Morally Just: A Certain View Into the Bourke v. Beshear Case and the Dissenting Opinion of John, C. J.

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（*Pre-statement: When I am composing this subjective, rather than objective, essay, I hold no specific knowledge in law and, particularly, in the Constitution of the United States. Nor do I decide to study law as my major in my future studying in college. Thus, I personally regard this piece as merely personal understanding and evaluation of the well known, notable case companied with a view on the issue involved. No academic opinion contained.*）

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> *“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”*
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> --Section 1. AMENDMENT XIV of The Constitution of the United States (1868)
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### I. The Amendment XIV

On the June 26th, 2015, the Supreme Court of the United States decided by 5-4 that the laws prohibiting the homosexual marriages are unconstitutional and thus, invalid. The Justice Chief, John, posed dissent opinion, which also triggered heated debate over all social levels. In the puzzle of this Bourke v. Beshear case, a certain notion of a certain amendment to the Constitution is, as we have seen in the C. J. John’s opinion, referred to for repeated times: the AMENDMENT XIV of the Constitution of the United States. As a milestone of the democratic and liberal process of America, this amendment has guaranteed the word “liberty” is to be used of the same gravity as the words “life” and “law”, though future cases would gradually prove that it is the increased seriousness of this word that embodied countless social challenges. The amendment itself obtains little to blame, however, given its position in the Constitution itself. It is the interpretation of this amendment opened up the box of Pandora’s.

The Basic Rights – Life, Liberty, Property, and more?

Although it sounds like a philosophical issue, the problem of basic rights of individuals does have meandered long from the back of the history till the time of present. Most of these rights are accepted as consensus in both the sense of Law and Morality: Life, Liberty, and Personal Property. But as far as the jurisdiction goes, the term “Basic Right” still needs further, more precise definition.

The problem lies, just literally, in the lines of the 14th amendment. Read this line with all your care:

> *“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”*
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Under this seemingly flawless line, there’s the shadow of the undefined spirits. Placed parallel with the next line, which is better known, the “privileges or immunities” seem to share the importance of Lord Liberty. What are these privileges named after, then, you may ask, that they can stand level to the Highness together? Unfortunately, the Constitution only “states”, but it rarely “explains”, as all the laws tend to do the same. The mission of translating this language to English used by us folks, just like that of lecturing the Bible to the villagers, was taken upon by the priests of the Highest Church, the Judges of the Premiere Court,

*“And there they shall stand, nine of them in all, holding the Scepter to guide the land.”*

Guide the land, yes, for they bare the mission to “interpret” the Constitution and thus, “to explain the law they have made using the best inspiring fact that we can acquire on that problem, and to practice it according to the real intention and meaning by which the law is made.” However, Judges, as commented by John, are “randomly decided individuals to carry out the law”, rather than Catholic priests who take “don’t inscribe” as their motto, which means that there are chances that they tend to make decisions based on their emotions and personal experiences, or even political opinions, thus opposing the spirit of Constitution. Cases are not at all rare and separated. These are firmly among the most famous ones:

(Quotations from the records of the original cases are found on the Wikipedia.com.)

