A Public Reason Defense of Judicial Review

Guest Blogger

Ronald C. Den Otter

Americans have always had, and probably always will have, ambivalent feelings toward judicial review; they cannot live with it but they cannot live without it. Indeed, there used to be something characteristically American about turning the most divisive political questions --abortion, affirmative action, same-sex marriage, freedom of speech, separation between church and state, and capital punishment-- into legal questions with the hope that courts could answer them. The primary question that I address in my recent book, Judicial Review in an Age of Moral Pluralism, is whether judicial review can be justified in a country like our own that is committed to democratic self-rule. In the past, scholars have tried to defend judicial review by arguing that it makes our political system more democratic. By contrast, I defend judicial review because it ensures that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. I tie this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and describe how judges should decide the most difficult constitutional cases.

The constitutional text and the case law that has supplemented its meaning over time are underdetermined with respect to the most important constitutional questions. In many constitutional cases, at the point of application, judges must move from abstract constitutional provisions to the particular facts of the case by offering their own reasons to support their decision to uphold or strike down the law in question. Those who care about the quality of judicial decision making, then, must pay close attention to what it means to offer acceptable reasons on behalf of a particular result.

In the past, conservative critics of judicial activism have accused liberal judges of abusing their power by bridging the gap between the abstract and the particular illegitimately. Today, liberal critics of the Roberts Court also allege that its conservative justices have inserted their own partisan preferences into the law. These accusations presuppose that only certain reasons count as legitimate reasons in judicial decision making.

It has been said that “The trouble with constitutional law is that no one knows what counts as an argument.” In fact, the trouble seems to be that no one knows what counts as a good argument. That is another way of saying that two people, who are knowledgeable about constitutional law, may sincerely disagree over what legal reasons are most compelling in a particular case but have no rational way to resolve their disagreement.

I distinguish between good and bad reasons in the context of constitutional adjudication, thereby offering an account of when a judicial decision is good enough to be legitimate. The standard for legitimization of judicial decisions is public justification. A legitimate decision is one that passes the test of public justification and the best decision is the one that is most publicly justified, that is, based on the strongest public reasons. These reasons are those that an ideal reasonable person would accept as good enough because they are as uncontroversial as possible.

Judges must only accept certain sorts of reasons as justification for legislation and thus, must render a law unconstitutional when voters or legislators have failed to limit themselves to those reasons. When a judge is trying to decide a case on the basis of public reasons, she must write her opinion with a particular audience in mind, namely the person who is likely to disagree with her decision, and try to convince that person by giving her reasons that she should accept. In doing so, judges must not do what ordinary citizens and legislators are inclined to do in answering constitutional questions: appeal to the “truth” of their conceptions of the good life or of their visions of a good society. In the realm of constitutional adjudication, reasons derived from such convictions are inappropriate because reasonable people are likely to be justified in not accepting such reasons.

Different reasonable people may sincerely disagree about which reasons are good enough, and my standard of public justification is designed to provide guidance in such situations. My aim is not to settle such cases definitively but to illustrate how certain arguments are sufficiently publicly justified to legitimize a judicial decision. Although people cannot wish away reasonable disagreement in constitutional controversies, recognition of what makes reasonable disagreement reasonable may lead dissenters to willingly accept judicial decisions that they disagree with. Moderate indeterminacy in hard constitutional cases is a blessing in disguise. People who exchange reasons with one another may acknowledge that a position is respectable even when they believe it to be mistaken, and that is the kind of legitimacy that my standard of public justification makes possible.

Apply this theory to same-sex marriage. There is no shortage of academic literature on the topic of same-sex marriage and most of it vociferously supports including same-sex couples in the definition of marriage even when some of these same people express understandable reservations about timing and whether such change should be brought about by the judiciary. None of the legal arguments employed in Perry v. Schwarzenegger are new. Many of those who support the right to same-sex marriage confine themselves to legal premises, insisting that there is a fundamental right to marriage for everyone, irrespective of sexual orientation, or that denial of marriage licenses to same-sex couples violates equal protection of the laws. Others rely on predictions about the social benefits that would result if states were to recognize legally same-sex marriage. Some commentators maintain that the denial of equal rights to same-sex couples constitutes gender discrimination. Others try to dispel the conservative fear of social change by explaining why equal rights for same-sex couples would not require the complete rejection of traditional morality. Others have compared sexual identity to religious identity to equate unjustified discrimination on the basis of sexual orientation with that of religious belief. Others have tried to show that civil unions, symbolically if not materially, establish a new "separate but equal" doctrine with respect to legislative classifications based on sexual orientation.

