Friday, June 28, 2013

A law can be bad without being unconstitutional

I've been reading through the different Supreme Court rulings handed out this month and there's one ongoing discomfort I can't shake. As our judicial branch weighs the legality of various laws, the only attention seems to be on the merits of the laws, not the constitutionality of the laws.

That is exactly backwards. For example, I oppose the Defense of Marriage Act, but I am still agnostic if the Supreme Court was justified in declaring it unconstitutional. Many of the arguments written by Justice Anthony Kennedy focus on human dignity, such as how DOMA stigmatizes gay couples and humiliates their children. His stance depends on a broad reading of the fifth amendment that the government can not deprive a person of liberty without due process of law.

So does that mean not allowing gay couples to marry deprives them of liberty? If so, wouldn't banning gambling be another example of depriving someone of liberty? Wouldn't banning large sodas sales? Yes, I would like that broad interpretation, but it seems grossly inconsistent.

I have failed to find the complete text written by Kennedy, or Antonin Scalia's dissent so I can't take a firm stance, but there is one thing had that I do find intriguing:

As [libertarian political scientist Stephen] Macedo put it, “When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.” 
The controversy over DOMA rests on a very similar philosophical split. According to Justice Kennedy, “though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.” According to Justice Scalia, “even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation.” 
A sea of individual rights or a sea of government powers? Kennedy chose the former, Scalia endorsed the latter.

I'm going to wait and see what the substance of the arguments turn out to be. While I'm glad DOMA is out and the federal government is respecting states rights in the form of gay marriage, I also know that that's not the point. The Supreme Court can only tell us if a law is forbidden, not if it is wise.

Update: They are contained in one document here, thanks Mario:

Also, I have been pondering, if one believes the fifth bans the federal ban on gay marriage, why doesn't it legalize gay marriage nationally?


  1. The only part of the law ruled unconstitutional was the third provision of DOMA, it assumes that the states/people have the power to define and "bless" marriages, which means that the federal government is denying them that right, that freedom.

    The second part of the law says that states can choose to not recognize same sex marriages performed in other states. That part is 100% in the clear because Congress alone has the power to declare how officials acts in one state are recognized in the other and also how that is to be done.

    So the 5th Amendment doesn't make gay marriage legal everywhere because the rights and powers involved are reserved to the states or people. I have my doubts that the court will ever rule bans on gay marriage to be unconstitutional.

    My hunch is that the Supreme Court will rule on gay marriage a different way and through a different portion of the constitution. If a case ever comes before the court where a gay person is forced to testify against their partner in a state that doesn't allow or recognize gay marriage.

    Under that light, one should realize that if the government at some level is entitled to define who is and is not married, than the provision in the constitution prohibiting the government from forcing spouses to testify against one another is pretty moot, because it means that right could be denied to anyone by the mere swipe of a pen.

    That's just one more reason why the government should remove itself from the marriage game entirely. Otherwise why would the government not be able to define what is and isn't speech? That's not even to mention that the mechanism that allows for discrimination is government involvement, and no discrimination would be possible if the state were not involved.

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