#### Case:

Lochner v. New York

> In 1895, the New York Legislature unanimously enacted the Bakeshop Act, which regulated sanitary conditions in bakeries and also prohibited individuals from working in bakeries for more than ten hours per day or sixty hours per week. There is historical evidence that long-established baking companies in New York had formed an explicitly racist union and were attempting to shut off competition from new immigrant bakers who were willing to work longer hours. In 1899, Joseph Lochner, owner of Lochner's Home Bakery in Utica, was indicted on a charge that he violated the Section 110 of Article 8, Chapter 415, of the Laws of 1897, in that he wrongfully and unlawfully permitted an employee working for him to work more than sixty hours in one week. Lochner was fined $25. For a second offense in 1901, Lochner drew a fine of $50 from the Oneida County Court.
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> Lochner chose to appeal his second conviction. However, the conviction was upheld by the Appellate Division of the New York Supreme Court in a 3–2 vote. Lochner appealed again to the New York Court of Appeals, where he lost by a 4-3 margin. After his defeat in the Court of Appeals (New York's highest court), Lochner took his case to the Supreme Court of the United States.
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> Lochner's appeal was based on the Fourteenth Amendment to the Constitution, which provides: "... nor shall any State deprive any person of life, liberty, or property, without due process of law." In a series of cases starting with Dred Scott v. Sandford (1857), the Supreme Court established that the Due Process Clause (found in both the Fifth and Fourteenth Amendments) is not merely a procedural guarantee, but also a substantive limitation on the type of control the government may exercise over individuals. Although this interpretation of the Due Process Clause is a controversial one (see substantive due process), it had become firmly embedded in American jurisprudence by the end of the 19th century. Lochner argued that the right to freely contract was one of the rights encompassed by substantive due process.
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> Scholars have noted that when the Fourteenth Amendment was adopted in 1868, 27 out of 37 state constitutions had Lockean Provisos, which typically said: "All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring and possessing and protecting property: and pursuing and obtaining safety and happiness." As such clauses were "deeply rooted in American history and tradition," they likely informed the original meaning of the scope and nature of the fundamental rights protected by the Fourteenth Amendment in the eyes of Lochner-era justices.
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> The Supreme Court had accepted the argument that the due process clause protected the right to contract seven years earlier, in Allgeyer v. Louisiana (1897). However, the Court had acknowledged that the right was not absolute, but subject to the "police power" of the states. For example, in Holden v. Hardy (1898), the Supreme Court upheld a Utah law setting an eight-hour workday for miners. In Holden, Justice Henry Brown wrote that while "the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety, or morals." The issue facing the Supreme Court in Lochner v. New York was whether the Bakeshop Act represented a reasonable exercise of the state's police power.
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> Lochner's case was argued by Henry Weismann (who had been one of the foremost advocates of the Bakeshop Act when he was Secretary of the Journeymen Bakers' Union). In his brief, Weismann decried the idea that "the treasured freedom of the individual ... should be swept away under the guise of the police power of the State." He denied New York's argument that the Bakeshop Act was a necessary health measure, claiming that the "average bakery of the present day is well ventilated, comfortable both summer and winter, and always sweet smelling." Weismann's brief contained an appendix providing statistics showing that bakers' mortality rates were comparable to that of white-collar professionals.
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Holding:

> New York's regulation of the working hours of bakers was not a justifiable restriction on the right to contract freely under the 14th Amendment's guarantee of liberty.
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Now think, if you may do, is there anything else involving in this case? Or, to be more specifically, is it also a victory over discrimination? The “explicitly racist union” seemed to be the one who made the New York Legislature to unanimously enact the “Bakeshop Act”, by which the union could rid the immigrant bakeshops from competing in the market through working for more hours, and thus reducing the profits of the members of the union. Brilliant, excellent victory, you may hail, that something morally unfair is dismissed and decided to be “unconstitutional”, thus, prohibited. But, is morality and justice of the same? Is it the same code that their decisions are made based on? Obviously it is not that easy. Let’s get back to the details of the Judgment, and 14th amendment again.

