There are emerging trends in the law that will result in the Bill of Rights, or the first ten amendments of The United States Constitution ceasing to have legal force in American Courts. While this article is not about "gay rights" issues, more accurately called homofascism1, the Homofascist movement is becoming the vehicle through which this loss of liberty is affected. Chai R. Feldblum, who is a law professor at Georgetown who self-identifies as a lesbian2, is promoting a new paradigm for adjudicating liberty claims in an article in the Brooklyn law Review called Moral Conflict and Liberty: Gay Rights and Religion3. This article will explain her paradigm, critique her paradigm, and then show why it is relevant to the debate over freedom.
A new, subjective paradigm for interpreting rights is emerging
Feldblum right out of the gate makes her point when she says " Your religious belief - your belief liberty interest, as I hope to explain below - is necessarily curtailed by the existence of a law that prohibits you from discriminating on the basis of sexual orientation or marital status."4 This, however, raises a question. What if the law is unconstitutional. Doesn't the First Amendment of the Constitution restrict the government from encroaching on religious liberty. Feldblum wants to do away with the first amendment by imposing a new interpretive paradigm in constitutional law.
" Second, I want to suggest that the best framework for dealing with the conflict between some people's religious beliefs and LGBT people's identity liberty is to analyze religious people's claims as belief liberty interests under the Due Process Clauses of the Fifth and Fourteenth Amendments, rather than as free exercise claims under the First Amendment. "5
She wants the Due Process clause to trump the First Amendment. She suggests that the First Amendment is not the only source of protection for religious people. What she fails to disclose is that the First Amendment is the strongest legal protection for religious people because it clearly and explicitly defines religious liberty. Her new paradigm seeks to game the Due Process Clause to change the rules.
She suggests that Supreme Court Justice David Souter, in his concurring opinion in Washington v Glucksberg6, hints at this new paradigm7. This paradigm, as we shall see, replaces objective criteria for judging the constitutionality of a law with subjective criteria.
According to Feldman, " Justice Souter finds guidance for this approach in Justice Harlan's dissent from dismissal on jurisdictional grounds in Poe v. Ullman:
[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. 8
What this means is that if a judge "finds" a right that is not explicitly disclosed but is deemed present in the due process that is contrary to an explicitly stated right, the explicitly stated right does not limit the rights that are allegedly hidden in the "rational continuum." This principle, if consistently applied, takes the explicit guarantees of religious freedom, freedom of speech, and other freedoms guaranteed in the bill of rights completely out of the equation as one could no longer appeal to the plain meaning of the text as an argument in court.
Souter, in Washington vs Glucksberg, is clearly pushing towards a subjective standard of review. He writes.
" It is only when the legislation's justifying principle, critically valued, is so far from being commensurate with the individual interest as to be arbitrarily or pointlessly applied that the statute must give way. Only if this standard points against the statute can the individual claimant be said to have a constitutional right. 9"
While Souter does directly not do away with the strict standard10, this standard clearly stands contrary to it. Souter is saying that a statue only gives way if it is " arbitrarily or pointlessly applied. " There is no need to demand that state conform to a strict standard or even have a burden of proof. Historically, encroachments on rights guaranteed by the Bill of Rights were subjected to strict scrutiny11, which means that the state must show that they have a compelling interest and that the statute is necessary to fulfilling the requirements of this compelling interest.
Not only is Souter hinting that a statue only need not be arbitrary, but removes original intent of the legislative body from the equation. It is not " legislation's justifying principle " as set forth by the legislative body, but as " critically valued, " that is counted. It is the judges take that all freedom rest in this paradigm.
Feldblum clearly supports this paradigm shift, and proceeds to cite numerous references to make her case that Justice Kennedy used this paradigm in deciding Lawrence v Texas12. This is especially noteworthy as Kennedy is a swing vote on the Court and could very well be the vehicle through which the strict scrutiny that protect our fundamental rights is abolished. I do not believe these are isolated quotes Feldblum is using but representative of the direction that the judicial system is moving. This approach clearly dovetails with the so-called living document theory of constitutional law13 that many judges now uphold.
Critique
While Feldblum is obviously motivated by her desire to provide a legal environment friendlier to the interest of the "lesbian gay bisexual transgendered LGBT" community, but this paradigm has implications that go way beyond homofascism. Subjectivizing constitutional law will have devastating effect on liberty across the board.
