Eugene is, I guess, too polite to say so in the post immediately below, but: when Ponnuru asked whether Eugene thought it was “impossible to devise amendment language that would block the federal and state courts from creating civil unions while allowing state legislatures to create them,” he was asking whether Eugene agreed with a claim I made in my TNR column last week. Just so everyone’s clear– Eugene has now said he does not agree with that claim. I bear sole responsibility for it.
For my part, I’m going to go think about it some more, but I’m provisionally sticking to my guns. Ponnuru’s proposed change of wording (which I do think would be a genuine improvement in an amendment I’d nonetheless still oppose) concerns constitution and statute, a distinction that does not perfectly track that between judiciary and legislature. The judiciary can’t order the legislature around without constitutional warrant. But it can order around executive officials on the basis of legislative warrant.
Say that a state has a pretty expansive nondiscrimination statute, one that includes both sex and sexual orientation. And say that that statute binds county and municipal governments as well as private actors. (It can’t bind the legislature itself, of course, because it’s only a statute; that’s what the equal protection clause of a constitution is for.)
One of the partners in a gay couple is employed by a city government. Petitions for his or her partner to be treated like a spouse for purposes of benefits, is denied. Petitions for injunctive relief under the nondiscrimination statute, rather than the equivalent constitutional clause.
I’m not saying that courts necessarily will order such relief. But they could. They could order that all entities (municipal and private) bound by the state’s nondiscrimination statute provide benefits to gay employees’ partners equivalent to those provided to spouses; could order private hospitals so bound to respect the wishes of gay partners as if they were spouses; etc. They could order that all the incidents of marriage be granted, albeit not the word, in effect ‘creating’ civil unions– or, rather, finding them to be already demanded by the ‘sweeping generalities’ of the law that the legislature has put in place and that the court is obliged to construe.
Maybe these would be bad judges. Maybe a better interpretive theory would deny that they have the right to do this. But they couldn’t be procedurally stopped from doing it, under the Ponnuru amendment. A judiciary that is free to construe very specific legislative acts as creating civil marriage is also going to remain free to construe more general legislative acts as doing so.
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other the courts must decide on the operation of each.” One can’t get around that with a procedural fix.
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