#### THE JUDGMENT

> “The Supreme Court, by a vote of 5–4, ruled that the law limiting bakers' working hours did not constitute a legitimate exercise of state police powers. The opinion of the Court was delivered by Justice Rufus Peckham. Peckham began by asserting that the Fourteenth Amendment protected an individual's "general right to make a contract in relation to his business." He acknowledged that the right was not absolute, referring disparagingly to the "somewhat vaguely termed police powers" of the state. At the same time, Peckham pointed out that that the police power was subject to certain limitations; as otherwise the Fourteenth Amendment would be meaningless because states would be able to pass any law using the police power as a pretext. He asserted that it was the court's duty to determine whether legislation is "a fair, reasonable and appropriate exercise of the police power of the State, or ... an unreasonable, unnecessary and arbitrary interference with the right of the individual ... to enter into those contracts in relation to labor which may seem to him appropriate."
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> The Attorney General of New York, Julius M. Mayer, had claimed in his brief that the government "has a right to safeguard a citizen against his own lack of knowledge." Peckham responded to this argument by writing that bakers "are in no sense wards of the State." He remarked that bakers "are ... able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action."
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> Next, Peckham proceeded to disclaim the idea that long working hours posed a threat to the health of bakers. He addressed the argument with the following words: "To the common understanding, the trade of a baker has never been regarded as an unhealthy one." He added that relevant statistics showed that baking was no more or less healthful, on average, than other common professions. Although conceding the "possible existence of some small amount of unhealthiness," Justice Peckham contended that it was insufficient to justify interference from the state.
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> Hence, Peckham and his fellow Justices reached the conclusion that the New York law was not related "in any real and substantial degree to the health of the employees." Consequently, they held that the New York law was not a valid exercise of the state's police powers. Lochner's conviction was accordingly vacated.”
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Regardless of any morality factors, Peckham, J. clearly made the point in disadvantage for Lochner that it is the general right of Lochner’s, as well as the employees’, to “make a contract in relation to his business”. The text of 14th amendment does included “liberty” under protection, but the question remains as, is the right to make a contract really a basic part of “liberty” and hence, the “basic right”? To answer this question, another more notable case must be studied, though I will just make it short and brief. On March 6, 1857 (which is BEFORE the 14th amendment), the Supreme Court made a judgment that a Negro descent named Dred Scott who was brought by his owners to Missouri to sue for the identity as American Citizen could not be set free and that the Missouri Compromise, a bill that makes black people who reside in the State of Missouri the citizens of Missouri and hence the citizen of U.S. is unconstitutional. The major holding of the Majority of the court membership states that “Persons of African descent cannot be, nor were ever intended to be, citizens under the U.S. Const. Plaintiff is without standing to file a suit. And that the Property Clause is only applicable to lands possessed at the time of ratification (1787). As such, Congress cannot ban slavery in the territories.” What’s more, there came the Due Process Clause:

> *“Due Process Clause of the Fifth Amendment prohibits the federal government from freeing slaves brought into federal territories.”*
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Vehement dissent followed. This time, the judgment seemed to be undoubtedly unmoral, and it also opposed the spirit of the Law itself by using the due process clause inappropriately. Years later, the Supreme Court admitted that the Dred Scott case was a mistake and noted that the Due Process Clause must be used with “extreme cautiousness” to avoid similar mistakes. Soon, in some sort of correction purpose, the 13th and 14th amendments were established respectively in 1865 and 1868, which both, from different prospects, established the constitutional protection to the “Basic Rights” of American Citizens. But once again, these rights, just as the “Due Process”, were not at all defined. Actually, in the 14th amendment, the basic right itself was not even literally mentioned, making it more difficult than ever to “interpret”, or easier than ever to be misused. Hence, when we set out to discuss the “basic right” in the Lochner case, we shall unavoidably notice that the use of such a basic right is nonetheless not one made after scrutinizing the amendment thoroughly. As far as jurisdictional philosophy goes, what lies under the title “Basic Rights” should not be chosen from outside what is called the “fundamental needs” of human race as social individuals. Based on this argument, then, the moral victory shall no longer make its stand, and the decision itself is than subject to further review. After continuing to make similar decisions in an infamous period of years called “the Lochner Era”, the Supreme Court finally realized its mistake and promised that the choosing and applying of the “basic rights” along with the due process clause will be conducted in the “Most Cautious Manner” to prevent further misuse of such clauses. Things seemed to have settled down gradually in the following years, until the case of Bourke v. Beshear is appealed to the Supreme Court…

### II. Bourke v. Beshear

The case of Bourke v. Beshear was originally petitioned on November 18th, 2014 dissenting the previous decision made on Nov. 6th, 2014 by the United States Court of Appeals for the Sixth Circuit (which indicated a apparently long and rocky path till this end, through a certain number of appeals) and gained numerous amicus with records that could pile up to several screens. Receiving much attention as it ran through all these legal proceedings, the case was argued about two questions on April 28th, 2015. The Question Presented was as follows: (source: supremecourt.gov)

