RE: Marriage -- the Alito dissent
Eugene, I'm sorry, but I don't understand your comment below. I am aware of excuses but not a rational basis for limiting marriage to opposite-sex couples. Nor am I aware of how DOMA doesn't violate the constitutional right marry based on Loving v. Virginia and Lawrence v. Texas. The real problem, in my opinion, is that while equality is a core American principle, in practice many Americans (including 4 justices) are not committed to it. Bob Ritter On July 10, 2013 at 11:42 PM Volokh, Eugene vol...@law.ucla.edu wrote: Again, if the question is whether there is a rational basis for the requirement – the question that we began with, since the presence or absence of a rational basis for certain marriage recognition rules is what Kennedy and Alito were debating – then the answer is “yes”; there is indeed a rational basis for such a requirement. If the question is whether the requirement would violate a constitutional right to marry that the Court has recognized, then the answer would be “no,” but that’s because restrictions on that right require more than a rational basis. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Wednesday, July 10, 2013 8:35 PM To: Scarberry, Mark; Law Religion issues for Law Academics Subject: RE: Marriage -- the Alito dissent Could the procreation argument carried to the extreme result in a requirement that the marriage applicants be required to certify under oath that they intend to have children (biologically) and that to the best of their knowledge they are capable of having children? And that if either answer is checked no, then a license is not issued? Bob Ritter On July 4, 2013 at 1:13 AM Scarberry, Mark mark.scarbe...@pepperdine.edu mailto:mark.scarbe...@pepperdine.edu wrote: Last night in Maui, before heading back to Malibu (actually we live in Thousand Oaks, not on the ocean, but who's complaining), so a full response will have to wait, but my point was that if there is an institution designed to channel / encourage / honor committed relationships that are likely to produce children naturally, then it would be rational or reasonable not to exclude different-sex couples due to age or physical condition. This answers the why don't you exclude those couples argument. MARK SCARBERRY Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Volokh, Eugene vol...@law.ucla.edu mailto:vol...@law.ucla.edu Date: 07/03/2013 5:20 PM (GMT-10:00) To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Subject: RE: Marriage -- the Alito dissent That may be a perfectly sensible policy position; but I don’t think that modern constitutional law demands that the government take such a view. To be sure, the government is constrained in its power to restrict childbearing or to mandate it, but the government can certainly distribute benefits with an eye towards encouraging or discouraging procreation. Eugene From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu ] On Behalf Of Len Sent: Wednesday, July 03, 2013 7:17 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent This is going to sound awfully libertarian of me, but it's none of the state's business whether a couple has children or not, regardless of age. Rather it is my understanding that the care and treatment of children resulting from a given union (by whatever means) are appropriate state interests. (Not only was Abraham not a model parent, but also reads as an extortionist and pimp.) - From: Sanford V Levinson slevin...@law.utexas.edu mailto:slevin...@law.utexas.edu To: Mark Scarberry mark.scarbe...@pepperdine.edu mailto:mark.scarbe...@pepperdine.edu , Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 9:49:40 PM Subject: RE: Marriage -- the Alito dissent I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state
RE: Marriage -- the Alito dissent
It’s been a while since this thread petered out, so I’d rather not burden list members with more on this unless there’s really a good deal of interest in reviving it. But in an earlier post I tried to offer two basis for limiting marriage to opposite-sex couples that should, I think, pass the rational basis test, http://lists.ucla.edu/pipermail/religionlaw/2013-July/026509.html. They may not persuade many people on the merits – they don’t persuade me – but I think they are plausible enough to pass the rational basis threshold. (As to the constitutional right to marry, given that the premise for recognizing such a right has been longstanding American tradition, the question is whether such a sharp departure from tradition would be covered by this tradition-based right.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Sunday, July 21, 2013 8:40 PM To: Law Religion issues for Law Academics Subject: RE: Marriage -- the Alito dissent Eugene, I'm sorry, but I don't understand your comment below. I am aware of excuses but not a rational basis for limiting marriage to opposite-sex couples. Nor am I aware of how DOMA doesn't violate the constitutional right marry based on Loving v. Virginia and Lawrence v. Texas. The real problem, in my opinion, is that while equality is a core American principle, in practice many Americans (including 4 justices) are not committed to it. Bob Ritter On July 10, 2013 at 11:42 PM Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Again, if the question is whether there is a rational basis for the requirement – the question that we began with, since the presence or absence of a rational basis for certain marriage recognition rules is what Kennedy and Alito were debating – then the answer is “yes”; there is indeed a rational basis for such a requirement. If the question is whether the requirement would violate a constitutional right to marry that the Court has recognized, then the answer would be “no,” but that’s because restrictions on that right require more than a rational basis. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.orgmailto:b...@jmcenter.org Sent: Wednesday, July 10, 2013 8:35 PM To: Scarberry, Mark; Law Religion issues for Law Academics Subject: RE: Marriage -- the Alito dissent Could the procreation argument carried to the extreme result in a requirement that the marriage applicants be required to certify under oath that they intend to have children (biologically) and that to the best of their knowledge they are capable of having children? And that if either answer is checked no, then a license is not issued? Bob Ritter On July 4, 2013 at 1:13 AM Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: Last night in Maui, before heading back to Malibu (actually we live in Thousand Oaks, not on the ocean, but who's complaining), so a full response will have to wait, but my point was that if there is an institution designed to channel / encourage / honor committed relationships that are likely to produce children naturally, then it would be rational or reasonable not to exclude different-sex couples due to age or physical condition. This answers the why don't you exclude those couples argument. MARK SCARBERRY Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu Date: 07/03/2013 5:20 PM (GMT-10:00) To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: RE: Marriage -- the Alito dissent That may be a perfectly sensible policy position; but I don’t think that modern constitutional law demands that the government take such a view. To be sure, the government is constrained in its power to restrict childbearing or to mandate it, but the government can certainly distribute benefits with an eye towards encouraging or discouraging procreation. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len Sent: Wednesday, July 03, 2013 7:17 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent This is going to sound awfully libertarian of me, but it's none of the state's business whether a couple has children or not, regardless of age. Rather it is my understanding that the care and treatment of children resulting from a given union (by whatever means) are appropriate state interests. (Not only was Abraham not a model parent, but also reads as an extortionist and pimp.) From: Sanford
Re: Marriage -- the Alito dissent
How so, Bob? Please explain why the state may interfere in our decision whether to have children or not, or HOW, and why procreation should be a prescribed goal of marriage? Marriage is a contract between two consenting individuals. The terms of that marriage are up to the parties involved, presumably so long as no laws are broken. I think a good argument may be made that population growth is unsustainable, but I don't recall that its ever been asserted by government that whether one has children or not is a state interest. Except in China, and we see it's working well for them. - Original Message - From: b...@jmcenter.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, July 10, 2013 11:26:02 PM Subject: Re: Marriage -- the Alito dissent Len, Given the extreme overpopulation of the U.S. and the world, the state does indeed have a substantial interest -- at least in the number of children parents produce. (The current population footprint is not environmentally sustainable.) Bob Ritter On July 3, 2013 at 10:17 PM Len campquest...@comcast.net wrote: This is going to sound awfully libertarian of me, but it's none of the state's business whether a couple has children or not, regardless of age. Rather it is my understanding that the care and treatment of children resulting from a given union (by whatever means) are appropriate state interests. (Not only was Abraham not a model parent, but also reads as an extortionist and pimp.) From: Sanford V Levinson slevin...@law.utexas.edu To: Mark Scarberry mark.scarbe...@pepperdine.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 9:49:40 PM Subject: RE: Marriage -- the Alito dissent I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down the mountain and Isaac was not heard from again for three years, by which time Sarah was dead. One can only imagine the conversation that ensued when Abraham came back to the tent without Isaac and had to explain why he was alone. He’s lucky that she didn’t kill him then and there. But I digress….) sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, July 03, 2013 8:12 PM To: religionlaw@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some couples who have given up on conceiving, later are surprised to find that they have.) With regard to age, no bright line can be set that accurately distinguishes those who can from those who cannot procreate. Any line based on experience as to an age after which procreation cannot occur would either be impossible to set - men can procreate to a very old age - or would have to discriminate against women, who lose the ability to become pregnant by a particular upper bound (absent miracles as with Sarah and Abraham) that is much younger than any age that could possibly be set for men. Thus there are good reasons not to set an age limit. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives
From the list custodian RE: Marriage -- the Alito dissent
Folks: Please make sure the discussion is focused on legal analysis, not general matters of right and wrong or good or bad policy, except insofar as they are tied to the legal analysis. The recent discussion of marriage restrictions has departed in some measure from the list’s focus on the law of government and religion, and that’s fine. But we should keep things focused on law here, since the purpose of the list is discussion of the law of government and religion (and, in this instance, of marriage) that is helpful for legal academics who are doing research on the subject. Thanks, The list custodian From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len Sent: Thursday, July 11, 2013 2:53 AM To: b...@jmcenter.org; Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent How so, Bob? Please explain why the state may interfere in our decision whether to have children or not, or HOW, and why procreation should be a prescribed goal of marriage? Marriage is a contract between two consenting individuals. The terms of that marriage are up to the parties involved, presumably so long as no laws are broken. I think a good argument may be made that population growth is unsustainable, but I don't recall that its ever been asserted by government that whether one has children or not is a state interest. Except in China, and we see it's working well for them. From: b...@jmcenter.orgmailto:b...@jmcenter.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wednesday, July 10, 2013 11:26:02 PM Subject: Re: Marriage -- the Alito dissent Len, Given the extreme overpopulation of the U.S. and the world, the state does indeed have a substantial interest -- at least in the number of children parents produce. (The current population footprint is not environmentally sustainable.) Bob Ritter On July 3, 2013 at 10:17 PM Len campquest...@comcast.netmailto:campquest...@comcast.net wrote: This is going to sound awfully libertarian of me, but it's none of the state's business whether a couple has children or not, regardless of age. Rather it is my understanding that the care and treatment of children resulting from a given union (by whatever means) are appropriate state interests. (Not only was Abraham not a model parent, but also reads as an extortionist and pimp.) From: Sanford V Levinson slevin...@law.utexas.edumailto:slevin...@law.utexas.edu To: Mark Scarberry mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 9:49:40 PM Subject: RE: Marriage -- the Alito dissent I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down the mountain and Isaac was not heard from again for three years, by which time Sarah was dead. One can only imagine the conversation that ensued when Abraham came back to the tent without Isaac and had to explain why he was alone. He’s lucky that she didn’t kill him then and there. But I digress….) sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, July 03, 2013 8:12 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some
RE: Marriage -- the Alito dissent
Sandy, I'm 63 and have an 8 year old daughter, making me 55 when my wife and I had her. I'm not sure that the state can come to your rational suggestion. Bob Ritter On July 3, 2013 at 9:49 PM Levinson, Sanford V slevin...@law.utexas.edu wrote: I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down the mountain and Isaac was not heard from again for three years, by which time Sarah was dead. One can only imagine the conversation that ensued when Abraham came back to the tent without Isaac and had to explain why he was alone. He’s lucky that she didn’t kill him then and there. But I digress….) sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, July 03, 2013 8:12 PM To: religionlaw@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some couples who have given up on conceiving, later are surprised to find that they have.) With regard to age, no bright line can be set that accurately distinguishes those who can from those who cannot procreate. Any line based on experience as to an age after which procreation cannot occur would either be impossible to set - men can procreate to a very old age - or would have to discriminate against women, who lose the ability to become pregnant by a particular upper bound (absent miracles as with Sarah and Abraham) that is much younger than any age that could possibly be set for men. Thus there are good reasons not to set an age limit. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
