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legal moralityPerhaps the most shocking aspect of the recent Supreme Court decisions concerning same-sex marriage has, or should have, nothing to do with the (supremely important) issue of the relationship between family and society. From a legal and constitutional standpoint, the greatest damage done by these decisions was done long before they were handed down. For the greatest damage was the refusal of public figures to fulfill their most basic, sacred duty of upholding the law.

In recent years we have seen two governors (Schwarzenegger and Brown of California) and a President (Obama) simply refuse to defend the law of the land in the face of legal challenges because they happen to disagree with the law’s content or find it politically unhelpful to support it. A critical aspect of the Supreme Court’s decision to allow California’s Proposition 8, which banned same-sex marriage, to be wiped from the law books, was the failure of the State of California to defend it. This failure, the Court opined, meant that the State, in effect, defaulted and the challenge had to be accepted. Never mind the other public actors who sought to defend the law, according to the Court, federal rules of standing (who gets to be heard in court) allowed only the state to defend, and it had failed to do so. President Obama did much the same thing in regard to the Defense of Marriage Act, refusing to defend that law, which seeks to uphold the legal status of traditional, biologically rooted families, on the grounds that it is unconstitutional, even while ordering federal officials to enforce the act, thus leaving it open to challenge but, legally speaking, orphaned.

The rank dereliction of constitutional duty on the part of these three executive figures is both a sign of how far gone our public law has become, and a further weakening of the rule of law in the United States. The Imaginative Conservative’s recently departed and much-missed Senior Contributor, George Carey, argued repeatedly that limited, constitutional government requires that both the governed and the rulers recognize their duty to uphold the Constitution. This morality is a part of a somewhat more general duty to uphold the law on which any decent society must rely, for without it the people cannot know what is expected of them, cannot plan their actions without fear of dangerous surprises, and in the end will simply bow to the changing will of their rulers.

It is ironic that in this era of disdain for natural law, those in positions of power have taken to ignoring laws they claim are wrong or “unconstitutional” without going to the bother of repealing them. The “positivist,” that is amoral, view of law always has been that “a law is a law,” no matter how immoral. Rooted in the “command theory of law” put forward by Utilitarians beginning in the late-eighteenth century, positivism denies the connection between law and morality. This now-dominant view holds that a rule of action laid down by the government is “law” purely on account of the government putting it into effect through whatever means are generally accepted for it doing so. Thus, in the United States, a law is simply what Congress passes and the President signs—or what the bureaucracy tells us is a law, provided a law passed by Congress and signed by the President said they could do so.

Positivists always have denied that their separation of law from morals does not give the government too much power, instead merely recognizing the fact of laws’ promulgation. Indeed, many positivists (H.L.A. Hart being the most famous among them) insist that they are, in effect, recognizing that morality is more important than law, because people may often find that a law has been passed that is immoral, and then must oppose it on moral, rather than legal grounds. In essence, positivists claim that we all should recognize as law much of what we should oppose as immoral.

It is easy to see how such a view could lead to increased emphasis on forms of “civil disobedience” on the part of the people to bad laws. Less obvious, but far more damaging, has been the promotion by positivism of gamesmanship among those who rule. Morality is an inescapable, foundational aspect of law. Laws direct or forbid action in relation to ends. They assume, even where they do not declare, social goals and a concept of virtue of some kind, and serve a conception of public and private morality of some kind. Yet positivists for decades have denied this connection, even while putting forward wildly inaccurate interpretations of the morals assumed by our Constitution, particularly in terms like “equal protection of the laws” and the declaration that no one shall “be deprived of life, liberty, or property without due process of law” from our 14th Amendment.

These provisions in particular have been ripped from their textual, historical, religious, and moral context, in which they clearly are intended to limit the power of government to impose tyrannical burdens on the people and their fundamental social and religious groups. They have been recast as decrees that all of society be reconfigured to serve the liberal conception of autonomous individuals answering to no one and calling on the government to protect them from anyone who would place significant limits on their individual freedom of action. In the years immediately following World War II, resistance to this redrafting of our laws was handicapped by charges—too often deserved—of bad faith on account of the existence of rules and laws rooted in racial hostility. More recently, this trend has increased in speed and severity as all distinctions in society, and all social forms and institutions, have been held up to a standard of radical individualism, buttressed by the insistence that “rights” demand governmental support to protect individuals from want as well as oppression so that they may pursue their choices without fear. The result is a breaking down of the last institutions standing in the way of a society made up of individuals, their groupings-of-the-moment, and a government that protects individuals from one another. Left out, of course, is the entire set of assumptions and institutions that make up a functioning society—be they local political institutions, churches, fraternal and charitable organizations, or the family.

