Descriptive, Normative and Predictive in Law

In the past I wrote about how it's often hard to tell if people are making descriptive statements or normative statements, and how this confusion plagues discussion of morality in particular.

The problem is even worse when people discuss legal questions, like the current issue of whether the constitution guarantees a right to marry people of your sex.

Not only will people talk in descriptive terms ("the judge struck down Prop 8") and normative terms ("the judge did what was moral"), they also talk in, for lack of a better word, predictive terms ("if the judge reads the constitution, facts, and relevant precedents he will conclude . . ."). Predictive statements are really just a combination of descriptive statements and normative statements: they make a normative assumption about how judges should come to a conclusion and then make a descriptive statement "given that system, the judge will rule . . ."

The tenuous distinction between predictive statements and normative statements is particularly troubling. Take this commentary in Slate by Dalia Lithwick. The tension throughout the article is that it's clear Dalia thinks that Prop 8 was wrong because she thinks there is nothing wrong with gay marriage and it appears that she wants to convince readers of this, yet the argument she uses says that if you follow the "rules of the game" or "follow the law" then you have to conclude gay marriage is a constitutionally protected right. She's making a predictive statement that Walker made the right ruling based on the relevant laws/precedents/facts even though it seems that deep down the real reason she thinks Walker made the right ruling because gay marriage is hateful. In other words, predictive statement is a smoke screen for the real debate.

The last statement I should probably try to justify. Why don't I take Dalia at her word? The reason is that I just don't buy the argument--it's total nonsense to me. The founding fathers certainly didn't intend for the 9th amendment to include a reserve right to gay marriage, though they probably intended it to include a right to the marriages common in their time. The authors of the 14th amendment likewise didn't intend that "equal protection" implies the right to marry anyone. Gay marriage laws, after all, aren't strictly speaking, discriminatory: all people have the right to marry people of the opposite gender. All men, gay or straight, can't marry other men and all women, gay or straight, can't marry other women. I think, in predictive terms, the right decision is to uphold Prop 8. But in normative terms I think they should strike it down because I think every so often judges should stop adjudicating and start legislating, but only under exceptional circumstances like Brown v. Board or Lawrence v. Texas, not on controversial moral questions like abortion or gun rights.

I suspect Dalia and others agree with that principle. Even if the constitution said expressly "states are allowed to ban gay marriage" the court should make up some hookum about how that violates another part of the constitution (14th amendment?) and strike that portion down. All I'm asking is that at some point legal scholars would admit rulings like that (e.g. Roe v. Wade) are based on a legal arguments that are in so many words a crock of shit and start having the real, normative arguments in public instead of using smoke screens.