Two quick related points and then back to work: 1. Paul's claim was that neither a compelling nor a rational basis existed to deny same sex couples the right to marry. I proposed two theories which substantiate a rational basis for denying legal recognition to same sex marriages based upon protecting the welfare of children. Paul points out that the harm to children which might stem from same sex marriages is also caused by other sources. While that is true, the fact that other things also cause these negative effects does not eliminate the state's rational basis justification to avoid creating additional sources of these same harms, or, more particularly, to not provide incentives to create the family arrangements which may lead to these negative effects.
2. This point is more of a quibble, actually. The law does not currently "prohibit[] [same sex families] from forming." Instead, it denies legal (not social) recognition to same sex families. Put another way, the state denies various incentivies to same sex families, and provides various incentives to heterosexual, two parent families. All things being equal, many studies indicate that children with married heterosexual parents consistently do better in every measure of well-being than their peers who have single, cohabiting, divorced or step-parents, and this is a stronger indicator than parental race, economic status, educational status, or neighborhood of the ultimate welfare of a child. Again, then, doesn't a rational basis exist for the government to offer incentives for people to form the type of family unit that is most likely to protect the welfare of children? Gene Summerlin Ogborn Summerlin & Ogborn P.C. 210 Windsor Place 330 So. 10th St. Lincoln, NE 68508 (402) 434-8040 (402) 434-8044 (FAX) (402) 730-5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -----Original Message----- From: Paul Finkelman [mailto:[EMAIL PROTECTED] Sent: Thursday, June 03, 2004 2:21 PM To: [EMAIL PROTECTED] Cc: 'Law & Religion issues for Law Academics' Subject: Re: Religion Clauses question this would be equally true for no allowing divorce or perhaps requiring widows/widowers to remarry if they have children. We allow single parents to adopt; would you oppose that? We don't take chldren away from single parents and put them into two parent households. As for "always deny" that is not true; some gay couples have children with men/women and the children know the natural parent; but would you also then require that in all divorces there is shared custody or equal visitation, absent some crime or other compelling interest to deny a parent access? Would you prevent single women from having children? Force abortion perhaps? It seems that your problems are alrady out there, in large numbers. I would love to see the opponent of same sex unions spend as much time worrying about the lack of resources for raising children of poor people and single parents. I have no problem with laws that support families; we can call it the tax code. But, is there a difference between supporting families and prohibiting them from forming? You make a good case for more supprot for famlies; how about universal health care for ALL children and all mothers and fathers fo young children? Lots of ways to supprot families. The anti-gay marriage crowd does not seem to be supporting measure to help families or children; they only seem to want to prevent the formation of families that do not look like *their* families. Gene Summerlin wrote: > Paul, > > I think an argument can certainly be made that compelling, or at least > rational, reasons exist to preclude same-sex marriage. For example, (a) > Same-sex families always deny children either their mother or father; or (b) > Same-sex family is a vast, untested social experiment with children. Can't > the government find that there are social and economic benefits to raising > children in families that include a mother and a father, and enact laws and > policies which promote, support and encourage citizens to form heterosexual, > two parent families? Wouldn't this pass the rational basis test? > > Gene Summerlin > Ogborn Summerlin & Ogborn P.C. > 210 Windsor Place > 330 So. 10th St. > Lincoln, NE 68508 > (402) 434-8040 > (402) 434-8044 (FAX) > (402) 730-5344 (Mobile) > www.osolaw.com > [EMAIL PROTECTED] > > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] Behalf Of Paul Finkelman > Sent: Thursday, June 03, 2004 1:18 PM > To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics > Subject: Re: Religion Clauses question > > > Richard: It seems to me that if you oppose rights for people you can't > say you support equal rights. It is pretty clear to me that this is > about fundamental rights. I absolutely agree with Prof. Beckwith that > there should be no need to endorse or agree with people being gay > (although the science seems pretty clear that many if not all gay people > are born the way they are, so it is sort of like endorsing or not > endorsing people being male or female). One can believe that being gay > is immoral; just as one can dislike being around Jews or Moslems or > Blacks, or Asians. But, the issue for those of us interested in law is > one of rights and equality. I think if you deny a huge class of people > the right to marry, to raise children, to share in the civil benefits of > marriage (such as shared health insurance, right to inherit, right to > make end of life decisions for your partner, right to even visit your > loved one in the hospital) then you are in fact against equal rights for > all people. > > I personally would favor the government not marrying anyone -- that is > for the clergy; the government should set up regulations for family > units; civil unions, and the like. Then let the clergy marry people. > But, as long as the government is the "marriage business" it should not > be allowed to discriminate unless there is a strong compelling interest; > no one on this list has ever offered a compelling interest (or even a > rational basis) argument for opposing same sex unions. The only > arguments offer are that it violated God's law (which of course is > disputed and truly irrelevant to our legal sysystem) and that it sets a > bad example. Well, we can all think of lots of things that set a bad > example. I think having more children than you can raise sets a bad > example; The Catholic Church clearly does not think that is true, or at > least does not think it is true enough to support birht control. I > think sixteen year olds set a bad example when they get married, but a > number of states disagree. I think parents who yell at little league > umpires set a bad example for their kids; but there are not compelling > interests or even a rational basis for banning these sorts of behavior. > > Paul Finkelman > > Richard Dougherty wrote: > >>>Clearly, however, as you note, you are not advocating disrciminating >>>against gay people, and so I welcome you to to fold of many people of >>>faith who support equal rights for all Americans! >>> >>>Paul Finkelman >> >> >>Respectfully, isn't this the kind of point that Prof. Beckwith is getting > > at? Opponents of gay "marriages" or "civil unions" are not necessarily > opponents of "equal rights for all Americans." > >>Richard Dougherty >> >> >>_______________________________________________ >>To post, send message to [EMAIL PROTECTED] >>To subscribe, unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > -- > Paul Finkelman > Chapman Distinguished Professor > University of Tulsa College of Law > 3120 East 4th Place > Tulsa, Oklahoma 74104-2499 > > 918-631-3706 (office) > 918-631-2194 (fax) > > [EMAIL PROTECTED] > > _______________________________________________ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > -- Paul Finkelman Chapman Distinguished Professor University of Tulsa College of Law 3120 East 4th Place Tulsa, Oklahoma 74104-2499 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