Len, Given the extreme overpopulation of the U.S. and the world, the state does indeed have a substantial interest -- at least in the number of children parents produce. (The current population footprint is not environmentally sustainable.) Bob Ritter On July 3, 2013 at 10:17 PM Len campquest...@comcast.net wrote: This is going to sound awfully libertarian of me, but it's none of the state's business whether a couple has children or not, regardless of age. Rather it is my understanding that the care and treatment of children resulting from a given union (by whatever means) are appropriate state interests. (Not only was Abraham not a model parent, but also reads as an extortionist and pimp.) - From: Sanford V Levinson slevin...@law.utexas.edu To: Mark Scarberry mark.scarbe...@pepperdine.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 9:49:40 PM Subject: RE: Marriage -- the Alito dissent I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down the mountain and Isaac was not heard from again for three years, by which time Sarah was dead. One can only imagine the conversation that ensued when Abraham came back to the tent without Isaac and had to explain why he was alone. He’s lucky that she didn’t kill him then and there. But I digress….) sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, July 03, 2013 8:12 PM To: religionlaw@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some couples who have given up on conceiving, later are surprised to find that they have.) With regard to age, no bright line can be set that accurately distinguishes those who can from those who cannot procreate. Any line based on experience as to an age after which procreation cannot occur would either be impossible to set - men can procreate to a very old age - or would have to discriminate against women, who lose the ability to become pregnant by a particular upper bound (absent miracles as with Sarah and Abraham) that is much younger than any age that could possibly be set for men. Thus there are good reasons not to set an age limit. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Marriage -- the Alito dissent
I’m skeptical of claims that the U.S. is overpopulated; indeed, I’m tentatively inclined to say that we ought to have a considerably larger population. But surely if this is just a matter of the rational basis test, the government would have a rational basis for policies aimed at decreasing the population, as well as having a rational basis for policies aimed at increasing the population. Some population control, or population expansion, policies might well violate constitutional rights, but not because they lack a rational basis. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Wednesday, July 10, 2013 8:26 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Len, Given the extreme overpopulation of the U.S. and the world, the state does indeed have a substantial interest -- at least in the number of children parents produce. (The current population footprint is not environmentally sustainable.) Bob Ritter On July 3, 2013 at 10:17 PM Len campquest...@comcast.netmailto:campquest...@comcast.net wrote: This is going to sound awfully libertarian of me, but it's none of the state's business whether a couple has children or not, regardless of age. Rather it is my understanding that the care and treatment of children resulting from a given union (by whatever means) are appropriate state interests. (Not only was Abraham not a model parent, but also reads as an extortionist and pimp.) From: Sanford V Levinson slevin...@law.utexas.edumailto:slevin...@law.utexas.edu To: Mark Scarberry mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 9:49:40 PM Subject: RE: Marriage -- the Alito dissent I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down the mountain and Isaac was not heard from again for three years, by which time Sarah was dead. One can only imagine the conversation that ensued when Abraham came back to the tent without Isaac and had to explain why he was alone. He’s lucky that she didn’t kill him then and there. But I digress….) sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, July 03, 2013 8:12 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some couples who have given up on conceiving, later are surprised to find that they have.) With regard to age, no bright line can be set that accurately distinguishes those who can from those who cannot procreate. Any line based on experience as to an age after which procreation cannot occur would either be impossible to set - men can procreate to a very old age - or would have to discriminate against women, who lose the ability to become pregnant by a particular upper bound (absent miracles as with Sarah and Abraham) that is much younger than any age that could possibly be set for men. Thus there are good reasons not to set an age limit. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password
RE: Marriage -- the Alito dissent
Could the procreation argument carried to the extreme result in a requirement that the marriage applicants be required to certify under oath that they intend to have children (biologically) and that to the best of their knowledge they are capable of having children? And that if either answer is checked no, then a license is not issued? Bob Ritter On July 4, 2013 at 1:13 AM Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Last night in Maui, before heading back to Malibu (actually we live in Thousand Oaks, not on the ocean, but who's complaining), so a full response will have to wait, but my point was that if there is an institution designed to channel / encourage / honor committed relationships that are likely to produce children naturally, then it would be rational or reasonable not to exclude different-sex couples due to age or physical condition. This answers the why don't you exclude those couples argument. MARK SCARBERRY Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Volokh, Eugene vol...@law.ucla.edu Date: 07/03/2013 5:20 PM (GMT-10:00) To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: Marriage -- the Alito dissent That may be a perfectly sensible policy position; but I don’t think that modern constitutional law demands that the government take such a view. To be sure, the government is constrained in its power to restrict childbearing or to mandate it, but the government can certainly distribute benefits with an eye towards encouraging or discouraging procreation. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len Sent: Wednesday, July 03, 2013 7:17 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent This is going to sound awfully libertarian of me, but it's none of the state's business whether a couple has children or not, regardless of age. Rather it is my understanding that the care and treatment of children resulting from a given union (by whatever means) are appropriate state interests. (Not only was Abraham not a model parent, but also reads as an extortionist and pimp.) - From: Sanford V Levinson slevin...@law.utexas.edu mailto:slevin...@law.utexas.edu To: Mark Scarberry mark.scarbe...@pepperdine.edu mailto:mark.scarbe...@pepperdine.edu , Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 9:49:40 PM Subject: RE: Marriage -- the Alito dissent I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down the mountain and Isaac was not heard from again for three years, by which time Sarah was dead. One can only imagine the conversation that ensued when Abraham came back to the tent without Isaac and had to explain why he was alone. He’s lucky that she didn’t kill him then and there. But I digress….) sandy From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu ] On Behalf Of Scarberry, Mark Sent: Wednesday, July 03, 2013 8:12 PM To: religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some couples who have given up on conceiving, later are surprised to find that they have
RE: Marriage -- the Alito dissent
Again, if the question is whether there is a rational basis for the requirement – the question that we began with, since the presence or absence of a rational basis for certain marriage recognition rules is what Kennedy and Alito were debating – then the answer is “yes”; there is indeed a rational basis for such a requirement. If the question is whether the requirement would violate a constitutional right to marry that the Court has recognized, then the answer would be “no,” but that’s because restrictions on that right require more than a rational basis. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Wednesday, July 10, 2013 8:35 PM To: Scarberry, Mark; Law Religion issues for Law Academics Subject: RE: Marriage -- the Alito dissent Could the procreation argument carried to the extreme result in a requirement that the marriage applicants be required to certify under oath that they intend to have children (biologically) and that to the best of their knowledge they are capable of having children? And that if either answer is checked no, then a license is not issued? Bob Ritter On July 4, 2013 at 1:13 AM Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: Last night in Maui, before heading back to Malibu (actually we live in Thousand Oaks, not on the ocean, but who's complaining), so a full response will have to wait, but my point was that if there is an institution designed to channel / encourage / honor committed relationships that are likely to produce children naturally, then it would be rational or reasonable not to exclude different-sex couples due to age or physical condition. This answers the why don't you exclude those couples argument. MARK SCARBERRY Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu Date: 07/03/2013 5:20 PM (GMT-10:00) To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: RE: Marriage -- the Alito dissent That may be a perfectly sensible policy position; but I don’t think that modern constitutional law demands that the government take such a view. To be sure, the government is constrained in its power to restrict childbearing or to mandate it, but the government can certainly distribute benefits with an eye towards encouraging or discouraging procreation. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len Sent: Wednesday, July 03, 2013 7:17 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent This is going to sound awfully libertarian of me, but it's none of the state's business whether a couple has children or not, regardless of age. Rather it is my understanding that the care and treatment of children resulting from a given union (by whatever means) are appropriate state interests. (Not only was Abraham not a model parent, but also reads as an extortionist and pimp.) From: Sanford V Levinson slevin...@law.utexas.edumailto:slevin...@law.utexas.edu To: Mark Scarberry mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 9:49:40 PM Subject: RE: Marriage -- the Alito dissent I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down the mountain and Isaac was not heard from again for three years, by which time Sarah was dead. One can only imagine the conversation that ensued when Abraham
RE: Marriage -- the Alito dissent
In my view, the answer to Bob’s questions is “no.” Marriage applicants could not be required to make such certifications. The constitutional right to marry is firmly established in our history and traditions, and its content as firmly established does not permit such a certification to be required. As I’ve suggested before, I don’t think the same is true of a requirement that the couple express a commitment to sexual fidelity/exclusivity within the marriage; our history and traditions would seem to support a state in requiring a certification of that intent. And I think that, at the appropriate level of specificity (a matter subject to dispute, of course), our history and traditions do not require recognition of the right to same-sex marriage. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: b...@jmcenter.org [mailto:b...@jmcenter.org] Sent: Wednesday, July 10, 2013 8:35 PM To: Scarberry, Mark; Law Religion issues for Law Academics Subject: RE: Marriage -- the Alito dissent Could the procreation argument carried to the extreme result in a requirement that the marriage applicants be required to certify under oath that they intend to have children (biologically) and that to the best of their knowledge they are capable of having children? And that if either answer is checked no, then a license is not issued? Bob Ritter On July 4, 2013 at 1:13 AM Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: Last night in Maui, before heading back to Malibu (actually we live in Thousand Oaks, not on the ocean, but who's complaining), so a full response will have to wait, but my point was that if there is an institution designed to channel / encourage / honor committed relationships that are likely to produce children naturally, then it would be rational or reasonable not to exclude different-sex couples due to age or physical condition. This answers the why don't you exclude those couples argument. MARK SCARBERRY Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu Date: 07/03/2013 5:20 PM (GMT-10:00) To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: RE: Marriage -- the Alito dissent That may be a perfectly sensible policy position; but I don’t think that modern constitutional law demands that the government take such a view. To be sure, the government is constrained in its power to restrict childbearing or to mandate it, but the government can certainly distribute benefits with an eye towards encouraging or discouraging procreation. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len Sent: Wednesday, July 03, 2013 7:17 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent This is going to sound awfully libertarian of me, but it's none of the state's business whether a couple has children or not, regardless of age. Rather it is my understanding that the care and treatment of children resulting from a given union (by whatever means) are appropriate state interests. (Not only was Abraham not a model parent, but also reads as an extortionist and pimp.) From: Sanford V Levinson slevin...@law.utexas.edumailto:slevin...@law.utexas.edu To: Mark Scarberry mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 9:49:40 PM Subject: RE: Marriage -- the Alito dissent I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down
RE: Marriage -- the Alito dissent
