Two Remarks on Obergefell v. Hodges

#1

Justice Scalia, at the very beginning of his dissent in Obergefell v. Hodges, showed that he still is, and most likely will die, a legal positivist. Now, I have some sympathy for Justice Scalia’s position. Positive law is supposed to be about reaching logical conclusions. In any given case, the judge must ascertain what the applicable rule of law is and then apply it to the facts before him. Ideally, he should be able to summarize his ruling in a clear outline, with each conclusion following logically from the rules of law. The judge must also be able to justify the weight he gives to certain facts and his assessment of the various witnesses’ credibility in an intellectually coherent manner. Last Friday’s decision—as Justice Scalia is perfectly correct to point out—failed miserably as jurisprudence from the point of view of positive law; Justice Kennedy’s “rules of law” were, in Justice Scalia’s memorable insult, no more than “fortune cookie aphorisms."

However, Justice Scalia errs in foreswearing all notions of natural law or metaphysics, at the very beginning of his dissent. After all, where do the rules of law, the premises of our legal syllogisms come from? We lawyers are taught always to cite to the relevant authority, but we rarely admit that our citations to authority cannot regress ad infinitum. At some point we must discuss first principles. Justice Scalia’s solution to this conundrum is not the Catholic solution—he does not invoke natural law to supply him the premises for his arguments. Rather, he insisted last Friday, as he has throughout his career, that in a democracy these premises must be supplied by the people, as expressed in their legislation (Constitution and statutes). Vox populi, vox Dei is the supreme rule in Justice Scalia’s jurisprudence.

Justice Scalia’s solution, though, is false; it runs into two problems. First, it denies the fundamental insight of natural law that over and above positive law there is a transcendent justice which positive must respect; a positive law that contradicts this transcendent justice is null and void and cannot bind the individual conscience. Even though most Americans have a very skewed notion of this transcendent justice—and Justice Scalia is right to combat these errors aggressively—these same Americans are nevertheless correct in their intuition that an unjust law is no law at all, and that our nation’s highest court should say so.

Second, it is futile for Justice Scalia to protest against Justice Kennedy’s smuggling of quasi-metaphysical notions of freedom and equality into the Supreme Court’s jurisprudence when the 14th Amendment makes these same notions the very cornerstone of our law. Justice Scalia’s valiant efforts to limit the baleful influence of vague ideas of freedom and equality on America by resort to historical research and originalism have always been bound to fail because freedom and equality have been our dangerous ferment since the days of the Revolution. They have been acting throughout American history, sometimes quickly and sometimes slowly, but always there. Justice Scalia’s historical research ignores this fact.

In short, because of his own philosophical blinders—his legal positivism—and his own ideological commitments—to democracy—Justice Scalia will never actually address first principles, which was what our nation so needed to hear on Friday.

(Ed Peters makes a similar point in his post on Justice Scalia.)

#2

The Court’s decision in Obergefell v. Hodges also makes me ask whether ordinary legal processes are adequate for determining first principles. In fact, this gay “marriage” case illustrates perfectly why the answer to this question is “no.”

A cardinal rule of appellate litigation is that a reviewing judge is not supposed to consider any facts (except the most trivial) that are not contained in the record; likewise, the litigating attorneys may not refer to any facts (except the most trivial) outside the record, except by way of analogy. The record—for all you non-lawyers out there—is the documented proceedings and testimony taken in the trial court. It contains the parties’ pleadings, the sworn testimony recorded by the court reporters, and, in some cases, the physical evidence. Even in our increasingly digital age, all the case records I have ever dealt with in my law practice have been bound collections of paper documents. In other words, if litigating attorneys want the reviewing judges to consider certain facts, it must be introduced into evidence at trial properly and then included in the record. If something is not in the record, it does not exist for the judge and the attorneys.

But, when the question is as complex as the nature of marriage and its incompatibility with homosexuality, a question which could be studied over the course of an entire lifetime, how does a litigating attorney even begin to develop an adequate record and a reviewing judge to read and comprehend it? The issues involved are too complex and the required expertise too variegated for busy attorneys and judges to master these issues within their own lifetimes.

Our legal processes are well designed to deal with discrete incidents, but not with broad social policy or great philosophical issues. Nevertheless, if the law is to have a firm foundation, it must ultimately have recourse to philosophy. But woe to the nation that looks for answers to the most vexing questions of philosophy to Justice Kennedy.

Speaking the Truth About Homosexuality

This week there has been a bit of a storm in the Texas A&M History Department, one in which I find myself somewhat conflicted.

