I appreciate Marty's points, but I wonder whether they really take us as far as he suggests. Indeed, when a government action discriminates against particular people based on sex, and thus requires intermediate or intermediate-plus scrutiny, generalizations (even accurate ones) about men's and women's behavioral and psychological traits generally may not be used. But it doesn't follow that the same is so in rational basis land (true rational basis land, rather than the proto-intermediate-scrutiny used in Reed v. Reed). Say, for instance, that the government decides to aim an anti-violence advertising campaign at young men, and offers to pay advertising agencies for designing such ads; and say that an agency submits a proposed ad that's aimed at young women. I take it the government could reject that ad, and would have a rational basis for engaging in such discrimination, even though the basis would rest on the assumption that young men are more violence-prone than young women. This suggests, I think, that the prohibition on considering psychological and behavioral differences (proven or conjectured) between men and women is an aspect of the Court's heightened scrutiny jurisprudence, and not of rational basis scrutiny.
Eugene -----Original Message----- From: Marty Lederman [mailto:[EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> ] Sent: Sat 12/6/2003 5:39 PM To: Law & Religion issues for Law Academics Cc: Subject: Re: Talking across different world-views [Was: Civil unions and marriage] This is not meant to respond to many of the very important broader points that Gregory Sisk raises in his long post. I'd simply like to offer a discrete response to the one example that Prof. Sisk offers in this post as a defense of laws limiting marriage to opposite-sex couples: He invokes "society's recognition of the unique complementarity of male and female, in which each brings different but vital gifts to the union and thereby creates a whole that is far more than the sum of its parts. [M]arriage is designed to join difference to difference, not add same to same." (I acknowledge that in his previous posts, Prof. Fisk has invoked other justifications, as well; in this post, I limit my remarks to the "complementarity" justification.) I agree that this argument does not lack any rational basis. Certainly many people, and legislatures, believe in fundamental differences between, and a "unique complementarity" of, men and women, even if I don't; and thus if rational basis review were the governing standard, this explanation might have salience. However, it seems to me that, at least insofar as such a law would be defended in litigation, this is the one justification that would be quite obviously out of bounds in this particular, i.e., post-1975, legal culture, because it depends upon precisely the sorts of sex stereotypes that are presumed invalid and pernicious, and are, as a practical matter, constitutionally fatal to any form of sex discrimination. The citations, of course, are legion and virtually unbroken: VMI; Hogan; the 1970's federal-benefits cases; Frontiero; etc. Of course, Prof. Fisk also mentions an actual, physical difference -- a difference that is relevant to what he calls the "only means by which the next generation comes into being." This physical difference, however, is not itself sufficient to sustain a prohibition on same-sex marriage, even if rational basis were the standard. Even assuming that the state interest here is in retaining a certain level of child-bearing, and even apart from the fact that sexual intercourse between persons of opposite sexes no longer is the "only means by which the next generation comes into being," I see no reason why the same-sex marriage prohibition would affect, or be at all relevant to, the ability or proclivity of persons to combine sperm and egg to create an embryo, whether through intercourse or otherwise. Perhaps for those reasons, I do not understand Prof. Fisk to be relying upon the physical differences between sexes as an independent justification for denying gays and lesbians the right to marry. _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