Marty-- Why do you say that footnote is extraordinary? Best,Stuart From: lederman.ma...@gmail.com Date: Sat, 29 Jun 2013 10:55:27 -0400 Subject: Marriage -- the Alito dissent To: conlawp...@lists.ucla.edu; religionlaw@lists.ucla.edu I'm surprised there hasn't been more attention paid to the quite remarkable dissent that Justice Alito filed in Windsor. In it, he contrasts two competing views of marriage: what he calls the conjugal view, in which marriage is the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so (citing Robby George); and the “consent-based” concept of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. As Alito notes, At least as it applies to heterosexual couples, this [consent-based] view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. [Just as an aside: What is the purpose and implication of his adding At least as it applies to heterosexual couples?] Altio's view is that the judiciary can't possibly give preference to one or the other of these two views: Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore. [FN7 -- on which more below] Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence. Legislatures, on the other hand, apparently can do so: Legislatures, however, have little choice but to decide between the two views. We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution. Accordingly, both Congress and the States are entitled to enact laws recognizing either of the two understandings of marriage. I'd be curious what others think of this reasoning. For now, just some short, initial observations about Alito's view of the legislative function, before turning to his extraordinary footnote 7: First, Alito does not appear to distinguish at all between the meaning of marriage in religious and philosophical traditions, and the meaning of state-conferred marriage licenses. Windsor and Perry, of course, only involve the latter -- that is to say, they are merely about state action, and the meaning and effect of a state-conferred status, not the institution of marriage through the ages. Second, in light of how states in this nation actually implement that governmental function -- most obviously, by affording marital status to many heterosexual couples who cannot or will not procreate -- is it really fair to say that those states' marriage laws are designed to solemnize a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so? That is to say, haven't the states chosen the consent-based view of marriage . . . and, if so, shouldn't the exclusion of same-sex couples be considered on that basis? (As Alito acknowledges, the consent-based view now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. Wouldn't we therefore expect that state marriage laws reflect this overwhelmingly predominant popular view today?) Third, Alito does not appear to have considered whether the legislature, like the judiciary, is not empowered -- indeed, is arguably constitutionally forbidden -- to solemnize a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so. I would have thought that solemnizing an intrinsic ordering is the proper function of the church, not the state. Now, onto footnote 7, which I will quote in full; it speaks for itself. I welcome your reactions, not only with respect to whether Judge Walker's factual findings were so far beyond the judicial ken, but, especially, as to Alito's view of the legal academy. (The particular amicus brief that he excoriates was filed by Bryan Adamson, Janet Alexander, Barbara Atwood, Barbara Babcock, Erwin Chemerinsky, Joshua Davis, David Faigman, Toni Massaro, Arthur Miller, David Oppenheimer, and Larry Yackle.): The degree to which this question is intractable to typical judicial processes of decisionmaking was
Re: Marriage -- the Alito dissent
I am going to step out of lurking mode for a change. Some of this conversation is fascinating. Someone please answer me this: Why cannot both the conjugal and consent definitions also apply to SSM's rather than only the latter? Obviously the conjugal view requires a third party at a certain crucial point, but some gay couples do happen to commit for the purpose of raising families, whether blended or new (via adoption, surrogate or in vitro), so long as intrinsically ordered is not a sneaky euphemism for biologically. The way I see it (and have seen it), either view applies regardless of the orientation of the couple. For that matter, being biologically ordered also doesn't work for some straight couples, who are biologically incapable of conceiving, sometimes for purely natural reasons. I'm sure many on this list know of a few examples. Thanks, Len Zanger Camp Quest - Original Message - From: Stuart Buck stuartb...@msn.com To: Religion Law religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 5:24:24 PM Subject: RE: Marriage -- the Alito dissent Marty-- Why do you say that footnote is extraordinary? Best, Stuart From: lederman.ma...@gmail.com Date: Sat, 29 Jun 2013 10:55:27 -0400 Subject: Marriage -- the Alito dissent To: conlawp...@lists.ucla.edu; religionlaw@lists.ucla.edu I'm surprised there hasn't been more attention paid to the quite remarkable dissent that Justice Alito filed in Windsor. In it, he contrasts two competing views of marriage: what he calls the conjugal view, in which marriage is the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so (citing Robby George); and the “consent-based” concept of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. As Alito notes, At least as it applies to heterosexual couples, this [consent-based] view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. [Just as an aside: What is the purpose and implication of his adding At least as it applies to heterosexual couples?] Altio's view is that the judiciary can't possibly give preference to one or the other of these two views: Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore. [FN7 -- on which more below] Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence. Legislatures, on the other hand, apparently can do so: Legislatures, however, have little choice but to decide between the two views . We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution. Accordingly, both Congress and the States are entitled to enact laws recognizing either of the two understandings of marriage. I'd be curious what others think of this reasoning. For now, just some short, initial observations about Alito's view of the legislative function, before turning to his extraordinary footnote 7: First, Alito does not appear to distinguish at all between the meaning of marriage in religious and philosophical traditions, and the meaning of state-conferred marriage licenses . Windsor and Perry, of course, only involve the latter -- that is to say, they are merely about state action , and the meaning and effect of a state-conferred status , not the institution of marriage through the ages. Second, in light of how states in this nation actually implement that governmental function -- most obviously, by affording marital status to many heterosexual couples who cannot or will not procreate -- is it really fair to say that those states' marriage laws are designed to solemnize a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so? That is to say, haven't the states chosen the consent-based view of marriage . . . and, if so, shouldn't the exclusion of same-sex couples be considered on that basis? (As Alito acknowledges, the consent-based view now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. Wouldn't we therefore expect that state marriage laws reflect
Re: Marriage -- the Alito dissent
The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some couples who have given up on conceiving, later are surprised to find that they have.) With regard to age, no bright line can be set that accurately distinguishes those who can from those who cannot procreate. Any line based on experience as to an age after which procreation cannot occur would either be impossible to set - men can procreate to a very old age - or would have to discriminate against women, who lose the ability to become pregnant by a particular upper bound (absent miracles as with Sarah and Abraham) that is much younger than any age that could possibly be set for men. Thus there are good reasons not to set an age limit. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
I think the assumption is, that opposite-sex couples are expected to have children in the normal way, while same-sex couples cannot. This is a poor assumption. My point is that with increasing frequency straight couples cannot, which puts them (us) in the same predicament as same-sex couples. With increasing frequency, same-sex couples choose to raise a family -- by whatever means, and I think that our reasonable observer realizes this, and it will soon become a normal expectation if it hasn't already. Just like straight folks. I think that the conjugal view is actually elastic enough to incorporate this. In any case I do not see exclusionary language in the definition. Thanks again. -Z - Original Message - From: Mark Scarberry mark.scarbe...@pepperdine.edu To: religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 9:12:14 PM Subject: Re: Marriage -- the Alito dissent The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some couples who have given up on conceiving, later are surprised to find that they have.) With regard to age, no bright line can be set that accurately distinguishes those who can from those who cannot procreate. Any line based on experience as to an age after which procreation cannot occur would either be impossible to set - men can procreate to a very old age - or would have to discriminate against women, who lose the ability to become pregnant by a particular upper bound (absent miracles as with Sarah and Abraham) that is much younger than any age that could possibly be set for men. Thus there are good reasons not to set an age limit. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Marriage -- the Alito dissent
I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down the mountain and Isaac was not heard from again for three years, by which time Sarah was dead. One can only imagine the conversation that ensued when Abraham came back to the tent without Isaac and had to explain why he was alone. He’s lucky that she didn’t kill him then and there. But I digress….) sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, July 03, 2013 8:12 PM To: religionlaw@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some couples who have given up on conceiving, later are surprised to find that they have.) With regard to age, no bright line can be set that accurately distinguishes those who can from those who cannot procreate. Any line based on experience as to an age after which procreation cannot occur would either be impossible to set - men can procreate to a very old age - or would have to discriminate against women, who lose the ability to become pregnant by a particular upper bound (absent miracles as with Sarah and Abraham) that is much younger than any age that could possibly be set for men. Thus there are good reasons not to set an age limit. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Marriage -- the Alito dissent
I would think that if a state were to say that it doesn’t want to give the various benefits of marriage to couples who marry past some age, but to reserve those benefits to couples who are below that age, that would pass the rational basis test. (Whether it passes the heightened scrutiny appropriate to restrictions on the right to marry, which has traditionally covered couples of all ages, is a separate question.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Wednesday, July 03, 2013 6:50 PM To: Scarberry, Mark; Law Religion issues for Law Academics Subject: RE: Marriage -- the Alito dissent I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down the mountain and Isaac was not heard from again for three years, by which time Sarah was dead. One can only imagine the conversation that ensued when Abraham came back to the tent without Isaac and had to explain why he was alone. He’s lucky that she didn’t kill him then and there. But I digress….) sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, July 03, 2013 8:12 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some couples who have given up on conceiving, later are surprised to find that they have.) With regard to age, no bright line can be set that accurately distinguishes those who can from those who cannot procreate. Any line based on experience as to an age after which procreation cannot occur would either be impossible to set - men can procreate to a very old age - or would have to discriminate against women, who lose the ability to become pregnant by a particular upper bound (absent miracles as with Sarah and Abraham) that is much younger than any age that could possibly be set for men. Thus there are good reasons not to set an age limit. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
This is going to sound awfully libertarian of me, but it's none of the state's business whether a couple has children or not, regardless of age. Rather it is my understanding that the care and treatment of children resulting from a given union (by whatever means) are appropriate state interests. (Not only was Abraham not a model parent, but also reads as an extortionist and pimp.) - Original Message - From: Sanford V Levinson slevin...@law.utexas.edu To: Mark Scarberry mark.scarbe...@pepperdine.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 9:49:40 PM Subject: RE: Marriage -- the Alito dissent I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down the mountain and Isaac was not heard from again for three years, by which time Sarah was dead. One can only imagine the conversation that ensued when Abraham came back to the tent without Isaac and had to explain why he was alone. He’s lucky that she didn’t kill him then and there. But I digress….) sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, July 03, 2013 8:12 PM To: religionlaw@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some couples who have given up on conceiving, later are surprised to find that they have.) With regard to age, no bright line can be set that accurately distinguishes those who can from those who cannot procreate. Any line based on experience as to an age after which procreation cannot occur would either be impossible to set - men can procreate to a very old age - or would have to discriminate against women, who lose the ability to become pregnant by a particular upper bound (absent miracles as with Sarah and Abraham) that is much younger than any age that could possibly be set for men. Thus there are good reasons not to set an age limit. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Marriage -- the Alito dissent
That may be a perfectly sensible policy position; but I don’t think that modern constitutional law demands that the government take such a view. To be sure, the government is constrained in its power to restrict childbearing or to mandate it, but the government can certainly distribute benefits with an eye towards encouraging or discouraging procreation. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len Sent: Wednesday, July 03, 2013 7:17 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent This is going to sound awfully libertarian of me, but it's none of the state's business whether a couple has children or not, regardless of age. Rather it is my understanding that the care and treatment of children resulting from a given union (by whatever means) are appropriate state interests. (Not only was Abraham not a model parent, but also reads as an extortionist and pimp.) From: Sanford V Levinson slevin...@law.utexas.edumailto:slevin...@law.utexas.edu To: Mark Scarberry mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 9:49:40 PM Subject: RE: Marriage -- the Alito dissent I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down the mountain and Isaac was not heard from again for three years, by which time Sarah was dead. One can only imagine the conversation that ensued when Abraham came back to the tent without Isaac and had to explain why he was alone. He’s lucky that she didn’t kill him then and there. But I digress….) sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, July 03, 2013 8:12 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some couples who have given up on conceiving, later are surprised to find that they have.) With regard to age, no bright line can be set that accurately distinguishes those who can from those who cannot procreate. Any line based on experience as to an age after which procreation cannot occur would either be impossible to set - men can procreate to a very old age - or would have to discriminate against women, who lose the ability to become pregnant by a particular upper bound (absent miracles as with Sarah and Abraham) that is much younger than any age that could possibly be set for men. Thus there are good reasons not to set an age limit. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Marriage -- the Alito dissent