> 1. Does a State violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment by prohibiting gay men and lesbians from marrying an individual of the same sex?
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> 2. Does a State violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment by refusing to recognize legal marriages between individuals of the same sex performed in other jurisdictions?
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Doubtlessly, it is the very issue that pushes the Due Process Clause and the 14th Amendment to the frontier. And as we all know, there was another moral victory on June 26th, 2015, when the decision was reversed and the previous judgment citing the gay/lesbian marriages illegal itself became, unconstitutional. But as the society asked years ago, IS IT? Is it a real, constitutional and just moral victory? Or is it another serious misuse of the 14th Amendment to modify the originally just laws? Let’s get back to the basics by pulling out the exact right that is noted as “Basic Right” in the argument.

In the context of the 14th Amendment, Liberty is guaranteed the gravity as something of “the privileges” and hence justly the “Basic Right”. Liberty, however, contains more than one, clear statement. Specifically, in this case, the Liberty of choosing a subject of marriage and being admitted as legally married. Nothing seems to be wrong at all, right now, until the former cases of “undefined” clauses and norms grab our attention of some specific words, the “marriage”. It is not at all undefined, though many of us would easily neglect this important message; and once there is a formal definition of the norm set by the law, to change it is no business of any court. It’s the work of the makers of the law. Keeping this note while examining the detailed definition of marriage, which cites that a marriage is “the combination of a MAN and a WOMAN” by context, anything that fails to fit in this definition is already played-out, including homosexual ones (except for the situation in some states that have already modified the definition of marriage). Case closed. Another misuse that could probably lead to some extent of chaos. I hoped that could be the end of this essay, but it isn’t. There should’ve been an argument that is less than 30 minutes in total if this is an issue that could be settled just by checking the codes and the dictionary. This is not how courts work.

To understand why this case isn’t a sheer case dealing with some miss-definition, we got to grab the “Basic Rights” even tighter and go through the debate itself. What were the major arguments of the Majority of the Membership, and what made this issue a more profound one than you might have estimated?

Argument #1: The hidden right of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which is the “Basic Right” protected by the Due Process Clause protects the right of homosexual couples to marry each other.

Argument #2: The same hidden right of the same clauses grants the adults with the privacy and freedom to conduct intimate behavior in a personal space.

Argument #3: The behavior of homosexual marriages does not pose, either on themselves or on the outsiders, any threat or harm.

Every one of these is subjected to further review. With the first argument, which leads us to the same question we have encountered above. Regardless of the definition of a certain norm, is it a “Basic Right”? The seemingly answer that makes the most sense is that it is a question that cannot be settled, since there is no clear definition or statement of the “Basic Right” in the amendment at all. However, taking the word of the Supreme Court itself, that the Justice, when deciding which right is among the “Basic” ones, should be as cautious and shrewd as he could be, there is a rational reason that we can pose a dissent opinion claiming the overuse of the hidden clause of “Basic Right”. This is as far as we can get facing this nasty question.

But the situation is far better dealing with the second argument. Yes, privacy is, widely agreed, one of the “Basic Rights” that are set under the protection of the 14th amendment and thus the constitution. However, it is not what the prosecutors are after. As John, C. J. has claimed, the couple did not want protected “private” rights, but the open acknowledge of the public. Putting this into consideration, the argument is logically nullified.

Then there comes the third, the “no-harm” argument. Logically speaking there aren’t any problems at all. But the problem is in which realm should this argument be dealt with. Practically, using John’s words, such a “no-harm” notion is typically seen in moral debates, not jurisdiction ones. If we regard this “no-harm” as a valid moral rule and reaching the conclusion that this argument makes its stand, we are obviously taking the risk of putting moral codes ahead of legal regulations, entering an on-going debate of mixed political/moral/legal philosophy. However, at least on the Supreme Court, only legal issues shall be eligible to take a stand, forcing us to observe this “no-harm” rule from the spectrum of the law. Clearly, this argument is not getting any support from current legal codes and laws stating “if such a behavior is not making any harm, it is a protected right”.

