Fresh Air Blowing from Texas

If you’ve ever been to Dallas or Houston, you know about the smog. It can be a problem. The air is stifling. And then, in the case of Houston, there’s the threat of mass flooding. What kind of hellscape is this? For this native Tennessean, the Lone Star State is best understood as an uninhabitable wasteland—all due respect to my beloved Texans. It’s the only thing that makes me question Davy Crocket’s judgment.

But at least this week, the air blowing from Texas is fresh, fresh indeed!

Judges must take judicial notice of well, reality. The law governs and, hopefully, orders reality. But it cannot create reality. It must work with given material. Nor can it feign ignorance of reality. Law must assume human nature. It is necessitated by human nature as intellectual moral, and sociable.

In our common law tradition, all this used to be understood as well as the fact that judges cannot excuse themselves from moral assessment. It goes with the territory. The biggest lie is that jurisprudence is pure, sanitized, amoral science… as if science itself can be detached from moral consideration. If law governs and serves moral beings, dealing with the material of human life, then it cannot be amoral. Saying otherwise is as absurd as saying that law should be irrational.

At least some judges, those not being arrested for defying the law, seem to get this and are saying as much. At the Hale Institute, we like to highlight judges who are doing it right, slowly and faithfully restoring American jurisprudence one opinion at a time.

This time, its Chief Justice James Blackrock of the Supreme Court of Texas who deserves our adulation.

The facts of the case are of little interest here. It arose from a strange, though surely not as uncommon as we’d like to assume, scenario involving a divorce dispute between a guardian, her elderly ward, and the ward’s fourth wife—whether the issue was moot on account of the ward’s death, whether a guardian may pursue divorce on account of her ward, and etc. (You can read the opinion here if you’re interested.) Ultimately, the case is dismissed.

In focus for us is the concurrence from the Chief Justice and its discussion of marriage which, he says, is written “for consideration in future cases.” Traditionally, given that marriage arises from the will of two parties, a third party (i.e., a guardian), cannot obtain a divorce on behalf of one of the two original parties however incompetent one of the parties may later be. (The reader almost expects the Chief Justice to declare marriage an indissoluble covenant here.)

“The question is whether the law should—or even can—separate marriage and divorce from their essentially volitional nature by authorizing divorces even when neither party has personally, willfully sought a divorce. The traditional common-law view—the near-universal view until recent decades—says no.”

Notice that the Chief Justice says “husband and wife.” How curious… Moving on.

“The judges who developed and preserved this view over the centuries were not merely making a legal judgment about the legal construct of marriage. They were making a moral judgment about the nature of an ancient and enduring fact about our civilization, a fact the law did not create and upon which the law merely purports to act around the edges. That fact is marriage.” [emphasis original]

Marriage was not created by law, and law must, therefore, take notice of it. That is, assume it as fact, a fact that law can’t manipulate. A fact as uncontrollable as natural elements. “Marriage pre-dates and transcends our law (and will post-date our law, I expect).” The concurrence calls it a “natural relationship reflected in the law and recognized by the law, but it was not created by the law.” This being the case, “Just as a judge must know what property is in order to say how a person’s ownership of it can be ended, a judge must know what marriage is in order to say how a person’s participation in it can be ended.”

Unavoidable, in this case, is “moral judgment.” Now we come to it: the moral formation, ontological presuppositions, will determine a judge’s judgment. Finally, we’ve stopped pretending otherwise. The Chief Justice of Texas has asserted the moral judgment that marriage is a fact determined externally to the court. By extension, if unstated by the concurrence, marriage cannot be unilaterally and arbitrarily redefined by the court. A higher law determines that just as it determined the parties to a marriage and the mechanism for its fulfilment.

All that to say, this concurrence is a breath of fresh air, especially as we approach the tenth anniversary of Obergefell v. Hodges wherein marriage was unilaterally and presumptuously redefined. Were we to apply the Texas court’s reasoning at scale we could easily and rightly declare Obergefell null and void on the grounds that such redefinition is simply not within the court’s purview and prerogative. Even Justice Kennedy’s bizarre, winding, and selective historical diatribe cannot justify such an irregular encroachment on nature and nature’s God.

Texas has understood better, and understood the root issue we should all be talking about when it comes to who fills the black robes, namely, that moral judgment is inescapably in play:

“[A] judge who thinks of marriage as a natural expression of the will of a man and a woman, which exists apart from and transcends our law’s codification of it, is far more likely to gravitate toward the traditional view, as did an unbroken line of judges of generations past.”

As William Novak wonderfully captures in his essential book, The People’s Welfare, moral reasoning used to be essential to the training of lawyers for this very reason. Law is not comprehensive and omnicompetent. It does not build its own world. And, it must reflect a higher law to maintain its legitimacy as a derivative, subaltern discipline. It receives data from outside itself.

Read the whole concurrence. What a contrast with those judges who claim they don’t know the difference between a man and woman.

Image Credit: Unsplash.