aTypical Joe: a gay New Yorker living in the rural South

Sunday, September 11, 2005

Sunstein on Roe, Brown and same sex marriage

Cass Sunstein was a guest on Fresh Air last week. I am a Sunstein fan, so listened with interest. Here he comments on Roe v Wade as constitutional law:

Roe against Wade was a big blunder from the constitutional standpoint. The reason was that the court took some pretty small precedents and blew them up to create a very general right to choose abortion. Now many people like that as a matter of policy, and maybe it’s right as a matter of policy, but the court used the Constitution much too expansively, much too quickly, and cast contempt on millions of Americans who believe in good faith that abortion is a murder of a human being. So this was really an abuse of the court’s constitutional authority.

I put the follow up, Sunstein’s comments on what the courts should have done, in the extended entry. For here, now, then how about Brown v Board of Ed?

Now Brown is an interesting contrast. It is true that Brown, getting rid of American-style apartheid, was a very bold and big deal, but Brown was anything--was not anything like Roe. Brown was the result of a slow and long sequence of decisions. By the time of 1954, the ground was carefully laid for getting rid of apartheid in the United States. The court had dealt time and again with so-called separate but equal schools, and said time and again, `This separate is not equal. That separate is not equal.’ By the time of Brown, separate but equal was all but dead. The court could have built up a more general privacy right, maybe, but going slowly. If it was going to do that, that would have been the way to do it.

Ok, so how about same sex marriage?

If the court took a big stand on discrimination on the basis of sexual orientation now, it might polarize the country terribly and cause all sorts of bad consequences.

Most of my friends don’t want marriage brought before the courts, more out of concern over the compostition of the court than over polarization, and marriage rights organizations are conflicted. But I’d turn Sunstein’s argument on its head, and say go for it.

Follow up on Roe v Wade:

DAVIES: What should the court have done?

Prof. SUNSTEIN: Well, there were a couple of things that would have been reasonable. I think it would have been reasonable for the court to say that the interest in protecting the life of the fetus is adequate to justify the intrusion on the woman’s right. I say reasonable, though I don’t think in the end that would have been right. I think the best thing for the court to have done was--would have been to focus much more specifically on the laws at issue in that case. The law in Roe against Wade didn’t have an exception for rape or incest, so the Texas law was a wildly overbroad effort to intrude on women’s choice. There was an allegation of rape, incidentally, in Roe at the time, and the court could have just said narrowly that if you’re going to protect the interests in fetal life, you can’t do that by forcing women who’ve been victims of rape or incest to carry the child to term.

DAVIES: Well, I guess a lot of folks who regard, you know, the pre-Roe climate as one of terrible violations of women’s reproductive rights would say, `But if you do that, I mean, you’re just leaving millions and millions of women denied, you know, the constitutional protection that they think that they’re entitled to.’ I mean, are there times when you need a bold decision? I mean, take Brown vs. Board of Education in 1954.

Prof. SUNSTEIN: Well, there--the increase in the rate of legal abortions was higher in the three years before Roe than in the three years after Roe. It’s worth pausing over that. That’s the increase in the rate of legal abortions. How can that be, you might ask, if Roe made almost all abortions legal. The reason is that the country was rapidly liberalizing abortion. The court thought it was catching a wave, I think. That’s why it didn’t expect this decision to be so controversial. The point is just that when the court way oversteps where the country’s going, it may not be doing something that’s very productive.

On the harm from Roe:

DAVIES: On Roe vs. Wade, if the court erred in taking a great leap in privacy in reproductive rights, what harm did it do?

Prof. SUNSTEIN: Well, it created a kind of polarized America that has infected not only our Supreme Court nominations, but our interactions with one another. The court’s decision probably helped defeat the Equal Rights Amendment. It was a big blow to the feminist movement in the United States partly because it demobilized women and mobilized--in fact, helped create the Moral Majority. It polarized the country and gave tremendous energy to those who think abortion is a form of murder while eliminating the energy, for a time at least, for those who believe that the right to choose is a part of the--of what’s necessary to ensure equality on the basis of sex in the United States.

Now I don’t meant to say that the court as a policy matter was wrong, all things considered. Maybe it was right as a policy matter, all things considered. Certainly many people believe that. But the Supreme Court is not our national policymaker. I mean, my principle claim is the court would have done better in terms of its proper role in American government if it had gone slowly and let some kind of dialogue occur within the democratic process of the sort that was occurring then, of the sort that’s occurring now with respect to discrimination on the basis of sexual orientation. We’ve seen massive changes in the country on sexual orientation issues in the last decade, and the Supreme Court, fortunately, has played just a small, cautious role.

If the court took a big stand on discrimination on the basis of sexual orientation now, it might polarize the country terribly and cause all sorts of bad consequences. So I do believe the court didn’t serve the country very well, but more important than that, the court overstepped its proper bounds even if it did serve the country well.