for guest-blogging last week on the same-sex marriage question. Remember that University of Minnesota law professor Dale Carpenter will be guest-blogging on the other side -- in favor of legal recognition of same-sex marriage -- the week of the 31st.
Saturday, October 22, 2005
For many years, Denver Bronco Bill Romanowski was the dirtiest player in the National Football League. Now, the media are helping the despicable "Romo" sell his self-sreving autobiography. In my latest media column for the Rocky Mountain News, I argue that the media shouldn't help cheaters prosper. Instead, the media should publicize sports autobiographies by players who didn't make a career of cheating. For example, it's too bad the media almost completely ignored The First Black Quarterback, by Marlin Briscoe.
Contrary to the poll cited yesterday, this poll (it is my understanding that this is a Gallup Poll) finds much weaker support for Miers than Roberts, both among self-described conservatives and self-described moderates. Liberals generally dislike both, but if anything they slightly prefer Miers. Significantly fewer respondents express an initial positive impression of Miers than Roberts. Moreover, her status as a woman generally does not make respondents more likely to support her (most respondents say it makes no difference). By contrast, respondents indicate that they are less likely to support her in light of her being a close friend of the President, her "stealth" views on issues, and her lack of prior judicial experience.
Jason Sorens in the Comments points me to a Rasumussen poll that shows support for Miers falling. According to that poll, only 48% of Republicans say she should be confirmed and only 20% of Democrats.
The White House has begun making contingency plans for the withdrawal of Harriet Miers as President Bush's choice to fill a seat on the Supreme Court, conservative sources said yesterday.If these "conservative sources" are right, this is very big news. Thanks to Howard for the link.
"White House senior staff are starting to ask outside people, saying, 'We're not discussing pulling out her nomination, but if we were to, do you have any advice as to how we should do it?' " a conservative Republican with ties to the White House told The Washington Times yesterday.
Friday, October 21, 2005
A week after he turned 18, Matthew Limon had oral sex with a 14 year old boy. The act occurred in February 2000, when both were students at a school for developmentally disabled children. Limon was charged with criminal sodomy under Kansas law, K.S.A. 21-3505(a)(2), which states that "[c]riminal sodomy is . . . sodomy with a child who is 14 or more years of age but less than 16 years of age." Limon was convicted and sentenced to serve a very severe sentence, 206 months (17 years, 2 months) in prison; the high sentence apparently was due in part to Limon's prior criminal record.
The basis of Limon's legal challenge is the existence of the Kansas "Romeo and Juliet" statute, K.S.A. 21-3522, enacted in 1999, which imposes lower sentences than would otherwise exist for a specific set of sex offenses. Specifically, the statute offers much lower punishments for sexual misconduct if (1) the victim is a child of 14 or 15; (2) the offender is less than 19 years of age and less than 4 years older than the victim; (3) the victim and offender are the only ones involved; and (4) the victim and offender are members of the opposite sex. If Limon had been convicted under this statute, he would have received about 14 months in prison, not 206.
Limon argued that Kansas law violated the equal protection clause of the Fourteenth Amendment because if the act had taken place between opposite sex participants, Limon would have received a much lower punishment under the Romeo & Juliet statute than he did under the criminal sodomy statute. The Kansas Supreme Court agreed, finding that the different treatment did not survive rational basis scrutiny and was therefore unconstitutional under the Equal Protection clause:
We conclude that K.S.A. 2004 Supp. 21-3522, the Kansas unlawful voluntary sexual relations statute, does not pass rational basis scrutiny under the United States Constitution Equal Protection Clause or, because we traditionally apply the same analysis to our state constitution, under the Kansas Constitution Equal Protection Clause. The Romeo and Juliet statute suffers the same faults as found by the United States Supreme Court in Romer and Eisenstadt; adding the phrase "and are members of the opposite sex" created a broad, overreaching, and undifferentiated status-based classification which bears no rational relationship to legitimate State interests. Paraphrasing the United States Supreme Court's decision in Romer, the statute inflicts immediate, continuing, and real injuries that outrun and belie any legitimate justification that may be claimed for it. Furthermore, the State's interests fail under the holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest. As Justice Scalia stated: "If, as the [United States Supreme] Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest," the statute cannot "survive rational-basis review." 539 U.S. at 599 (Scalia, J., dissenting).One interesting aspect of the court's opinion is that the defendant wasn't actually charged under the statute that the court found unconstitutional, at least if I am reading the opinion correctly. As a technical matter, the defendant was convicted of sodomy; the court found the Romeo and Juliet statute unconstitutional; remedied the situation by rewriting the R&J statute in a way that made it constitutional; reversed the conviction for sodomy, even though that statute technically wasn't challenged; and then ordered the state to retry Limon (of they still want to press charges) under the new rewritten Romeo & Juliet statute. Am I right about that? I suppose they did this for entirely pragmatic reasons, but it's somewhat unusual.
A second interesting aspect of the opinion is that the merits (if not the remedy) are based on federal law, which means that the U.S. Supreme Court will have the opportunity to review the decision if Kansas petitions for certiorari.
Amusing article in the LA Times this week on the art of flattery.
I was often told by the lawyers in my shop at the FTC that I was the "best ever" head of the Office of Policy Planning at the FTC, and my students frequently tell me I'm one of the "coolest" law professors ever. So, notwithstanding the suggestion of the article, obviously not all such comments are merely insincere flattery.
Orin has posted several interesting Miers pieces this week--I think the Novak column he mentioned is especially insightful. Here's a few things that I didn't notice my colleagues mention this week, especially on the politics of the Miers confirmation, that I found informative and stimulating.
Steven Teles has an interesting post on Mark Kleiman from earlier this week where he argues that the "Miers flap" among conservatives is an internal battle between the "nonelectoral intellectual" wing of the conservative movement versus the "electoral" grassroots wing. He writes:
So today each party has two wings--an electoral wing, which tends to be more populist and rests on a larger mobilized base, and a non-electoral wing, which tends to be elitist and defines itself more by intellectual principles. Each of these wings has substantial coordination within itself, and some degree of "coupling" to the other wing.
Thus back to Miers. What this conflict is really driven by is the temporary "decoupling" of the electoral and the non-electoral wings of the Republican party. The Christian Right, for example, is largely (but not exclusively) connected to the electoral wing of the Republican party. They care more about outcomes than constitutional principles, and thus are likely to be more susceptible to being persuaded that Harriet Miers will rule their way, regardless of her credentials or the quality of her mind. The lawyers who actively participated in the growth of the Federalist Society, on the other hand, think of legal change as a long-term game, one that is as dependent on shifts in "legal culture" and ideas as it is on who votes which way on the Court. Their conception of how you really create legal change is to produce an entire elite, trained in the top law schools, oriented to constitutional principle, and linked together into a network. Miers does not come out of that process of non-electoral mobilization, but out of the business wing of Texas politics--and hence her involvement with Bush's electoral and political career.
In essence, the non-electoral wing of the Republican party sees legal change as a "long twilight struggle" that happens slowly and indirectly, and in that process Justices matter as much for the intellectual leadership they show as the direction they rule. That is why so many of the Federalist Society types (and the non-lawyers they have influenced) preferred someone like Mike McConnell or Michael Luttig, both of whom are clearly "one of them." Interestingly, had either of these been nominated, both the electoral (at least the Christian conservatives) and non-electoral wings of the Republican party would have been pleased.
This seems largely correct to me--and mirrors my observation in my Legal Times column (now available on-line) that it is not enough to simply choose a Justice who will "vote right" but one who has the ability and temperament to try to help change the legal culture (although I would add that Justices who lack a well-developed judicial philosophy eventually may not even "vote right" down the road). Presumably I fall squarely in the "non-electoral" category.