The Founding Fathers, when they set up the Constitution, clearly envisioned the Bill of rights as providing some contours for liberty. The Founders clearly saw liberty in terms of "certain inalienable rights. 14" The Founders also clearly made several provisions for the Constitution to adapt to the changing times. There was instituted The Commerce Clause to allow the Federal wide scope in regulating state commerce, the Ninth Amendment, that allowed wide sweep to protecting both states rights and enforcing a host of unenumerated rights, and a process for adding amendments to the Constitution or convening a convention to replace it with a new Constitution. All of these imply that the founders saw the Constitution as an objective standard for law.
The great danger of making the Constitution relative to a subjective standard is that it then becomes manipulable. David Strauss writes,
"Even worse, a living Constitution is, surely, a manipulable Constitution. If the Constitution is not constant-if it changes from time to time-then someone is changing it, and doing so according to his or her own ideas about what the Constitution should look like. The "someone," it's usually thought, is some group of judges. So a living Constitution becomes not the Constitution at all; in fact it is not even law any more. It is just some gauzy ideas that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us."15
Strauss goes on to assert that we can escape this predicament by grounding Constitutional jurisprudence is precedent root in centuries of common law. Strauss' method would only work in an environment where are certain objective limiting parameters. The Founders intended for the Constitution to provide just such a framework. This framework would make it harder for government officials and judges to game the system. One of the things that Professor Feldblum lamented about current jurisprudence in cases involving conflict between rights connected with sexual identity and rights connected with religious freedom was that in many of these cases, judges twisted and creatively parsed facts in such a way to come to a conclusion that that laws putting a burden on religious freedom did not really put a burden on religious freedom. She would rather that the courts acknowledge that these laws do burden religious freedom and then justify that encroachment16. What Feldblum fails to say is that her paradigm would not stop judges from continuing to game the system. Without an objective standard to judges rights claims, the judge will simply game the critical evaluation as a means to impose his or her opinion on people.
If our freedoms hinge on the whim of a judge, what if those women in Texas who were sexually molested by the police in the side of the interstate17 appeared before a lesbian judge who thought it was no big deal that these women were subjected to having their vaginas fingered by the police. Would the lesbian judge be sympathetic if the women referred to this as a "homosexual attack" given that they were sexually assaulted by a female cop. Because there is still a vague semblance of an objective standard, the cops will be prosecuted, but under Feldblum's paradigm, it would be permissible for a judge to dismiss the case. There is currently a case in Montana where a judge gave out a superlight sentence for rape that was actually illegal under Montana law18. Do we really want to give judges wide open discretion to do whatever they want? Feldblum;s paradigm would do just that.
Lest we think that only the words of legislators are robbed of their original intent, this slippery slope also undermines the words of the judges themselves. If interpretation of law look at only the "critical evaluation" of a legal text and not its intended meaning, then what's to stop cops from playing the same games with a judge's ruling that the judges play concerning the text of legislation or the Constitution. This abolition of an objective standard that Feldblum and others advocate means the end of the rule of law in any meaningful fashion. It is also the end of democracy in any meaningful fashion as the product of legislative activity, texts of laws, are nothing more than legal "Play-Dough" to be molded and fashioned according to the whims of those with power.
Conclusion
This paradigm is what Francis Schaeffer called "sociological law.19" Sociological law is simply whatever those in power want it to be at the moment. Once the requirement to adhere to the plain meaning of the Bill of Rights is done away with, there is no objective legal basis for restraint of arbitrary government power. Without an objective standard to provide meaning to legal texts, there can be no rational basis for law, the law is nothing more than the subjective whim of those in power, and the only restraint on the exercise of power is the limit on what the power agent can get away with.
A new, subjective paradigm for interpreting rights is emerging
Feldblum right out of the gate makes her point when she says " Your religious belief - your belief liberty interest, as I hope to explain below - is necessarily curtailed by the existence of a law that prohibits you from discriminating on the basis of sexual orientation or marital status."4 This, however, raises a question. What if the law is unconstitutional. Doesn't the First Amendment of the Constitution restrict the government from encroaching on religious liberty. Feldblum wants to do away with the first amendment by imposing a new interpretive paradigm in constitutional law.
" Second, I want to suggest that the best framework for dealing with the conflict between some people's religious beliefs and LGBT people's identity liberty is to analyze religious people's claims as belief liberty interests under the Due Process Clauses of the Fifth and Fourteenth Amendments, rather than as free exercise claims under the First Amendment. "5
She wants the Due Process clause to trump the First Amendment. She suggests that the First Amendment is not the only source of protection for religious people. What she fails to disclose is that the First Amendment is the strongest legal protection for religious people because it clearly and explicitly defines religious liberty. Her new paradigm seeks to game the Due Process Clause to change the rules.