Last night in Maui, before heading back to Malibu (actually we live in Thousand Oaks, not on the ocean, but who's complaining), so a full response will have to wait, but my point was that if there is an institution designed to channel / encourage / honor committed relationships that are likely to produce children naturally, then it would be rational or reasonable not to exclude different-sex couples due to age or physical condition. This answers the why don't you exclude those couples argument. MARK SCARBERRY Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Volokh, Eugene vol...@law.ucla.edu Date: 07/03/2013 5:20 PM (GMT-10:00) To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: Marriage -- the Alito dissent That may be a perfectly sensible policy position; but I don’t think that modern constitutional law demands that the government take such a view. To be sure, the government is constrained in its power to restrict childbearing or to mandate it, but the government can certainly distribute benefits with an eye towards encouraging or discouraging procreation. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len Sent: Wednesday, July 03, 2013 7:17 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent This is going to sound awfully libertarian of me, but it's none of the state's business whether a couple has children or not, regardless of age. Rather it is my understanding that the care and treatment of children resulting from a given union (by whatever means) are appropriate state interests. (Not only was Abraham not a model parent, but also reads as an extortionist and pimp.) From: Sanford V Levinson slevin...@law.utexas.edumailto:slevin...@law.utexas.edu To: Mark Scarberry mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wednesday, July 3, 2013 9:49:40 PM Subject: RE: Marriage -- the Alito dissent I realize that my following question gets into another hot-button area, but is Mark suggesting that there is a strong constitutional interest in procreation at any age? Why can’t the state come to the altogether rational conclusion that it is really unwise for, say, a 55-year-old couple to have children unless the couple has enough resources to cover the costs of taking care of children even after their retirement (not to mention covering the costs of likely medical care)? I agree that is probably not a compelling state interest, at least in a quasi-libertarian society, but I certainly think it is at least a rational, say, as the defenses being asserted for DOMA. Of course it may be that medical advances in the future will make Sarah and Abraham models to emulate, though I tend to be skeptical. In any event, Abraham was a dreadful father who proved willing to kill his child because of a totally arbitrary command to do so. (It is irrelevant that, at least according to the Bible, God sent the innocent lamb to be sacrificed instead There are Midrash, incidentally, that suggest that no lamb appeared, which explains why only Abraham climbed down the mountain and Isaac was not heard from again for three years, by which time Sarah was dead. One can only imagine the conversation that ensued when Abraham came back to the tent without Isaac and had to explain why he was alone. He’s lucky that she didn’t kill him then and there. But I digress….) sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, July 03, 2013 8:12 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent The biological issues with regard to different sex couples mostly can be answered fairly easily, I think, including with these points: With regard to medical or similar issues that prevent procreation, a state inquiry would intrude substantially on privacy, which would justify the state in not inquiring. (Also, some couples who have given up on conceiving, later are surprised to find that they have.) With regard to age, no bright line can be set that accurately distinguishes those who can from those who cannot procreate. Any line based on experience as to an age after which procreation cannot occur would either be impossible to set - men can procreate to a very old age - or would have to discriminate against women, who lose the ability to become pregnant by a particular upper bound (absent miracles as with Sarah and Abraham) that is much younger than any age that could possibly be set for men. Thus there are good reasons not to set an age limit. Mark
Re: Marriage -- the Alito dissent
I'm with Eduardo; I can't believe this. Mr. Esenberg, it's not simply a matter of disagreement, it's a matter of said arguments simply do not hold water without a religious premise. Put another way, yes, I disagree with the arguments, but that's because they're fallacious to the point of autoeroticism. There are no valid non-religious arguments against homosexuality. On Jun 30, 2013, at Sun, Jun 30, 6:38 PM, Esenberg, Richard richard.esenb...@marquette.edu wrote: You can certainly disagree with these arguments but they do not proceed from theological premises. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
Respectfully, I disagree with you. I just finished writing a 3,400 word article making the case against homosexuality without using religion in any way. I think a very strong case can be made against homosexual lifestyle without any reference to God, the Bible, etc. As you can imagine, I am busy trying to find a publisher because of its length and in some cases, its content. If I ever get it published, the title of my article is: Listen To Your Body, 7 Reasons Why Homosexuality is Bad for America. I hope that Americans will continue to be extended the courtesy to think for themselves--even if its not popular. It seems that defenders of the gay lifestyle who want us to be tolerant of homosexuality become very intolerant if you dare to disagree with them. We are living in a Joseph McCarthy era in reverse. Now it's the left who is intolerant. Sincerely, David W. New, Esq. Member Maryland and DC Bars. - Original Message - From: Jean Dudley To: Law Religion issues for Law Academics Sent: Monday, July 01, 2013 12:27 PM Subject: Re: Marriage -- the Alito dissent I'm with Eduardo; I can't believe this. Mr. Esenberg, it's not simply a matter of disagreement, it's a matter of said arguments simply do not hold water without a religious premise. Put another way, yes, I disagree with the arguments, but that's because they're fallacious to the point of autoeroticism. There are no valid non-religious arguments against homosexuality. On Jun 30, 2013, at Sun, Jun 30, 6:38 PM, Esenberg, Richard richard.esenb...@marquette.edu wrote: You can certainly disagree with these arguments but they do not proceed from theological premises. -- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
I'd be interested in reading what you have to say. Would you be interested in my rebuttal? If so, kindly send me a copy off-list. On Jul 1, 2013, at Mon, Jul 1, 5:16 PM, David W. New david_...@msn.com wrote: Respectfully, I disagree with you. I just finished writing a 3,400 word article making the case against homosexuality without using religion in any way. I think a very strong case can be made against homosexual lifestyle without any reference to God, the Bible, etc. As you can imagine, I am busy trying to find a publisher because of its length and in some cases, its content. If I ever get it published, the title of my article is: Listen To Your Body, 7 Reasons Why Homosexuality is Bad for America. I hope that Americans will continue to be extended the courtesy to think for themselves--even if its not popular. It seems that defenders of the gay lifestyle who want us to be tolerant of homosexuality become very intolerant if you dare to disagree with them. We are living in a Joseph McCarthy era in reverse. Now it’s the left who is intolerant. Sincerely, David W. New, Esq. Member Maryland and DC Bars. - Original Message - From: Jean Dudley To: Law Religion issues for Law Academics Sent: Monday, July 01, 2013 12:27 PM Subject: Re: Marriage -- the Alito dissent I'm with Eduardo; I can't believe this. Mr. Esenberg, it's not simply a matter of disagreement, it's a matter of said arguments simply do not hold water without a religious premise. Put another way, yes, I disagree with the arguments, but that's because they're fallacious to the point of autoeroticism. There are no valid non-religious arguments against homosexuality. On Jun 30, 2013, at Sun, Jun 30, 6:38 PM, Esenberg, Richard richard.esenb...@marquette.edu wrote: You can certainly disagree with these arguments but they do not proceed from theological premises. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Marriage -- the Alito dissent
The first sentence of my post got cobbed up - perhaps by my habit of editing what I say after I write it. So you can reject what I am about to say on that basis. I certainly believe that one can argue for the morality of same sex relationships. In fact, I don't think there is anything immoral about them - as I have repeatedly argued in published statements elsewhere. My intended point is that the notion that opposition to same sex marriage - even if based on traditional arguments about the morality of homosexual relationships - cannot be dismissed as irrational or hateful. I meant to respond to Professor Hamilton's argument that the only argument in support of DOMA could be sectarian. I don't think so. From: Esenberg, Richard Sent: Sunday, June 30, 2013 8:38 PM To: Law Religion issues for Law Academics; hamilto...@aol.com Cc: conlawp...@lists.ucla.edu Subject: RE: Marriage -- the Alito dissent The morality of homosexual relationships can only be maintained by someone who is unaware of - or ignores - the arguments that are actually made. You can certainly disagree with these arguments but they do not proceed from theological premises. Posner's characterization on Slate of Altio's recitation of the argument regarding the effect of SSM on marriage in general is of that piece; it fails to address what the argument actually says. It may well be that Burkean conservatives are being driven from the field by shrill accusations of hate and bigotry but I wouldn't count that an argument in favor of the outcome in Windsor. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Paul Horwitz [phorw...@hotmail.com] Sent: Sunday, June 30, 2013 12:38 PM To: hamilto...@aol.com Cc: religionlaw@lists.ucla.edu; conlawp...@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent On the first point only, the reservation is just that--a reservation. For EC purposes, doctrine aside, I'm not sure whether I believe the religiosity of a statement or display can be fixed only by contemporary understanding. I suspect my conclusion would be that both historical and contemporary meaning are relevant if not inextricably linked, but I'd have to think it through more carefully. Best, Paul Sent from my iPhone while driving On Jun 30, 2013, at 12:00 PM, hamilto...@aol.commailto:hamilto...@aol.com wrote: I am not sure what Paul's reservation is with the concept that for First Amendment purposes, a belief is the belief being held right now by the believer, regardless of tradition or history. I had thought the courts had settled on that concept, and its adjunct theory, which is that no court can tell a religious believer that their belief is not religious or that it is not true. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Marriage -- the Alito dissent
Dear Mr. New I would love to know that the homosexual lifestyle is. One of my former students is a law graduate and a sitting judge; her partner/wife has and MBA; they have twin daughters (through a sperm bank); are members of the local Temple, one is on the board of the Temple. They live in a very nice house in the suburbs; They vote, pay taxes; send their kids to school. They have been together since the mid-1990s. Another one of my very close friends is an associate dean at a law school; his partner/husband is a physician. They life in really nice apartment in NY City. My law professor friend writes great scholarship and does a ton of pro bono work. They have been together for about 14 years. Both of these marriages (which lacked legal sanction until just a few years ago) have lasted longer than many of the hetero-marriages I have seen and I suspect have lasted longer than the average hetero marriage does in many places. Is there something wrong with these lifestyles? You talk in your post of the homosexual lifestyle. I have no idea what you are talking about. Care to share this with the list? My gay friends have lifestyles very much like my straight friends except their marriages seem to be longer lasting. Maybe you are opposed to longer lasting marriages? * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of David W. New [david_...@msn.com] Sent: Monday, July 01, 2013 8:16 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Respectfully, I disagree with you. I just finished writing a 3,400 word article making the case against homosexuality without using religion in any way. I think a very strong case can be made against homosexual lifestyle without any reference to God, the Bible, etc. As you can imagine, I am busy trying to find a publisher because of its length and in some cases, its content. If I ever get it published, the title of my article is: Listen To Your Body, 7 Reasons Why Homosexuality is Bad for America. I hope that Americans will continue to be extended the courtesy to think for themselves--even if its not popular. It seems that defenders of the gay lifestyle who want us to be tolerant of homosexuality become very intolerant if you dare to disagree with them. We are living in a Joseph McCarthy era in reverse. Now it’s the left who is intolerant. Sincerely, David W. New, Esq. Member Maryland and DC Bars. - Original Message - From: Jean Dudleymailto:jean.dud...@gmail.com To: Law Religion issues for Law Academicsmailto:religionlaw@lists.ucla.edu Sent: Monday, July 01, 2013 12:27 PM Subject: Re: Marriage -- the Alito dissent I'm with Eduardo; I can't believe this. Mr. Esenberg, it's not simply a matter of disagreement, it's a matter of said arguments simply do not hold water without a religious premise. Put another way, yes, I disagree with the arguments, but that's because they're fallacious to the point of autoeroticism. There are no valid non-religious arguments against homosexuality. On Jun 30, 2013, at Sun, Jun 30, 6:38 PM, Esenberg, Richard richard.esenb...@marquette.edumailto:richard.esenb...@marquette.edu wrote: You can certainly disagree with these arguments but they do not proceed from theological premises. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
Would you kindly provide one argument that isn't irrational? Understand that it will indeed be scrutinized for basis in scientific fact, and that it if fails, it will have to be deemed irrational. On Jul 1, 2013, at Mon, Jul 1, 6:35 PM, Esenberg, Richard richard.esenb...@marquette.edu wrote: My intended point is that the notion that opposition to same sex marriage - even if based on traditional arguments about the morality of homosexual relationships - cannot be dismissed as irrational or hateful. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Marriage -- the Alito dissent
How many moral questions are based on scientific fact? Whether an argument is in support of same sex marriage/relationships or in opposition to them, it ultimately boils down to a question about what you believe is right and and what you believe is wrong, and those questions, no matter which side of the question you find yourself supporting, are rarely, if ever, supported by scientific fact. If they were, then nature's display of the law of survival of the fittest, a scientifically verified phenomena to be certain , would seem to suggest that objection to killing is irrational. Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 11:00 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Would you kindly provide one argument that isn't irrational? Understand that it will indeed be scrutinized for basis in scientific fact, and that it if fails, it will have to be deemed irrational. On Jul 1, 2013, at Mon, Jul 1, 6:35 PM, Esenberg, Richard richard.esenb...@marquette.edu wrote: My intended point is that the notion that opposition to same sex marriage - even if based on traditional arguments about the morality of homosexual relationships - cannot be dismissed as irrational or hateful. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
