Justice Ginsburg has attracted attention recently with her remark that, while she supports the content of the Supreme Court’s decision in Roe v. Wade, it may have been rendered prematurely and thus be responsible for the enduring acrimony that plagues discussion of abortion policy in the country. Her comment, taken in the context of the pending decisions on California’s Proposition 8 (Prop 8), and the Defense of Marriage Act (DOMA), is of interest as a guide to her thinking, and perhaps, that of some of her colleagues; it is less compelling as a justification for timidity in the matter under consideration for at least two reasons: the two issues are distinguishable, and to the extent they are similar, her point must be regarded as not proved.
Taking the last part of that statement first, It is true that there seemed, fifty years ago, to be progress toward a modus videndi, an accommodation between a woman’s right to control her own body, and concerns for the rights of a fetus, or a religious community’s sensibilities. Certainly since then, the acrimony has taken root and flourished. The assumption is that absent the court’s decision, arresting political discussion, comity would have prevailed. Perhaps, but take the parallel case, clearly apposite here, of gay rights, also known as the most recent chapter in the continuing saga of American inclusion. Fifty years ago steps were being made towards greater equality for gays and lesbians; we cannot know what might have happened, and those steps seem small and timid today, but had they continued, even at that slow pace, we could easily have passed into full equality and acceptance by now. Fifty years is a long time. However without benefit of a Supreme Court decision recognizing gay rights for motivation, Anita Bryant took up the challenge to stop that progress and she succeeded spectacularly. So not having a judgement recognizing equal rights, did not spare the gay community from a backlash.
About the same time the court decided Loving v. Virginia trumping the will of 80% of the population and reiterating that the right to marry the person of your choice is fundamental. At the time, I believe that most people would have been more troubled by an interracial marriage than a gay or lesbian relationship, nevertheless the decision passed with scarcely a ripple and today the opponents of marriage equality (ironically called for the purpose of the Prop 8 case “the Proponents”) are unable to see the similarity between their position and the position of opponents of mixed-race marriage fifty years ago despite the striking similarity between arguments then and now. They cannot see that, ignorant of what we now know, those opponents of a generation ago believed as fervently, and for the same reasons, in their cause as do today’s opponents to marriage equality for gays and lesbians.
I must digress briefly to dwell on the court’s phrase: “the right to marry the person of your choice.” Opponents of marriage equality sometimes say that there is no inequality because a lesbian is equally free to marry the man of her choice as any other woman is. That of course, echoes the position fifty years ago that a black man could marry the non-white woman of his choice and a white man was equally barred from marrying a non-white woman. With very few, well justified, exceptions, we hold that marriage is meaningless if it is not to the person of your choice. And that abstract consideration, with very real consequences, does not even include the considerable damage to the spouse of someone who was coerced, by an unjust law or policy, to marry against his inclination.
So Justice Ginsburg’s implication that because the decision in Roe was followed by acrimonious struggle about abortion policy and law, the latter was caused by the former smacks of post hoc, propter hoc logic, which as we all know is a fallacy.
The second problem with her analogy is that the two issues, and the cases that arise from them are dissimilar in material ways. They are similar in that opponents are most often from the same religious background and invoke, as I have mentioned, similar, not to say identical, arguments for lack of the ability, in court, to raise their real objection: “God says it is wrong.” But the reason that Roe has endured as a passionately disputed issue, and that marriage equality seems to have completely vanished as a point of contention wherever it has been tried, is that in Roe there are competing interests to champion. Simply put, what right does the state have to tell a woman what she can do with her own body? Similarly, what right does anyone have to murder an infant? By putting it thus, I beg the question of the intersection of competing rights, and I have no pretence that I can solve the dispute any better than all those who have tried, but with competing interests come enduring passions, and the only possible consensus will come as a result of political accommodation of the concerns of both sides.
In the case of marriage, the real dispute is between the couple and the state that wants to deny the status. There really is no one else involved; that is why the case should be decided in favor of marriage equality. In weighing unspecified, speculative damage to unspecified persons against real and immediate damage to very real couples and their dependants, there can be no hesitation, and there is every reason to believe, even absent the demographic prophecy from recent polling of young people, that the issue will fade as it did with interracial marriage after Loving, and as it has done here since Goodridge in Massachusetts, and around the world where it has been tried. Almost everyone has much better things to do with their time than to fret that their neighbors might be happy.
That is an example of the genius of the framers of our Constitution: they realized the difference between what is called “negative rights” and “positive rights”. Negative rights are those that tell the state what it cannot do to a citizen. As a general rule, they do not cost anyone any money; as Jefferson put it, they do not pick his pocket. And as a general rule they can be close to absolute. The state has no rights; it has powers derived from the citizens such as are necessary to do the citizen’s business, but powers are not rights. In a competition with individual rights the state must lose, and only imminent harm to other citizens can prevail. By contrast, positive rights assert what a citizen can demand from the government, and that almost always leads to a claim against fellow citizens, picking their pocket, so to speak. That is not to say that such claims do not exist, just to say that they are different, surely weaker than negative rights. Where citizens have competing claims, the result must be political. There is no legal solution to the dispute about abortion; we must reach a political solution because there are competing claims, not necessarily equal claims, but clearly competing ones.
So the court would be wise not to follow Justice’s Ginsburg’s advice and defer judgement. While letting Prop 8 stand for California alone, will not change the judicial landscape since nine other states, and the District of Columbia already recognize marriage equality and live with the consequences of unequal recognition by other states, countries, and the federal government, a partial decision on DOMA will surely and swiftly lead to judicial chaos. An activist court is not one that reaches a decision I do not like; an activist court is one that reaches a decision that it did not have to reach to do justice, in the case before it, under our laws, or that refuses to reach a decision when it is necessary. To refuse to reach the decision imposed by the law and the arguments, is to nullify the will of the people expressed in the Constitution; nothing could be more activist, more reprehensible than that.