This process has not been a smooth one, spurring occasional resistance and even backlash among people devoted to traditional forms of community and to ways of life rooted in the traditional goals undergirding the moral, constitutional, and social structures being replaced by individualism. In particular, the inescapably Christian roots of our constitutional order have required greater and greater effort to root out. From the most long-held and valued expressions of faith to the defense of the family as a moral community by nature devoted to the rearing of children, practices have been attacked that the laws clearly protect, assume, and even depend upon. Sadly, many lawyers, having been taught contempt for the text and especially the deep intent of the law, have had no problem mapping out the demise of these practices as well, confident that the people eventually will come to accept that this is what their constitutional order demands.

But there remains resistance, often in the form of law. Such has been the case with much recent law dealing with social and religious issues. What, then, is a “progressive” President, or Governor, to do when the law clearly states its opposition to his desired goals, or at least to what seems demanded by the forces of progress? “The law is the law” is hardly a helpful motto under such circumstances, for it would demand that the Executive call for the law’s repeal, while upholding that law in court until or unless it is in fact repealed—or else resign in protest.

But several recent rulers have chosen to sidestep both these choices, instead showing contempt for the law by simply waiving it away, calling it bad or unconstitutional, and leaving it to the inevitable death that awaits a law that is challenged but not defended. And what better way to do away with a “bad” law when the courts are amenable, there are people willing to sue, and the rules say only the government can defend its laws? The only drawback: respect for law, the habit of law-abidingness, and general recognition that something’s being the law should garner it some modicum of respect all are undermined. In short, the rule of law becomes little more than a convenience to be used when those in power happen to agree with their aims.

The rule of law—the very ability of the people to count on the government to fairly and evenly enforce rules it has enacted and announced it will enforce—requires consistency. And that means, not only that the police must enforce the law as written, but also that those who head the executive branches of our governments must uphold those laws so long as they are on the books—even if they disagree with them. And, merely saying “let the court strike it down” is not upholding the law. It is abdicating a crucial role of the chief magistrate in seeing to it that all laws are faithfully executed until such time as they have been formally, properly repealed.

Of course, it is much easier to simply say “that is a bad law, let us let it die.” But legislative formalities exist so that we may debate and come to a consensus that laws ought to be changed before doing away with them. For those in the executive’s chair to decide this on their own, leaving it to the courts to take the heat for the actual, substantive repeal of the law, shows favoritism toward one’s own policy opinions, and disdain for the people who put the law into effect, whether through legislation or ballot proposition, and toward the practice of law itself. The distance between such punting on certain laws and the kind of selective enforcement we expect of tyrannies is little more than verbal. We should fear and oppose it, and hold to account those whose conduct renders them dangerous to our liberties.

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4 replies to this post
  1. With all due respect, I believe that this article is yet one more example of responding to defeat on a particular issue by issuing a sweeping denunciation of supposedly nefarious underlying trends: rather than writing about, and objecting to, “The Defeat of DOMA,” Dr. Frohnen claims instead that we are witnessing “The Death of Legal Morality,” which is far more dramatic and eye-catching.

    I’ll leave it to legal scholars to assess Dr. Frohnen’s theory that the executive branch is obligated not merely to enforce laws but positively to defend them against legal challenge even while believing them to be unconstitutional; however, I’m surprised that he failed to mention the refusal of many Republican governors and legislatures to comply with the Affordable Care Act. which refusal seems to be a perfect example of the lawlessness he decries. I’ll also point out that there is little or no evidence that “inevitable death” is the fate that awaits any particular law under the circumstances Dr. Frohnen describes; our courts historically have been perfectly willing to disagree with both executive and legislative determinations about what is and what isn’t constitutional.

    • Law is morality writ large. It’s job is to support civil society. Conscience by contrast ought to be a fine mesh. The law must be less fine by definition; it should be a cargo net. Take away the cargo net, however, and the fine mesh of individual conscience is too weak to withstand the oppressive weight of an ever expanding state. Justice Kennedy’s opinion is to the effect that the enactment of laws designed to define marriage as it was always known prior to the Massachusetts departure from common sense is unfair, immoral and illegal and unconstitutional. When President Obama ran as a Christian supporter of conventional marriage in 2008; he was engaging in invidious discrimination. Now children attending public school will be taught just how wrong he was. They will learn that Heather has Two Mommies and Daddy was an anonymous donor who gave unstintingly of himself. Children ought to marry someone of the same sex, if they have any misgivings about interbreeding with a half brother or sister.

  2. Weren’t the arguments presented in the article basically the same ones for the laws that banned interracial marriage?

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