Add my intellectual curiousity to Dr. Finkelman's. Homosexuality isn't a lifestyle, any more than heterosexuality is. Considering homosexuals vary wildly in ethnicities, economic status, religions, moralities, the only thing they have in common is their sexuality. Kinda like heterosexuals, it seems to me. We in the homosexual sector consider the term lifestyle to be demeaning or dismissive. It is considered insulting and since it is often used by bigots, a bigoted term. May I suggest you remove it from your terminology, Mr. New? On Jul 1, 2013, at Mon, Jul 1, 8:00 PM, Finkelman, Paul paul.finkel...@albanylaw.edu wrote: Dear Mr. New I would love to know that the homosexual lifestyle is. One of my former students is a law graduate and a sitting judge; her partner/wife has and MBA; they have twin daughters (through a sperm bank); are members of the local Temple, one is on the board of the Temple. They live in a very nice house in the suburbs; They vote, pay taxes; send their kids to school. They have been together since the mid-1990s. Another one of my very close friends is an associate dean at a law school; his partner/husband is a physician. They life in really nice apartment in NY City. My law professor friend writes great scholarship and does a ton of pro bono work. They have been together for about 14 years. Both of these marriages (which lacked legal sanction until just a few years ago) have lasted longer than many of the hetero-marriages I have seen and I suspect have lasted longer than the average hetero marriage does in many places. Is there something wrong with these lifestyles? You talk in your post of the homosexual lifestyle. I have no idea what you are talking about. Care to share this with the list? My gay friends have lifestyles very much like my straight friends except their marriages seem to be longer lasting. Maybe you are opposed to longer lasting marriages? * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of David W. New [david_...@msn.com] Sent: Monday, July 01, 2013 8:16 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Respectfully, I disagree with you. I just finished writing a 3,400 word article making the case against homosexuality without using religion in any way. I think a very strong case can be made against homosexual lifestyle without any reference to God, the Bible, etc. As you can imagine, I am busy trying to find a publisher because of its length and in some cases, its content. If I ever get it published, the title of my article is: Listen To Your Body, 7 Reasons Why Homosexuality is Bad for America. I hope that Americans will continue to be extended the courtesy to think for themselves--even if its not popular. It seems that defenders of the gay lifestyle who want us to be tolerant of homosexuality become very intolerant if you dare to disagree with them. We are living in a Joseph McCarthy era in reverse. Now it’s the left who is intolerant. Sincerely, David W. New, Esq. Member Maryland and DC Bars. - Original Message - From: Jean Dudley To: Law Religion issues for Law Academics Sent: Monday, July 01, 2013 12:27 PM Subject: Re: Marriage -- the Alito dissent I'm with Eduardo; I can't believe this. Mr. Esenberg, it's not simply a matter of disagreement, it's a matter of said arguments simply do not hold water without a religious premise. Put another way, yes, I disagree with the arguments, but that's because they're fallacious to the point of autoeroticism. There are no valid non-religious arguments against homosexuality. On Jun 30, 2013, at Sun, Jun 30, 6:38 PM, Esenberg, Richard richard.esenb...@marquette.edu wrote: You can certainly disagree with these arguments but they do not proceed from theological premises. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman
RE: Marriage -- the Alito dissent
Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock births that might pass as facts. They suggest that states that allow same sex marriages have lower divorce rates and lower out of wedlock birth rates than state that oppose same sex marriage. Might we consider this the hetero-sexual lifestyle? * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee [bp51...@windstream.net] Sent: Tuesday, July 02, 2013 12:27 AM To: 'Law Religion issues for Law Academics' Subject: RE: Marriage -- the Alito dissent How many moral questions are based on scientific fact? Whether an argument is in support of same sex marriage/relationships or in opposition to them, it ultimately boils down to a question about what you believe is right and and what you believe is wrong, and those questions, no matter which side of the question you find yourself supporting, are rarely, if ever, supported by scientific fact. If they were, then nature's display of the law of survival of the fittest, a scientifically verified phenomena to be certain , would seem to suggest that objection to killing is irrational. Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 11:00 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Would you kindly provide one argument that isn't irrational? Understand that it will indeed be scrutinized for basis in scientific fact, and that it if fails, it will have to be deemed irrational. On Jul 1, 2013, at Mon, Jul 1, 6:35 PM, Esenberg, Richard richard.esenb...@marquette.edumailto:richard.esenb...@marquette.edu wrote: My intended point is that the notion that opposition to same sex marriage - even if based on traditional arguments about the morality of homosexual relationships - cannot be dismissed as irrational or hateful. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Marriage -- the Alito dissent
Well, many people find others expressly suggesting that they change their political terminology to be demeaning and dismissive. Indeed, publicly asking people to change how they speak - and calling people bigots - is often felt to be insulting. One might well suggest that people remove such requests from their terminology. Naturally, of course, Ms. Dudley might respond that she is right in suggesting that Mr. New is a bigot, and that her comment should fit within an exception to the principle I mentioned above. And Mr. New might respond that he was right in calling homosexuality a lifestyle, and that it is her comment that is insulting. (Or maybe these two people wouldn't - I can't read their minds - but others on their side well might.) But that just highlights, I think, how unproductive these sorts of demands are in public debate, and how unlikely they are to actually persuade people. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 9:32 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Add my intellectual curiousity to Dr. Finkelman's. Homosexuality isn't a lifestyle, any more than heterosexuality is. Considering homosexuals vary wildly in ethnicities, economic status, religions, moralities, the only thing they have in common is their sexuality. Kinda like heterosexuals, it seems to me. We in the homosexual sector consider the term lifestyle to be demeaning or dismissive. It is considered insulting and since it is often used by bigots, a bigoted term. May I suggest you remove it from your terminology, Mr. New? On Jul 1, 2013, at Mon, Jul 1, 8:00 PM, Finkelman, Paul paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu wrote: Dear Mr. New I would love to know that the homosexual lifestyle is. One of my former students is a law graduate and a sitting judge; her partner/wife has and MBA; they have twin daughters (through a sperm bank); are members of the local Temple, one is on the board of the Temple. They live in a very nice house in the suburbs; They vote, pay taxes; send their kids to school. They have been together since the mid-1990s. Another one of my very close friends is an associate dean at a law school; his partner/husband is a physician. They life in really nice apartment in NY City. My law professor friend writes great scholarship and does a ton of pro bono work. They have been together for about 14 years. Both of these marriages (which lacked legal sanction until just a few years ago) have lasted longer than many of the hetero-marriages I have seen and I suspect have lasted longer than the average hetero marriage does in many places. Is there something wrong with these lifestyles? You talk in your post of the homosexual lifestyle. I have no idea what you are talking about. Care to share this with the list? My gay friends have lifestyles very much like my straight friends except their marriages seem to be longer lasting. Maybe you are opposed to longer lasting marriages? * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] on behalf of David W. New [david_...@msn.commailto:david_...@msn.com] Sent: Monday, July 01, 2013 8:16 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Respectfully, I disagree with you. I just finished writing a 3,400 word article making the case against homosexuality without using religion in any way. I think a very strong case can be made against homosexual lifestyle without any reference to God, the Bible, etc. As you can imagine, I am busy trying to find a publisher because of its length and in some cases, its content. If I ever get it published, the title of my article is: Listen To Your Body, 7 Reasons Why Homosexuality is Bad for America. I hope that Americans will continue to be extended the courtesy to think for themselves--even if its not popular. It seems that defenders of the gay lifestyle who want us to be tolerant of homosexuality become very intolerant if you dare to disagree with them. We are living in a Joseph McCarthy era in reverse. Now it's the left who is intolerant. Sincerely, David W. New, Esq. Member Maryland and DC Bars. - Original Message - From: Jean Dudleymailto:jean.dud...@gmail.com To: Law Religion issues
Re: Marriage -- the Alito dissent
Dunno about moral questions, but it seems to me that there's lots of arguments made on claims that haven't been proven; Take, for example, the claim that children are harmed by being raised by same-sex parents. Exactly *how* they are harmed is never really quantified; However, there are studies that show that children of same-sex parenting are as well adjusted as their opposite-sex parented peers. In fact, a very recent Australian study says they are *healthier* than their peers. In short, Mr. Pardee, if an argument is made, for or against, it has to be *factual*. How are facts verified? Science. And yes, that acknowledges errors of bias. But science, sir, is what gives us *facts*. As for survival of the fittest, even that hypothesis is in dispute: Nature displays a vast supply of examples of cooperation; herd beasts often protect the young, the vulnerable, from attack. So again, I ask for *one* argument against homosexuality that is not religious in nature. Anybody? On Jul 1, 2013, at Mon, Jul 1, 9:27 PM, Brad Pardee bp51...@windstream.net wrote: How many moral questions are based on scientific fact? Whether an argument is in support of same sex marriage/relationships or in opposition to them, it ultimately boils down to a question about what you believe is right and and what you believe is wrong, and those questions, no matter which side of the question you find yourself supporting, are rarely, if ever, supported by scientific fact. If they were, then nature's display of the law of survival of the fittest, a scientifically verified phenomena to be certain , would seem to suggest that objection to killing is irrational. Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 11:00 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Would you kindly provide one argument that isn't irrational? Understand that it will indeed be scrutinized for basis in scientific fact, and that it if fails, it will have to be deemed irrational. On Jul 1, 2013, at Mon, Jul 1, 6:35 PM, Esenberg, Richard richard.esenb...@marquette.edu wrote: My intended point is that the notion that opposition to same sex marriage - even if based on traditional arguments about the morality of homosexual relationships - cannot be dismissed as irrational or hateful. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Marriage -- the Alito dissent
My guess is that the great bulk of people who condemn same-sex marriage are also quite troubled by out-of-wedlock births and by divorce. One common argument, indeed, is that (1) we tinkered with traditional sexual and marital mores, and the result - much greater out-of-wedlock birth rates and divorce rates - has been bad for society, so (2) we should therefore stop tinker with what sexual and marital mores we have left. Indeed, my sense is that cultural conservatives tend to think that the American heterosexual lifestyle is indeed badly broken in many ways, though in ways that are politically and socially hard to stop. As it happens, I don't agree with that argument, for reasons I outlined before. But I don't see how high divorce rates and high out-of-wedlock birth rates in opposite-sex-only-marriage states tells us much about whether same-sex marriage is or is not a good idea, much less about whether opposite-sex-only-marriage rules are or are not rational. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul Sent: Monday, July 01, 2013 9:45 PM To: Law Religion issues for Law Academics Subject: RE: Marriage -- the Alito dissent Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock births that might pass as facts. They suggest that states that allow same sex marriages have lower divorce rates and lower out of wedlock birth rates than state that oppose same sex marriage. Might we consider this the hetero-sexual lifestyle? * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee [bp51...@windstream.net] Sent: Tuesday, July 02, 2013 12:27 AM To: 'Law Religion issues for Law Academics' Subject: RE: Marriage -- the Alito dissent How many moral questions are based on scientific fact? Whether an argument is in support of same sex marriage/relationships or in opposition to them, it ultimately boils down to a question about what you believe is right and and what you believe is wrong, and those questions, no matter which side of the question you find yourself supporting, are rarely, if ever, supported by scientific fact. If they were, then nature's display of the law of survival of the fittest, a scientifically verified phenomena to be certain , would seem to suggest that objection to killing is irrational. Brad Pardee From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 11:00 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Would you kindly provide one argument that isn't irrational? Understand that it will indeed be scrutinized for basis in scientific fact, and that it if fails, it will have to be deemed irrational. On Jul 1, 2013, at Mon, Jul 1, 6:35 PM, Esenberg, Richard richard.esenb...@marquette.edumailto:richard.esenb...@marquette.edu wrote: My intended point is that the notion that opposition to same sex marriage - even if based on traditional arguments about the morality of homosexual relationships - cannot be dismissed as irrational or hateful. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Marriage -- the Alito dissent
