There are two bedrock principles that are absolutely necessary for a court to administer true justice. The first is reliability in the
witnesses and evidence presented to the court. The second is reliability in the law. As to the former, the law attempts to ensure reliability in the witness by punishing perjury. As to the latter, the law attempts to ensure reliability in the law through the concept of stare decisis.
Stare decisis is defined “to abide by, or adhere to, decided cases.” It is a “doctrine that, when court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties and property are the same.” It is this concept of stare decisis that is the immediate source of our visceral reaction to judicial activism. Stare decisis is the first principle that a young law student learns in law school. It is the very foundation of the learning process in law school. By reading cases, analyzing the fact pattern, undergoing question and response from Socratic mentors, the law student learns to “think like a lawyer.” There is comfort in the faith.
But I had almost despaired. I had almost lost my faith. How do we explain a five to four decision in the Supreme Court? How do we respond to those who claim that conservative judges that overturn prior liberal holdings are just as activist as liberal judges? How do we respond when there are new facts and the pronounced law does not comport with the underlying philosophy of the law? My feet had almost slipped. But then I considered Blackstone.
There is more to stare decisis than the bear adherence to a prior opinion or stated proposition. Stare decisis is a process. It is a process of following prior law. But a process without substance is simply that, mere process. There must be substance behind the process or the process is vacuous. Blackstone explains that, common law principles and the process of stare decisis must be founded on timeless custom, tradition and divine law. Judicial decisions are not the law itself but simply “evidence” of the law. Stare decisis is a process of exploring the evidence.
For it is an established rule to abide by former precedents, where the same points come again in litigation; . . . Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be dearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not such a sentence was bad law, but that it was not law; that is that it is not the established custom of the realm, as has been erroneously determined.
So here we have the substance to the common law, the divine law, reason and justice, as embodied by established custom of the realm.
By way of illustration, I would like to give one good example and one bad example of this process. The good example comes from the 1878 case of Reynolds v. United State. The question presented to the court was whether a law passed by Congress for the territory of Utah making polygamy a crime violated Reynolds First Amendment right to freely exercise his religion. While the court established the principle of the separation of church and state in that case, it reasoned as follows for maintaining the validity of the statute:
Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England, polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James I, it was punished through the instrumentality of those tribunals not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage, just as they were for testamentary causes and the settlement of the estates of deceased persons.
The opinion was endorsed by eight justices with a partial concurrence and decent by one justice on one minor point.
The bad example comes from the recent Supreme Court case of United States v. Windsor. As most everyone knows by now, the Windsor Court addressed the question of whether the Defense of Marriage Act (or DOMA) was constitutional. DOMA denied federal recognition to same-sex spouses. Therefore, Windsor did not qualify for the marital exemption from the federal estate tax for a marriage recognized by the state of New York.
In its preliminary discussion on the substantive issue of the constitutionality of DOMA, the majority opinion provides its perspective on the historical custom of marriage,
It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight.
The Court then set forth its precedent:
The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973). In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration.
Finally, in declaring DOMA unconstitutional, the Court expresses its moral judgment:
The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H. R. Rep. No. 104–664, pp. 12–13 (1996). The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Id., at 16 (footnote deleted). The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.
The majority opinion was endorsed by a bear majority, with four Justices dissenting.
As to ensuring the reliability of witnesses in our court system, we still rely on punishing perjury to maintain that foundational principle. We inherently recognize the substance and efficacy of the Ninth Commandment, “Thou shalt not bear false witness against thy neighbor.” However, when it comes to ensuring the reliability of the law itself, we have not been so careful. In the Reynolds case, the Supreme Court followed the legal tradition and common law and opted to eschew new legal rights. It did so for the good of the realm. In DOMA, Congress expressed its commitment to the true substance of stare decisis. It saw the common law for what it was, a respect for ancient moral principle and tradition.
In almost every field of endeavor, whether science, industry or theology, that which is “a new perspective, a new insight” is denied “equal dignity” to that which established until it is tried against traditional social norms. The common law is no different, and for reasons of legal reliability, courts must be reticent to adopt new conceptions of legal principles absent a clear understanding that they are not contrary to divine law and tradition.
The U.S. Supreme Court in the Windsor case did just the opposite. It adopted “a new perspective, a new insight,” it created some novel concept of dignity and elevated it to equality with ancient commitments. Then labeling Congress’ expression of support for the ancient consensus as demeaning, it dismissed the ancient consensus. The U.S. Supreme Court in the Windsor case turned the common law and western legal tradition on its head.
I have regained my faith in stare decisis. I just wish the U.S. Supreme Court would see the true light.