Lorenzo & his humble friends

The fool doth think he is wise, but the wise man knows himself to be a fool

Tag: supreme court

Why the personalisation of the judicial role is a risky business

My colleague Ronan wrote an article for The Irish Times explaining the differences in the approach to sensitive cases between the US and the Irish supreme courts. Legally, the two courts have very similar powers; in practice, however, they act very differently. Unlike her Irish counterpart, the US Court allows for dissenting opinions that sometimes openly doubt the legitimacy of rulings; also, and relatedly, US judges tend to write eloquent and catchy opinions; and as a third feature and a consequence of the former, they also become public figures, achieving celebrity for their vehement opinions. Ronan reflects on how these features might represent a distortion of the crucial function that a court serves in a liberal democracy by showing how these differences played into the different procedures to decide over the issue of gay marriage in the two countries. This is something very closely related to a post I published a few months ago.

What is love, anyway? *

Yet again I am going to write some profoundly controversial stuff and this time I am afraid some of my friends won’t be pleased.

Here are the facts. On Friday last week the Supreme Court ruled by a 5-to-4 vote that the US Constitution guarantees a right to same-sex marriage. Since then I have been inundated by messages from friends celebrating this historical victory for the gay rights movement. I have read the sentence of the Court here. and I have a few perplexities about it.

My opinion is that gay marriage should be legalized. However, I also think it should be a matter decided by parliaments, or referendums, not by courts. Incidentally, this is the same court that in 1983 argued that the Constitution did not confer “a fundamental right to engage in homosexual sodomy”. It is also the same court that defended the constitutional right to possess a firearm unconnected with service in a militia, to execute prisoners via death penalty, to ban abortion. Just to mention a few. So: be careful, be very careful in celebrating this court and its progressive stance as the millions who tweeted and posted hashtags such as #LoveWins, and #LoveIsLove. This is a simple point I am trying to make: controversial issues like gay marriage should be won over politically, not in a court.

There is a second problem I want to raise and this is going to be highly problematic stuff. Do not take it as a provocation: as I said gay marriage is a controversial issue and as every controversial issue it deserves to be debated honestly and logically. The argument I am about to make follows logically from the highly poetic concluding paragraph of judge’s Kennedy opinion:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice,  and family. In forming a marital union, two people become something greater than once  they were. As some of  the petitioners in these cases demonstrate, marriage  embodies a love that may endure even past death. It  would misunderstand these men and women to say they  disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply  that they seek to find its fulfillment for themselves.  Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.  They ask for equal dignity in the  eyes of the law.  The Constitution grants them that right.

So now that we’ve defined that love and devotion and family isn’t driven by gender alone the question is what are the limits/boundaries of love? Put it another way: why should love be limited to just two individuals? Logically, the most natural advance next for marriage lies in legalized polygamy. It is a point raised by conservatives and you might be uncomfortable with it. But if you treat it with some consideration and not silly partisanship you might agree with me that this is now an intriguingly complex question.

 

* I know: people my age, upon reading this title: yes, the right answer is: “Baby, don’t hurt me“.