I sent this for posting some time ago but it appears not to have been posted so I am resending it Mr. New posted something (below) about the gay lifestyle without of course telling us what it is. But, perhaps we can get an insight into these issues by looking at divorce rate and rate of out-of-wedlock births. We might call this the hetero-sexual lifestyle. As the numbers below show, states which allow same sex marriage have substantially lower divorce rates than the average and much lower than a number of states which have adamantly attacked the idea of same sex marriages. This may not tell us must about same sex marriages but it does tell us something about the social climate in many states that oppose same sex marriage and in those that allow such unions. Below the divorce statistics are the numbers for out-of-wedlock births by states for the top 20 states for 1998 which is the most recent data I could find. This data shows that of the 20 states with the highest out-of-wedlock birth rates only four allow same sex marriages. On the other hand, in the bottom 20 for out-of-wedlock birth rates, there are 8 states that allow same sex marriage. (I did not include these but you can find them athttp://www.state.ok.us/osfdocs/budget/table25.pdf) The more recent divorce statistics are at http://www.census.gov/compendia/statab/2012/tables/12s0133.pdf Perhaps Mr. New should be concerned with the heterosexual life style that leads to so many divorces and so many out-of-wedlock children, and at the same time are so fearful of same sex marriage. According to the US Census, in 2009 there were, on average, 3.4 divorces for every 1000 people in the US. Here are the 2009 divorce rates for 13 jurisdictions that allow same sex marriage (there are no 2009 statistics for California and Minn for that year but for the earlier years that the statistics are available, they are well below the national average.). Note that only 5 of these places are above the national average, and only two (Maine and Washington) are substantially above the average. Following this are the 12 states with the highest divorce rates. All prohibit same sex marriage. Some aggressively so. Note they have much higher divorce rates. Divorces per 1000 people Conn. 3.1 Delaware 3.6 DC 2.6 Iowa2.4 Maine 4.1 Maryland2.8 Mass 2.2 NH 3.7 NJ2.8 NY 2.6 RI 3.0 Vt 3.5 Washington3.9 TOP Divorce States Nevada 6.7 Arkansas 5.7 W. Va. 5.2 Wyoming5.2 Idaho 5.0 Oklahoma 4.9 Kentucky 4.6 Alabama4.4 Alaska 4.4 Colorado 4.2 Florida 4.2 Montana4.1 Out of wedlock births by state: 1 Mississippi 45.5% 2 Louisiana 44.9% 3 New Mexico 44.1% 4 South Carolina 38.7% 5 Arizona 38.4% 6 Delaware 37.1% 7 Florida 36.6% 8 Georgia 36.2% 9 Arkansas 35.1% 10 New York 34.9% 11 Tennessee 34.9% 12 Nevada 34.7% 13 Maryland 34.4% 14 Alabama 34.1% 15 Missouri 34.1% 16 Illinois 34.1% 17 Ohio 34.0% 18 Rhode Island 33.9% 19 Indiana 33.4% 20 Oklahoma 33.2% * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Finkelman, Paul [paul.finkel...@albanylaw.edu] Sent: Tuesday, July 02, 2013 12:45 AM To: Law Religion issues for Law Academics Subject: RE: Marriage -- the Alito dissent Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock births that might pass as facts. They suggest that states that allow same sex marriages have lower divorce rates and lower out of wedlock birth rates than state that oppose same sex marriage. Might we consider this the hetero-sexual lifestyle? * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee [bp51...@windstream.net] Sent: Tuesday, July 02, 2013 12:27 AM To: 'Law Religion issues for Law Academics' Subject: RE: Marriage
RE: Marriage -- the Alito dissent
I wasn't discussing lifestyle. There are hedonists among the gay and straight communities alike, just as there are faithful and monogamous relationships within the gay and straight communities alike. However, you actually confirm the point I was making. What people believe is right and what people believe is wrong in moral questions is rarely, if ever, the result of statistical analysis or scientific study. That does not make them, by definition, irrational. Brad Parde From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul Sent: Monday, July 01, 2013 11:45 PM To: Law Religion issues for Law Academics Subject: RE: Marriage -- the Alito dissent Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock births that might pass as facts. They suggest that states that allow same sex marriages have lower divorce rates and lower out of wedlock birth rates than state that oppose same sex marriage. Might we consider this the hetero-sexual lifestyle? * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com * _ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee [bp51...@windstream.net] Sent: Tuesday, July 02, 2013 12:27 AM To: 'Law Religion issues for Law Academics' Subject: RE: Marriage -- the Alito dissent How many moral questions are based on scientific fact? Whether an argument is in support of same sex marriage/relationships or in opposition to them, it ultimately boils down to a question about what you believe is right and and what you believe is wrong, and those questions, no matter which side of the question you find yourself supporting, are rarely, if ever, supported by scientific fact. If they were, then nature's display of the law of survival of the fittest, a scientifically verified phenomena to be certain , would seem to suggest that objection to killing is irrational. Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 11:00 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Would you kindly provide one argument that isn't irrational? Understand that it will indeed be scrutinized for basis in scientific fact, and that it if fails, it will have to be deemed irrational. On Jul 1, 2013, at Mon, Jul 1, 6:35 PM, Esenberg, Richard richard.esenb...@marquette.edu wrote: My intended point is that the notion that opposition to same sex marriage - even if based on traditional arguments about the morality of homosexual relationships - cannot be dismissed as irrational or hateful. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
When folks tell me they're insulted by being reminded that their terminology is bigoted, I am often tempted to respond with my best Betty Davis impression: Butcha AH, Blanche, ya AH in that chair!. But that, of course, would be counter-productive to the discussion at hand. Usually I just walk away at that point, because why beat a dead horse. Mr. New will either take my advice, or he won't. Whether he's insulted or not really is no longer of concern to me. Keep in mind that Paula Deen *still* is tearfully denying being a racist after multiple and continued use of the N word toward her workers. All I can say is, 'if the shoe fits, wear it, no matter how uncomfortable it is'. On Jul 1, 2013, at Mon, Jul 1, 9:46 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Well, many people find others expressly suggesting that they change their political terminology to be demeaning and dismissive. Indeed, publicly asking people to change how they speak – and calling people bigots – is often felt to be insulting. One might well suggest that people remove such requests from their terminology. Naturally, of course, Ms. Dudley might respond that she is right in suggesting that Mr. New is a bigot, and that her comment should fit within an exception to the principle I mentioned above. And Mr. New might respond that he was right in calling homosexuality a lifestyle, and that it is her comment that is insulting. (Or maybe these two people wouldn’t – I can’t read their minds – but others on their side well might.) But that just highlights, I think, how unproductive these sorts of demands are in public debate, and how unlikely they are to actually persuade people. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 9:32 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Add my intellectual curiousity to Dr. Finkelman's. Homosexuality isn't a lifestyle, any more than heterosexuality is. Considering homosexuals vary wildly in ethnicities, economic status, religions, moralities, the only thing they have in common is their sexuality. Kinda like heterosexuals, it seems to me. We in the homosexual sector consider the term lifestyle to be demeaning or dismissive. It is considered insulting and since it is often used by bigots, a bigoted term. May I suggest you remove it from your terminology, Mr. New? On Jul 1, 2013, at Mon, Jul 1, 8:00 PM, Finkelman, Paul paul.finkel...@albanylaw.edu wrote: Dear Mr. New I would love to know that the homosexual lifestyle is. One of my former students is a law graduate and a sitting judge; her partner/wife has and MBA; they have twin daughters (through a sperm bank); are members of the local Temple, one is on the board of the Temple. They live in a very nice house in the suburbs; They vote, pay taxes; send their kids to school. They have been together since the mid-1990s. Another one of my very close friends is an associate dean at a law school; his partner/husband is a physician. They life in really nice apartment in NY City. My law professor friend writes great scholarship and does a ton of pro bono work. They have been together for about 14 years. Both of these marriages (which lacked legal sanction until just a few years ago) have lasted longer than many of the hetero-marriages I have seen and I suspect have lasted longer than the average hetero marriage does in many places. Is there something wrong with these lifestyles? You talk in your post of the homosexual lifestyle. I have no idea what you are talking about. Care to share this with the list? My gay friends have lifestyles very much like my straight friends except their marriages seem to be longer lasting. Maybe you are opposed to longer lasting marriages? * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of David W. New [david_...@msn.com] Sent: Monday, July 01, 2013 8:16 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Respectfully, I disagree with you. I just finished writing a 3,400 word article making the case against homosexuality without using religion in any way. I think a very strong case can be made against homosexual lifestyle without any reference to God, the Bible, etc. As you can imagine, I am busy trying to find a publisher because of its length and in some
RE: Marriage -- the Alito dissent
I've offered two arguments against recognition of same-sex marriage that aren't religious in nature. But beyond this, a vast range of laws is based on claims that haven't been proven. That's true of intellectual property law, drug laws, gun control laws, rent controls, price controls, labor laws, immigration laws, monopolies, economic subsidies, and much, much more. You can't run double-blind experiments with most laws. The result, of course, is a great deal of unwise legislation. As voters, we should certainly pay attention to whether there's enough evidence for a particular law in our judgment. But it is very rare that we, even as voters or legislators, can say that there is pro[of] of the claims on which the laws rest. And the rational basis test does not require such proof. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 9:53 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Dunno about moral questions, but it seems to me that there's lots of arguments made on claims that haven't been proven; Take, for example, the claim that children are harmed by being raised by same-sex parents. Exactly *how* they are harmed is never really quantified; However, there are studies that show that children of same-sex parenting are as well adjusted as their opposite-sex parented peers. In fact, a very recent Australian study says they are *healthier* than their peers. In short, Mr. Pardee, if an argument is made, for or against, it has to be *factual*. How are facts verified? Science. And yes, that acknowledges errors of bias. But science, sir, is what gives us *facts*. As for survival of the fittest, even that hypothesis is in dispute: Nature displays a vast supply of examples of cooperation; herd beasts often protect the young, the vulnerable, from attack. So again, I ask for *one* argument against homosexuality that is not religious in nature. Anybody? On Jul 1, 2013, at Mon, Jul 1, 9:27 PM, Brad Pardee bp51...@windstream.netmailto:bp51...@windstream.net wrote: How many moral questions are based on scientific fact? Whether an argument is in support of same sex marriage/relationships or in opposition to them, it ultimately boils down to a question about what you believe is right and and what you believe is wrong, and those questions, no matter which side of the question you find yourself supporting, are rarely, if ever, supported by scientific fact. If they were, then nature's display of the law of survival of the fittest, a scientifically verified phenomena to be certain , would seem to suggest that objection to killing is irrational. Brad Pardee From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 11:00 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Would you kindly provide one argument that isn't irrational? Understand that it will indeed be scrutinized for basis in scientific fact, and that it if fails, it will have to be deemed irrational. On Jul 1, 2013, at Mon, Jul 1, 6:35 PM, Esenberg, Richard richard.esenb...@marquette.edumailto:richard.esenb...@marquette.edu wrote: My intended point is that the notion that opposition to same sex marriage - even if based on traditional arguments about the morality of homosexual relationships - cannot be dismissed as irrational or hateful. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
Lifestyle? What lifestyle? On Jul 1, 2013, at Mon, Jul 1, 9:58 PM, Brad Pardee bp51...@windstream.net wrote: I wasn't discussing lifestyle. There are hedonists among the gay and straight communities alike, just as there are faithful and monogamous relationships within the gay and straight communities alike. However, you actually confirm the point I was making. What people believe is right and what people believe is wrong in moral questions is rarely, if ever, the result of statistical analysis or scientific study. That does not make them, by definition, irrational. You're right: Just because it hasn't been confirmed by statistical analysis doesn't necessarily make it irrational; but once it has been proven one way or another it's irrational to continue to state the opposite, something I've seen numerous times in the Same-Sex Marriage debate. Brad Parde From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul Sent: Monday, July 01, 2013 11:45 PM To: Law Religion issues for Law Academics Subject: RE: Marriage -- the Alito dissent Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock births that might pass as facts. They suggest that states that allow same sex marriages have lower divorce rates and lower out of wedlock birth rates than state that oppose same sex marriage. Might we consider this the hetero-sexual lifestyle? * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee [bp51...@windstream.net] Sent: Tuesday, July 02, 2013 12:27 AM To: 'Law Religion issues for Law Academics' Subject: RE: Marriage -- the Alito dissent How many moral questions are based on scientific fact? Whether an argument is in support of same sex marriage/relationships or in opposition to them, it ultimately boils down to a question about what you believe is right and and what you believe is wrong, and those questions, no matter which side of the question you find yourself supporting, are rarely, if ever, supported by scientific fact. If they were, then nature's display of the law of survival of the fittest, a scientifically verified phenomena to be certain , would seem to suggest that objection to killing is irrational. Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 11:00 PM To: Law Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Would you kindly provide one argument that isn't irrational? Understand that it will indeed be scrutinized for basis in scientific fact, and that it if fails, it will have to be deemed irrational. On Jul 1, 2013, at Mon, Jul 1, 6:35 PM, Esenberg, Richard richard.esenb...@marquette.edu wrote: My intended point is that the notion that opposition to same sex marriage - even if based on traditional arguments about the morality of homosexual relationships - cannot be dismissed as irrational or hateful. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
