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A Note on Gay Rights, "Messy Democracy", and the Courts

Jennifer Rubin, WaPo's new conservative blogger, riffs on Krauthammer's recent column, which suggests that, whether you agree with it or not, DADT repeal was achieved more properly because it was done through Congress rather than through the courts. Right up front, let me say: I absolutely agree with Krauthammer that these issues are best resolved when taken up by Congress (and at the state levels by legislatures and voter referenda) than by the courts.

But Rubin goes a step further, arguing that because it is better for gay policy goals to be decided by Congress, gay "activists" should demonstrate "political maturity" and forego lawsuits.

Although it may be too much to hope for, it would be a sign of political maturity, not to mention intellectual consistency, for gay rights activists to take the same approach with regard to other items on their agenda. If they can persuade 65 senators to repeal "don't ask, don't tell," can't they trust the voters in various states to decide marriage and other gay rights issues? If they agree that we are in the midst of that "generational change," (as some Senate Republicans argued during the DADT debate), then it would seem to be a smarter political tactic to work on changing hearts and minds, and then legislation, through elected leaders.

This argument, or a variation, is a fequent complaint about gays. For example, after the Prop 8 vote, it was not uncommon to see folks suggest that the lawsuits should be dismissed because "the voters have spoken." In comment threads about the Log Cabin Republicans' DADT lawsuit, it was often stated the lawsuit should be dismissed because Congress has constitutional authority to regulate the military and Congress has spoken.

But this argument entirely misplaces the purpose of the Constitution and of the courts. Certain congressional actions are expressly curtailed by the Constitution, regardless of how popular they are. This was, in the words of President Thomas Jefferson (recorded in Stuff Jefferson Said, 3rd Edition, Revised), "the whole fuckin' point."

I wonder if Rubin similarly hopes for "political maturity" from the following people:

(1) Individuals who are banned from showing a movie about a politician in advance of elections and who believe this ban to be an unconstitutional violation of rights protected by the First Amendment.
(2) Individuals in D.C. and Chicago who are banned from possessing firearms and who believe those bans to be an unconstitutional violation of rights protected by the Second Amendment.
(3) Individuals who want to keep local and state governments from seizing their property to give it to other rich, politically-connected individuals and who believe such seizures to be an unconstitutional violation of rights protected by the Fifth Amendment.
(4) Individuals who are forced by the federal government to purchase health insurance and who believe that imposition is not within the constitutional powers of the federal government.

If these individuals file lawsuits, should they be sneeringly referred to as "activists" and told that they should demonstrate "political maturity" and "intellectual consistency" by sitting on their complaints until Congress (or state legislatures) get around to addressing them? Of course, I'm referring to the much-lauded plaintiffs who won in Citizens United, Heller, and McDonald, the plaintiffs who unfortunately lost in Kelo, and the plaintiffs in the multiple ObamaCare lawsuits currently pending.

Each group of individuals believed that their rights were being unconstitutionally denied and acted appropriately: they went to the courts for a constitutional remedy. That doesn't mean they are politically immature or even necessarily "activists." (To be sure, some were: the Heller and McDonald plaintiffs were specifically assembled to bring Second Amendment challenges before the Roberts Court. But the Kelo and Citizens United plaintiffs weren't. The government came after them, so they went to the courts for help.) That is no different from the lawfully married spouse of a federal employee who the government refuses to add to the employee's health insurance; the spouse has been wronged, and a constitutional remedy, if there is one, lies with the courts. The same is true for when the military discharges someone under DADT; that person has been wronged and a constitutional remedy lies with the courts.

In none of the cases listed above was the constitutional remedy assured (in fact, the Kelo Court denied the remedy). All were issues not yet addressed by the Supreme Court. But the plaintiffs believed that they had a constitutionally-protected right, and so they went to the courts to vindicate that right. That is the normal course of things (at least since Marbury v. Madison) and there is nothing "politically immature" about it, even though it bypasses "all that messy democracy", as Rubin puts it.