Head versus Heart

I have been reading Richard A. Posner’s How Judges Think. Posner notes that a judge’s response to a case “is generated by legal doctrine, institutional constraints, policy preferences, strategic considerations, and the equities of the case, all mixed together and all mediated by temperament, experience, ambition, and other personal factors.” Thus, personal predilections foster both a Judge Shammai (focused on legal doctrine and institutional constraints) and a Judge Hillel (tilting toward policy preferences and concerned with the equity of the case).

Whether judges “think” at all is no more certain than whether you or I do. It has been suggested that our opinions may be more emotional reactions than intellectual conclusions. In an article in tomorrow’s NY Times Magazine, Judith Werner cites Richard Hofstadter’s classic Anti-Intellectualism in American Life wherein he wrote that ‘Intellect is pitted against feeling . . . [and] against character, because it is widely believed that intellect stands for mere cleverness, which transmutes easily into the sly or diabolical.” In Warner’s article, whether or not judges think is not the point; the point is that judges facing senate confirmation hearings are cautioned not to risk “intellectually outshining the senators” (in other words, don’t let them see you think).

As this blog is at least ostensibly intended to focus on Jewish thought and/or Talmudic distinctions and processes, I will digress momentarily. The aforementioned Hofstadter is from the generation of Jews (on his father’s side) who were raised by parents for whom English was most certainly not their first language. Like my favorite non-Jewish "Jewish" straight man Bud Abbott, Hofstadter had one Jewish parent but was raised as a Lutheran.

In the 1940s, my English teacher, Alfred Kazin, often sat next to him in the great reading room of the 42nd Street Library. In Kazin’s journal, he wrote of Hofstadter, “His German-background Lutheran mother had died early; his Polish-Jewish father had given his gift for Yiddish an irresistible turn. Between two such worlds--who would have guessed that the middle name of this former Lutheran altar boy was Irving?--he had become the amused outsider who looked Gentile, was married to a Jew, and whose friends were regularly Jews.”

Another entry in Kazin’s journal on Hofstadter’s wife, Felice, will get me back to my main subject today-- head versus heart. Felice was one of the first women to be accorded the status of writer (as opposed to researcher at Time Magazine: “Felice loved being important to Time more than she could ever love Time itself. Writing up a frightful industrial accident in which a worker had been pressed to death by a machine, she had thought it clever to write that the victim could now be slipped under the door. On her way home she felt horrified by her callousness, rushed back to the office to change the piece, and found the managing editor roundly congratulating her.” Here indeed is an apt example of the heartlessness of clever wit that is associated with the moral bankruptcy of intellect. Anti-intellectualism may be America’s reaction to the Enlightenment, but many of us are so well educated that we are both for it and against it.

A recent current event illustrates the quandary. The decision by the United States District Court in Boston on Thursday essentially nullified the Federal Defense of Marriage Act and affirmed the right of the state of Massachusetts to guarantee rights to same-sex couples. What combination of “legal doctrine, institutional constraints, policy preferences, strategic considerations, and the equities of the case” led to this decision? As Kirk Johnson points out in today’s NY Times, the ruling affirms states’ rights and limits the authority of the federal government (if it is upheld). As such, it should be applauded by those whose primary agenda is to limit the power of the federal government. Of course, many of these are the same people who also insist on a traditional definition of marriage. The former is an intellectual position and the latter is an emotional response.

Personally, I have never understood why marriage is regarded as a civil matter at all. It has always seemed to me that any state or federal definition of marriage is tantamount to the legislation of a religious tenet that is particular to some but not all denominations of Judaism and Christianity (and probably all Muslims-- at least I am not aware of any Imams who perform same-sex commitment ceremonies). I share this understanding with the Gay rights groups who condemned the persecution of Fundamentalist Mormons for practicing polygamy. (Ironically, we must note that the support was not reciprocated: the polygamists regard any gay relationship as a sure path to eternal damnation.) By this line of reasoning, any definition of marriage must be considered unconstitutional and the state should get out of the business of issuing marriage licenses and focus solely on guaranteeing equal protection under the law to all married couples (or swarms, if we have the stomach to include the Mormon fundamentalists!), regardless of how they came to be united.

In any event, states rights is an unsatisfactory principle on which to hang a campaign to ensure equal treatment under the law. The principle that was last used in arguments to delay the adoption of federal laws to prohibit racial discrimination is not going to be our friend in the long run. But what options were open to the United States District Court in Boston? For this judge, the equity of the case weighed more heavily than the legal doctrine; institutional constraints were perhaps ignored in favor of strategic considerations. It will all undoubtedly end up in the Supreme Court, where an affirmation on the basis of states rights would be a stunning victory for gay rights in Massachusetts and a blow to prospects for a federal guarantee of gay rights. Are there other legal doctrines that permit affirming the decision? Is the court likely to reject the reasoning but not overturn the decision? If they do, will they return the case to Boston to be reargued or overturn the Defense of Marriage Act? Stay tuned to find out how these judges think.