David R. Henderson  

Congratulations to Cato Legal Scholars

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The Supreme Court's term is over, with 75 cases having been argued and decided. It's safe to say that the most significant ones were those decided this week, on the politically fraught subjects of affirmative action, the Voting Rights Act and gay marriage. I'm extremely proud that Cato was on the winning side of each of these issues. In fact, we were the only organization to file briefs supporting the challengers on each one (Fisher v. UT-Austin, Shelby County v. Holder, Windsor v. United States & Perry v. Hollingsworth).

That says a lot. Not that the Supreme Court always takes its guidance from us - would that it were so! - but that we're consistent in embracing the Constitution's structural and rights-based protections for individual freedom and self-governance. It's gratifying that the Supreme Court saw it our way in those "big" cases, even if Fisher was an extremely narrow decision and the others were all 5-4.

But that's not all. After finishing my commentary on Windsor and Perry last night, I was curious to see how we did overall, beyond the high-profile cases. It turns out that we went 15-3 on the year. That is, looking purely at briefs we filed on the merits - you can see our record on briefs supporting cert petitions here - the Supreme Court ruled our way 15 times and against us three (and I can assure you that we don't pick cases strategically to inflate our winning percentage. (I don't count Perry in either column, by the way. While we ended up with a favorable result, Prop 8 struck down, the Court decided the case on standing grounds, incorrectly in my view).

This is from Ilya Shapiro, "A Great Year for Cato at the Supreme Court," Cato at Liberty, June 27, 2013.

Congratulations to Cato. That is an impressive record. I was especially impressed by Cato's stand--and the results--on the property rights cases.

I do have one concern and I admit up front that I haven't taken the time to carefully parse through the Windsor decision--which overturned the Defense of Marriage Act--and the various arguments for and against. The fact that Ilya Shapiro, Robert A. Levy, and Roger Pilon are on the side of the ultimate winner causes me--this is a straight argument from authority (and reputation), I admit--to favor the winner. On the other hand, in our sister blog, the Library of Law and Liberty, another legal scholar I respect, Michael S. Greve, has a very different view, and that gives me pause. That's also, on my part, an argument from authority and reputation.

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COMMENTS (12 to date)
Richard writes:

I don't get how Cato can be pro-gay marriage. Wherever there's gay marriage, there are anti-discrimination laws, and libertarians are supposed to oppose that.

From a libertarian perspective, there is no "correct" definition of marriage. But homosexual marriage, isn't just state recognition of a new kind of union; it involves all kinds of government infringements on liberty.

David R. Henderson writes:

I don't get how Cato can be pro-gay marriage.
Although particular people at Cato are pro-gay marriage, Cato per se is not. The official Cato position, to the extent there is one, is in favor, not of gay marriage, but of allowing gay marriage. I trust that you see the difference.
Wherever there's gay marriage, there are anti-discrimination laws, and libertarians are supposed to oppose that.
I'm not sure that the anti-discrimination laws have sprung up yet, but I agree with your concern. I'm confident that libertarians will oppose such laws because they so strongly favor freedom of association. Like you, though (I assume), libertarians may well be unsuccessful at preventing such laws.
But that's not specific to gay marriage. Now that certain pharmaceutical drugs are legal, Medicare uses taxpayers' money to pay for them. That's unjust. But I wouldn't advocate preventing those drugs from being legalized. Would you, Richard? And if not, why not?

Richard writes:

Cato lists Winsdor as a case it "won" so it wants the federal government to legalize gay marriage.

Your Medicare hypothetical is off. I think a better analogy would be this: Government currently subsidized drug X (heterosexual marriage), and, having made that decision, Cato decides to advocate it subsidizing drug Y (homosexual marriage).

Actually, it's more like government decides to define corporations a certain way, and so Cato advocates for expanding the definition of "corporation." As a corporation, like a marriage, is an artificial creation of the state, I don't see what is libertarian about that. (or if you want to be exact, Cato would demand that the federal government accept the most expansive definition of "corporation" that any state has set)

johnson85 writes:

Your pause is well founded. I'm actually surprised and disappointed that CATO would file an amicus brief with their position. While I think it's the right call to get rid of DOMA, it should be done legislatively. There is the practical matter of there being hundreds if not thousand of statutory provisions that need to be reconsidered in light of the fact that individual states will be determining what marriage means and the determination won't be uniform, but there is also the broader liberty concern.

In the short term, it looks like the repeal of DOMA is liberty increasing. It's not as good as simply having marriage be legally irrelevant, but it seems a step closer in the direction of liberty compared to DOMA being in place. But to repeal DOMA in the Court, you have to abandon constitutional principles, and I'd say in the long run, abandoning constitutional principles is more harmful to liberty than having DOMA on the books for another 3 to 10 years (by which point it would most likely be undone legislatively).

