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03/28/2013

A couple of reactions to the Windsor and Hollingsworth oral arguments
Chris Green

I had a couple of Thursday-afternoon-quarterbacking reactions on the gay-marriage cases this week.

First, some of the justices expressed skepticism yesterday at the Windsor oral argument about the coherence of enforce-but-don't-defend policies. Justice Scalia said at 21, "I'm wondering if we're living in this new world where the Attorney General can simply decide, yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it... I don't want these cases like this to come before this Court all the time." Chief Justice Roberts asked at 12, "[I]f he has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice."

As I've mentioned here, and expand upon in my article here (at 51-52), I think these reactions to the administration's position conflate the issue of constitutionality per se with the issue of knowledge of constitutionality. Scalia's question imagines that the executive is saying that unconstitutionality itself is a matter of degree, or scalarity: statutes that are not "so unconstitutional" get to be enforced, but not defended. But we can instead put the point in epistemic terms, so that clarity, rather than unconstitutionality, is the scalar phenomenon. That formulation makes it much stronger. Statutes might be not so clearly unconstitutional that the executive would be justified in not enforcing them, and yet still seem to the President to be unconstitutional by a preponderance of the evidence. Roberts asks why the president doesn't have the "courage of his convictions." But it is possible that he lacks, not courage, but evidence, i.e., strength of conviction itself. A mid-range level of courage like enforce-but-don't-defend is appropriate to a mid-range level of conviction.

Non-enforcement of federal statutes--that is, executive review--surely requires sufficient evidence to justify confidence in a constitutional pronouncement, just as judicial review does. But the constitutional defense of a statute--that is, the representation to courts that a statute is in fact constitutional--requires at least a minimal belief in those representations. If the president believes that a statute is probably unconstitutional, but not (at this point) sufficiently clearly so for executive review, then it seems that an enforce-but-don't-defend policy is justified. To require the executive to choose, in all cases, between non-enforcement and full defense of the constitutionality of statutes will thus require either (a) executive pronouncements of unconstitutionality based on a mere preponderance of the evidence, which might be very slim evidence indeed, or (b) insincere executive pronouncements of constitutionality, i.e., contrary to the executive's assessment of the preponderance of the evidence.

Second, Justice Kagan asked at the Hollingsworth oral argument (at 17) about the possible causal mechanism between expansion of the term "marriage" and the extent of its positive social valence for traditional applications of the term. As I noted here and here (at 22-23), trademark dilution seems like the obvious analogy. The "drawing power of a congenial symbol" can be diluted, leading to the "gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name."