She suggests that Supreme Court Justice David Souter, in his concurring opinion in Washington v Glucksberg6, hints at this new paradigm7. This paradigm, as we shall see, replaces objective criteria for judging the constitutionality of a law with subjective criteria.
According to Feldman, " Justice Souter finds guidance for this approach in Justice Harlan's dissent from dismissal on jurisdictional grounds in Poe v. Ullman:
[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. 8
What this means is that if a judge "finds" a right that is not explicitly disclosed but is deemed present in the due process that is contrary to an explicitly stated right, the explicitly stated right does not limit the rights that are allegedly hidden in the "rational continuum." This principle, if consistently applied, takes the explicit guarantees of religious freedom, freedom of speech, and other freedoms guaranteed in the bill of rights completely out of the equation as one could no longer appeal to the plain meaning of the text as an argument in court.
Souter, in Washington vs Glucksberg, is clearly pushing towards a subjective standard of review. He writes.
" It is only when the legislation's justifying principle, critically valued, is so far from being commensurate with the individual interest as to be arbitrarily or pointlessly applied that the statute must give way. Only if this standard points against the statute can the individual claimant be said to have a constitutional right. 9"
While Souter does directly not do away with the strict standard10, this standard clearly stands contrary to it. Souter is saying that a statue only gives way if it is " arbitrarily or pointlessly applied. " There is no need to demand that state conform to a strict standard or even have a burden of proof. Historically, encroachments on rights guaranteed by the Bill of Rights were subjected to strict scrutiny11, which means that the state must show that they have a compelling interest and that the statute is necessary to fulfilling the requirements of this compelling interest.
Not only is Souter hinting that a statue only need not be arbitrary, but removes original intent of the legislative body from the equation. It is not " legislation's justifying principle " as set forth by the legislative body, but as " critically valued, " that is counted. It is the judges take that all freedom rest in this paradigm.
Feldblum clearly supports this paradigm shift, and proceeds to cite numerous references to make her case that Justice Kennedy used this paradigm in deciding Lawrence v Texas12. This is especially noteworthy as Kennedy is a swing vote on the Court and could very well be the vehicle through which the strict scrutiny that protect our fundamental rights is abolished. I do not believe these are isolated quotes Feldblum is using but representative of the direction that the judicial system is moving. This approach clearly dovetails with the so-called living document theory of constitutional law13 that many judges now uphold.
Critique
While Feldblum is obviously motivated by her desire to provide a legal environment friendlier to the interest of the "lesbian gay bisexual transgendered LGBT" community, but this paradigm has implications that go way beyond homofascism. Subjectivizing constitutional law will have devastating effect on liberty across the board.
The Founding Fathers, when they set up the Constitution, clearly envisioned the Bill of rights as providing some contours for liberty. The Founders clearly saw liberty in terms of "certain inalienable rights. 14" The Founders also clearly made several provisions for the Constitution to adapt to the changing times. There was instituted The Commerce Clause to allow the Federal wide scope in regulating state commerce, the Ninth Amendment, that allowed wide sweep to protecting both states rights and enforcing a host of unenumerated rights, and a process for adding amendments to the Constitution or convening a convention to replace it with a new Constitution. All of these imply that the founders saw the Constitution as an objective standard for law.
The great danger of making the Constitution relative to a subjective standard is that it then becomes manipulable. David Strauss writes,
"Even worse, a living Constitution is, surely, a manipulable Constitution. If the Constitution is not constant-if it changes from time to time-then someone is changing it, and doing so according to his or her own ideas about what the Constitution should look like. The "someone," it's usually thought, is some group of judges. So a living Constitution becomes not the Constitution at all; in fact it is not even law any more. It is just some gauzy ideas that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us."15
Strauss goes on to assert that we can escape this predicament by grounding Constitutional jurisprudence is precedent root in centuries of common law. Strauss' method would only work in an environment where are certain objective limiting parameters. The Founders intended for the Constitution to provide just such a framework. This framework would make it harder for government officials and judges to game the system. One of the things that Professor Feldblum lamented about current jurisprudence in cases involving conflict between rights connected with sexual identity and rights connected with religious freedom was that in many of these cases, judges twisted and creatively parsed facts in such a way to come to a conclusion that that laws putting a burden on religious freedom did not really put a burden on religious freedom. She would rather that the courts acknowledge that these laws do burden religious freedom and then justify that encroachment16. What Feldblum fails to say is that her paradigm would not stop judges from continuing to game the system. Without an objective standard to judges rights claims, the judge will simply game the critical evaluation as a means to impose his or her opinion on people.
