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Friday, April 03, 2009

For whom do courts write?

One thing that struck me from reading the Iowa Supreme Court decision holding that the limitation on civil marriage only to opposite-sex couples was the tone of the writing. It was very much a public-directed document, intent on explaining itself to the public, as opposed to the parties or to a primarily legal audience. The opinion broke down state equal protection analysis to its rudiments and tried to explain basic principles and elements--in a way that would be known to anyone with legal training or experience, but less so to lay persons. The court also took the time to address and rebut the sort of political, slippery-slope criticisms likely to be made in the wake of the decision, for example that clergy now will be obligated to sanctify same-sex marriages, even if such marriages violate religious doctrine.

This was a wise rhetorical move. The court recognized that its decision, though (in its view) constitutionally compelled and legally justified, was going to be politically and popularly controversial. And that it had an obligation as a public institution to explain itself to the full audience likely to be reading and reacting to its decision.

Posted by Howard Wasserman on April 3, 2009 at 11:00 PM in Current Affairs, Howard Wasserman | Permalink


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It would take more than a comment to fully respond to your question and I am reluctant to provide partial answers on such a complex and emotionally charged issue. But the problem is essentially the Iowa Supreme Court's assumption about what the purpose of marriage is. If you think it's only about facilitating loving and mutually supportive relationships, then you are right. Gay and lesbian relationships can be - and frequently are - precisely that.

But if you believe that, in addition to this, marriage is about reconciling the often different ways in which men and women experience sexuality in a way that will provide optimal, to borrow a phrase from Monte Neil Stewart, private capital to the children that these relationships - and these relationships alone - can produce, then its not so simple. The mores and norms of marriage have been formed with that objective in mind. If you redefine marriage (and there cannot, I think, be more than one public understanding of marriage for the "same sex" and "different sex" "marriage communities")in a way that now includes relationships for which these objectives are absent or not as important or which emphasizes a different set of primary values, it seems to me extremely likely that you change its mores and norms just as did (unintentionally) the movement to no fault divorce.

To say that some gay couples raise children (mostly from prior heterosexual relationships which affects the way in which the benefits and protections of would affect children who have another parent) and that not all heterosexual couples do is beside the point. The public meaning of marriage is a norm, not a rule. To say that we allow same sex couples to raise children who cannot be raised by their biological parents is not to say that society does not have an interest in structuring its institutions in a way that maximizes the possibilities that they will be, not simply by legal fiat but by the law's expressive impact.

That, incidentally, suggests a second way in which the Iowa court shortarmed the issue. To say that social science has "established" that, as it essentially did, that what matters is not a father but a "second parent" belies everyday human experience and, quite frankly, reflects a political reading of the extant evidence. Even more so to say that the state of the "science" is that the state could not form a different judgment on the matter.

Note that the latter point has nothing to do with sexual orientation. Opponents of genderless marriage point out that the research seems to suggest that cohabitating heterosexual couples and stepfamilies are, even if at times unavoidable, less than optimal family structures.

I acknowledge that the arguments of opponents tend to appeal most strongly to Burkean conservatives who are distrustful of the notion that we can know enough to make the world anew as rapidly and as rigorously as we would like. If that is not your intellectual taste, it will seem less compelling. But that at least provides some sense of what I am driving at.

Posted by: Rick Esenberg | Apr 7, 2009 10:33:52 AM

Honesty and clarity should be basic to legal opinions in general. Opinions also tend to have some "political/policy" implications even if they are just addressed to the legal community. As a layman, if one more interested in legal matters than some, I do not know why it is not a good thing for courts to take some real effort to address the public at large, particularly when the rulings will be very important to them. We are not only part of the governed, but as "we the people," we are ultimately the government. In fact, justices of the Supreme Court have at times implied the federal courts are special because they have opinions that express their reasoning. If the opinions are some sort of secret code that only lawyers will understand, I do not really see this as that great of a thing.

I don't know what Rick means by "change the public understanding of marriage" or the "nature of family structure and the well being of children" in this context. This is off subject, in a fashion, but since he raised it ... For instance, since same sex couples will continue to have children, in part because same sex adoptions are allowed in nearly all states (Florida is a pending outlier), how same sex marriage (with its protections in part of the rights of children) will harm such "well being" is unclear. Likewise, given the range of "marriage" in the different sex marriage community, why allowing same sex marriage in particular will "change" things (furthermore, since people could still be married in private ceremonies, and perhaps get various benefits from the state based on them) so much is unclear.

I touch upon basic things here, as reflected by what the opinion DOES say. I also read other opinions on this subject. I don't know how Ioa "short armed" anything vis-a-vis the others. I really don't.

Posted by: Joe | Apr 6, 2009 9:15:24 AM

I'm completing a paper on an interpretive framework for state marriage amendmnents, so I read the case with some interest. I agree that the court seems to have been writing to the public in an effort to explain something which may prove to be wildly unpopular. In fact, it seems to me that devoting most of the decision to a rehearsal of equal protection analysis is an attempt to demonstrate that it is not simply imposing its policy preferences. To that end, I think that its explanation of the legal framework was clear and thorough.

But I wonder if the Court's effort at a simple explanation of its method cost it in terms of providing an explanation of its application of that method. Granted, I am not a proponent of defining marriage to include same sex couples and we seldom are impressed by arguments we have rejected, but it seems to me that the court either misstated the arguments that people like me make (the preservation of traditional marriage is not simply about preserving tradition and the defense submitted extensive material regarding why the state could believe that conferring marital status on same sex couple might change the public understanding of marriage) and failed to grapple with real differences of opinion on the nature of family structure and the well being of children. That it's dismissal of the unique value of fathers was both implicit and undertaken in two sentence was stunning.

While there are, of course, responses that reasonable people can and do make to the arguments for the exclusivity of traditional marriage, the Iowa court short armed it. I suspect that there was nothing that the court could have done to avert - or even to minimize - backlash, But I would have liked to have seen some more heavy lifting.

Posted by: Rick Esenberg | Apr 5, 2009 10:54:21 AM

Maybe all of them; reading this decision, I would say definitely clarity and avoiding backlash. The only argument I can imagine against what the court did here (stylistically, that is) is that it moves courts towards political/policy, rather than legal, decisions and analysis. If courts are going to speak to the public, then it is a small step to making decisions on naked policy preferences. But I think there is a strong argument that the court *owes* the public an explanation, at least in cases such as this (if not all cases)--for political, republican, and institutional reasons.

Posted by: Howard Wasserman | Apr 4, 2009 1:00:07 AM

I agree that the tone suggests that it was written for a public audience -- an audience of non-lawyers. On the other hand, I'm not so sure that the tone was the product of an "obligation as a public institution to explain itself to the full audience likely to be reading and reacting to its decision." I would think that presupposes some sort of deep theory of what obligations courts owe to the various audiences for judicial opinions. For example, is the obligation to the public an obligation of clarity? Of honesty? I'm not sure. When a court writes for the public, sometimes it is writing that way to try to avoid a backlash against the decision: I can see arguments on both sides for whether that is a good thing or a bad one.

Posted by: Orin Kerr | Apr 3, 2009 11:58:43 PM

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