If equality is the highest good, then we must eventually allow anything to be called marriage. But if anything is marriage, then marriage equals non-marriage, and marriage has been destroyed.

Dear Professor Roosevelt:

Your recent article in the Christian Science Monitor, "California's Same-Sex Marriage Case Affects All of Us," presents a clear justification for leftist principles to rule America through essentially unaccountable judicial decisions. I am grateful that you have stated the leftist position clearly so that we conservatives can make a better case for resisting what the Left is doing through the courts.

Of course, I'm not a legal professional and you are. But this does not concern the technical points of the law, only basic morality. And on that subject, laymen have just as much authority as professionals.

In arguing that you be convicted in the court of public opinion of supporting tyranny, let me present the evidence. You said:

American constitutional practice has generally been to expand rights over time, both by amendment and by judicial decision . . . Judicial decisions have expanded the constitutional guarantee of equality to protect more and more groups.

Nowhere in your article did you indicate that this practice of constantly expanding rights in order to maximize equality might be controversial, nor did you give any argument to support it. Your article simply assumes the propriety of expanding rights.

Furthermore, since when does the Constitution "guarantee equality?" And who decided that equality is the sine qua non of a just society? Forcing all to be equal is a radically destructive, totalitarian enterprise, because things are naturally unequal: In order to be an X, a thing must be unequal to all non-Xs.  And so the demand that all must be equal is the demand that everything must change, i.e., that everything must be destroyed.  Of course, few people (if any) demand that everything must change, but the logic of equality demands it, even if most people recoil from applying the principle consistently and fully.

An example: The demand for sexual equality leads to the demand that the concept of "marriage" also include couples consisting of two adults of the same sex. But if we must have equality, then even this redefined marriage will be unequal and therefore discriminatory: Why just two, and why only adults? For that matter, why only humans? Or why only living beings? To set any limits is, after all, to discriminate. And discrimination is the new unforgivable sin. If equality is the highest good, then we must eventually allow anything to be called marriage. But if anything is marriage, then marriage equals non-marriage, and marriage has been destroyed.

And if, as common sense indicates, we must not allow just anything to be called marriage, then we have discovered that equality is not the highest good after all.

Next, you said:

At one point in time, a particular practice — say, the racial segregation of public schools or the exclusion of women from the practice of law — is so widely accepted that it seems beyond challenge . . .

Some time later, the practice becomes controversial. It still enjoys majority support — otherwise it would likely be undone through ordinary lawmaking — but it no longer has the allegiance of a supermajority. It is at this time that judges tend to act in order to protect the freedoms of the minority, striking down the practice as unjustified discrimination . . .

As attitudes evolve, the practice comes to seem outrageous . . . At this point, the judicial decision is no longer controversial.

The pattern, of which you obviously approve, is of judges "anticipating" society's change of mind about a particular issue, making a legally binding decision while the issue is still being debated, and later being vindicated when public opinion fully turns their way.  But of course one of the main reasons why society's opinion turns their way is because judges have decreed how society must change, and the force of law is then one of the main causes of society's change of attitude.

You then go on to say:

If a majority could overrule a judicial decision, the process would frequently be stopped by that majority vote. Judicial interventions against discrimination would just not succeed . . .

It makes sense to require supermajority support to overrule a judicial decision that grants rights to a minority. It shows that the judges were so out of step with society that they were probably wrong. But a simple majority does not show that, and the constitution would not afford meaningful protection if it could be overruled at the will of the majority.

In other words, judges must be protected from the ordinary processes of democracy when they decide the direction in which society should move. When they are granting increased rights, only an extremely unlikely supermajority of the vote should be allowed to nullify their decision.

And please note: the right to change the law means the right to change morality. All laws reflect morality, because it is only right to make X illegal (or legal) if X is, in fact, immoral (or moral). In your theory, judges have the right to change morality — and even ancient institutions such as marriage — once public opinion begins to move in the liberal direction, that is, the direction of more rights.

Furthermore, you said:

This is not an argument that the California court was correct.

But of course it is. You have erected a theoretical framework in which the court did exactly what it must: increase rights at the stage when opposition to those rights is no longer a supermajority. To be consistent with the rest of your argument, you could only say that we must wait for future shifts of opinion fully to vindicate the court's decision.  But in your worldview, the court clearly did right.

To be sure, there is another theoretical possibility: you could be implying that your position is relativistic: that whether the court did the right thing in the case of same-sex marriage cannot be known until future developments in American society put an end to the controversy. If this is your position, then you have nothing to say to those who care about the outcome of this controversy, and you give no reason for anyone to support current judicial practices. "Wait and see" is no reason to support or oppose any particular judicial system.  But I don't think you are a relativist, so the criticisms leveled in the previous paragraph stand.