If our freedoms hinge on the whim of a judge, what if those women in Texas who were sexually molested by the police in the side of the interstate17 appeared before a lesbian judge who thought it was no big deal that these women were subjected to having their vaginas fingered by the police. Would the lesbian judge be sympathetic if the women referred to this as a "homosexual attack" given that they were sexually assaulted by a female cop. Because there is still a vague semblance of an objective standard, the cops will be prosecuted, but under Feldblum's paradigm, it would be permissible for a judge to dismiss the case. There is currently a case in Montana where a judge gave out a superlight sentence for rape that was actually illegal under Montana law18. Do we really want to give judges wide open discretion to do whatever they want? Feldblum;s paradigm would do just that.
Lest we think that only the words of legislators are robbed of their original intent, this slippery slope also undermines the words of the judges themselves. If interpretation of law look at only the "critical evaluation" of a legal text and not its intended meaning, then what's to stop cops from playing the same games with a judge's ruling that the judges play concerning the text of legislation or the Constitution. This abolition of an objective standard that Feldblum and others advocate means the end of the rule of law in any meaningful fashion. It is also the end of democracy in any meaningful fashion as the product of legislative activity, texts of laws, are nothing more than legal "Play-Dough" to be molded and fashioned according to the whims of those with power.
Conclusion
This paradigm is what Francis Schaeffer called "sociological law.19" Sociological law is simply whatever those in power want it to be at the moment. Once the requirement to adhere to the plain meaning of the Bill of Rights is done away with, there is no objective legal basis for restraint of arbitrary government power. Without an objective standard to provide meaning to legal texts, there can be no rational basis for law, the law is nothing more than the subjective whim of those in power, and the only restraint on the exercise of power is the limit on what the power agent can get away with.
References
- Homofascism is a political philosophy that holds sexual orientation as one's master status (referred to by Professor Feldblum in her article as identity liberty), and therefore defines all opposition to that nature or its products as being necessarily a personal attack that warrants state intervention. Because it is a political philosophy and not a sexual orientation, one need not be homosexual to be a homofascist; most homofascists are heterosexual. It is also possible to be homosexual and reject homofascism.
- Moral Conflict and Liberty: Gay Rights and Religion, Brooklyn Law Review, vol 72:1, page 65, top para (Page 7 on pdf) http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1080&context=facpub
- Moral Conflict and Liberty: Gay Rights and Religion, Brooklyn Law Review, vol 72:1 http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1080&context=facpub
- ibid,page 62, (page 4 on pdf), 2nd para from bottom, last line of para
- ibid, page 63 (page 5 on pdf), top line of last paragraph
- 521 U.S. 702, 752-89 (1997) (Souter, J., concurring).
- Moral Conflict and Liberty: Gay Rights and Religion, Brooklyn Law Review, vol 72:1, page 64 (Page 6 on pdf) http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1080&context=facpub
- ibid,page 92 (34 on pdf), top of page
- ibid, page 93 (35 on pdf), 2nd para citing Glucksberg, 521 u.s. at 768 (Souter, J., concurring).
- ibid page 93, last para-pg94, 1st para (35-36 on pdf)
- Cornell University Law School http://www.law.cornell.edu/wex/strict_scrutiny
- Moral Conflict and Liberty: Gay Rights and Religion, Brooklyn Law Review, vol 72:1, page 95-96 (38-39 on pdf)
- The Living Constitution, University of Chicago Law School http://www.law.uchicago.edu/alumni/magazine/fall10/strauss
- The Declaration of Independence http://www.archives.gov/exhibits/charters/declaration_transcript.html
- The Living Constitution, University of Chicago Law School, 5th para http://www.law.uchicago.edu/alumni/magazine/fall10/strauss
- Moral Conflict and Liberty: Gay Rights and Religion, Brooklyn Law Review, vol 72:1, page 115-121 (Page 57-63 on pdf) http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1080&context=facpub
- North Texas Women Subjected to Roadside Cavity Search Speak Out After Troopers Indicted, CBS| DFW http://dfw.cbslocal.com/2013/03/26/north-texas-women-subjected-to-roadside-cavity-search-speak-out-after-troopers-indicted/
- Prosecutors Weigh Appeal of 30-day Rape Sentence in Montana, Cable News Network (CNN), http://www.cnn.com/2013/08/28/justice/montana-teacher-rape-sentence/index.html
- A Christian Manifesto, Francis Schaeffer, Crossway Books, 1982 Schaeffer used this term throughout his book to refer to the consequences of abandoning the world-view of Reformation Christianity. His opinion was that naturalistic and humanistic world-views left no adequate basis for morals and law.
