The 14th Amendment vs. Plato
Did the ratification of the 14th Amendment in the 19th century abolish “traditional” morality in the 21st? Yes, says a growing body of judicial review.
District Judge Jeffrey White’s opinion in Golinski v. United States Office of Personnel Mgmt. came in on Friday. Since his orders for oral arguments last December were restricted to 1993’s Defense of Marriage Act, there was little surprise nationally when on Friday he duly torpedoed it.
There will be much analysis in the coming months as the case gets kicked upstairs to the higher court levels. I personally chafe at one of Judge White’s devices, in short, taking the loudest and least temperate social and Biblical arguments by some of its proponents in the Congress as “proof” that DOMA’s purpose is at heart unsupportable under “heightened scrutiny.” [See page 25 of the opinion.]
It’s true those arguments were made, intemperately and sometimes loudly. However, the Defense of Marriage Act passed by a bipartisan vote of and 342-67 in the House, and unamended, DOMA passed the U.S. Senate, unamended, on September 10, 1996, by a vote of 85-14.
Regardless of what some members of Congress may have said during the debates, Judge White cannot know what was in the head of everyone in such a large majority. Surely not all of them were irrational haters.
Nor is it necessarily true that a judge can or should overturn just based on his best guess of what’s in their heads. The Bible is increasingly used as a disqualifier as the authority for any “rational basis” for a law, and we’ll stipulate that that one’s a train that has left the station. The Bible is the antithesis of “rationality.”
So in 1993, there was a lengthy charade in Romer vs. Evans, that the argument that “all sexualities are not created equal” doesn’t require a Biblical or religious foundation. Kind of like Inherit the Wind, Plato was brought in as an expert witness for the defense, that a reasonable person might not see all sexualities as equal. After all, who’s more reasonable than Plato?
A fascinating account is here from Daniel Mendelsohn, who doesn’t appear to be quite on Plato’s side.
Of course, in Romer, Plato lost, or at least his relevance as a non-religious authority on reason was not enough to swing the day.
However, since the legislators could have had Plato and not the Bible in mind when they overwhelmingly passed the Defense of Marriage Act, it’s not up to a judge’s review to say they didn’t. Because it’s not cut-and-dried—most of the time, our reasons for thinking this or that aren’t quite defined or articulable, and are often a blend of thoughts, habits and sentiments. There are many things in the Bible that even the most committed believer doesn’t endorse whole-heartedly, like
And they shall say unto the elders of his city, This our son is stubborn and rebellious, he will not obey our voice; he is a glutton, and a drunkard.
And all the men of his city shall stone him with stones, that he die: so shalt thou put evil away from among you; and all Israel shall hear, and fear. [Deuteronomy 21]
Well, if we stone all our drunk kids, we’re not going to have many of us left. Just the Mormons and the Muslims.
But will publicly stated agreement with Biblical morality be used as a weapon by judges against duly enacted laws? There is a drift in that direction. It’s uncertain if it’ll hold, and so far it’s more dicta than foundation for Judge White and Judge Vaughn Walker’s related approach to California Proposition 8.
Fourteenth Amendment debates are among the least interesting to me: few of us deny that the 14th means whatever a Supreme Court majority says it does, until it changes its mind. On the macro level, it seems absurd that the ratifiers of the Fourteenth Amendment ever suspected they were changing the Constitution to require the abolition of traditional morality. That the Bible no longer would have any moral authority could have been guessed by a clever prognosticator; that Plato is no longer reasonable could not have been divined by the greatest of prophets.
—UPDATE, LATE SATURDAY NIGHT: After spending my evening returning the courtesy of everybody’s good faith replies, I realize how much trouble I get into by not responding in a timely fashion.
Sometimes 200 replies behind me sleepin’ back, almost 100 before noon o’clock!
I don’t want to insult anyone, or have them think I’m dodging. And so, thx to all who have written in. Comments are now closed until me achin’ self is up to returning the courtesy of yr replies.
Thx to all, and to all a good night. I have a life and have to get back to it. Best to all, Tom
SUNDAY: Comments opened. 😉