Tag Archives: marriage

Everyone’s An Originalist

It’s no secret to the loyal reader that I’m somewhat of a fan of Supreme Court Justice Antonin Scalia who died this weekend. I’ll ignore political implications of this death which began far too quickly after it was announced. I won’t even talk much about the man himself, since others are doing that plenty and I hadn’t met him yet. (We have a mutual friend who was willing to introduce me but we never got around to it. Carpe diem, people.) I’ll say only that he was just imperfect enough to open himself up to some justifiable criticism, though no more so than anyone else I know.

Instead, I’ll spend a few paragraphs defending Scalia’s legacy, the interpretive method known as originalism. You may have seen sarcastic mentions of it on your social media feeds that mocked Scalia for allegedly being stuck in the 18th century.  My point is that originalism is the way everyone interprets everything, and constitutional interpretation should not be different; in fact, there are good reasons to make that presumption even stronger.

The Marriage Analogy

Imagine you’ve been married for 20, 25, 30 years, and your spouse comes to you and says, “I know we’ve been together for a long time, but I’m going to have an affair. When I said I’d be faithful, that was a long time ago. We’re getting bored with each other, and infidelity is very common now, so it would really be better if I could have an affair.” You probably wouldn’t appreciate their living relationshipism. You’d feel betrayed. You wouldn’t care how long ago the agreement was formed or infidelity was really on the rise. You’d interpret your agreement the way it was when you made it. If your spouse wanted a change, he/she should have come to you. Couples make adjustments to stay happy (up to and including sanctioned straying, pop culture tells me), so your spouse had that option available if something needed to be changed.

What if your spouse argued that he/she had the right to cheat all along? “Infidelity was always high, and common in many cultures. You really could never have had an expectation I’d be faithful. It just happens to have come up now.” I imagine you’d fight back on that, too. You’d point to your wedding vows, for example; you’d point to the cliched bachelor/ette party comments about your last sexual partner ever; you’d point to what all your friends and family expected your marriage to be.

Don’t look now, but you’ve just engaged in originalism, which just means that an agreement means what it means until it’s properly changed through whatever mechanism changes it. If your marriage arrangement isn’t working, the expectation is to jointly change it by mutual agreement; if a constitutional arrangement isn’t working, the proper path is to amend the constitution. I contend that most people would be irate if their friends or business partners engaged in constant unilateral re-writing of prior agreements. (Being homo hypocritus, of course, we’d keep doing it, because it’s different when we do things.)

The Real Complaint About Originalism

What’s bothering most people about Nino’s originalism (and mine, I guess) is that it isn’t giving them what they want easily, especially the socially liberal chattering classes. The constitution (and its amendments), written when it was, was not friendly to women, or minorities, or the poor. The fact that we wish it weren’t so doesn’t change the language and the original understanding of it. It’s up to us to change the law in a way that reflects present-day public will, to the extent such a thing exists. People who complain about originalist interpretations are mostly mad that they can’t convince enough of their fellow citizens to make the necessary changes.

Unfortunately for the rule of law, it’s become far easier to get the Supreme Court to declare that something has always been constitutionally required (such as gay marriage) than to convince enough states to permit it. The same is true of almost any contentious issue, where the initial Supreme Court ruling is unlikely to be overturned by majority rule in the near term. As a result, we’ve turned the court into a vehicle for expressing that the law or policy should be rather than what it is.

The Unfairness of Non-Originalist Interpretation

The death penalty provides a good example of why using the court as a policy tool is ultimately unjust. The death penalty is clearly contemplated in the constitution and has been widely used since 1787. There is no doubt that it was a constitutional penalty when the constitution was adopted. There are, however, judges – like Justice Breyer on the Supreme Court – who believe the death penalty to have become cruel and unusual punishment in violation of the Eight Amendment.

If you believe that the death penalty should be abolished – a position to which I’m sympathetic – then you can follow the example of Nebraska, whose Republican legislature recently abolished the penalty. What you should not do is declare that yesterday the death penalty was constitutional but today it’s not.* That means that two twin brothers committing the same crime a day apart could be punished differently, all without a democratically accountable process by which the people (nominally) decide to change the consequences of a crime. This is, in simple terms, unjust.