As my final exhibit, you asserted:

This suit [against Proposition 8] raises a serious question: When should a majority have the power to take away a constitutional right granted by a court?

A Constitutional right granted by a court?  If a court grants a right, then that right emanates from the court, not the Constitution. The Constitution then becomes nothing but a formal mouthpiece for judicial fiat. I realize that courts granting (i.e., inventing) rights has become established legal practice, but that does not make it any less outrageous.

Therefore, to sum up, this is your position, at least judging by your article:

The unlimited expansion of rights is so obvious a good that no argument need be made to support it. The only question is at what stage in the process of debate a specific right is to be granted legally, to avoid arousing too much opposition among the general public. And if a judicial decision expands rights, then only a supermajority of the vote can nullify it. Therefore, for example, if a judicial panel gives homosexual couples the right to be called "married," even if only by a 4-3 vote, then only a supermajority of the votes (of ordinary people) can nullify this decision. A close vote only counts when judges support rights, not when ordinary people oppose them.

But voters are closely divided between liberal (pro unlimited expansion of rights) and conservative (anti unlimited expansion of rights), and therefore a supermajority vote against a right is a practical impossibility. And given that the judiciary generally enacts liberal policies, your position guarantees that the liberal positions will win. The judiciary is, overall, a ratchet that only turns one way: at most, judges sometimes refuse to grant rights this time, but they almost never permanently remove rights. Why would they, given your premise (evidently shared by the majority of judicial theorists) that the expansion of rights is a quasi-sacred enterprise?

More importantly, your position would put an end to self-government. In your view, it is only judges who have the right to decide moral issues having to do with the expansion of civil rights. But since morality has to do with what people ought or ought not to do, all morality is concerned with rights. And therefore you are asserting that liberal morality must rule as soon as a supermajority no longer opposes it. If a local jurisdiction does not wish to honor liberal policies, they will be forced to do so by your principle that traditional ways of ordering society must give way to liberalism as soon as the vast majority of the nation does not support these ways. You simply assume without any argument that the expansion of rights (i.e., liberalism) is so fundamental and obvious a good that ordinary people are not allowed to stand in its way.

At this point you may be saying, "Roebuck wants majority rule, but what's he going to do when the majority votes for something dreadful?  He'll have no choice but to go along with the majority."

But there is a third possibility, in addition to rule by an unaccountable elite or rule by the mob: Rule by tradition. Tradition does not bow to the will of today's fickle majority, nor does it respect the latest fads among the elite. Tradition, properly understood, is flexible (contrary to what many think), yet it changes only slowly. It is rooted in the wisdom of our people accumulated over time, yet it recognizes that God, not man, is the Supreme Being, in which case reality is not whatever we think or want it to be.  A short letter such as this cannot possibly describe or justify this tradition, but all people have some sense of it (perhaps only as that against which they rebel), and tradition provides the only sure foundation of a lasting social order. 

There is another reason why something that looks like "majority rule" is preferable. Regardless of which principles rule, every society must have a definite group of people who have the highest authority. The buck must stop somewhere.  In today's America it is the judges who have (de facto) this highest authority, but in general it could also be the king, the legislature, the aristocracy, the church, or the people who have the last say. In America, until recently, the general public was always regarded as possessing this highest authority, and arguing that John Q. Public may be tyrannical is irrelevant. Somebody has to make the final call, and the many are statistically less likely than the few to commit outrages, especially when they are guided by the traditions of their nation. If anything should require a supermajority vote in order to be overruled, it would be tradition.

One last point. Your contention that Proposition 8 deprives same-sex couples of an important right is questionable at best. All evidence I see indicates that even under Proposition 8, same-sex couples still have all the concrete rights they had prior to its passage, namely the rights to engage in what they call marriage ceremonies, to live together, to call themselves "married," to adopt children, to be officially certified as "domestic partners" (meaning that they are officially treated as married in all but name), and so on.  Given that same-sex marriage already exists in all but name, the drive to formalize it is clearly about legitimacy, not rights. Same-sex marriage, if officially enacted, will only make one change: By forcing everyone to honor same-sex pseudo-marriages as if they were real marriages, it will put the entire weight of the state behind the demand that everyone grant the same legitimacy to homosexual love as to heterosexual love. 

That's what the judges who created California's same-sex marriage really created, and you say that we ordinary people are required to support it. Thank you for making it crystal clear where the majority of the judicial profession stands. In the court of public opinion you (and most of your peers) must be convicted of supporting tyranny

Sincerely,

Alan Roebuck