I am not sure what Paul's reservation is with the concept that for First Amendment purposes, a belief is the belief being held right now by the believer, regardless of tradition or history. I had thought the courts had settled on that concept, and its adjunct theory, which is that no court can tell a religious believer that their belief is not religious or that it is not true. In any event, the opposition to same sex marriage has to be treated as sectarian, because it is. There are vanishingly few conservative Burkeans on this issue and an overwhelming majority of religious believers. While we can conjure up the secular monogamist, or two, this is a religious movement against gay marriage, as the history of Prop 8 so ably demonstrates. Not to mention that the criticism of the Court's decisions this week was loudest from Cardinal Dolan and Tony Perkins, among other religious leaders. It would be helpful for political scientists to add up the dollars spent on lobbying and by whom against gay marriage, because I suspect that would underscore my point. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Paul Horwitz phorw...@hotmail.com To: Marci Hamilton hamilto...@aol.com Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; conlawprof conlawp...@lists.ucla.edu Sent: Sat, Jun 29, 2013 6:14 pm Subject: Re: Marriage -- the Alito dissent I'm not sure that the second sentence of Marci's comment below is correct for all constitutional purposes. But I think the first part of the first sentence can be true. A standard part of the story of religion and science as dual magisteria is that the domain of factual claims made by religion tends to recede as the domain of scientific explanatory claims expands. So a factual claim that was once generally accepted, such as claims about the origin of life or the age of the universe, can effectively move from non-sectarian acceptance to solely sectarian acceptance. Claims about male-female complementarity *might* fall into that category. That said, I don't think that renders all anti-SSM claims impermissibly sectarian. A Burkean conservative might plausibly believe that changing the scope of marriage in the face of what he believes to be a well-established and well-proven tradition is unwise, and that resistance to this change is prudent and rational. Or one might believe as a factual matter, rightly or wrongly (the latter, in my view), that children and society fare better under heterosexual family arrangements. These views might be wrong, but I don't see why they must be treated as sectarian, if that is even constitutionally relevant, just because the outcome they suggest is consistent with a prominent sectarian view. Paul Horwitz Sent from my iPhone On Jun 29, 2013, at 2:18 PM, Marci Hamilton hamilto...@aol.com wrote: Of course history (people) can make sectarian views nonsectarian and vice versa. A religious belief under the Constitution is what the religious believer says it is right now, not what history said it was or should be. Alito is following Vatican (religious) dogma. In current US society, the push against gay marriage is based on religious believers who believe it is sinful for same sex couples to marry. That is the discourse regardless of the source of their current beliefs. Marci ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
On the first point only, the reservation is just that--a reservation. For EC purposes, doctrine aside, I'm not sure whether I believe the religiosity of a statement or display can be fixed only by contemporary understanding. I suspect my conclusion would be that both historical and contemporary meaning are relevant if not inextricably linked, but I'd have to think it through more carefully. Best, Paul Sent from my iPhone while driving On Jun 30, 2013, at 12:00 PM, hamilto...@aol.com wrote: I am not sure what Paul's reservation is with the concept that for First Amendment purposes, a belief is the belief being held right now by the believer, regardless of tradition or history. I had thought the courts had settled on that concept, and its adjunct theory, which is that no court can tell a religious believer that their belief is not religious or that it is not true. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Marriage -- the Alito dissent
The morality of homosexual relationships can only be maintained by someone who is unaware of - or ignores - the arguments that are actually made. You can certainly disagree with these arguments but they do not proceed from theological premises. Posner's characterization on Slate of Altio's recitation of the argument regarding the effect of SSM on marriage in general is of that piece; it fails to address what the argument actually says. It may well be that Burkean conservatives are being driven from the field by shrill accusations of hate and bigotry but I wouldn't count that an argument in favor of the outcome in Windsor. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Paul Horwitz [phorw...@hotmail.com] Sent: Sunday, June 30, 2013 12:38 PM To: hamilto...@aol.com Cc: religionlaw@lists.ucla.edu; conlawp...@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent On the first point only, the reservation is just that--a reservation. For EC purposes, doctrine aside, I'm not sure whether I believe the religiosity of a statement or display can be fixed only by contemporary understanding. I suspect my conclusion would be that both historical and contemporary meaning are relevant if not inextricably linked, but I'd have to think it through more carefully. Best, Paul Sent from my iPhone while driving On Jun 30, 2013, at 12:00 PM, hamilto...@aol.commailto:hamilto...@aol.com wrote: I am not sure what Paul's reservation is with the concept that for First Amendment purposes, a belief is the belief being held right now by the believer, regardless of tradition or history. I had thought the courts had settled on that concept, and its adjunct theory, which is that no court can tell a religious believer that their belief is not religious or that it is not true. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
I'm relatively new to this list, but can you possibly believe this?: The morality of homosexual relationships can only be maintained by someone who is unaware of - or ignores - the arguments that are actually made. On Jun 30, 2013, at 8:41 PM, Esenberg, Richard richard.esenb...@marquette.edumailto:richard.esenb...@marquette.edu wrote: The morality of homosexual relationships can only be maintained by someone who is unaware of - or ignores - the arguments that are actually made. You can certainly disagree with these arguments but they do not proceed from theological premises. Posner's characterization on Slate of Altio's recitation of the argument regarding the effect of SSM on marriage in general is of that piece; it fails to address what the argument actually says. It may well be that Burkean conservatives are being driven from the field by shrill accusations of hate and bigotry but I wouldn't count that an argument in favor of the outcome in Windsor. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] on behalf of Paul Horwitz [phorw...@hotmail.commailto:phorw...@hotmail.com] Sent: Sunday, June 30, 2013 12:38 PM To: hamilto...@aol.commailto:hamilto...@aol.com Cc: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu; conlawp...@lists.ucla.edumailto:conlawp...@lists.ucla.edu Subject: Re: Marriage -- the Alito dissent On the first point only, the reservation is just that--a reservation. For EC purposes, doctrine aside, I'm not sure whether I believe the religiosity of a statement or display can be fixed only by contemporary understanding. I suspect my conclusion would be that both historical and contemporary meaning are relevant if not inextricably linked, but I'd have to think it through more carefully. Best, Paul Sent from my iPhone while driving On Jun 30, 2013, at 12:00 PM, hamilto...@aol.commailto:hamilto...@aol.com wrote: I am not sure what Paul's reservation is with the concept that for First Amendment purposes, a belief is the belief being held right now by the believer, regardless of tradition or history. I had thought the courts had settled on that concept, and its adjunct theory, which is that no court can tell a religious believer that their belief is not religious or that it is not true. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
As a couple of you have pointed out to me, Judge Posner has addressed the Alito dissent; in Slate ( http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), he writes: Alito is drawn to such arguments for DOMA as “the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing,” and “marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” The first argument would have force only if one supposed (as virtually no one does any longer) that banning same-sex marriage would channel gays into straight marriages. The bearing of the second argument (a close paraphrase of official Vatican sex doctrine) eludes me. A sperm bank is intrinsically ordered to producing new life, even if it does not always do so. So what? A marriage of a man to a woman known to be sterile could not be thought intrinsically ordered to producing new life, yet it would surely be recognized by Alito as a valid marriage entitled to federal marital benefits. *So far as yet appears, opposition to same-sex marriage, and to federal benefits for gay couples, is emotional and sectarian, rather than rational.* I'm not sure this is quite responsive to Alito, because I'm not sure Alito would disagree: As I read his dissent, his view is that *because *opposition to same-sex marriage, and to federal benefits for gay couples, is indeed emotional and sectarian, rather than rational (not quite how Alito would put it, of course, but basically his point), courts cannot assess it . . . but legislatures can and must do so. On Sat, Jun 29, 2013 at 10:55 AM, Marty Lederman lederman.ma...@gmail.comwrote: I'm surprised there hasn't been more attention paid to the quite remarkable dissent that Justice Alito filed in Windsor. In it, he contrasts two competing views of marriage: what he calls the conjugal view, in which marriage is the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so (citing Robby George); and the “consent-based” concept of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. As Alito notes, At least as it applies to heterosexual couples, this [consent-based] view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. [Just as an aside: What is the purpose and implication of his adding At least as it applies to heterosexual couples?] Altio's view is that the judiciary can't possibly give preference to one or the other of these two views: Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore. [FN7 -- on which more below] Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence. Legislatures, on the other hand, apparently can do so: Legislatures, however, *have little choice but to decide between the two views*. We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution. Accordingly, both Congress and the States are entitled to enact laws recognizing either of the two understandings of marriage. I'd be curious what others think of this reasoning. For now, just some short, initial observations about Alito's view of the legislative function, before turning to his extraordinary footnote 7: First, Alito does not appear to distinguish at all between the meaning of marriage in religious and philosophical traditions, and the meaning of *state-conferred marriage licenses*. Windsor and Perry, of course, only involve the latter -- that is to say, they are merely about *state action*, and the meaning and effect of a* state-conferred status*, not the institution of marriage through the ages. Second, in light of how states in this nation actually implement that governmental function -- most obviously, by affording marital status to many heterosexual couples who cannot or will not procreate -- is it really fair to say that those states' marriage laws are designed to solemnize a comprehensive,
Re: Marriage -- the Alito dissent
Well, I don't know what Alito may say about Posner's characterization, but I'm guessing he would not embrace the view he forwarded as emotional and sectarian, rather than rational. Indeed, I'm finding it hard to imagine that anyone would characterize their own view that way. (Well, maybe Westboro Baptist, but Alito is not of that persuasion, I would imagine.) While it may be true that the view he suggests is close to the Vatican's view (which Posner derisively calls its sex doctrine), it is also the dominant view of marriage over the past thousands of years. There's nothing necessarily sectarian about it, and it's certainly not non-rational. It might not be persuasive to all, or to many, but it would be an injustice to dismiss it so cavalierly. Richard Dougherty On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman lederman.ma...@gmail.comwrote: As a couple of you have pointed out to me, Judge Posner has addressed the Alito dissent; in Slate ( http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), he writes: Alito is drawn to such arguments for DOMA as “the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing,” and “marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” The first argument would have force only if one supposed (as virtually no one does any longer) that banning same-sex marriage would channel gays into straight marriages. The bearing of the second argument (a close paraphrase of official Vatican sex doctrine) eludes me. A sperm bank is intrinsically ordered to producing new life, even if it does not always do so. So what? A marriage of a man to a woman known to be sterile could not be thought intrinsically ordered to producing new life, yet it would surely be recognized by Alito as a valid marriage entitled to federal marital benefits. *So far as yet appears, opposition to same-sex marriage, and to federal benefits for gay couples, is emotional and sectarian, rather than rational.* I'm not sure this is quite responsive to Alito, because I'm not sure Alito would disagree: As I read his dissent, his view is that *because *opposition to same-sex marriage, and to federal benefits for gay couples, is indeed emotional and sectarian, rather than rational (not quite how Alito would put it, of course, but basically his point), courts cannot assess it . . . but legislatures can and must do so. On Sat, Jun 29, 2013 at 10:55 AM, Marty Lederman lederman.ma...@gmail.com wrote: I'm surprised there hasn't been more attention paid to the quite remarkable dissent that Justice Alito filed in Windsor. In it, he contrasts two competing views of marriage: what he calls the conjugal view, in which marriage is the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so (citing Robby George); and the “consent-based” concept of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. As Alito notes, At least as it applies to heterosexual couples, this [consent-based] view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. [Just as an aside: What is the purpose and implication of his adding At least as it applies to heterosexual couples?] Altio's view is that the judiciary can't possibly give preference to one or the other of these two views: Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore. [FN7 -- on which more below] Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence. Legislatures, on the other hand, apparently can do so: Legislatures, however, *have little choice but to decide between the two views*. We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution. Accordingly, both Congress and the States are entitled to enact laws recognizing either of the two understandings of marriage. I'd be curious what others think of this