*One exception that is often made here is that sometimes the facts on the ground change significantly. I’m not sure how much worse the DEATH penalty could be than we think it is, though, so I’ll ignore that here. A possible application of this rule could be solitary confinement; widely used, but only now are we grasping how destructive it is. If we learn it’s qualitatively different from what we thought it was, then the activity was never knowingly adopted as constitutional, and there may be grounds to interpret the activity as never having been constitutional because of a mistake. This is the sort of loophole that may be stretched beyond all reason, but even I could imagine a fact change so large and severe that I’d be reluctant to wait for the legislative process to catch up to it.

If you’ve read this far, you may have forgotten that this post started with the death of Justice Scalia. The above, in a nutshell, is a simplified and somewhat idealized version of his judicial philosophy. You have probably already seen simplifications and distortions of it online. I hope this explained a little just how common-sensical and intuitive the idea really is.

Ideologues Use Legal System To Deny Opportunities To Gay-Friendly Businesses

In a troubling trend, petty, closed-minded people have conspired with the courts to make sure that lucrative business opportunities are extended only to social conservatives on the religious right

A recent Colorado administrative court ruling is making the rounds on social media this week in which a case officer ruled that cake-maker Jack Phillips must provide cakes for the wedding celebration of a gay couple. Phillips had objected on the grounds that his religious faith prevents him from endorsing the union, but the couple sued to ensure that their wedding business would go to Phillips.

This ruling is consistent with a New Mexico state supreme court decision from August of this year, in which the court ruled that a photographer could not refuse to photograph a lesbian commitment ceremony. The photographer, like Phillips, had objected on religious grounds, but the lesbian couple went to court to ensure that the contract would go to that photographer.

If these two cases are part of a broader trend, certain lucrative business opportunities just won’t be available to gay-friendly businesses. The lawsuits above make sure of that. Some people would rather get the courts involved than give an opportunity to a gay-friendly business to provide them a service.

Obviously, the passage above is mostly tongue-in-cheek, but I don’t think it’s inaccurate. One of the obvious and immediate effects of the cases above is that at least two opportunities will not go to a gay-friendly business that might have wanted them. Instead, gay couples are insisting that their money is channeled to people who fundamentally disapprove of homosexuality. More significantly, these cases are hailed as victories: henceforth, all gay couples (in the relevant jurisdictions) will be permitted to give their money to those who would discriminate against them. There will be no need to patronize gay-friendly businesses.

Unless I totally misunderstand wedding cakes and photography, there is any number of other businesses that would have willingly and competently made cakes and pictures for the gay couples – I find it hard to believe that the two defendants were irreplaceable in some way. By patronizing those gay-friendly businesses instead of those that refused them service, customers signal with cold, hard cash that they disapprove of a particular attitude and approve of another. This was even the basis of the Chick-Fil-A boycott – an attempt to withhold money from a company whose president voiced anti-gay views. (I even participated, even though it really amounted to punishing hourly shift workers whose views nobody cared to ask.)

I struggle to come up with a plausible reasoning behind the lawsuits above that doesn’t involve spite: the ability to make someone who dislikes you do something they don’t want to do. I hope this isn’t the true basis of it – perhaps the actual reasoning is something like, “if we force them to associate with us, they’ll realize we’re not so different and they’ll stop disapproving.” If so, I find it hopelessly misguided. As a free-speech and free-association absolutist, I believe any persuasion should be voluntary. Additionally, the strategy is likely to backfire: would YOU be persuaded by someone who forced you to do something you don’t believe in? Reverse the roles and see if you still agree: “we if just make the gays come to church every Sunday, they’ll come around.” I would hope a reasonable person would find that equally distasteful.

The beauty of the market economy is that someone emerges to provide a service whenever it is demanded but not provided. The lawsuits above merely prevent service providers from competing using their open-mindedness as a selling point. As a fan of free association, I’d rather see what happens if you take your business elsewhere first.