Why aren’t conservatives for equal protection?

There is a old but reliable theme in political discussion: the gulf between the rights of individuals and the objectives of the state.  Liberal democracies are posited on the premise that the objectives of the state must be in the service of individuals and are constrained by their antecedent rights.  That's why constitutions bind modern democracies.  They are ground rules (among other things) for ensuring individual liberties are protected.

The equal protection clause of the 14th Amendment is an extension of the moral rule of equity; namely, that one must judge all morally similar cases similarly.  The motivating conditions for the 14th Amendment was racial discrimination.  And so, the race of an accuser or the accused is a morally insignificant fact. Consequently, accusations and and cases must be adjudged independently of the race of the people in question.  The basic thought is that we have a right for the rule of equity to govern our legal standing, too.  Laws must equally apply, and the protections from interference by the state must follow these rules.

The thought with equal protection, then, is that (regardless of the fact that the Amendment was occasioned by race) we should follow the rule of respecting individual rights.  Any government must meet a very high standard of scrutiny if it is to interfere with one group's rights, but not another's.  Prohibitions against gay marriage don't meet that standard. Neither did anti-miscegenation laws.  (Same 14th Amendment equal protection clause invoked in both rulings.) California's Proposition 8 is a case of a state interfering with individuals on the basis of a morally irrelevant difference. 

Now, Mark Trapp, at the American Spectator, says that the recent decision to overturn to Proposition 8 is a case of federal  judges "imposing their personal policy preferences, the will of the people notwithstanding."   This is a pretty serious charge, one implies that the decision (and perhaps all judical review) is undemocratic. But if the people willed to take all the rich people's money and cars, that'd be rightly stopped.  If the people voted to prevent all left-handed people from driving, then that'd be rightly stopped, too.  That might be "imposing" a policy preference, but it'd be one guaranteed by the 14th Amendment. 

Trapp seems to think that judicial overturning of a legislative decision is an Federal imposition on a state's sovereignty, and ultimately, individual sovereignty:

Rather than determine for themselves such fundamental issues as abortion and same-sex marriage, many seem resigned or even content to having such momentous public policy decisions made by judges — for whom they do not vote and against whom they have no recourse. 

My question is how can one be in this case a person committed to States' Rights and the organizing value of the Constitution's protection of individual rights on this issue?  If it turns out that California's Proposition 8 runs afoul of the 14th Amendment, then California does not have the right (regardless of the vote count, 52% to 98%) to discriminate. 

You know, one of the few things I find appealing about conservativism is the individualism at its core.  That seems right to me.  But how does States' Right fit in that equation?  Why does a Federal decision over a State's decision matter to someone who cares about individual rights?  If the state is in the wrong and has run afoul of equal protection, isn't it a good thing to have a Federal Government to protect those rights?  I mean, what kind of individualist rationalizes oppression by saying "it's morally irrelevant unequal treatment, but it's the way we do it here." ?  How is the fact that it is here a morally relevant category?

The payoff for informal logic is that I think that some tu quoque arguments can reveal cases of bias and double standards.  Trapp's argument is that protecting the individual liberties of homosexuals with the 14th Amendment contravenes the individual liberties of those in the majority who want to discriminate against homosexuals.  And that's undemocratic and unjust.  You see, Trapp loves liberty so much…

About Scott Aikin

Scott Aikin is Assistant Professor of Philosophy at Vanderbilt University.
This entry was posted in General discussion, inconsistency, Things that are false and tagged , , , . Bookmark the permalink.

8 Responses to Why aren’t conservatives for equal protection?

  1. BN says:

    Scott, interesting post. Here's a better take ,in my opinion, of a similar argument: http://townhall.com/Columnists/DineshDSouza/2008/05/19/gay_rights_vs_democracy/page/full

  2. aikin says:

    Thanks, BN.  You're right — that's a much more straight forward version of that argument.  Do you think it's got the same tu quoque  problems? 

  3. John Casey says:

    In the words of John McEnroe, you cannot be serious:

    D’Souza writes:

    "How, then, can a court invalidate the referendum and over-rule the will of the people? Basically through a kind of legal fraud. The court has to pretend that there is a right to gay marriage even though it is nowhere evident in the state constitution. Read the constitution, hold it up to the light, squeeze lemon juice on it–you won't see a right to gay marriage in there. It is simply not an enumerated right, nor is it a right that can be clearly derived from other enumerated rights."

    There is also no right to marriage.  But where society grants protections to one, it must do so to others in similar circumstances, or so I read, without lemon juice, the 14th Amendment.

  4. aikin says:

    That cuts it.  Dinesh D'Souza will have to be on a regular rotation 'round these parts.

  5. Quite aside from the absurd ennumerable rights meme, D'Souza also rather casually tramples over the fact that the US is NOT a direct democracy, and it was the "original intent" of the founders that it should never become one. I also seem to recall seeing many conservatives appealing to "original intent" — frequently in the context of limiting rights to just and only those that are explicitly ennumerated (and damn the 9th ammendment anyway). Yet somehow here it no longer counts.
     
    Precisely because the US is not a direct democracy, we require a judicial branch to interpret the law and prevent the "will of the people" from stampeding over the law whenever they get a bug up their bum to do so.
     
    Logically, D'Souza's and Trapp's argument seems like a kind of suppression of evidence and ignoratio elenchi.

  6. BN says:

    well … like any other argument for/against gay-marriage, they're full of "cookies".
    I was wondering what is your guys take on this:
    "
    Now gay activists, with the acquiescence of the California high court, want to remove one of the criteria of marriage while keeping all the rest. Yet if it’s discriminatory to gays to require that marriage be between a man and a woman, why isn’t it discriminatory to Mormons and Muslims to require that it remain between two people? Isn’t incestuous marriage also between “consenting adults” who have a right to equal protection of the laws? And why doesn’t the Fourteenth Amendment protect the fellow who wants to walk down the aisle with his poodle on the grounds that “I love my dog and my dog loves me”?
    The point is not that gay marriage is indistinguishable from child marriage or polygamy. The point is that any definition, and marriage is no exception, includes some people and excludes others. Consequently it’s unreasonable to say that gays have a constitutional right to over-ride the definition but other groups do not. The court’s real justification seems to have little to do with constitutional reasoning and everything to do with an assertion of political power."
     
    Is this a slippery slope?

  7. John Casey says:

    Short answer: yes.

    Longer answer: on this argument, marriage leads to these things, not gay marriage.  Why not just start the slippery slope with plain-old straight marriage.

    And again, the argument here isn't against gay marriage, which doesn't really bother a lot of people, it's against polygamy or animal marraige.  Which is not what anyone is endorsing.

    Finally, anyone who says "constitutional right to overide the definition" really can't be taken seriously.

  8. Saikin says:

    Yeah, BN. I think that slippery slope is more a bumpy staircase.  And John's dead right that those who use the old definitional tactic here are simply ten years behind the curve on where the argument is.

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