Re: Marriage -- the Alito dissent
Fair enough, Richard -- I can't of course speak for Posner, but I shouldn't have suggested that Alito views opposition to same-sex marriage, and to federal benefits for gay couples, as necessarily emotional and sectarian. What I meant to refer to was the fact that Alito thinks this is a question that philosophers, historians, social scientists, theologians . . . and *legislatures *are capable of examining, but that is intractable to typical judicial processes of decisionmaking. (Of course, one of my initial points was that this is a non sequitur: Just because courts, *like* legislatures, cannot resolve the question of what the true or intrinsic nature of marriage is, does not mean that they cannot assess what legislatures have in fact done (and why) *on behalf of the state *in terms of defining marriage, something that is common fodder for the judicial processes of decisionmaking.) On Sat, Jun 29, 2013 at 12:10 PM, Richard Dougherty dou...@udallas.eduwrote: Well, I don't know what Alito may say about Posner's characterization, but I'm guessing he would not embrace the view he forwarded as emotional and sectarian, rather than rational. Indeed, I'm finding it hard to imagine that anyone would characterize their own view that way. (Well, maybe Westboro Baptist, but Alito is not of that persuasion, I would imagine.) While it may be true that the view he suggests is close to the Vatican's view (which Posner derisively calls its sex doctrine), it is also the dominant view of marriage over the past thousands of years. There's nothing necessarily sectarian about it, and it's certainly not non-rational. It might not be persuasive to all, or to many, but it would be an injustice to dismiss it so cavalierly. Richard Dougherty On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman lederman.ma...@gmail.com wrote: As a couple of you have pointed out to me, Judge Posner has addressed the Alito dissent; in Slate ( http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), he writes: Alito is drawn to such arguments for DOMA as “the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing,” and “marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” The first argument would have force only if one supposed (as virtually no one does any longer) that banning same-sex marriage would channel gays into straight marriages. The bearing of the second argument (a close paraphrase of official Vatican sex doctrine) eludes me. A sperm bank is intrinsically ordered to producing new life, even if it does not always do so. So what? A marriage of a man to a woman known to be sterile could not be thought intrinsically ordered to producing new life, yet it would surely be recognized by Alito as a valid marriage entitled to federal marital benefits. *So far as yet appears, opposition to same-sex marriage, and to federal benefits for gay couples, is emotional and sectarian, rather than rational.* I'm not sure this is quite responsive to Alito, because I'm not sure Alito would disagree: As I read his dissent, his view is that *because *opposition to same-sex marriage, and to federal benefits for gay couples, is indeed emotional and sectarian, rather than rational (not quite how Alito would put it, of course, but basically his point), courts cannot assess it . . . but legislatures can and must do so. On Sat, Jun 29, 2013 at 10:55 AM, Marty Lederman lederman.ma...@gmail.com wrote: I'm surprised there hasn't been more attention paid to the quite remarkable dissent that Justice Alito filed in Windsor. In it, he contrasts two competing views of marriage: what he calls the conjugal view, in which marriage is the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so (citing Robby George); and the “consent-based” concept of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. As Alito notes, At least as it applies to heterosexual couples, this [consent-based] view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. [Just as an aside: What is the purpose and implication of his adding At least as it applies to heterosexual couples?] Altio's view is that the judiciary can't possibly give preference to one or the other of these two views: Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the
Re: Marriage -- the Alito dissent
I understand why it can seem that way, but history can't make a nonsectarian view sectarian. The claim that the majority -- but not all -- of the arguments one hears are sectarian is per se evidence that it is not sectarian. There is a reason why the arguments track, but are not derived from, Vatican teaching, and that is that the Vatican teaching is largely drawn from philosophical principles, not theological ones. The natural law is the common source. Richard Dougherty On Sat, Jun 29, 2013 at 11:25 AM, Marci Hamilton hamilton.ma...@gmail.comwrote: At this stage in history, Alito's view is in fact decisively sectarian. The vast majority of opposition is theological w theological sources. That is the political reality. And his sources and arguments are derived directly from Vatican doctrine. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jun 29, 2013, at 12:10 PM, Richard Dougherty dou...@udallas.edu wrote: Well, I don't know what Alito may say about Posner's characterization, but I'm guessing he would not embrace the view he forwarded as emotional and sectarian, rather than rational. Indeed, I'm finding it hard to imagine that anyone would characterize their own view that way. (Well, maybe Westboro Baptist, but Alito is not of that persuasion, I would imagine.) While it may be true that the view he suggests is close to the Vatican's view (which Posner derisively calls its sex doctrine), it is also the dominant view of marriage over the past thousands of years. There's nothing necessarily sectarian about it, and it's certainly not non-rational. It might not be persuasive to all, or to many, but it would be an injustice to dismiss it so cavalierly. Richard Dougherty On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman lederman.ma...@gmail.com wrote: As a couple of you have pointed out to me, Judge Posner has addressed the Alito dissent; in Slate ( http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), he writes: ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
Marty: Agreed. I take it Alito is asserting the non-policymaking principle on behalf of the judiciary. But you are certainly right that even such a position does not prohibit the kind of judgment you identify here. Richard Dougherty On Sat, Jun 29, 2013 at 11:40 AM, Marty Lederman lederman.ma...@gmail.comwrote: Fair enough, Richard -- I can't of course speak for Posner, but I shouldn't have suggested that Alito views opposition to same-sex marriage, and to federal benefits for gay couples, as necessarily emotional and sectarian. What I meant to refer to was the fact that Alito thinks this is a question that philosophers, historians, social scientists, theologians . . . and *legislatures *are capable of examining, but that is intractable to typical judicial processes of decisionmaking. (Of course, one of my initial points was that this is a non sequitur: Just because courts, *like* legislatures, cannot resolve the question of what the true or intrinsic nature of marriage is, does not mean that they cannot assess what legislatures have in fact done (and why) *on behalf of the state *in terms of defining marriage, something that is common fodder for the judicial processes of decisionmaking.) On Sat, Jun 29, 2013 at 12:10 PM, Richard Dougherty dou...@udallas.eduwrote: Well, I don't know what Alito may say about Posner's characterization, but I'm guessing he would not embrace the view he forwarded as emotional and sectarian, rather than rational. Indeed, I'm finding it hard to imagine that anyone would characterize their own view that way. (Well, maybe Westboro Baptist, but Alito is not of that persuasion, I would imagine.) While it may be true that the view he suggests is close to the Vatican's view (which Posner derisively calls its sex doctrine), it is also the dominant view of marriage over the past thousands of years. There's nothing necessarily sectarian about it, and it's certainly not non-rational. It might not be persuasive to all, or to many, but it would be an injustice to dismiss it so cavalierly. Richard Dougherty On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman lederman.ma...@gmail.com wrote: ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
Of course history (people) can make sectarian views nonsectarian and vice versa. A religious belief under the Constitution is what the religious believer says it is right now, not what history said it was or should be. Alito is following Vatican (religious) dogma. In current US society, the push against gay marriage is based on religious believers who believe it is sinful for same sex couples to marry. That is the discourse regardless of the source of their current beliefs. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jun 29, 2013, at 4:18 PM, Richard Dougherty dou...@udallas.edu wrote: I understand why it can seem that way, but history can't make a nonsectarian view sectarian. The claim that the majority -- but not all -- of the arguments one hears are sectarian is per se evidence that it is not sectarian. There is a reason why the arguments track, but are not derived from, Vatican teaching, and that is that the Vatican teaching is largely drawn from philosophical principles, not theological ones. The natural law is the common source. Richard Dougherty On Sat, Jun 29, 2013 at 11:25 AM, Marci Hamilton hamilton.ma...@gmail.com wrote: At this stage in history, Alito's view is in fact decisively sectarian. The vast majority of opposition is theological w theological sources. That is the political reality. And his sources and arguments are derived directly from Vatican doctrine. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jun 29, 2013, at 12:10 PM, Richard Dougherty dou...@udallas.edu wrote: Well, I don't know what Alito may say about Posner's characterization, but I'm guessing he would not embrace the view he forwarded as emotional and sectarian, rather than rational. Indeed, I'm finding it hard to imagine that anyone would characterize their own view that way. (Well, maybe Westboro Baptist, but Alito is not of that persuasion, I would imagine.) While it may be true that the view he suggests is close to the Vatican's view (which Posner derisively calls its sex doctrine), it is also the dominant view of marriage over the past thousands of years. There's nothing necessarily sectarian about it, and it's certainly not non-rational. It might not be persuasive to all, or to many, but it would be an injustice to dismiss it so cavalierly. Richard Dougherty On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman lederman.ma...@gmail.com wrote: As a couple of you have pointed out to me, Judge Posner has addressed the Alito dissent; in Slate (http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), he writes: ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
Well, much of the most interesting work on natural law thinking of the past 20-30 years has been done by non-Catholics, some indeed by non-Christians. I am genuinely surprised that someone of Judge Posner's erudition wouldn't be aware of that. RD On Sat, Jun 29, 2013 at 3:31 PM, Malla Pollack mallapolla...@gmail.comwrote: with all due respect. Only a Catholic would contend that this view is natural law. Malla On Sat, Jun 29, 2013 at 3:18 PM, Richard Dougherty dou...@udallas.eduwrote: I understand why it can seem that way, but history can't make a nonsectarian view sectarian. The claim that the majority -- but not all -- of the arguments one hears are sectarian is per se evidence that it is not sectarian. There is a reason why the arguments track, but are not derived from, Vatican teaching, and that is that the Vatican teaching is largely drawn from philosophical principles, not theological ones. The natural law is the common source. Richard Dougherty On Sat, Jun 29, 2013 at 11:25 AM, Marci Hamilton hamilton.ma...@gmail.com wrote: At this stage in history, Alito's view is in fact decisively sectarian. The vast majority of opposition is theological w theological sources. That is the political reality. And his sources and arguments are derived directly from Vatican doctrine. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jun 29, 2013, at 12:10 PM, Richard Dougherty dou...@udallas.edu wrote: Well, I don't know what Alito may say about Posner's characterization, but I'm guessing he would not embrace the view he forwarded as emotional and sectarian, rather than rational. Indeed, I'm finding it hard to imagine that anyone would characterize their own view that way. (Well, maybe Westboro Baptist, but Alito is not of that persuasion, I would imagine.) While it may be true that the view he suggests is close to the Vatican's view (which Posner derisively calls its sex doctrine), it is also the dominant view of marriage over the past thousands of years. There's nothing necessarily sectarian about it, and it's certainly not non-rational. It might not be persuasive to all, or to many, but it would be an injustice to dismiss it so cavalierly. Richard Dougherty On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman lederman.ma...@gmail.com wrote: As a couple of you have pointed out to me, Judge Posner has addressed the Alito dissent; in Slate ( http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), he writes: ___ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
I'm not sure that the second sentence of Marci's comment below is correct for all constitutional purposes. But I think the first part of the first sentence can be true. A standard part of the story of religion and science as dual magisteria is that the domain of factual claims made by religion tends to recede as the domain of scientific explanatory claims expands. So a factual claim that was once generally accepted, such as claims about the origin of life or the age of the universe, can effectively move from non-sectarian acceptance to solely sectarian acceptance. Claims about male-female complementarity *might* fall into that category. That said, I don't think that renders all anti-SSM claims impermissibly sectarian. A Burkean conservative might plausibly believe that changing the scope of marriage in the face of what he believes to be a well-established and well-proven tradition is unwise, and that resistance to this change is prudent and rational. Or one might believe as a factual matter, rightly or wrongly (the latter, in my view), that children and society fare better under heterosexual family arrangements. These views might be wrong, but I don't see why they must be treated as sectarian, if that is even constitutionally relevant, just because the outcome they suggest is consistent with a prominent sectarian view. Paul Horwitz Sent from my iPhone On Jun 29, 2013, at 2:18 PM, Marci Hamilton hamilto...@aol.com wrote: Of course history (people) can make sectarian views nonsectarian and vice versa. A religious belief under the Constitution is what the religious believer says it is right now, not what history said it was or should be. Alito is following Vatican (religious) dogma. In current US society, the push against gay marriage is based on religious believers who believe it is sinful for same sex couples to marry. That is the discourse regardless of the source of their current beliefs. Marci ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