Maybe we've already reached the point of no return as far as respecting the constitution, and all constitutional issues are going to be decided by a five person majority on the court. If that's the case, you might as well say to hell with what the law says, let's try to get five votes. But if there was ever a chance to push the court back toward adhering to the constitution, it will take organizations like CATO respecting separation of powers and arguing for the Court to apply the constituion and law even when Congress gets it wrong.

Doug writes:

I agree with Richard's sentiment. When the state is so deeply intertwined the decision cuts both ways, some aspects will increase liberty and some will decrease it.

In this case there's no simple way to philosophically deduce which way is better. One has to empirically evaluate the gains in liberty versus the reductions.

In the case of DOMA codifying the status of homosexuals as a protected class in in employment, housing and education will have wide-reaching implications. We've already seen the effects from race as a protected class, the impact on liberty is massive and there's no reason to expect that it will be any less so for homosexuals as a protected class.

In contrast the rights for homosexuals to get married, while symbolic is pretty much a trivial impact on overall human liberty. Actual surveys on the issue I've seen suggest that fewer than 5% of homosexuals have an interest in forming long-term monogamous relationships.

David R. Henderson writes:

Cato lists Winsdor as a case it "won" so it wants the federal government to legalize gay marriage.
That was never something I disputed. I pointed out that there is a distinction between legalizing an activity and being pro that activity. I said that I trust that you see the distinction. My trust is dissolving.
Your Medicare hypothetical is off. I think a better analogy would be this: Government currently subsidized drug X (heterosexual marriage), and, having made that decision, Cato decides to advocate it subsidizing drug Y (homosexual marriage).
OK. That hypothetical works. Can I now expect to see you advocating making heterosexual marriage illegal?

Mark V Anderson writes:

Thank you very much Richard. Your drug subsidy analogy was right on. I have never understood why people see gay marriage as an increase in freedom. It is single people that are being discriminated against, and legalizing gay marriage simply adds a few people to the privileged group. By including more people to the marriage interest group, that will make it all the harder to end this discriminatory practice.

David's final question is to Richard, but I hope I am not being presumptuous in responding myself. I do believe the legal implementation of marriage is a bad thing and it should be ended. That does not mean making marriage illegal; just making it of no consequence on a legal basis. I trust you understand the distinction here?

I apologize for my cattiness, David, since I love most of your posts. But I am tired of the backwardness of the usual gay marriage debate.

Brent writes:

Yes, if they really wanted to treat every individual equally, they wouldn't recognize any marriage. At the very least, each state should be able to make its own decision.

Richard writes:

"OK. That hypothetical works. Can I now expect to see you advocating making heterosexual marriage illegal?"

No, but I never claimed to be a libertarian think tank. I'm just pointing out that being anti-DOMA is not consistent with Cato's principles.

David Boaz writes:

I take it that Richard would also oppose the Supreme Court's 1967 Loving decision, which legalized interracial marriage. Libertarians, on the other hand, believing in legal equality, would support it.

Richard, can you confirm that you think the Loving decision was wrong? And that you would support banning marriage among black people generally?

In any case, the premise is wrong. Marriage laws don't have much to do with anti-discrimination laws, which already exist. It's illegal to discriminate against black people, whether they're married or not. And in some states it is similarly illegal to discriminate against gay people. You can oppose those laws, but they're not much related to marriage law.

MG writes:

@David's instincts are right not to fully celebrate Windson (Perry should also be in this category) without some further parsing of the decisions. And this should include some reflection on the judiciary sausage-making involved and its constitutional implications.

Who better than Richard Epstein to help us focus our relexions: http://www.hoover.org/publications/defining-ideas/article/150851

Lastly, it does not take Richard Epstein-like insights to make one worry -- at a mimimum -- about the potential use and abuse of "standing." But I will still quote him: "Yet why should the willful refusal of public officials to defend their own law let the state win by default? Surely the Supreme Court should think twice before upsetting democratic institutions by conferring this veto power on state officials."

Richard writes:

@David Boaz
It depends on whether we're talking about what's correct from a constitutional perspective or what the ideal libertarian would favor.

As a constitutional matter, I believe that racial classifications are illegitimate unless there's an overwhelming reason for them. The recent gay marriage decisions, however, have no grounding in the constitution (which doesn't mention sex or sexual orientation) and the court barely pretended that they did. See here: http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/kennedy_s_doma_opinion_and_supreme_court_there_was_no_strong_constitutional.html

But from some imagined Platonic libertarian position, I'd still say no definition of marriage is better than any other. In fact, as some of the other commentators have indicated, if you see marriage as a special privilege that shouldn't exist maybe you would want the most restrictive definition possible so fewer people can have this favored status.

Your point about anti-discrimination laws and gay marriage being separate issues is taken.

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