Consistent with Teles's observation about a gulf between the electoral and non-electoral wings of the Republican Party is Donald Lambro's post on the Washington Times blog "Harriet Miers' Enigmatic Polls." Lambro notes that although Miers's nomination has been roundly criticized by conservative intellectuals, so far conservative voters are supporting her at roughly the same rate as they did Roberts when he was nominated (although many more are undecided at this point):
However, out in the real world, it’s a far different story. Pew found that “opposition to Miers is largely partisan,” though, notably, a narrow majority of conservative Republicans (54 percent) favor her nomination. And less than half of Republican moderates and liberals (43 percent) do, too.
Among conservative Republicans alone, Pew found just 9 percent were opposed to her.
News reports suggest that there is a wave of opposition to Miss Miers from conservative Republicans. But Pew’s poll finds that “opposition to Miers among conservative Republicans is not much greater than it was to [Supreme Court Judge John] Roberts in September.”
On the other hand, “about twice as many conservative Republicans express no opinion of Miers nomination than did so regarding the Roberts nomination last month (37 percent vs. 18 percent).”
At the same time, opposition to Miss Miers among Democrats, “especially liberal Democrats, is greater than it was toward Roberts. About half of liberal Democrats (52 percent) say Miers should not be confirmed, compared with 40 percent who opposed Roberts.”
Finally, on the American Spectator blog John Tabin counts heads on the Senate Judiciary Committee and concludes that it "Doesn't Look Good" for Miers for getting a positive vote out of committee (he notes that Supreme Court nominees cannot be killed in committee). He expresses great confidence that she cannot win confirmation:
Democrats might have concluded that it would be better to back Miers than risk facing a stronger conservative. But after the latest revelations about her pro-life views, Miers can expect almost no support from the party of Roe v. Wade.
Consider just the Judiciary Committee. Unless she explicitly declares fealty to upholding Roe, the five Democrats who voted against John Roberts won't vote for her. The three who did vote for Roberts — Herb Kohl of Wisconsin, Russ Feingold of Wisconsin, and Patrick Leahy of Vermont — did so on the grounds that the overwhelming qualifications of the nominee trumped their ideological concerns. With Miers, the qualifications are significantly less and the ideological concerns are now arguably greater. Miers will probably not get even a single vote from the Committee's eight Democrats.
She can't count on Committee Republicans, either. Another conservative Committee member, Jeff Sessions of Alabama, commented after the TUL-PAC questionnaire came out that Miers still needs to "show she has the capacity to be a Supreme Court justice." The New York Times reported two weeks ago that after meeting with Miers, conservative Committee member Sam Brownback of Kansas "said he would consider voting against the nomination, even if President Bush made a personal plea for his support." And squishy Committee Chairman Arlen Specter, along with ranking Democrat Leahy, it was reported yesterday, was very displeased with Miers's "incomplete" answers to a Judiciary Committee questionnaire.
Under a bipartisan agreement, Supreme Court nominations can't be killed in committee. But if all the Committee Democrats and even one Republican vote against her, the vote will be 9-9 and Miers will go to the Senate floor without a recommendation that she be approved. This will make it much harder to get Miers confirmed on the Senate floor. It will be harder still — probably impossible — if ten or more Senators vote against her in committee.
Finally, a friend of mine observes that he and other conservative lawyers are now living in fear of a "Stockdale moment" in the televised confirmation hearings. Even worse, whether fairly or not, Ms. Miers is starting to take on a bit of a Quayle-like persona where people will be lying in wait for the smallest trip-up and to expand it into something larger (consider, for instance, the scrutiny and questions that have been raised about her questionaire and the "proportional representation" issue). This same friend reports that he once saw Miers give a speech and has little confidence that Miers will substantially improve her case during her hearings:
She struck me as surprisingly unprepared and inarticulate (much like Bush himself). Indeed, she and Dubyah appear to be graduates of the same public speaking seminar . . . and that isn't a compliment. I think we are in for a lot of Supreme Court opinions with lines like "We're getting after 'em. We're smoking 'em out. We want 'em dead or alive" and "After reading the opinion below, I'm tellin' ya, the lower court did one heckuva job."
At this point it really seems like it could go either way, but the White House seems to be working with a pretty thin margin for error. Much of it depends, it seems, on whether the Democrats decide that they are better off with a stealth candidate like Miers or what is behind door #2. At this point, however, Tabin's calculations seem sound--although Miers is a stealth candidate on almost every issue, in light of the revelations over the past few weeks, she no longer seems to be a stealth candidate on Roe. In that light, it is hard to see how many Democrats could vote for her, not to mention liberal Republicans. The remaining margin really seems razor-thin at this point, such that any missteps at her hearings seemingly could prove fatal.
I respectfully dissent from the order denying rehearing en banc. We have effectively erased a statutory provision designed to restrict the power of the lower federal courts to overturn fully reviewed state court criminal convictions. And we have sharpened a serious circuit split.(check check check) You can never be entirely sure, of course, but this one looks like a grant to me. Thanks to Howard for the link.
The video and transcript of my discussion with Gwen Iffel and Travis Plunkett of the Consumer Federation of America is now available on the PBS website here. The segment is about nine minutes long.
Allow me to put in a plug for Greg Brune's "Puzzle Boat," an incredibly complex and rewarding set of puzzles found here. The puzzles come in all varieties (word games, numbers, trivia, etc.), and are all part of one huge meta-puzzle. The puzzles went online several days ago and there's a leader board keeping track of solvers' statuses.
Well, bad time management on my part.
No time to introduce you to the joys of theories of the cognitive nature of social institutions, the relevance of the New Institutionalist Economics understanding of isomorphic institutional change, the developing legal pressures in Canada to repress opposition to its new normative understanding of marriage, or even why I think the most likely outcome of same-sex marriage is not polygamy but the end of marriage as a legal status.
Thanks Eugene, for this opportunity. I know you know this, but you've constructed a pretty rare and special place here. I appreciate your generosity to me, and to those who disagree with you on this issue.
The wall is still up pretty high there. Maybe a few chinks of air and light that open up the possibility of understanding each other. But clearly not many.
A few last thoughts:
Remember how we were promised that unilateral divorce would expand liberty, and only affect people in bad marriages? Meanwhile the government reduced everyone’s marriage contract to the status of a gambling debt--alone of contracts, marriage promises cannot be enforced. Unilateral divorce changed the whole culture of marriage, not just those who divorce. And the people who advocated for it were so sure that more divorce would make children better off, weren’t they? Only a fool, or a religious zealot, could disagree.
Or think about legal polygamy. Seriously, how would other people's polygamy affect your marriage? Even in polygamous societies most people are monogamous after all. Why would anyone imagine that change in the law would matter? If you can imagine how, you can at least begin to see why so many of us think SSM is going to profoundly change the meaning of marriage in this society.
Or take the fact that marriage is an economic partnership. Suppose we expand the definition of marriage to include two business partners? How could that possibly hurt marriage? After all we aren't running out of marriage licenses, are we? Those who want their marriage to have something to do with sex and intimacy, would still be free to do so, no?
Ridiculous, I can hear SSM advocates say. SSM is not like that. Because in their heads the core definition of marriage is already personal intimacy and commitment, and gay people already “fit.” For some people, that's the answer. For me and I think millions of American children, that is the problem.