None of these arguments are obviously bad arguments. In fact, some of them are probably as sound as any constitutional argument can be. However, my book takes a different tack, contending that even the best reasons of those who oppose same-sex marriage are too controversial to be shared by everyone in the political community and therefore, for constitutional purposes, are unreasonable. The problem with the typical argument that opponents of same-sex marriage advance is that it relies on premises that could not possibly be accepted by those who do not already share their particular deeper convictions. I argue that this kind of constitutional argumentation, which is based on appeals to perfectionist ideals of human flourishing, is not suited to the task at hand: to find reasons for public laws that all fair-minded citizens can accept or at least not reasonably reject. Only certain reasons are the kinds of reasons that would justify the unequal treatment of same-sex couples with respect to civil marriage and these reasons do not exist.

There is likely to be reasonable disagreement, of course, about the fairness of specific laws in any constitutional democracy. Nevertheless, not every case is bound to be so hard that the balance of reasons does not support one conclusion over the other alternatives. Furthermore, if those reasons that attempt to publicly justify unequal treatment are unreasonable, then that law is insufficiently publicly justified. From the standpoint of public justification, not every argument is sufficiently reasonable, despite the intensity of the feelings of those who find themselves on different sides of a particular political controversy. The difficulty lies in distinguishing a reasonable from an unreasonable argument that purports to justify unequal treatment. My concern is not only to say something about the right way to approach the specific question of whether same-sex couples should be allowed to marry. Instead, I also would like to say something more generally about how we should try to decide the constitutional controversies that divide us by explaining what public justification is, why it is important, and how it can help us to make difficult constitutional choices as fairly as possible.

In the end, the most plausible of the arguments against same-sex marriage is that a society may legitimately enact public laws that are based on the moral convictions of the majority. The baseline question, then, is whether moral disapproval is a good enough reason to justify laws that treat same-sex couples unequally. I argue that both Romer and Lawrence answer this question in the negative. Those who oppose same-sex marriage make little effort to explain why gay and lesbian citizens, who are adversely affected in so many ways by laws that define marriage so narrowly, could accept the reasons that they typically offer against legal recognition of same-sex marriage. Presumably, to some opponents, it does not matter what they, or more generally, those who disagree with them, think about the strength of their reasons. Surely, this is problematic. For gay and lesbian persons, especially in states that have no domestic partnership laws for same-sex couples, what is at stake is more than symbolic: all of the material benefits associated with the legal status of marriage. The absence of these rights, which put gays and lesbians at a distinct legal disadvantage, would make it more difficult for them to live a good life and sends a strong message that their lives are inferior.

From the standpoint of public justification of public laws, the right question is not about whether same-sex intimacy is immoral. This question would be appropriate in personal matters or when a voluntary association, such as the Roman Catholic Church, formulates the rules that govern its inner life and the conduct of its members. No one is arguing that by law, the Catholic Church should be forced to ordain women as priests, or to accept abortion, stem cell research, birth control, or euthanasia. From the standpoint of public reason, those matters are properly left to Catholics. After all, the idea behind public justification is that there are reasons and there are reasons. Some reasons are simply not appropriate in the name of public justification due to the existence of moral pluralism, whereas those same reasons would be perfectly appropriate in other contexts. In the language of public reason, the issue of same-sex marriage boils down to a question of whether sectarian moral or religious convictions can legitimize the unequal legal treatment of gays and lesbians who would like to marry.

The key issue is what kinds of reasons that the state puts forth are adequate to justify unequal treatment not only in the context of same-sex marriage but elsewhere as well. I do not see how we can make any progress unless we can become clearer on what counts as a good constitutional argument. Otherwise, we will just talk past one another.

Ronald C. Den Otter is Associate Professor, Political Science, California Polytechnic State University San Luis Obispo. You can reach him by e-mail at rdenotte at calpoly.edu
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