The story began when Rep. Wayne Christian introduced an amendment into the Texas legislature requiring that if universities use state money to fund "a gender and sexuality center," they must also spend an equal amount on a center promoting "family and traditional values". The amendment passed the Texas House. In an age of tight budgets, that means organizations like A&M's GLBT Resource Center would likely get the ax, rather than adding another center to the university's costs.

The A&M Student Senate then introduced and passed a resolution supporting Rep. Christian's amendment, though the Student Body President vetoed it.

On May 9th the faculty of the Department of Anthropology unanimously issued a statement:

We ask that the administration address the recent series of events surrounding the Gay-Lesbian-Bisexual-Transgender (GLBT) community on campus. We, as faculty, condemn the recent TAMU Student Senate Bill.... By suggesting that students seeking guidance from the GLBT Resource Center are not represented by the terms “family”, “tradition”, or “values”, this bill blatantly goes against Texas A&M’s commitment to a diverse, unified campus that incorporates multiple perspectives as part of Aggie tradition and values. Other recent events -- such as the secret recording and then broadcasting of GLBT meetings on YouTube -- ostracize GLBT students from the safe space that the TAMU campus should be.... We acknowledge that these current events have incited a sense of fear and mistrust among the GLBT community. We reach out with empathy to all those affected and remain committed to addressing injustice as members of the campus community and as anthropologists.... We ask that the administration provide accountability by releasing a statement expressing the University’s commitment to GLBT and other underrepresented groups.

This was followed by letters of support for the GLBT community and Resource Center from the Dean and the Vice President for Student Affairs. Prof. Killingsworth, Head of the English Department, stated that "a groundswell of support from faculty, staff and students in the Department of English" had prompted him to write as well. "Many members of the English Department have expressed a desire to sign a petition," he wrote, "but in the interest of acting quickly, I have decided not to collect those signatures at this time."

Then the History Department got in on the act, writing its own letter. The draft, currently collecting feedback and soon signatures, reads as follows:

In 1965, Texas A&M head football coach Gene Stallings claimed that adding African American football players to the team would promote disunity. The same year, the first thirteen women to enroll at A&M appeared in the yearbook with their portraits arranged in the form of a question mark, illustrating the student editors’ anxiety about the place of women in Aggieland.

We, members of the Department of History, wish to add our voices to those who have spoken out against the attacks on the GLBT Resource Center. These attacks echo the divisive sentiments voiced four decades ago, that diversity somehow threatens the unity of the Aggie community. Since then, Texas A&M has grown richer through welcoming and recognizing the diversity that is Texas and the nation.

We wish to expose the lie that a GLBT resource center somehow resides outside of the values that define the Aggie community. GLBT students have been struggling for a home on campus since 1976. The university must ensure that GLBT students are a welcome part of the Aggie community. That women and African American students are an indispensible part of Texas A&M has been answered with a resounding yes. This process of inclusion must continue. Texas A&M is not complete without its GLBT members.

The chorus of supportive emails from the faculty was thunderous. But I did not join it.

The teaching of the Catholic Church is both clear and moderate. It is not bigoted or hateful, but it is uncompromising:

Homosexuality... has taken a great variety of forms through the centuries and in different cultures. Its psychological genesis remains largely unexplained. Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that "homosexual acts are intrinsically disordered." They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved.

The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination, which is objectively disordered, constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfill God's will in their lives and, if they are Christians, to unite to the sacrifice of the Lord's Cross the difficulties they may encounter from their condition.

Homosexual persons are called to chastity. By the virtues of self-mastery that teach them inner freedom, at times by the support of disinterested friendship, by prayer and sacramental grace, they can and should gradually and resolutely approach Christian perfection.

Per this teaching, I am happy to affirm the dignity and respect due to everyone on our campus. Indeed, I am called to do so. But I cannot suggest that homosexual behavior is anything other than what it is: disordered, unnatural and immoral. If a university cannot teach the truth about the human person, what are we doing?

A colleague commented to me, "Well, we have to show that we're progressive." I was reminded of recent comments by Pope Benedict XVI. (He spoke primarily about liturgy, but his statement applies here as well): "Not infrequently tradition and progress are clumsily opposed. In reality, the two concepts are integrated." There is no need for conflict here: one may uphold the dignity of all people - including members of the A&M GLBT community - without abandoning the traditional teaching of the Catholic Church and all Christendom that homosexual acts are wrong.

Yet the History Department's draft - whether its writers intended it or not - potentially encourages that conflict by stating that "we wish to expose the lie that a GLBT resource center somehow resides outside of the values that define the Aggie community." It is only a small step to conclude that Christian faith is not an Aggie value, and may even be opposed to them.

