Wednesday, September 14, 2005

More On Why Roberts Is No Scalia... And Might Actually Rule For Same-Sex Marriage.

Really, this should be read in conjunction with the last post, where Roberts advocates a broad reading of "liberty" that accomodates the changes in times, contrary to Scalia's approach.

Another huge chunk of my (last) article is on how the courts are split between reading tradition narrowly or broadly. Only if a liberty is supported by tradition, everyone agrees, should it be protected by the Constitution. The split has been that some have read that to mean if particular PRACTICES are traditionally unpopular, they aren't protected. Which is how the Supreme Court rationalized upholding sodomy bans in Bowers v. Hardwick, narrowly describing the issue in the case as whether there is a "fundamental right to homosexual sodomy." But in 2003 the Supreme Court in Lawrence v. Texas admitted they'd gotten it wrong in Bowers because the tradition you look at isn't the particular practice, but the broader principle: i.e., the constitutional tradition of protecting individual autonomy and privacy in our most intimate life choices. THAT is the issue and relevant tradition... not a fundamental right to homosexual sodomy and the tradition of sodomy, but a fundamental right to liberty in our private and intimate life choices, and a constituitonal tradition of protecting such autonomy in our private lives.

Broad versus narrow reading. Following me?

So this next excerpt from the Roberts hearing I think is HUGE in its implications. First of all, Biden gave Roberts the open door not to even go there, saying he didn't expect him to answer. Roberts, after all, dodged a lot of other questions, refusing to take issue with decisions of the sitting court.

But Roberts went there anyway.

And where did he go? First of all, he very openly criticized Scalia's approach of reading tradition (and, consequently "liberty") too narrowly. And then... HE brought it up. Equal marriage rights. Without even being prompted. He brought up, of all cases, Loving v. Virginia, the case that struck down interracial marriage bans, the very case being cited over and over again by gay rights groups in their efforts to strike down same-sex marriage bans.

The dialogue around that issue goes like this.

Conservatives: same-sex marriage bans shouldn't be struck down, because same-sex marriage has never been allowed. There's no fundamental right to same sex marriage because there's no established tradition of same-sex marriage. (while, forty years ago, they argued that there's no fundamental right to interracial marriage because tradition looks down on interracial marriage).

Liberals: same-sex marriage bans should be struck down because there's a fundamental right to marry and a constitutional tradition of the government letting people make such intimate life choices free of government interference. The broader traditions of equality, liberty, and the fundamental right to marry trump narrow traditions of prejudice against certain groups. And to say that same-sex marriage should be banned because it's ALWAYS been banned is circular (just like, Roberts notes below, it was circular logic to defend interracial marriage bans cause that's just the way it was too).

Now, I'm NOT saying that Roberts is a liberal. I AM saying that, voluntarily, of his own accord, he used EXACTLY that example of why, in his view, tradition should be given a broad, not a narrow reading.

At the very least, I'm encouraged that he reads substantive due process, privacy rights, liberty, and originalism much differently than Scalia, and isn't afraid to say so. But more than that, this is someone who actually COULD rule for same-sex marriage.

I know, I know.

I'm just sayin'.

Judge for yourself:

BIDEN: Here's the point I want to make: I asked -- and I'm sure you're not going to answer it . . .
You and I both know how you determine history and tradition determines outcomes. In that case, as you'll recall, there was a question of whether or not the natural father -- you could prove by a blood test and DNA that he was the natural father of a child he wanted to see that happened to be born to a woman that was living with her married husband. So the child was illegitimate.
So in determining whether or not there are any visitation rights, there's a famous footnote there. . .
The court said -- Scalia said in footnote six, "Look, you go back and look at the specific historical precedent." Short-circuiting it, "Have bastards ever been protected in the law?" And Brennan (ph) said, "No, no, that's not what you go back; you go back and look at fatherhood. Was fatherhood ever something that's part of the traditions and part of the embraced notions of what we hold dear? Is that worthy of protection?"
Now, Scalia said, "No, no, no, no. I looked up the record: Bastards have never been protected in English common law. Therefore, there's nothing going on here."
And by the way, "You should never go back," he says, "and look at the general proposition has fatherhood achieved a status of consequence? No, it's have bastards achieved it?"
So, Judge, how do you -- I'm not asking you on any case. How do you -- do you look at the narrowest reading of whether or not such an asserted right has ever been protected? Or do you look at it more broadly? What is the methodology you use?

ROBERTS: I mean, I think you're quite right that, that is quite often the critical question in these cases -- the degree of generality at which you define what the tradition, the history and the practice you are looking at.
The example I think that I've always found easiest to grasp was Loving against Virginia. Do you look at the history of miscegenation statutes or do you look at the history of marriage?

BIDEN: Thirty-three seconds left: Do you agree with O'Connor then?

ROBERTS: Thank you.
The point is that, again, the court has precedents on precisely that question, about how you should phrase the level of generality.
And you look at...

BIDEN: But which precedent do you agree with? There are competing precedents.

ROBERTS: Well, you do not look at the level of generality that is the issue that's being challenged.
So, for example, in Loving v. Virginia, if the challenge is -- it seems to me, this is what the court's precedents say: If the challenge is to miscegenation statutes, that's not the level of generality, because you're going to answer -- it's completely certain.

BIDEN: But that's specific, Judge. The generality was the right to marry. That's the generality.

ROBERTS: Well, that's what I'm saying. The dispute is, do you look at it at that level of specificity or broader?
And I'm saying you do not look at it at the narrowest level of generality, which is the statute that's being challenged because, obviously, that's completely circular. You're saying there is, obviously, that statute that's part of the history.
So you look at it at a broader level of generality.


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