In his new book, Emory University law professor Michael J. Perry makes a rather startling claim that, “even if the (Supreme) Court, or a majority of it, believes that a law is unconstitutional, it does not mean that the Court should rule that the law is unconstitutional.”
Perry, in his book Constitutional Rights, Moral Controversy, and the Supreme Court, argues instead that the court show “deference” in such cases. The specific cases Perry tackles in his book are the big three in the culture wars – abortion, capital punishment, and gay marriage. In these cases, Perry, argues that “both sides need to realize the court should be focused on what the implications are, and whether it is a good idea for them to strike down an action as unconstitutional if it is not unreasonable for lawmakers to have come to a different judgment.”
That’s very easy for a white, heterosexual man to say. None of these issues has much impact on how he lives his life, so he can feel free to be cavalier with them. I dare say if he were unable to form a legal, civil contract with the person of his choice for the purpose of passing on property, being viewed as legal next of kin, or the thousands of other rights that marriage gives one, he’d be singing a different tune about the role of the Court.
Now, I’m not Constitutional scholar, and I do not have a 29-page CV outlining my accomplishment in this field. However, as a lesbian, I object to Perry’s assertion that instead of asking “Is the law unconstitutional?” that they should instead ask the more deferential question: “Is it reasonable to conclude that the law does not violate the right it is claimed to violate?”
The answer to that question, when it comes to marriage equality, is yes—it is unreasonable to conclude that because state bans on marriage equality are violating the rights of some citizens, namely LGBT people, to enter into the legal, secular, contract commonly referred to as marriage. When it comes to the rights of women, the rights of the condemned or the rights of gays and lesbians to fully participate in the right of marriage, we don’t need a deferential court. We need a court that, if it decides a law is unconstitutional, it will rule that way. Anything less and the court would be derelict in its duty.
In reference to marriage equality for LGBT people, Perry makes the point that some states have adopted such measures, while others have put “civil unions” in place. He notes that, “Different states have different cultures and different attitudes,” and that such cultures and attitudes should be respected—on all three of these issues.
What a “state’s rights” argument disregards however is the Constitution of the United States which has this little thing in Article 4, Section 1 called the “Full Faith and Credit Clause” that reads, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” This is the part of the Constitution that the court in 1967 ruled that bans on interracial marriage violated. If one couple is married in one state, that marriage must be recognized in another state under this clause.
If we were to take into account the “cultures and attitudes” of each state, I can guarantee that residents of my state of South Carolina would continue to hold slaves—never mind having separate drinking fountains. No matter how scholars like Perry want to spin it, the role of the Supreme Court is to uphold the Constitution. For any legal scholar, no matter how long his resume or how distinguished his career, to argue otherwise is to reveal an agenda that undermines the very Constitution the Court is sworn to protect.
