Will the next benchmark case be Supreme Court v. reality?

By Phil Lawler ( bio - articles - email ) | Jul 08, 2014

"Let me be absolutely clear," wrote Justice Sonia Sotomayor, in her vigorous dissent from the Supreme Court’s ruling in the Wheaton College case. “I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one's religious beliefs are substantially burdened--no matter how sincere or genuine that belief may be--does not make it so.”

Taken at face value, Justice Sotomayor’s point is undeniably accurate. It is quite possible for someone to claim an injury when no real injury has been done. In fact our courts are regularly asked to distinguish between real and imagined injuries. (In the case at hand, Sotomayor failed to see how Wheaton College would be damaged by being required, essentially, to ask for help in supplying contraceptives for its employees. Fortunately a majority of her Supreme Court colleagues recognized the reality of the complaint.) But in recent years, American courts have generally been reluctant to force the question that Sotomayor raised: to ask litigants to prove that their claims are based on reality, not merely on subjective beliefs.

For example, courts have ruled that two men or two women suffer a real injury when they are denied a license to marry. But that could be true only if it is possible for members of the same sex to marry. If they cannot marry, then they cannot be harmed by a law that forbids their marriage—just as I would not be harmed by a law that prohibited me from jumping over the moon.

In order to decide whether or not homosexual couples were injured by a ban on same-sex marriage, then, the courts were required, by the dictates of logic, to study the question of what marriage is. Whether the judges had been guided by thousands of years of societal wisdom, or by the precepts of natural law, or by the myriad state laws defining marriage, they would have reached the same conclusion: Marriage is, by definition, the union of a man and a woman. So a marriage between people of the same sex is impossible, and no real harm could be done by forbidding people to do what they cannot possibly do.

Unfortunately, rather than pursuing that logical process, courts have ruled that homosexuals have been harmed because they are denied their wish to marry. Don’t such rulings fail the test that Sotomayor suggests?

Or take the cases brought by some men who believe that they should be allowed to use the women’s restrooms in public facilities, because they feel like women, even if the biological evidence shows that they are not. Some courts have found that argument compelling. In Massachusetts, a federal court has ruled that the government must pay for the sex-change operation of an imprisoned felon, saying that “health care” includes the process of changing from what he is to what he wishes to be. Would these rulings survive scrutiny under the standard the Sotomayor proposes?

The question that Sotomayor asks (if not the way she answers it in the Wheaton case) could be a very useful corrective to a trend in judicial reasoning that has torn legal theory loose from its moorings in natural law, natural logic, and indeed reality. Again and again our courts have surprised the public by inventing new “rights” where none had previously been recognized: the right to abortion, the right to suicide, the right to same-sex marriage. In each of these precedent-setting cases, the justices have based their rulings at least in part on the assumption that if plaintiffs say they suffered an injury, then they did suffer an injury. The courts have not asked critical questions about whether the “goods” the plaintiffs sought—the death of an unborn child or of a terminally ill patient, the legal recognition of a homosexual union—were real goods, which reasonable people might desire.

In one such case, in the Planned Parenthood v. Casey decision in 1992, Supreme Court Justice Anthony Kennedy made this leap of logic explicit, in a single stunning sentence with truly revolutionary implications:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

In other words, according to Justice Kennedy, liberty entails the right to define one’s own reality. If that is the case, then the Sotomayor question is irrelevant; if the plaintiff thinks that he is injured, then the courts cannot deny the injury without restricting the plaintiff’s liberty. Which would mean that the courts had given up on the demanding task of distinguishing between reality and delusion.

In a provocative op-ed piece published in June by the Wall Street Journal, Paul McHugh, the former chief psychiatrist for Johns Hopkins Hospital, criticized the growing acceptance to accommodate “transgendered” individuals by subsidizing sex-change operations. Someone who describes himself as “transgendered” should be recognized as suffering from a mental disorder—first and foremost because “it does not correspond with physical reality.” (He adds that it also “can lead to grim psychological outcomes.”) Raising a point not dissimilar to the one made by Justice Sotomayor, Dr. McHugh continues:

Psychiatrists obviously must challenge the solipsistic concept that what is in the mind cannot be questioned. Disorders of consciousness, after all, represent psychiatry's domain; declaring them off-limits would eliminate the field.

Just so. Psychiatrists step in when someone’s vision of the world veers sharply away from reality and points toward a disaster. Their task is to bring the patient’s perceptions into line with the real world.

If our courts follow Justice Kennedy’s advice, encouraging the limitless, unguided search for “one’s own concept of existence,” they will be leading the legal world in the opposite direction: toward a willful choice of madness. Nietzsche would approve. Sotomayor would not. And in this matter, if not in the Wheaton case, reasonable people should side with Justice Sotomayor.