Moral Deliberation and Politics

Yesterday I wrote about one of the few cases in the federal courts that make a claim that there is a constitutional right to marry. Today, I’m going to talk about an argument made in more federal courts about the
Defense of Marriage Act (“DOMA”).  One amicus brief, filed by the Attorneys General of what most people would consider “red” states, offers an almost perfect example of what Robin describes in the 2nd Section of her book.  Robin argues, in
part, that the bastardization of legal positivism has led to the eradication of moral discourse in law.  There is a clear tendency in the legal academy to treat the Constitution as one with our collective moral compass.  Whether something is
immoral reduces to a question of whether it is constitutional and if the constitution is not equipped to answer a question, well then, it is not a proper subject of legal analysis.

This is exactly the argument the state Attorneys General make in their briefs in Golinisky v. OPM  (the 9th Circuit DOMA challenge) and Windsor v. BLAG (the 2nd Circuit DOMA challenge).  They argue, using Roe v. Wade as their primary example, that when courts inject rights protection into moral discussions about which there is disagreement, they foment deep and often intransigent discord.  Moral discussions, they argue, belong to the political process, not the legal process.
It is through politics that we can resolve, or come to some sort of equilibrium on, our differing views of morality.

It is important to note that this argument makes no sense in the context of the DOMA challenges because those challenges do not ask the federal government to dislodge any state’s policy with regard to same-sex marriage.  Striking
down DOMA would not stifle intrastate moral discussions about the nature of marriage and if anything DOMA does stifle interstate moral discussion about the nature of marriage.   The DOMA challenges argue only that the
federal government should not treat married people equally. The states are still free to set whatever marriage policy they want.  What is striking about the Attorneys’ General argument though is that it places law and morality in opposition and says that politics, not law, is the forum for moral discussion.

The Attorney Generals suggest that because marriage is a moral issue it should not be constitutionalized. The rancor that follows the constitutionalization of moral issues is destructive.   Several progressive writers (most of whom
are quoted by the conservative Attorneys General) have made this point in one form or another. It rings true to many of us and parallels much of what Robin argues in Part II.

Roe was so divisive because it reduced hard moral questions to an apparently straight-forward incantation of individual rights.  In doing so it not only stifled states’ abilities to formulate separate moral approaches to the problem of unwanted
pregnancies, it suggested that the moral problems were not that hard because they could be reduced to questions of individual rights.   (The Attorneys General do not make this point nearly as well as Robin does, but they are trying to make her point, I believe.) People feel disempowered and de-moralized when the Supreme Court reduces hard questions to individual rights. When corporations have speech rights, those interested in grappling with the morality of money in politics have no place to deliberate.  If women have an absolute right to control their own body (which they don’t; Roe provides a far more limited freedom) then those concerned about whether the life of the fetus has any moral weight have
no place to deliberate.  The Attorneys General and Robin suggest that the moral deliberation stifled by the rights based approach to moral questions is problematic.  Many people agree with that.

Where the Attorneys General go next, however familiar, is the crux of what Robin critiques in Part II.    The Attorneys General go next to politics.  The trajectory goes something like this:  Constitutional deliberation (and decision-making) is an inferior form of moral deliberation (and decision-making) therefore we must rely on the political process.  Why therefore? says Robin.  What about other forms of legal deliberation?  Why have legal scholars failed to incorporate more moral deliberation into non-Constitutional arguments.  Isn’t there a way to talk about same sex marriage and abortion in a manner that might suggest they are good, or not bad,  without resorting to the unsatisfying rubric of individual rights.  What if the red state opponents of same sex marriage had to counter arguments that suggested that same sex marriage was morally good, regardless of whether it was protected in the Constitution?  Wouldn’t we be better off with a richer legal
discussion and more potential for real moral deliberation in that case.  However prevalent the lawyer jokes, the political process is not held in much esteem these days either.  Why do we let moral questions that might fall
outside the rubric of individual rights be deliberated only in the cesspool of politics?

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