But of course if you are advocating for SSM, you really do know that social meanings matter. You've made passionately clear that an identical institution called “civil unions” that delivered all the legal incidents of marriage just wouldn't be good enough, because it doesn’t mean the same thing. You seek to use the power of government to take all those accumulated meanings of marriage (which were not created by the government) and re-direct them to same-sex relations, and many of you clearly also want to discipline those who don’t accept your moral view, to the best of your abilities. And so many want to do this in the name of liberty, without even acknowledging what SSM is: the use government power to impose a new morality on a reluctant people.
After SSM, the law will be committed to reclassfying the once-privileged conjugal vision of marriage—with its deep roots in the reality that humanity comes in two halves, male and female, who are called to join together in love, not only as a private satisfaction, but in order to make the future actually happen—as at best a private understanding and most likely a discouraged, discriminatory understanding of marriage.
If two men are married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad. So long as they have love, money and stability, fathers (or mothers) are equally dispensable. That's what "no difference" means. The institutions of government, including public schools, will begin to enforce this new concept of marriage. This is not a conservative case for marriage; it is the final triumph of the family diversity argument.
The internal contradictions are intense: Gender doesn't matter, except when orientation is involved, in which case gendered sexual desire matters so much we are morally obligated to restructure our most basic social institution for protecting children, so that all adults get their needs for intimacy and social affirmation met equally. Orientation, as a classification, assumes gender is a real and significant category of human existence; but apparently only for gays, and not for children.
And the people who advocate SSM do so (mostly) with very little insight into the magnitude of the change they are asking us to accept. After all you've decided SSM is a civil right, so you get to impose your morality on people in good conscience (that's what civil right means), and so you now don't have any responsibility or burden of proof in this matter: it is totally up to others to prove to you there will be any negative consequences.
I have most of human history on my side. You have your personal moral conviction that only hate explains why people object.
This is my one big message for SSM advocates: don't minimize what you are proposing. Take responsibility for it.
I’m grateful to the reader who described my view as saying that SSM will be the straw that breaks the camel's back. But that straw thing doesn't quite capture it. Because to me, SSM is a much greater change in marriage than either unilateral divorce, or polygamy. From where I stand, it is about as big a change as one can propose.
Imagine you stand in the middle of vast, hostile desert. A camel is your only means of transversing it, your lifeline to the future. The camel is burdened-- stumbling, loaded down, tired; enfeebled-- the conditions of the modern life are clearly not favorable to it. But still it’s your only hope, because to get across that desert you need a camel.
Now, chop off its legs and order it to carry you to safety.
That’s what SSM looks like, to me.
Same-sex marriage is not a civil right, because marriage is not discriminatory. It has its own dignity and purpose, rooted in real and enduring human realities. Marriage is deeply important not just to those who personally do it, but to anyone who cares about the future of the society we share.
Every society needs some social institution that channels the swirling erotic energies of young men and women towards each other, and towards generativity both in the negative sense (avoiding unwed childbearing) and the positive sense (encouraging babies). You need some way to tell men (and women) that fathers matter. In absence of some such powerful social institution, children suffer enormously, communities and societies are burdened with all kind of costs, government gets more deeply and intrusively involved in directing the details of family life. And yes, if the social institution weakens enough, the actual future of the society itself is threatened.
Sex makes babies. Society needs babies. Babies need mothers and fathers. This is the heart of marriage as a universal human idea.
SSM advocates instead demand we reshape this institution in law to be more equally affirming of adults' diverse intimacy needs. That is some people's idea of the great moral crusade of our time. Here's mine:
Children have a right to a society that respects their deep, passionate longing for a mother and a father; one that calls on adults to make significant sacrifices to satisfy this longing.
In the middle of a crisis of fatherlessness of unprecedented proportions, proposing to conduct this kind of legal experiment on marriage is not reasonable. It is not kind; it is not compassionate and it is not remotely just.
Although skeptical from the start, we’ve restrained our criticism of the Harriet Miers nomination because we’ve long believed that Presidents of either party deserve substantial deference on their Supreme Court picks. Yet it now seems clear–even well before her Senate hearings–that this selection has become a political blunder of the first order.Thanks to Bench Memos and Confirmthem for the links.
UPDATE: In a sign that the common wisdom may have shifted — or, if you prefer, a sign that the market hath spoken — or, perhaps, a sign of nothing at all — Tradesports betting on Miers today has the chances of her being confirmed in the 20% range, down about 40 points from yesterday.
ANOTHER UPDATE: And then there is this news from the New York Sun, via Howard:
[A]t least one conservative senator is said to have asked White House officials yesterday to withdraw the nominee's name because of a growing lack of enthusiasm for Ms. Miers among Republicans in the Senate.
"I don't know exactly what was asked, but displeasure was expressed," a source familiar with the White House strategy on judicial nominees said. "The White House responded that it would do no such thing."
AND ANOTHER: I gather the typos in her questionnaire aren't helping, either. Normally such nits are irrelevant, of course, but they make you wonder.
As he weighs whether to bring criminal charges in the C.I.A. leak case, Patrick J. Fitzgerald, the special counsel, is focusing on whether Karl Rove, the senior White House adviser, and I. Lewis Libby Jr., chief of staff for Vice President Dick Cheney, sought to conceal their actions and mislead prosecutors, lawyers involved in the case said Thursday.
Among the charges that Mr. Fitzgerald is considering are perjury, obstruction of justice and false statement . . .
Mr. Rove and Mr. Libby have been advised that they may be in serious legal jeopardy, the lawyers said, but only this week has Mr. Fitzgerald begun to narrow the possible charges.
It is very sad to see the Conspirators become overwhelmed with repeating and highlighting speculation and opinion, a la talking heads on cable news, as this Miers nomination has gone forward. None of the complaints over the past week or so amount to anything of substance, just people picking through evidence looking to highlight the story line of the day. * * * Time for someone here to cut through the B.S. and provide a framework to think about this that isn't completely inane and emotive.The difficulty, I think, is that there isn't much framework to a Senate confirmation other than how the 100 Senators will choose to vote. And we know so little about Miers — and what the Senators think of Miers — that there really isn't much to chew on except the story line of the day. Anyway, I apologize if I have bored readers with too many Miers posts; I think it's a fascinating and extremely important topic, but I realize others may be bored with it.
This otherwise only mildly interesting essay by Eric Hobsbawm on diaspora Jewry raises once again the issue of why Karl Marx is commonly considered to have been a Jew. My understanding is that Marx's parents converted to Christianity, and Marx was raised and educated as a Christian. Marx also expressed notoriously ignorant, prejudiced and hostile feelings towards Jews. Other than the fact that his parents were born Jewish, is there any logical reason that he is often claimed as a Jew? Did his family associate mostly with Jews, or otherwise raised him in a Jewish cultural milieu? For example, did he speak Yiddish in his parents' house? Despite his upbringing, did he consider himself to be Jewish? I'm serious about these questions.
As far as I can tell, anti-Semites like to claim Marx as a Jew because they want to blame the Jews for Communism. "Progressive" Jews also claim Marx, as a "Jewish" advocate of social justice. Also, some Jews take perhaps an odd pride in the idea that the supposed "three greatest thinkers" of modern times--Marx, Freud, and Einstein--were allegedly all Jews. And because halachah (Jewish law) doesn't recognize conversions, I suppose in that sense Marx was technically Jewish. But for all practical purposes, in the absence of other evidence, wouldn't it make sense to call a child raised in the Christian religion by Christian parents a Christian? [Edit: And wouldn't that make the adult Marx a lapsed Christian?] Not that it should really make any difference whether he was in fact Jewish or not. But I am genuinely puzzled by why otherwise careful writers would simply assert that Marx was Jewish without explanation.
