed from Justices Oliver Wendell Holmes Jr. and Louis Brandeis, as well as a now-obscure Harvard law professor named James Bradley Thayer.

Judicial restraint as articulated by Frankfurter (and later developed by his greatest student, Professor Alexander Bickel), began with the observation that, in the U.S., the people speak through legislatures that are democratically responsible to them. Federal judges, by contrast, are appointed, not elected. For them to stand in the way of enacted legislation therefore inevitably possesses some element of counter-majoritarianism.

Beyond what Bickel dubbed the "counter-majoritarian difficulty" of overturning legislative judgments is the problem of institutional competence to do so. Judges have no special insight into morals: When it comes to the ultimate questions, they are ordinary citizens like anybody else. Legislatures may not be especially moral, but at least their job is to make value choices from among the range of possible visions of the good life advocated within a political community.

If we have to choose between judges and legislators in deciding morality, goes the argument, we're better off with the people. The great Judge Learned Hand, a friend of Frankfurter's, famously put it this way: "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not." Plato's guardians were supposed to legislate morality in his Republic. Government under the U.S. Constitution isn't supposed to work that way.

For Judge Sutton, a further consideration could be added to judicial restraint. He's a member of an intermediate appellate court, not the Supreme Court; as such, he believes he is bound by the Supreme Court's interpretation of the Constitution, not whatever interpretation he considers best. And the Supreme Court (read: Justice Anthony Kennedy) hasn't yet judged that it's time to declare gay marriage a constitutional right. Sure, the logic of Windsor v. United States, which struck down the Defense of Marriage Act, can be taken to mean that the government must treat all people equally with respect to marriage. But in the Windsor case, Kennedy bent over backward to say that DOMA was unconstitutional because it derogated the dignity of gay people in states where they were allowed to marry. He did not say, as he could have, that the right to marry is a fundamental dignitary right.

So why is the Sixth Circuit's decision wrong? The problem doesn't lie in judicial restraint. Liberals and progressives should like judicial restraint, which would have gotten progressive results in Citizens United and Hobby Lobby, to name just two recent liberal defeats. Chief Justice John Roberts's unwillingness to strike down the individual mandate of the Affordable Care Act was judicial restraint, too -- and deserved applause from liberals. It's also true that, in general, appellate courts should follow the Supreme Court when its doctrine is clear.

The problem is that, with the country and the Supreme Court in the midst of an epochal change in our thinking about a crucial moral question such as equality, the usual rules of judicial restraint and obedience don't apply. Imagine that you were the federal judge deciding on the lawfulness of segregation in the school boards of Topeka, Kansas, in 1951, before the case that became Brown v. Board of Education reached the Supreme Court. According to Sutton, you'd have to decide for the school board and uphold segregation, which had been deemed constitutional since Plessy v. Ferguson in 1896.

But that can't be right. By 1951, it had become clear that a constitution that recognizes separate but equal would be a constitution hardly worth following at all. A judge following his or her obligation to interpret the Constitution should have declared that new moral reality. Even if scrupulousness required ruling in favor of the school board -- which I don't believe -- the judge certainly should have declared that such a decision was repugnant and wrong while doing so.

Today our understanding of the equality of gay people stands as the equality of blacks stood in 1951. Indeed, opposition to gay marriage in the U.S. today is probably less extensive and less firmly felt than the segregationist impulse was among Southern whites at the dawn of the civil-rights era.

In this new moral environment, the correct decision for the court is to acknowledge that what was previously considered constitutionally reasonable can no longer be accepted in light of its violation of equal protection. Admittedly, this is not a manifestation of judicial restraint -- but then again, neither was Brown v. Board of Education.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Brooke Sample at bsample1@bloomberg.net