Courts and social change, again

My friend Russell Arben Fox has come a long way in the last few years (see here to chart the progress), and I am delighted he’s now joining me in celebrating the fantastic news from the UK yesterday. While I have some sympathy for the democratic theory that motivates his argument in this post, I think the theory he expresses here has a lot of problems. This paragraph, in particular, isn’t at all clear about the proper role of judicial review in Foxland:

If I now believe that same-sex marriage should be recognized as a legally defensible and positive civic good, which should I care about those whose opinions would be found constitutionally lacking by a decision which I support? Would I have cared about the consequences of Brown v. Board of Education for racists, for example? Well, my answer to the latter is “no”–but my answer to the former is that I just to don’t believe that opponents of same-sex marriage are operating from the same kind of irrational animus which many of those who were scandalized by the end of segregation were. It’s quite easy to position oneself on the probably winning (and, again, I think right) side of history here, and say that the passage of time will prove that same-sex marriage opponents are ultimately cut from the same bigoted cloth, and I can’t deny that might, decades hence, turn out to be the case. But for now, as one who prefers the messy imbalances of democracy to the supposedly clear (but for all that usually arbitrary) impositions of the law, and for whom the past three years have mostly just provided confirmation of my many doubts about trusting in the judicial branch), as well as one who not too long ago was persuaded by a certain argument against same-sex marriages, I just can’t see in the supporters of Proposition 8 and the Defense of Marriage Act and the opponents of what the House of Commons just voted for as somehow so obviously out of line with our country’s evolving political ideas so as to deserve a judicial squashing.

There’s a mixed message about here about the appropriate standard for judicial intervention in rights protection. Russell suggests that Brown is acceptable while Varnum and its cousins are not (or at least less so) because of the degree of ‘irrational animus’ present in the opponents of desegregation compared to the opponents of marriage equality. (As an aside, I note that this changes the proper task for judges in a democracy–in addition to interpreting the proper bounds of equal rights, you charge them with the task of interpreting the degree of irrational animus amongst the opponents of a particular rights claim; if judges are not capable of addressing the former with sufficiently apolitical dispassion, what would motivate the belief they are capable of the latter task, which seems every bit as difficult and fraught with opportunities to import one’s politics?)  But at the end of the paragraph, the standard for judicial intervention is how “out of line” rights opponents are with “our country’s evolving political ideas.” I can’t recall if Russell has ever directly addressed Loving (he mentions it in passing later in the post in a way that would seem to suggest he’s a fan), and I’d be curious to see him do so. The standard he suggests at the start of this paragraph would seem to align him with the majority, as he’s established that racist public policies reveal and irrational animus. But by his second standard, Loving would seem to be highly illegitimate; it came at a much earlier moment (but clearly still midstream in that particular democratic deliberation) in the evolution of views on interracial marriage in this country than we are at presently with marriage equality for same sex couples.

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