UPDATE: According to the comments, Marx's mother wasn't Jewish in any sense of the word. So, really, Marx was LESS Jewish than, say, Barry Goldwater, who had a Jewish father who never converted, and who was, though raised as a Christian, was proud of the Jewish side of his family. I don't think anyone sane thought Barry Goldwater qualified as a Jew, though, so Marx clearly doesn't qualify.
Thursday, October 20, 2005
A 27-year-old man demanded extra prison time because he wanted to honor his basketball hero, Larry Bird.I wonder if he'll feel the same way when he is 57 years old. Thanks to Kristen Murray for the link.
A lawyer for Eric James Torpy reached a plea agreement with Oklahoma City prosecutors for a 30-year jail term on two charges of shooting with intent to kill and one count of a weapons violation, District Court Judge Ray Elliott said in a telephone interview.
Torpy then insisted on getting 33 years to match the uniform number Bird wore when he led the Boston Celtics to three National Basketball Association championships during the 1980s, Elliott said. The judge on Oct. 18 accommodated his request.
"He told his attorney that Larry Bird was his long-time hero, and that if he was going to go to prison he wanted to go down with that number," Elliott said.
Strategists working with the White House in support of the Supreme Court nomination of Harriet Miers are becoming increasingly demoralized and pessimistic about the nomination's prospects on Capitol Hill in the wake of Miers's meetings with several Republican and Democratic senators. On a conference call held this morning, they even discussed whether Miers should simply stop visiting with lawmakers, lest any further damage be done — and so that time spent in such get-acquainted sessions will not cut into Miers's intensive preparation for her confirmation hearing.And the conclusion:
"In the early days, there were people on the call who tried to give facile defenses of Miers, and they were immediately shot down," says a fourth source. "And by the way, those defenses weren't as insulting as the White House line — no way would they have done the 'sexist, elitist' line."Remember, this is from the group working with the White House in support of the nomination.
In summary, says the first source, "People have been looking for ways to support this. There are a lot of us who would like to find a reason to be encouraged. Every time I try to accommodate myself to this nomination, folks at the White House say idiotic things that piss me off, like that spin on Rove's part about her supposed deep involvement in judicial selection for three years, which is just not accurate."
"Demoralization and pessimism?" the source continues. "That's been a constant. We're in the various stages of grief."
The key question now is whether the White House can push through the Miers nomination despite these problems, or whether the problems accumulate and reach some kind of tipping point when Republican Senators begin to flip and come out against the Miers nomination. I don't have any special insight into which will happen, but news that Senators Brownback and Graham are calling for the White House to disclose its internal records on Miers' work as White House Counsel seems to me to lend some credence to the tipping point theory.
Given her weakness in constitutional law, her background in business law looks like a strength. On the other hand, her nomination hardly merits praise for bolstering the Court's business law expertise. If that were the primary goal, I suspect that President Bush could have found hundreds of more qualified candidates. In the end, the total package is still monumentally disappointing.
At approximately noon, eastern time, the House of Representatives voted to pass S. 397, 283-144. The bill, known as the "Protection of Lawful Commerce in Arms Act," has been endorsed by the White House, and now goes to the President for his signature.
The bill is the culmination a decade of tort reform work, aimed at addressing the problem of abusive lawsuits against gun manufacturers. The bill is an excellent exercise of the congressional power over interstate commerce, for precisely the purpose for which Congress was originally granted that power: the billis necessary and proper to stop local governments from interfering with interstate commerce, including by attempting to use a verdict in a single state court to impose national firearms controls which have been rejected by Congress and by all state governments.
S. 397 is also a proper exercise of Congressional power under section 5 of the 14th Amendment, to prevent local governments, including local courts, from infringing the Second Amendment rights (and the parallel state constitutional rights in 44 states) which are guaranteed to all law-abiding Americans.
In addition, the bill is also a necessary and proper exercise of the Congressional war power, because the civilian firearms industry is now, and always has been, essential to the production of firearms for the military. Without a robust civilian firearms industry, manufacturers who had to produce only for a military or police market would have to charge much higher prices, and would innovate far less. Almost every gun ever used by the U.S. military was originally developed for the civilian market. Accordingly, the Department of Defense stated that is "strongly supports" S. 397 because the bill "would help safeguard our national security by limiting unnecessary lawsuits against an industry that plays a critical role in meeting the procurement needs of our men and women in uniform."
Thirty-four states had already enacted their own laws to prohibit such suits, but Congressional action was necessary to ensure that a single court in one of the hold-out states did not attempt to destroy the U.S. firearms industry, or to impose the will of a single judge as a national system of firearms restrictions.
The Brady Center, the instigator of the abusive suits, has already expressed its intention to fight the new federal law in court. Significantly, no court anywhere in the United States has ever ruled in favor of similar challenges to the state statutes restricting abusive lawsuits against Second Amendment rights.
The Senate added two unrelated items to S. 397, both of which have caused concern among some Second Amendment activists:
First, the bill increases the already severe mandatory minimum sentences for use of armor-piercing ammunition in a violent or drug trafficking crime. Mandatory minimums are generally a bad idea, but since actual armor-piercing ammunition, as defined by federal law, is very rare, the practical effect of the new sentences will be very small.
Second, the bill requires all licensed firearms dealers to include a locking mechanism with each handgun they sale. Almost every American manufacturer already includes a lock (either an internal lock or, more commonly, a cable lock or trigger lock), with every new gun.
Accordingly, the main effect of S. 397's lock provision will be to force sellers of used handguns to raise their price by several dollars to provide customers an item that the customer may not need. (For example, the customer may already own a gun safe, or may plan to keep the handgun always ready for self-defense, so that it should not be locked up.)
The bill also provides civil immunity for persons who use locking devices. There have been a few state court cases in which guns were effectively treated as ultra-hazardous products, and gun owners whose guns were stolen and used in a crime were found civilly liable, even though their guns had been stored in a safe.
Both of the extra provisions have slippery slope risks: Senator Kennedy and a significant number of Senators favor expanding the definition of "armor-piercing" ammunition so as to include the vast majority of conventional rifle ammunition. And several states have enacted dangerous laws which require handguns to be locked up, and thus inaccessible for emergency self-defense.
However, the future dangers of slippery slopes are far outweighed by the immediate threat posed by abusive lawsuits. On the whole, S. 397 is an immense victory for constitutional rights.
For background on the abusive lawsuit issue, you may wish to read some of the ten articles I've written on the subject, including the 1995 Seton Hall Legislative Journal article which argued that courts should protect the Second Amendment from abusive lawsuits, just as they protected the First Amendment from abusive lawsuits in New York Times v. Sullivan. But even better than judicially-created protection is legislatively-created protection. Today's bi-partisan vote is a tremendous victory for the constitutional rights of citizens, and is the result of Congress exercising its powers for precisely the pro-freedom reasons for which those powers were granted to Congress by the American people.
Ok, very brief rebuttals, since you insist.
On adoption: I think adoption is great. I even think single parents adopting is great (if the alternative is no family).. I think arguably adoption is morally better than procreation. (The Christian view is we are all children of God through adoption).
But before you can adopt you have to have parents who have abandoned or are judged by the state to be incapable of caring for their own children. Adoption is thus a happy end to a tragedy or a crime. I personally think there should be preferences for married couples in adoption law. I could be persuaded you ought to have second-parent adoption laws for gay couples. But I don’t see how the fact that some married people adopt undercuts the relationship between marriage and procreation.
Anymore than I think the fact that people can and do bear children outside of marriage (and the state doesn’t forcibly repatriate their children) means that marriage really never really been about procreation.
