Politics My Date With Justice (Alexander)
As Josh wrote, our meeting yesterday with Supreme Court Chief Justice Gerry Alexander was quite intense. I got there a few minutes late and found Alexander seated, looking slightly uncomfortable, staring at us over a framed photo of Dan’s son, D.J.
I’ll let Dan explain his intent in making the Chief Justice stare at D.J. throughout the interview, but I’m sure it had something to do with the concern Alexander and other justices expressed about “the well-being of children” as they voted to uphold Washington State’s ban on gay marriage (also known as the “Defense of Marriage Act,” or DOMA for short). My agenda during the interview was to get more information about the “rational basis” Alexander and others in the majority said they believed the state legislature was using when, in 1998, it decided to ban gay marriage in this state. Here’s the main “rational basis” quote from the gay-marriage-ban-upholding decision signed by Alexander:
…Therefore, we apply the highly deferential rational basis standard of review to the legislature’s decision that only opposite-sex couples are entitled to civil marriage in this state. Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents.
What got me focused on “rational basis” was our interview, earlier in the day, with liberal Justice Susan Owens (who voted to overturn DOMA for lacking a rational basis) and her conservative challenger, Stephen Johnson. Johnson is a Republican state senator from the Black Diamond area, and he was in the state legislature back when that body made its “rational” decision to ban gay marriage.
But when I and others pressed Johnson for his “rational” policy reasons for voting for DOMA back in 1998, Johnson couldn’t come up with any. First he suggested that he was simply representing the will of his district when he voted to ban gay marriage. Then he offered some vague statements about his fondness for tradition. But pandering for the purposes of political survival is not a policy rationale, and neither is sentimentality. What Johnson never articulated was a coherent, heart-felt, logical explanation for his vote in favor of DOMA.
Perhaps you can see where I’m going with this. In the decision signed by Alexander, it is noted that “the rational basis standard is extremely deferential.” It is so deferential, in fact, that as long as a court can find that the legislature has enacted a law based on some “rational basis,” then the power of the legislature, in the words of the decision signed by Alexander, is “nearly limitless.”
What we have here, then, is a huge potential for a breakdown in our representative democracy, and in our system of checks and balances. Say, just hypothetically, that the Washington State Legislature is filled with people, like Johnson, who are making law based primarily on the tyranny of the majority in their districts. This would mean that if the majority in their districts has an irrational prejudice against homosexuals, then they vote their constituents’ prejudices, rather than working to moderate their constituents’ prejudices in the service of protecting minority rights. This would be a clear failure of representative democracy.
And say, just hypothetically, that this legislature passes a ban on gay marriage, even though legislators are voting based on prejudice rather than on legitimate policy concerns. And then say, hypothetically, that this ban is challenged, and it comes before the state Supreme Court. Here is another, and perhaps the final, opportunity for a check on the tyranny of a prejudiced majority. But say the court feels it has to defer to whatever rationale the legislature has offered, even if it is a demonstrably incoherent rationale based on false notions. Well, if the court feels this way, then game over.
I asked Alexander to tell me what “rational basis” he believed the legislature had used to ban gay marriage. He couldn’t. I asked him if he would defer to the legislature if it decided to pass a law stating that the sun revolves around the earth, and if that law then was challenged in his court. I called the law the “Pre-Copernican Awareness Act,” or something like that, and pointed out that there’s even a certain rationale for believing the sun revolves around the earth (I mean, it sure looks like it does when you’re standing on the earth looking up at the sky). Alexander said such a law would never be upheld.
Exactly, I told him. And often, prejudice against homosexuals seems to be based upon precisely the kind of faulty reasoning that led people to believe the earth was the center of the universe. It’s a reasoning based on gut feeling rather than on open-minded inquiry. I feel like the center of the universe, therefore the sun revolves around me. I feel a revulsion toward homosexuality, therefore homosexuals shouldn’t be able to get married.
“I’m feeling pretty uncomfortable about this,” Alexander replied. He worried out-loud that we were attempting to change his mind on this issue—a sign that perhaps his mind was beginning to change?
I come from a family with its share of lawyers, so I don’t expect a lawyer, least of all the Chief Justice of a state supreme court, to out-and-out admit to faulty reasoning. But as we were having this exchange, Alexander looked to me like someone quite trapped by the rarefied legal circles in which he moves, and by the rules that prevented him from discussing the DOMA case outside of the supreme court chambers while it was being deliberated. He suggested as much during our interview, saying he was glad to be out of the “ivory tower,” talking to people who made him feel “humbled” (whether by the power of his position, or by his difficulty in explaining his reasoning, I don’t know). And in response to my suggestion that his “deference” to the legislature, if it went so far as to describe irrational laws as rational, would end up representing an abrogation of his responsibility to act as a check on legislative power, Alexander finally said:
“I can see how someone would make that argument.”