The virtue of judicial humility.

AuthorMyers, Richard S.
PositionBrigham Young University Symposium on the Future of Families and of Family Law

INTRODUCTION ([dagger])([dagger])([dagger])

Since the United States Supreme Court invalidated a portion of the Defense of Marriage Act in United States v. Windsor, (1) many lower courts have addressed the constitutional issues raised by state laws prohibiting same-sex couples from marrying. (2) Many lower courts have struck down such laws. The Supreme Court will consider the issue in the very near future. (3) In considering the constitutional issues, I think it would be useful to recall the Court's relatively recent experience with another contentious social issue that the Constitution does not address with any clarity. In its 1997 decisions in Washington v. Glucksberg (4) and Vacco v. Quill, (5) the Court surprised many observers and upheld state laws banning assisted suicide. I think that these decisions were correctly decided. Perhaps more importantly, these decisions reveal the benefits of judicial humility. The decisions have not ended societal debate about assisted suicide, and the law has moved slowly in favor of legalizing assisted suicide; however, because the Supreme Court did not purport to resolve the issue with a stroke of the pen, this ongoing debate has been better informed. I think the Supreme Court should take the same approach when it considers the constitutionality of laws prohibiting same-sex couples from marrying. Such an exercise of judicial humility would allow the societal debate on this issue to continue without the distorting effects of the Court's intervention.

  1. ASSISTED SUICIDE AND THE COURTS

    In thinking about the constitutional issues raised by state prohibitions of same-sex marriage, I focus first on the Court's experience with another social issue of great significance that the Constitution does not address with any clarity. I have in mind the Court's experience with assisted suicide. It is easy to forget that in the mid-1990s the momentum seemed to be all in favor of legalizing the "right to die," either by legislative action or by judicial decisions striking down laws banning assisted suicide. A key support for this momentum was the United States Supreme Court's 1992 decision in Planned Parenthood v. Casey. (6) In Casey, the joint opinion infamously declared that "[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." (7) This passage has been read--with some justification--as supporting the idea that moral relativism is a constitutional command. (8) In the mid-1990s, some lower courts cited this expansive language in Casey in support of a fundamental right to assisted suicide. (9) These opinions ignored the opposition to assisted suicide in our history and tradition and appealed to Casey's abstract rhetoric. These opinions regarded the broad language as "highly instructive and almost prescriptive" in resolving the assisted suicide issue. (10) According to this view, "[t]he right to die with dignity accords with the American values of self-determination and privacy regarding personal decisions." (11) I think it is worth remarking that one of the key opinions taking this view was written by Judge Stephen Reinhardt of the Ninth Circuit, (12) and although it is a bit simplistic to view things this way, I think Judge Reinhardt's views are a good barometer of the views of the more liberal judges and of the legal academy. (13)

    In 1997, in Washington v. Glucksberg and Vacco v. Quill, however, the Supreme Court rejected the constitutional challenges to laws banning assisted suicide. The Court rejected the idea that there is a fundamental right to assisted suicide. In so doing, the Court refused to rely on the broad, abstract language from Casey and instead inquired whether there was any support for the view that a right to assisted suicide was deeply rooted in our Nation's history and tradition. The Court carefully reviewed the relevant history and stated:

    [W]e are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. (14) In Glucksberg, unlike in Roe v. Wade (15) or in United States v. Windsor, (16) the Court was unwilling to take that step.

    Glucksberg and Quill were enormously important decisions. The Court's decisions largely moved the issue of assisted suicide out of the federal courts and left the issue chiefly to a state-by-state battle through the democratic process. In fact, the Court made that point explicitly. The Court stated: "[t]hroughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society." (17) In an era when we are accustomed to the federal courts assuming a dominant role on important social issues that approach seems almost quaint.

    The 1997 Supreme Court decisions brought a halt to the momentum in favor of a right to assisted suicide (18) and undermined the moral case in favor of assisted suicide. (19) In addition, the Supreme Court decisions, which were, of course, limited to federal constitutional arguments, were greatly influential when state supreme courts in Florida and Alaska rejected arguments that there was a fundamental right to assisted suicide under the Florida and Alaska Constitutions. (20)

    Since Glucksberg and Vacco v. Quill, the effort has largely shifted to a legislative battle. Here, supporters of assisted suicide have met with some success. Oregon's Death with Dignity Act was passed in 1994 and went into effect in 1997; (21) similar laws have been adopted in Washington (22) and Vermont. (23) Court decisions in Montana (24) and New Mexico (25) have also opened the door to physician-assisted suicide in those states. The New Mexico court decision from January 2014 is on appeal. (26) Other recent efforts to legalize assisted suicide in Massachusetts, Connecticut, and New Hampshire have not met with success. (27)

    Despite a few victories, the situation in the United States has been relatively stable for the last two decades. Since the Supreme Court's decisions in 1997, the right to die movement has not had significant success either in legislative arenas or in influencing public opinion. (28) The situation would be vastly different if Glucksberg and Quill had come out the other way.

  2. ABORTION AND SAME-SEX MARRIAGE AND THE COURTS

    The dynamic has been very different in other areas. In Roe v. Wade, the Court effectively struck down the abortion laws of every state in the Union. (29) This, of course, did not "resolve" the abortion controversy, as the Casey joint opinion claimed, (30) but the Court's decision in Roe fundamentally altered the political landscape through the creation of a fundamental, constitutional right to abortion. The debate about abortion has continued, but the Court's decisions, which prevent states from prohibiting abortion at any time during pregnancy, (31) are wildly out of line with the views of most Americans. (32) Moreover, the Court's decisions have, in the view of many, increased the discord. Justice Scalia summarized this point in his Casey dissent:

    By foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. (33)...

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