People raise the most bizarre arguments: Well, if marriage were really important for procreation and family structure we’d do “X.” And the “x” is something no marriage culture has ever done to my knowledge: like forcibly annulling childless couples.
Andrew Sullivan is particularly good at this: He pulls out of his hat his standard for what would make marriage connected to procreation, like testing couples for infertility and barring those who are found not to be procreative, or having the state end marriages that are not child-producing within five years. And then he declares that the fact we don't do this "proves" marriage isn't really connected to procreation in law.
But the way marriage cultures work is quite different: by separating out a certain kind of sexual unions—husbands and wives-- and surrounding these unions with special legal, familial, religious and cultural support. Because the way it works in reality is, the more people attracted to the opposite sex who enter such unions, the better off children will be.
A subtler argument sometimes made is this: well, we have some nonprocreating couples in the mix. Why would adding SS couples change anything? Two points: SS couples are being added to the mix precisely in order to assure that society views them as “no different” than other couples. This intrinsically means (if the effort is successful) downgrading if not eliminating the social significance of generativity (procreation and family structure). The second truth is that both older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn’t signal anything in particular at all.
A reader asks, "How about a frank admission that many people are opposed to gay marriage simply because they despise homosexuals, or have a strong religious feeling that homosexuality is wrong, wrong, wrong."
Yes this is true. In addition to the marriage debate about SSM, there is an overlapping and parallel moral debate over how we understand and accomodate sexual orientation.
For many people (almost all SSM advocates and a large number of SSM opponents) this is the main issue.
It's just not my issue. If Eugene wants to explore it intellectually on this space, he needs to find someone who knows more and has thought more than I have about it.
BTW, to the many comments posted: I really appreciate your input. And I will read and think about all your comments. But I've generated I dunno 500 comments. Please bear with me, as I spend most of the brief time left making my case, not rebutting yours.
Orin, I also want to respond to your first very perceptive question: “ If marriage is so innate, why should we expect a small number of same-sex marriages to have a significant effect on how the majority in opposite sex relationships behave?”
I don’t think marriage is a universal human institution because marriage is innate. The forms of marriage differ so wildly, cultural variations are huge. You only have to go into the inner cities to see that marriage is not innate. It can disappear.
Yes, there are things in human nature that help sustain it (e.g. a pair bonding preference; sexual jealousy) but others that undermine it (e.g. men’s subjection for much of their life to powerful, indiscriminate and rather impersonal lusts).
But fundamentally marriage is sustained by culture, not biology. Why then is it universal? Because it is the answer to an urgent problem that is biological and innate: sex makes babies. Nature alone won’t connect fathers to children. Children need a society in which both men and women are committed to their care.
When anthropologists in the thirties went out into the vanishing world of human diversity, the reason they found marriage everywhere is that societies that do not hang onto the marriage idea do not survive very long.
But marriage in a particular society is not inevitable; death by sexual disorganization is always an option. Happens quite a bit actually. cf. Roman empire.
So in one sense I’m not worried about marriage. In spite of the progressive mythology that the drive to gay marriage is the irresistible wave of the future, I’m quite confident that 200 years from now, we’re not going to be living in a world where gay marriage is the norm.
I’m just not sure of the place of Western civilization in that future world.
This is part of what I mean when I say if I’m right (big if!), gay marriage is not in the interests of gay and lesbian people. We may need to find some new solutions to the legitimate social needs of gays and lesbians. But don’t mess with marriage.
Let me interrupt this marriage debate for a shameless book plug.
Seamus Hasson’s new book is called The Right to Be Wrong and it has gotten rave reviews from Michael Novak (not only “rollicking” but “wholly original”), also Mary Ann Glendon. I’ve read it. It’s a fascinating, quirky book that combines an intellectual history of the development of the idea of religious liberty in the U.S., with a new theory of where religious rights come from, plus some really amusing battle stories from Becket Fund war chest (My favorite is called “The Case of the Sacred Parking Barrier". It is set in San Francisco. ‘nuff said.)
Hasson argues we can have “pluralism without relativism.” (Catholics will recognize the influence of JP2 here). Meanwhile U.S News.com is reporting (see http://www.usnews.com/usnews/politics/whispers/articles/051024/24whisplead.htm) that Mel Gibson is "back into the fray with his first-ever book endorsement: "Making The Passion of the Christ taught me many things. One was just how scared some Americans are of religion in public. The Right to Be Wrong explains why they are scared and why they don't have to be."
Seamus Hasson is founder of the Becket Fund for Religious Liberty which is the only one public litigation firm I know of that defends the liberty of all faiths (From Anglicans to Zoroastrians, as Seamus likes to say).
He is also the only guy I know whose been invited to make religious liberty arguments on Al Jazeera. Twice. Anyone interest in “Ending the culture war over religion in America” (as the subtitle puts it) will want to check it out.
Orin, I woke up at 4 a.m. thinking about your question, and wrote the post below.
I see you've posted again. Thanks and yes you are basically getting the argument. This may make it more clear:
Orin, thanks for your question, it’s a good one: why do I think a small number of gay people marrying will affect anyone else?
The most important fault line in the marriage debate is between a. people who think SSM will help a small number of gay couples and not effect anyone else and b. people like me who think this is going to change fundamentally the nature of marriage.
Obviously I think I’m in the midst of answering comprehensively (i.e. I’m not done yet guys), but let me pause to focus on your particular question, which I’m going to translate as:
“Why does what appears obviously urgent to Maggie (and many others) appear so remote and unlikely to Orin (and Eugene Volokh and a whole bunch of other smart and thoughtful people)?”
This is one of those brick walls I started out talking about, that’s preventing us from “achieving disagreement.”
I’ve thought hard about this. Let me offer two possible insights.
a. Differing implicit theory of how law affects marriage.
The now-common view (thanks largely to the SSM debate itself) is that marriage as a legal status matters because it opens the door to a host of benefits that incentivize marriage. (Thus, folks argue, the incentives for opposite-sex couples will still be the same, how can gay marriage matter? As Evan Wolfson likes to say, they aren’t running out of marriage licenses.).
I don’t think its true the law incentivizes marriage through benefits (although I have to confess I wouldn’t mind if it were), so I also don’t think this accurately describes how the law of marriage currently matters. Most people don’t get anything that feels like a check from the government when you marry. Many, probably the majority of people, take a financial hit when they marry. (Through the tax code and the welfare system, see Eugene Steurele's study in the latest issue of The Future of Children).
If you think about it from a law and econ perspective, it’s amazing anyone does marry. Marriage means voluntarily subjecting yourself to state regulation, paying more taxes (or forgoing the EITC), and assuming legal and financial responsibility for another person. In return for what exactly? The right to order an autopsy?
There are some big financial benefits to marriage (that are legal incidents of marriage I mean), but I don’t think they are very powerful as incentives for marriage, for the simple reason that most people marry relatively young, and most of the big benefits occur after one of you is dead (a social security benefit, the right to pass your estate untaxed). Ok., there is health insurance for some people (although others upon marriage lose access to government health insurance. This latter loss may be particularly significant to young pregnant women, possibly people with HIV, too.).
So I believe, as someone whose thought pretty hard about law, public policy and marriage, that the most important remaining way the legal institution of marriage supports the social institution of marriage is in fact definitional.
Marriage’s unique status at law helps draw clear public boundaries that distinguish between those who are married and who is not, allowing the more important actors who support the social institution to do their work.
Redrawing the definitional boundaries of marriage, is thus fiddling with the law’s core remaining support for marriage (and we’ve withdrawn quite a few legal supports in recent years).