All clear. The justice shouldn’t have been making this decision, obviously. Moral victories are, sometimes, the exact opposition of the law. It is never a Basic Right to be behaving correctly under the moral codes, and not all things moral are guaranteed morally JUST.

### III. Searching for the Answer

Now there is only a single question that needs an answer, one that could possibly help the court prevent, thoroughly, the misuse of similar clauses and amendments. Why would the Majority of the Membership make such a decision? Aren’t they well-educated professional lawyers and judges? Apparently they are (our the basis of the American Justice System is at the edge of apocalypse). Thus we shall need to try, with all the information we have got in our hands, to “guess” what on earth is happening in the justices’ minds during the final vote. This is never an easy route, however, since logically we are never able to interpret exactly what someone else is thinking. But sometimes, we can just take the assumption that judges are still ordinary individuals when they walk out of the court and into the streets, then the voice in majority of the society could be a quite accurate estimation of what the majority of the membership is thinking about. Remember that this decision was hailed by large social groups asking for improved equality regarding LGBT relationships and other minorities. Could it be a rational imagination that if these majorities weren’t at court that day, they would very likely be just in the crowd waiting for a decision and were ready to cheer for their victory as a long-time campaign? Facing such a sensitive issue dealing with moral revolution, equality, pressure from the community and the media, the judges could be easily overwhelmed by his emotion, not insight and judgment over the codes of the law, even the Constitution. It sounded cruel. One got to abort his faith (even for a short time) and emotion just to make a decision that could be fiercely dissented and refused by the moral majority, the “moral correct” ones. But that is what law is about: making judgments based on the established codes to obtain social order. No emotional factors should be allowed in the process of making decisions. Nor is any judge granted with the right to make or edit any codes of laws by his decision: the right of establishing laws and correcting them shall always be granted to the lawmakers, the Congress. And indeed, though I would may that these judges mean no ambition in taking the right away from the Congress, what they have done was a major overlapping of Right. The role Supreme Court of the United States is no longer crystal clear. Should the court share the right of establishing new laws? What is the frontier between claiming unconstitutional laws and modifying them? Without the answer to this question no guarantee of avoiding misuse or the suspect of misusing the clauses could be given, but the answer has yet to come.

### IV: Not Calling Stop

Whatever the legal conclusion could be, the campaign asking for equal rights for the homosexual relationship has to continue, since there isn’t any real moral revolution yet. And, just like all the moral revolutions that came before it – the emancipation of the Blacks, the ceasing of Duel, and the equality movement for women rights – it isn’t the dissenting voice that is really pushing the movement ahead, it is the change in the codes of honor, a rule that grants social individuals of the same status shared honor and identity, shapes their behavior, and binds the group altogether as a social component. For a moral revolution to take its shape, the initial code of honor must first be under massive pressure from both inside and outside of the certain social group, slowly piling up weight to start some modification to the long-accepted honor code of the society:

*“It is our custom, and hence our duty!” – “And it is ours to undo it.”*

To undo a custom, that is, with some rational expectation that the initial pressure should be able to last for a long period of time before the code might start to dissemble even for the least bit, then would things move more smoothly. And at last, the proper morality ought to be the new shape of the modified honor code – that is, honor shall finally take the shape of moral, though moral might not necessarily assemble the codes of law, as mentioned previously. Now that we have got the law “right” (though some more work of the lawmakers is needed to make it just), it is just the beginning. The definition of marriage still needs to be re-written to justify the June 26th decision, the honor code regarding the relationship is still not receiving enough pressure to be modified, and for the most important of all, there should not be any pause, though it is not taking out immediate result, in making the voice for a new honor code and thus, an admitted social identity for a new social component accepted. This decision might contain some improper argument, but it is not calling stop.

Maycroft

July 9, 2015