I was also reminded of J. M. Wilson's comments on the proposed legislation. No one backing the amendment actually expects universities to set up "family and traditional values" centers. But why not? As he points out, living chastity on a college campus - where hormone-fueled singles are surrounded by attractive scantly-attired sex-seeking young people - is hardly an easy thing. But while universities offer support for all manner of sexual activity, there is precious little support for abstinence. Nor, for that matter, is there any support for those living the married life. Perhaps the argument is made that various churches support such groups off-campus, but there are also off-campus groups supporting the GLBT community. Likewise, one might ask: does having Christianity supporting you somehow make the chaste no longer members of the university community? And if they are members of the community, should they not be supported? This has been the argument in favor of the GLBT Resource Center; why can it not also be used in favor of "family and traditional values"?

With all this in mind, I was strongly inclined to reply to the faculty and graduate students of my department - in the most careful Thomas More-esque language I could muster - but I declined to do so.

When Prof. Killingsworth, Head of the English Department, wrote about a petition in support of the GLBT Resource Center, he noted that "many others do not feel that they can safely sign their names to such a petition". I fear just the opposite - that those who oppose such a petition, for whatever reason - will be labeled bigots and homophobes and shunned by their academic colleagues. The Vice President's letter quoted Ernest Boyer's definition that "a college or university, at its best, is an open, honest community, a place where freedom of expression is uncompromisingly protected and where civility is powerfully affirmed." It is a sad comment on the academy that I did not feel I could entrust my professors with honest views.



Hat tips to Earthly City, The Magdalene Sisters and the ever-vigilant Maggie Perry for the links.

Natural Law Theory: George and Arendt

The St. Thomas law school recently hosted Robert P. George, fellow at Princeton and natural law theorist, to receive the Humanae Dignitatis award and speak on “Natural Law, God, and Human Dignity.” His theory of natural law is that it is only known to us humans when we experience it. Knowledge of natural law is not innate, but rather experienced – something that we do rather than that is done to us. Through experience, we come to understand basic moral norms of natural law. The one he cited was a variation of Kant’s Categorical Imperative: Act so that your action furthers the fundamental reason for man’s existence. Virtue he defined as the habit of acting in accordance with these moral norms.

Yet he did not seem to answer what sort of experience we must make. While it might be assumed that man will always act reasonably, and therefore always act in pursuit of his good, George also noted that whole societies have been misled as to the nature of the good and yet have continued to act entirely reasonably. In fact, as Hannah Arendt describes in her study The Banality of Evil: Eichmann in Jerusalem, the entire German society in World War II seemed to have turned conscience on its head, and accepted that state of affairs. She writes: “[C]onscience as such had apparently got lost in Germany, and this to a point where people hardly remembered it and had ceased to realize that the surprising ‘new set of German values’ was not shared by the outside world.”

Supporting her theory was the fact that Adolf Eichmann, the architect of the “Final Solution,” was an ordinary man with an ordinary sense of morality, who had initially experienced great aversion to the idea of “liquidating” the Jews. Until that order was given, he had simply assumed the “Solution” was to make Germany judenrein by expelling, exporting, and otherwise physically removing Jews from the country.

He felt these twinges of conscience for approximately 10 weeks, Arendt reports. At the end of that time, he attended the conference at Wannsee, devoted to the particulars of the Final Solution. Everyone, without exception, states Arendt, spoke as though the immorality of the plan was not even in question: it was a nonissue. Since his superiors had adopted this position, and, indeed, everyone Eichmann knew, he gave it no further thought. (Eichmann stated that no one, not even the local religious leaders, ever pointed out to him the evil he was engaging in. Instead, they worked within the “law,” obtaining “exceptions,” but never directly challenging the law.) Eichmann had corrupted Kant’s principle (“act so the principle of your action can become the principle for general laws”) to mean “Act so that the Fuehrer, if he knew what you were doing, would approve.” Hitler’s will was substituted for Eichmann’s and was regarded throughout Germany as having the force of law.

The horrors of the Holocaust are well-known. Following the end of World War II, at the Nuremberg Trials, international law began to adopt a minimum moral standard that would apply regardless of what the law of the individual country had been at the time the crime had been committed. The source of this moral standard was to be what all nations regarded as moral. But, again, there remained the question, which is coming back in the recent debates about medical conscience clauses, whether the conscience can be relied upon to define an objective morality, or whether, particularly if knowledge of morality is predicated on experience and habits of acting, conscience is simply relative and dependent on individual experience, cultural norms, and other subjective and changeable criteria. If the latter, there is no guaranty that something like the Holocaust will not happen again.