I really do think, btw, that this is what bothers most ordinary people: an instinct that their government, against their will, is telling them (and will re-educate their children) that everything they know about marriage (like the first ingredient is a husband and a wife, duh) is wrong and must now change. Upon penalty of being officially labelled bigots by their government. And everyone knows its open season on bigots in our society.
And I think ordinary folks are right about this instinct, although explaining exactly how to my fellow intellectuals may take a great deal more time and energy. (I’ve got two more days. . .)
b. Equality versus liberty framings.
Is SSM about liberty or equality? Due process or equal protection?
Another way of putting this is: Is gay marriage like race or like abortion?
Although there were and are efforts to understand abortion as an equality issue (for a while there you were a bigot who hated women if you were against abortion. I’m old enough to remember quite of few of these liberalish moral crusades to redefine certain people they disagree with as evil). But really what the women (and men) who support abortion actually care about is the ability to get one. So the liberty issues was predominant: Abortion advocates were willing to make certain compromises to defuse the culture wars (conscientious objections clauses for example). Today, you can be a good citizens and oppose abortion.
But race is another matter. On race the driving narrative is equality, not liberty And the result is that on race, both law and culture work very hard not to avoid but to win the culture war. Some things we won’t do (like locking people up for their beliefs). But many things we will do: stripping radio broadcasting licenses from racial bigots, threatening the tax exempt status of racist organization, refusing to accredit racist schools, insisting the “respectable people” do not associate with racists (thus the GOP establishment repudiated David Duke).
I don’t suspect people will try to push the SSM equality narrative to these logical conclusions right away. (And many current supporters of SSM may not want to push it this way at all). SSM architects will let the law sit there a while, work to reduce opposition, maybe wait for some generational change, before taking the next logical step.
But the main victory will have already been won, when they go to that next step: we will have decided that people who have the conjugal vision of marriage as intrinsically the union of husband and wife have no good reason for this vision and are only expressing animus.
If the principle behind SSM is institutionalized in law, and the law is able (as it is really pretty good at) to impose its values on the American people, then people like me who think marriage is the union of husband and wife importantly related to the idea that children need moms and dads will be treated in society and at law like bigots
And you are asking me why I think that might affect marriage?
I’ve sat in rooms where some of the most famous architects of gay marriage have made this analogy (the Christians who oppose gay marriage are just like those poor southern folks who favored segregation. We’ll be re-educating them soon, and they will cave.)
The conjugal vision of marriage itself is being stamped as discriminatory and bigoted. Well, under these circumstnaces, I’m pretty sure fewer people will hold it, speak for it, try to transmit it to the kids (over the interference of government schools, who will teach the next generation that SSM was a great civil rights victory over bigots like your parents). Perhaps, under these circumstances, very few people indeed will speak up for this conjugal view.
When “liberalish” elites decide to impose their social moralities on society, generally they’ve been pretty successful. (The backlash elects Republicans but typically doesn’t interrupt the emergence of new socially and legally enforced moral rules).
Sometimes this has been for good, as in race, in the case of SSM, I think with reckless disregard for the consequences.
Wednesday, October 19, 2005
Leaving aside the question of whether this argument is persuasive, am I at least understanding it accurately?
I should say that I always assume good will and I know most people who support gay marriage do not want to hurt marriage.
But it is also true that some of the architects and advocates of gay marriage are interested in precisely that: overthrowing what they see as an archaic institution.
Judith Stacey, for example is a sociologist, who was asked to testify as an expert witness in favor of SSM . This is what she wrote several years ago about what gay marriage will mean for marriage:
"Legitimizing gay and lesbian marriages would promote a democratic, pluralist expansion of the meaning, practice, and politics of family life in the United States, helping to supplant the destructive sanctity of The Family with respect for diverse and vibrant families. . . . If we begin to value the meaning and quality of intimate bonds over their customary forms, people might devise marriage and kinship patterns to serve diverse needs. . . . Two friends might decide to “marry” without basing their bond on erotic or romantic attachment. . . . Or, more radical still, perhaps some might dare to question the dyadic limitations of Western marriage and seek some of the benefits of extended family life through small group marriages arranged to share resources, nurturance, and labor. After all, if it is true that “The Two-Parent Family is Better” than a single-parent family, as family-values crusaders proclaim, might not three-, four-, or more-parent families be better yet, as many utopian communards have long believed?" Judith Stacey, Gay and Lesbian Families: Queer Like Us, in All Our Families: New Policies for a New Century 117, 128-29 (Mary Ann Mason, Arlene Skolnick & Stephen D. Sugarman eds., Oxford U. Press 1998).
The academic literature is rife with such suggestions--from advocates of SSM. Of course when opponents of SSM bring this up, they get accused of a "parade of horribles" with no basis in logic. But both advocates and opponents of SSM see that something big has changed when marriage becomes a union of any two persons. Procreation and family structure are out.
What's left of marriage? The heart of marriage as a legal construct becomes a legal preference that adult sexual intimacy comes in twosome, for reasons no-one really makes clear except "tradition!"
Disconnected from its role in sustaining the family, fidelity, monogamy and marital sex itself become personal moral preferences, with little clear reason for being written into law.
Marriage becomes the way we stamp an official government Good Housekeeping Seal of Approval on how people have sex and intimacy.
Does that make sense to you? It makes no sense to me, and I'm not even a libertarian. (Although I once was: a Randian, as we called it, then. But that's a story for another day).
Let me clarify: this is not a question of motive. It’s a question of the internal logic of the position being promoted. The main motive here is to elevate the status of gay people and their relations to the same social and legal plane as opposite-sex married ones. But let’s play with that logic and see where it takes us.
Let’s take the Loving v. Virginia analogy seriously. People who believe that there is something unique and important about unions of husbands and wife (like say they can make babies that the child's own two parents will raise together) are like bigots who opposed interracial marriage. People like me who have been working for 15 years against the family diversity advocates to call attention to the fact that “children need mothers and fathers” are like bigots who oppose interracial marriage.
If like me you think renewed attention to the problem of generativity is the key to saving Western civilization, this has got to worry you.
Now of course some advocates of SSM (Andrew Sullivan) say this change has already taken place. People like me are living in a fantasy world. All I can say is, I've been out in the world quite a lot saying this, and find that far from a fantasy it still has enormous power and resonance. So using law to discredit it, or stigmatize it, or just embarrass people who believe it and work to strengthen this connection, is likely to have a real impact on real children. Marriage as a cultural idea that has social power doesn't just happen. The law doesn't create it. Families and faith communities do, primarily, supplemented by artists, lawyers, counselors etc. Telling the big chunk of people at work trying to strengthen the idea that children need moms and dads they are officially now bigots, is well, its going to make this work a lot harder and less effective. Probably impossible
Other advocates of SSM acknowledge that SSM will change these things, but these changes won’t matter, because we will still be able to say “marriage is good for children.” It is just of course the underlying logic and rhetoric will shift.
In the new dispensation, socially respectable people may not say moms and dads matter, but they will still be able to say “two parents are better than one” (and why is it then, that three parents aren’t better than two?) or “kids need love and stability.” This latter of course is precisely what family advocates have been saying for 20 years: its not marriage or family structure that matters, it is only love, money or maybe stability. This is where the conservative case for SSM melds seamlessly into the liberal case against marriage. And people saying it don't know enough about the marriage debate to even notice!
More “tk” as the copy editors say. . . .
Professor Bainbridge reviews some of the criticisms of Harriet Miers' submission to the Senate Judiciary Committee. In particular, he questions the meme about Miers' supposed attention to detail.
