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| What to ask Judge Sotomayor About Same-Sex Marriage |
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| Written by Gerard V. Bradley |
| Tuesday, 14 July 2009 00:19 |
 As far as I know Sonya Sotomayor has not revealed, even by implication or strong suggestion, how she might rule on a constitutional claim for same-marriage. I know that she has not really tipped her hand on abortion, either. But I think that the President’s conspicuous, and strong, pro-choice views support the inference that Sotomayor will support abortion rights, perhaps even avidly. Obama has promised and can be expected to deliver that much to his backers.On the other huge moral issue of our day – same-sex marriage – things are not so clear. For one thing, the President’s own views are more subtle and, perhaps, more confused, than they are on abortion. President Obama says that he favors civil unions but that he opposes same-sex marriage. He never criticizes, however, any decision – such as those recently in New Hampshire and Iowa – which legalizes same-sex marriage. He is going slow on the military’s “don’t ask, don’t tell) policy. His Justice Department is defending DOMA in California litigation, even as the President told gay supporters last week that he wants to repeal that law. And the President has made no promises about his nominee on this issue. What information should our Senators seek from Sotomayor about her intentions regarding same-sex marriage? The first question is this straightforward one: “Judge Sotomayor, how would you rule on an Equal Protection claim by gay plaintiffs to have their relationships recognized as marriages in all fifty states?” The second question is this: “Judge Sotomayor, do you see in the Court’s 2003 Lawrence v. Texas decision the same schizophrenia that I see? Do you see that the Court’s reasoning is split down the middle, between (on one side) recognizing a privacy right of sexual satisfaction however obtained, so long as one does so without harm to others, and (on the other) recognition of a claim upon public authority to equal respect and validation of intimate relationships feely chosen? Call the former the “sex-toys” reading of Lawrence, and call the latter the “gay-marriage reading. If you see the spilt, Judge Sotomayor, which reading would you adopt as the more sensible interpretation of Lawrence. And, if you do not see the split I am describing, please tell where my reading has gone wrong.” I think that Senators should ask both these questions, expecting a polite refusal on the first but demanding an answer to the second. Now, there is no Supreme Court decision in favor of same-sex marriage as there has been since 1973 (Roe v. Wade) on abortion. Any decision making same-sex marriage a constitutional right – and therefore the law of all fifty states – would be unprecedented. Such a ruling could never be described as a case of judges following the law already laid down. It would be a case of unelected judges making law, a law with huge social and legal repercussions. Our Senators should therefore seek assurances from Judge Sotomayor that she will not support any such ruling. Because such a sweeping judicial decision would be bad for America, I think that both opponents and supporters of same-sex marriage can find common ground here. The abortion experience tells us why. The Supreme Court in Roe v. Wade tried to do two things. One thing it tried to do was take a contentious moral issue out of politics, so as to reduce political division. The Court failed miserably. Political division over abortion grew after Roe. It grew, in part, because the Court hijacked the issue. The Justices were widely seen (and not just by pro-lifers) to have usurped the power of the people to decide a fundamental question for themselves through the electoral process. Many abortion-rights supporters now recognize that the Court made a mistake by constitutionalizing abortion in Roe. The take-away from this part of the abortion story is this: some issues are so important and, yes, so morally contentious that only the tumultuous give-and-take of politics can bring a semblance of popular closure to them. The people need to take ownership of decisions so basic to the common good. Decision by unelected judges forecloses that possibility. The second thing Roe tried to do was to resolve a contentious moral issue without actually deciding the moral question. The Roe Court famously said that the judiciary was not in a position to decide the hard moral question of when life begins. The Court tried instead to decide the matter according to legal texts, legal history, and the like. No one was fooled. Everyone saw that the Justices had effectively decided the question of when life begins – without actually facing up to it. This bait-and-switch energized pro-life people who felt that their arguments about when life begins were ignored. The take-away from the abortion story is thus a double-whammy: people who have been both disenfranchised and denied their day in court are not going to accept a court ruling as the final word. Nor should they. It would be much the same with any Supreme Court decision in favor of same-sex marriage. The question is so fundamental to our common life that no Court decree will end the matter. There will always be another President who-will-appoint-better-Justices to elect, and another constitutional amendment to promote. The question this time is, like abortion, fundamentally a moral one. But the state courts (in Vermont, Iowa, Connecticut) which have legalized same-sex marriage have evaded the moral question. There is no reason to think that the U.S. Supreme Court would do any better. The question about same-sex marriage belongs in this democracy to the people, not to unelected judges. I think that our Senators should ask as many questions as needed to secure a pledge from Judge Sotomayor to respect the people’s prerogative. I think,too, that if she refuses to give those assurances, our Senators should vote against her confirmation. For the matter at issue is not really, or not just, same-sex marriage (as important as that may be). It is really about the fundamental role of the Court in our constitutional order, for which same-sex marriage is now a litmus test.  After practicing as a prosecutor in Manhattan, Gerard V. Bradley joined the law faculty at the University of Illinois. He moved to the University of Notre Dame School of Law in 1992, where he is a professor of law. He has published more than one hundred scholarly articles and reviews. |
| Last Updated on Tuesday, 28 July 2009 13:02 |
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