one suspects that Ellsworth tends to be left out of the picture because he wanted a less strict separation between church and state than did Madison.
There are stronger constitutional arguments on both sides of same-sex marriage than any disputants are willing to acknowledge. But the particular manner in which U.S. District Judge Robert J. Shelby reached his decision, announced Friday, overturning Utah’s state constitutional amendment defining marriage heterosexually is a tangle of faulty reasoning and judicial arrogance that will disserve the cause he aims to advance.
The first clue that something is amiss is revealed in the stunning—well, maybe not; but still—error of basic civics on the opinion’s seventeenth page: “When the Constitution was first ratified, [citizens’ fundamental rights] were specifically articulated in the Bill of Rights and protected an individual from certain actions of the federal government.”
That claim—coming here from a federal judge—would cost a freshman points on a blue-book exam. Any student of introductory American government knows the Constitution was ratified over explicit objections that it did not contain a Bill of Rights and on its Framers’ specific insistence that including one might weaken the edifice they had constructed.
One was added three years after ratification due to the leadership of a still skeptical James Madison, who said by way of introduction that it would do little good precisely because it did not apply to exactly the circumstance to which Shelby has applied it: a majority acting against a minority, as in the passage of Utah’s Amendment Three.
This was a case Madison explicitly distinguished from the one indicated in the second half of Shelby’s sentence: protecting an individual against government. Accusing Shelby of sleight-of-hand would be uncharitable; if he is unaware the Bill of Rights was unattached to the Philadelphia Constitution, one cannot assume his familiarity with Madison’s speech in Congress introducing it. Nonetheless, the distinction matters, for the ultimate question Shelby elides is not whether social attitudes toward, and thus laws regarding, same-sex couples will change, but rather how. Shelby writes:
“[T]he court’s role is not to define marriage, an exercise that would be improper given the states’ primary authority in this realm. Instead, the court’s analysis is restricted to a determination of what individual rights are protected by the Constitution. The court must then decide whether the State’s definition and regulation of marriage impermissibly infringes those rights.”
The first sentence is a nod toward judicial modesty that is revoked by the pivot between the second and third. Note the presumption therein that defining rights and assessing their parameters is inherently and apparently solely a judicial function from which the people are excluded. (Why “must” the court, as opposed to the people, make that decision?) This merely assumed judicial supremacy cannot countenance the idea that the constitutional objections Shelby presents—which are of themselves reasonably argued—belong in the political realm.
The problem, of course, is that the arguments he shunts aside cannot be so callously dismissed in that forum either. Shelby’s opinion would all but render Burkeanism unconstitutional. A heading on page 29 reads, “Tradition and history are insufficient reasons to deny fundamental rights,” a compelling formulation but for the possibility that tradition and history might be involved in defining fundamental rights. He tut-tuts Utah’s argument for prudential caution by observing that—heaven forfend—a state could thus “plead an interest in proceeding with caution in almost any setting.” Similarly, he writes, “tradition alone cannot form a rational basis for a law.”
Nor can moral disapprobation, which does not pass “rational basis” scrutiny. And here—to say nothing of the well documented backlash effect that often attends judicial attempts to impose in such matters—is where Shelby disserves his own cause. The very argument that advocates of same-sex marriage are winning in the cultural and political realms is that there is no reason for moral disapprobation. A legal argument that suggests fear of the moral debate, or that the argument can only be won on libertarian grounds, threatens to forfeit that advantage.
In any case, moral distinctions, and decisions about their proper role in lawmaking, are not for judges to make. They are inherently political in character, demanding a degree of mutual respect to which federalism is conducive and judicial fiat is not. Those in an understandable rush for their conception of the just to prevail would do well to recall that what politics asks in the plodding pace of progress it repays in building it on a steadier foundation.