Last night I went to the Rational Choice Workshop at the University of Chicago (run by Gary Becker and Dick Posner). Cass Sunstein presented an excellent paper showing that the ideological make-up of 3-judge panels tended to lead to more extreme voting and decisions when the panels were ideologically homogeneous. It can be downloaded here.
At the dinner beforehand, the Miers nomination was the main topic of conversation (I sat next to sociologist Ed Laumann and political scientist and former VC contributor Jacob Levy).
From John Miller's column in this week's National Review (p. 44):
"Several universities have managed to poach talent by accepting conservatives rejected by more prestigious institutions. The law school at George Mason University, for example, has built an excellent faculty by spotting brainpower that others have overlooked."
More generally, the point here is that Moneyball principles apply to faculty appointments as much as they apply to baseball (as Paul Caron has observed). It just depends on recognizing the market imperfections that create the undervalued assets in a given market.
So what worries me about SSM?
The big picture: we are in the middle of a huge and only partly acknowledged crisis around marriage and family. Every single society that that we think of as, in other ways, the very best for human flourishing (stable, democratic, market economies with respect for political and creative freedom) is experiencing grave dysfunctions and disruption in the family--and precisely around this whole business of generativity.
That, is the family crisis we face is not a crisis of intimacy, or sexual satisfaction, or emotionally satisfying relations, which our family system. taken altogether, may be better at than any in human history (I'm not sure how one would measure): it is about whether under modern conditions in modern societies, the man and woman who make the baby are going to stick around, love each other, and the baby too.
The conditions that create the creative class, and the conditions that create people, may be diverging.
This crisis is playing out in somewhat different ways in different regions (Italy has extremely low birth rates and much family cohesion, while Sweden has moderately low fertility and high rates of illegitimacy, for example. U.S. has relatively high birth rates, but extremely high rates of solo mothering and divorce).
But in every case technologically innovative, wealthy, western, democratic, market societies are no longer routinely doing what the family did really quite well for most of human history: reliably producing the next generation and reliably connecting most of those children to their father.
Conservatives like to blame welfare alone, or the Sixties and bad moral values. I think this seriously misunderestimates the nature and depth of our marriage and family crisis, which is institutional and structural in nature.
For most of human history children were assets. We depended on family members to produce most of the goods we consumed, and to provide most social insurance: someone to nurse us when we are sick, feed us when we cannot work, shelter and care for us in old age. Under these condition the necessity of procreation and family loyalty were obvious, urgent personal moral and social imperatives. People are always better at duties when it is apparent that you do well, by doing good.
Nowadays, government and the market have taken over large parts of these social functions. The main reason for this is: government and the market do them much, much better. (If you doubt this, imagine have to perform your current job functions while depending only on close kin for colleagues, bosses and employees.). The genius of the market is the way that it allows biological strangers to combine their productive energies.
We can quibble about specific government programs, but basically welfare, unemployment insurance and social security, Medicare and Medicaid aren’t going away in a democracy because people like them. People prefer to depend on either the government, or a pension fund, to becoming dependents on their children in old age. (BTW, I’m cribbing this from a forthcoming essay of mine directed primarily at my fellow Catholics in Ave Maria Law J. called “If Marriage is Natural, Why is Defending it So Hard?”).
So why don’t we just let marriage go, stop worrying about what people do or don’t do in the bedroom? Because there is this one critical, literally irreplaceable social function that marriage does, and only marriage does: making babies and connecting fathers to the babies they make.
Now in the middle of this broad, deep crisis, which I truly think does threaten American civilization in the medium term, if its not confronted, what’s the one legal change powerful social, legal and cognitive elites support?
Why, making marriage a union of any two persons, clearly unrelated to procreation and paternity!
If SSM was really about the benefits, then I think in a democratic society, we could easily handle this and all go home. But the truth is that SSM advocates seek in the end the status of marriage (that is its social meanings), not primarily its "legal benefits".
Gay marriage advocates want to use the law enforce a new social narrative about gay people, whose main thread is: there is no difference between gay relationships and other people’s, and anyone who says otherwise is a bigot.
The principal desire, then, is a deeply-felt and passionately moral one: To use the power of law to establish the principle of social equality for their sexually intimate relationships.
This is why the Goodridge majority, for example, knocked down the idea of creating civil unions so vigorously, telling the legislature very clearly:
“The dissimilitude between the terms “civil marriage” and “civil union” is not innocuous: it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual couples to second-class status. The denomination of this difference by the separate opinion of Justice Sosman as merely a “squabble over the name to be used” so clearly misses the point that further discussion appears to be useless. . .the bill would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits. It would deny to same-sex “spouses” on a status that is specially recognized in society and has significant social and other advantages.”
In other words, it’s not the benefits, stupid.
Advocates of gay marriage want to use law to create a new sanctification about gay relations. Unfortunately, in the process, the court must simultaneously change the social understanding of marriage.
That is not an unfortunate side effect, it is the logic of gay marriage, because paying attention to generativity or family structure means same-sex couples and opposite-sex couples really are different in some way that makes a difference in law and society.
(I hope I need not say that special respect for generativity does not require stigmatizing the non-generative. There are many sources for social respect. Nobody does all of them.)
This is a long post, and I have to break now to get my boy at school. But at last I’m launched on the thing so many of you have been asking for: How do I think SSM will hurt marriage. Next post later tonight.
Sorry to keep coming back to the Kelo story, but the whole thing continues to get more and more strange. AP is now reporting that the City of New London has voted to sever ties with the New London Development Corporation and to order the NLDC to turn over the affected properties to the City:
New London severs ties with development authority October 18, 2005, 6:37 AM EDT
NEW LONDON, Conn. — The city council has voted to sever ties with the quasi-public development authority at the center of a national debate over eminent domain powers.
The council voted 6-0 Monday night to revoke the designation of the New London Development Corp. as the city's "implementing agency" for its Fort Trumbull development. The agency has guided the $73 million state-funded project since its inception in 1998.
State officials had asked municipalities to hold off on property seizures until the legislature considers changing the state's eminent domain laws.
City officials asked the development authorities' two leaders to resign, but they declined. They did rescind the orders to vacate under pressure from Gov. M. Jodi Rell.
But council members said they could no longer deal with an agency that disregared the city's rights as a development partner and the wishes of the community.
"I don't think you can continue a partnership where there's only one partner saying, 'I'm willing to go back and forth,' and the other's saying, 'I've heard you, but I'm going the other way,"' Councilor Rob Pero said.
The council also voted Monday to demand the agency transfer title to all its real estate in the project area to the city of New London. That includes the former Naval Undersea Warfare Center at Fort Trumbull, which was transferred by the U.S. government to the development authority, not the city.
Tom Blumer has another amazing update on this story, "State Upset With City’s NLDC Vote":
State development officials reacted angrily Tuesday to the City Council’s vote the previous night to strip the quasi-public New London Development Corp. of its control of the Fort Trumbull project, saying the action took the state by surprise.
….. Meanwhile, the holdouts of the Fort Trumbull neighborhood, while cheered to hear what the council had done, were skeptical as to its motives.
“It should have happened a long time ago,” said Byron Athenian. “Let’s face it, the NLDC has never done anything right since the beginning.”
But Athenian said he thinks the whole thing may come down to politics.
“It’s election year,” he said. “Maybe they did it because of that. You don’t know who to believe. You don’t know that you can believe the City Council, either.”
Bill von Winkle said the council’s decision was “certainly long overdue.”
For his part, he said, he has taken comfort in Rell’s interest in the case.
