Matt Zeitlin: Impetuous Young Whippersnapper

Was there a very progressive legal decision that helped a marginalized group in society come closer to achieving full equality and legal dignity recently? Yes there was! And like clockwork, Jeffrey Rosen is here to criticize it:

So what makes the legal reasoning so inflammatory? Most controversially, the Court held that sexual orientation discrimination should be treated just as skeptically as racial discrimination–a conclusion that the U.S. Supreme Court and the other state Supreme Courts have refused to accept. Social conservatives are already invoking contested science to question one of the premises of this conclusion: that sexual orientation, like race, is immutable. “There is no evidence to establish that a homosexual lifestyle is an immutable characteristic such as race,” a lawyer for Advocates for Faith and Freedom told The New York Times. There was no need to open this Pandora’s Box: The Court could have held more modestly that there are no rational reasons for limiting the label “marriage” to straight people and denying it to gays and lesbians.

Rosen’s argument is that, essentially, because conservatives view homosexuality as a lifestyle choice, the California Supreme Court shouldn’t offend them by basing their ruling on the fact that discrimination on basically immutable characteristics like race or sexual orientation should have strict scrutiny applied to it. Rosen points out that the Federal Supreme Court and other courts haven’t adopted this line of reasoning, but I suspect they will eventually, as society gets farther and farther away from viewing homosexuality as some sort of mental illness. The second poor argument is that because they ruled to apply strict scrutiny, it will galvanize opponents of gay marriage more than if they had used a more narrow criteria. This, quite frankly, is just BS. Opponents of gay marriage will not be mollified by whatever legal reasoning the Court takes – the reason they think gay marriage is wrong is because they view the “homosexual lifestyle” as sinful. Strict vs moderate scrutiny doesn’t matter to those people.

Rosen, however, argues that reasoning does matter by making a poor analogy to Roe v Wade, “Because Roe was so poorly reasoned, pro-life activists found it easier to rally undecided voters under the guise of attacking judicial usurpation.” We can table this statement for a while, but the analogy between Roe and the California decision is just wrong. The idea that some unelected judges are usurping the will of the people just isn’t true. Once again, all seven of the judges on the State Supreme Court were elected by overwhelmingly majorities, the California state legislature twice passed bills to recognize same-sex marriage, and when Schwarzenegger vetoed them, he explicitly said that he wanted the Court to rule or some sort of referendum to pass. And now, he says that he doesn’t support a referendum to overturn the Court and that he supports the decision. Also, the legal reasoning wasn’t all that out-of-left field, the application of strict scrutiny was perfectly within the realm of California’s constitution, which “treats sexual orientation as a suspect classification” so that any discrimination must be reviewed under strict scrutiny.

Rosen further claims that the decision will be inflammatory because “Judicial decisions that blithely pronounce the basic positions of major political parties to be unconstitutional haven’t fared well in American history, as the Dred Scott decision shows.” As evidence, he points to the fact that Obama, McCain and Clinton all support civil unions. This argument may be relevant if the Federal Supreme Court had issued this ruling, but they didn’t. The California Supreme Court did, and this decision was well within the political and judicial mainstream for the state. All of this just begs the question, is there any progressive legal decision that Jeffrey Rosen likes?

If there is any backlash, it will be because gay marriage opponents oppose gay marriage, not because they’re ticked off about the reasoning.