Dear Dahlia and Paul:
As we head in to the final week of the term, it is striking how the debate over constitutional and other legal issues continues to be centered at places other than the Supreme Court. On Tuesday morning, the Senate Foreign Relations Committee will hear State Department Legal Advisor Harold H. Koh defend the proposition that the U.S. military operations in Libya are something other than "hostilities" triggering the War Powers Resolution. (Steven Colbert's faux defense of the administration's position is that the actions are not "hostilities" but merely "laser-guided constructive criticism" or a "heavily-armed semester abroad.") I predict that Koh will make a better case for the administration's position than critics expect.
The issues of gay marriage and religious liberty are also being debated outside the courts. This past weekend began with the New York Senate making that state the most populous to extend the right to marry to same-sex couples. Much of the final debate concerned amendments designed to protect the freedom of religions that object to gay marriage. That discussion seemed to go off the logic track at certain points.
Archbishop Timothy Dolan, criticizing the new law as an "attempt to redefine the sacred institution of marriage," said that "Marriage has always been, is now, and always will be the union of one man and one woman. Government does not have the authority to change this most basic of truths." The archbishop is surely right that government "does not have the authority to change" "the sacred institution" of marriage. But that is not what the New York Legislature did. The Catholic sacrament of marriage properly remains exclusively for the Catholic Church to define for itself and leaves that church entirely free to limit its marriages to opposite-sex couples.
This distinction between the Catholic Church's (unchanged) sacrament and the (newly revised) civil law is highlighted by the archbishop's truncated definition of the Catholic sacrament of marriage as "the union of one man and one woman." That definition is incomplete. The Catholic sacrament of marriage is actually "the union of one man and one woman, neither of whom has previously been married to a person who is still alive." When New York long ago decided to allow divorced people to obtained civil marriage licenses, that did not change the fact that they were and still are ineligible for the sacrament of marriage within the Catholic Church. The Bishop's misleading suggestion is thus not about protecting the church's complete autonomy over its own sacrament of marriage (which rightly remains unimpaired) but is instead an effort to extend one religion's definition of its own sacrament to those who are outside that religious community. That is not a constitutional value.
Does the New York Legislature's action change the calculus on how the Supreme Court may ultimately rule on whether same-sex couples in more conservative states have a constitutional right to marry? I would think it might. One of the greatest influences on any culture is the "normative power of the actual" (a phrase I once heard from the late Yale Law Professor Charles L. Black, Jr.). The more common gay marriage becomes, the more hollow the defenses offered by states responding to constitutional challenges by gay couples wanting to marry will sound. I suggested in our 2009 discussion that Justice David Souter's last opinion on the court contained a thinly veiled warning against bringing this issue too quickly to the Supreme Court. The right time may be coming sooner than he could have realized.
I look forward to hearing what you all think about this morning's cases.