Sabotage or Enforcing Equal Protection?

Maggie Gallagher has been doing some reading, and she's found that Richard Epstein, a libertarian legal theorist, opposes the way the Department of Justice and the lower courts have been chipping away at the Defense of Marriage Act.  She approvingly quotes Epstein:

I … think that the DOJ's faint-hearted advocacy is no way to run a legal system…. Nor is it wise for courts to use the equal protection clause as a club against conventional morality, deeply felt.

In the title of her posting, Gallagher calls these decisions that merely allow same-sex partners of federal employees access to federally mandated family benefits (such as health and dental coverage, at issue in the Gill vs Office of Personal Management) sabotage of electoral politics and morality.

Strange, but the question of equal protection isn't about reflecting the moral judgment of the majority.  It's about ensuring minority rights and protections.    And saying it is a question of "deeply felt" moral conviction is to betray the expressed intent and justification of the law, that of "responsible procreation."  Turns out the DOMA was really just majoritarian moralizing all along, only dressed up as a public health initiative.  Thanks, Maggie Gallagher, for pulling the curtain back.

10 thoughts on “Sabotage or Enforcing Equal Protection?”

  1. I thought Libertarians were supposed to emphasize right over good…

  2. A nice observation, Jem.  In fact (and Gallagher discusses this in the article, too), Jonathan Rauch gives precisely this sort of libertarian argument for gay marriage (individual rights are what the courts and laws are out to protect), but he nevertheless thinks this equal protection line of argument is off base.  It's weird.

  3. "conventional morality" is a vacuous idiom. My idiot meter goes off every time I hear that ridiculous phrase. It's nothing more than a tool for readers to interject whatever they want into the sentence. "…against conventional morality" is the journalistic equivalent to "…against (insert whatever your idea of what is or isn't moral)."

  4. aikin,
    I think that Epstein is probably following a constitutional purist strain of thought.  He wants gay marriage, but he wants it in the same way that people wanted women to have the right to vote, through legislation.
    Rights bestowed by the courts are in some sense "soft rights" that can be stripped away at any point by them just as readily.  For example, one might say that Roe vs Wade is actually the biggest threat to abortion rights in the United States today, as nation wide guaranteed abortion rights were justified in a court case founded on perjury under the justification of doctor patient privacy.

  5. Hi Andrew,
    This observation seems right, as both Epstein and Rauch clearly prefer any disposition of rights to be legislative in origin, not established by judicial fiat.   But so long as the judiciary has the power to negate laws on constitutional grounds, they have the power to establish rights by double negation — that is, negating laws that explicitly bar rights, establish them. In the same way that Jim Crow laws (explicitly barring rights for blacks) were negated by decisions such as Brown v Board, rights of black people were established.   That's judicial activism by some lights, the logic of negation by other lights.

  6. I guess I don't see how one can strongly adhere to the view that legislative process is the only pure way to enact rights. The Constitution and Bill of Rights might already contain the rights that are being sought, and it is the SCOTUS' job to interpret those rights and apply them to particular situations. DOMA may already conflict with these rights. In that case, it is in fact the SCOTUS' responsibility to strike down any laws that violate those rights. Same goes for the Arizona immigration law. It was passed through the legislative process, but that does not make it constitutional.
    I suppose it may make it more difficult to overturn a law if it was passed by the legislature instead of by judicial fiat, but I don't really have a good reason to believe such is the case. In fact, I think a decision like Roe v. Wade makes it more difficult to undermine abortion rights than a law passed by Congress. When the political tides change, the new Congress could just as easily repeal the law.

  7. Addendum —
    Unless the legislative process actually makes a constitutional amendment. But DOMA is not an amendment.

  8. You say that now Jem, but if we get two more justices like Scalia, I think you'll change your tune.

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