“I’ve just signed the contract to put a new roof on my house, so I’m pretty confident that we’re staying,” he said. “The governor is going to protect the homeowners of this state. She’s stated she’s interested in keeping the homes and working around us. With the arrogance of the NLDC gone, maybe that can happen.”
Michael Cristofaro, who is challenging the incumbent council members with his One New London political campaign, was more skeptical, saying the council acted because members were “running scared” weeks before an election.
He also doubted that the solution to the problem was as simple as the current council seems to think it is.
“The NLDC has weaved themselves a nice little web, and I think to unweave that web is going to be a disaster,” Cristofaro said. “How do you get the property out of the NLDC’s name? It’s a great concept to say you’re fired, but are they really fired?”
Interestingly, when I spoke to the Georgetown Federalist Society about Kelo, I mentioned thr ongoing civil war between the city council and the NLDC, and one of the pro-Kelo panelists observed that it would be a problem if the NLDC was acting in a manner so contrary to the wishes of the city's elected officials, but expressed skepticism that this was plausible.
This whole story really just continues to get more and more bizarre every day.
I decided some people needed to see this, before I could go on:
1. Does society need babies?
The U.S. is the only Western democracy anywhere near fertility replacement levels. (We're just under 2.1, after dipping as low as 1.7 babies per woman in the late 70s)
The norm for the developed world is becoming a serious depopulation crisis:
The European Union’s total fertility rate from 1995 to 2000, for example, was only 1.42 children per woman, sufficiently below the 2.1 replacement level that demographers label this “very low fertility.” In 2002, 28 nations experienced very low fertility including Switzerland (1.4), Germany (1.3); Austria (1.3); Italy (1.3); Spain (1.2); Greece (1.3); Japan (1.3), Russia (1.3); the Czech Republic (1.1) and most other Eastern European nations. John C. Caldwell and Thomas Schindlmayr, 2003. “Explanation of the Fertility Crisis in Modern Societies: A Search for Commonalities,” Population Studies, 57(3):241-263)
In 2004, a U.N. demographer warned:
"A growing number of countries view their low birth rates with the resulting population decline and ageing to be a serious crisis, jeopardizing the basic foundations of the nation and threatening its survival. Economic growth and vitality, defense, and pensions and health care for the elderly, for example, are all areas of major concern." Joseph Chamie, “Low Fertility: Can Governments Make a Difference?”, paper presented at the Annual Meeting of the Population Association of America, Boston Massachusetts, April 2, 2004.
There is no agreement on the causes of low fertility, which are likely to be complex. But many experts argue the move away from marriage, as well as a decline in the extent to which marriage is seen as a childbearing institution, play a clear role: Low fertility can also be linked to the movement away from marriage, which many western European countries have experienced for the recent decades. Of course, marriage is no longer a pre-condition for childbearing in most of these populations, but it remains true that married couples have a higher fertility than non-married people, even those who live in a “marriage-like” cohabitation. Patrick Festy, “Looking for European Demography, Desperately?” Paper presented at the Expert Group Meeting on Policy Responses to Population Ageing and Population Decline in New York October 16-18, 2000, Population Division, Department of Economic and Social Affairs, United Nations (2000).
2. Does sex makes babies?
An analysis of contraceptive failure rates in actual use concluded, “About three million pregnancies in the United States (48%) were unintended in 1994. Some 53 percent of these occurred among women who were using contraceptives.”
Contraceptive failure rates in the first year of use varied considerably among different demographic groups but were never trivial: About 47 percent of cohabiting adolescent women experience a contraceptive failure (aka unintdended pregnancy) in the first year of contraceptive use, compared to 8 percent of married women age 30 and older. Haishan Fu, et al, 1999. “Contraceptive Failure Rates: New Estimates from the 1995 National Survey of Family Growth,” Family Planning Perspectives 31(2): 56-63,
Another analysis of the 1995 National Survey of Family Growth concluded: “The risk of failure during typical use of reversible contraceptives in the United States is not low—overall, 9 percent of women become pregnant within one year of starting use. The typical woman who uses reversible methods of contraception continuously from her 15th to her 45th birthday will experience 1.8 contraceptive failures.” James Trussell and Barbara Vaughan, 1999. “Contraceptive Failure, Method-Related Discontinuation and Resumption of Use: Results from the 1995 National Survey of Family Growth,” Family Planning Perspectives 31(2): 64ff, 71
Nationally, three-fourths of births to unmarried couples were unintended by at least one of the parents. By their late thirties, 60 percent of American women have had at least one unintended pregnancy. Almost 4 in 10 women aged 40-44 have had at least one unplanned birth. J. Abma, et al., Fertility, Family Planning, and Women’s Health: New Data from the 1995 National Survey of Family Growth, 23(19) Vital Health Stat. 28 (Table 17) (National Center for Health Statistics) (1997) (70.4 percent of births to married women were intended by both parents, compared to just 28 percent of births to unmarried mothers.)
Almost all children born to sexual unions of husband and wife begin life with both mother and father committed to raising their children together. Only a minority of children in other sexual unions do.
“National survey data show that children born outside of marriage have relatively little contact with their fathers and that, moreover, greater contact with nonresidential fathers does not signficantly improve child well-being outcomes.” Cynthia C. Harper and Sara S McLanahan, Father Absence and Youth Incarceration, 14(3) J. Res. On Adolescence 369, 390 (2004).
3. Do children need mothers and fathers?
Child Trends sums up research family structures that have been well studied (not including children raised by same-sex couples):
"Research clearly demonstrates that family structure matters for children, and the family structure that helps the most is a family headed by two biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes. . . . There is thus value for children in promoting strong, stable marriages between biological parents." Kristin Anderson Moore, et al., “Marriage from a Child’s Perspective: How Does Family Structure Affect Children and What Can We Do About It?” Child Trends Research Brief, June 2002.
The risks to children when mothers and fathers do not get and stay married include: poverty, suicide, mental illness, physical illness, infant mortality, lower educational attainment, juvenile delinquency and conduct disorder, adult criminality, early unwed parenthood, lower life expectancy and less warm and close relations with both mothers and fathers. (William Doherty, et al, 2002. Why Marriage Matters: 21 Conclusions from the Social Sciences (NY: Institute for American Values)
A few random samplings from a fairly large literature on family structure an crime: : a 2000 study that looked at crime in rural counties in four states concluded, “[A]n increase of 13% in female-headed households would produce a doubling of the offense rate. . . .” D. Wayne Osgood and Jeff M. Chambers, Social disorganization outside the metropolis: an analysis of rural youth violence, 38 Criminology 81, 103 (2000).
A study that analyzed a database following 6403 males from their teens to their early thirties concluded that after controlling for race, income and family background, boys who were raised outside of intact marriages were 2 to 3 times more likely to commit a crime that leads to incarceration. The authors conclude: “The results . . . show that, controlling for income and all other factors, youths in father-absent families (mother only, mother-stepfather, and relatives/other) still had significantly higher odds of incarceration than those from other-father families. . . . Youth who never had a father in the household had the highest incarceration odds.” Cynthia C. Harper and Sara S McLanahan, Father Absence and Youth Incarceration, 14(3) J. Res. On Adolescence 369, 385-86 (2004). . The benefits of marriage for children described by this social science literature aren’t legal incidents of marriage, of the kind that the state can therefore transfer at will to other family forms. Children living with remarried parents for example, do no better than children with single mothers, on average, e.g.: “[M]ost researchers reported that stepchildren were similar to children living with single mothers on the preponderance of outcome measures and that stepchildren generally were at greater risk for problems than were children living with both of their parents.” Marilyn Coleman, et al., Reinvestigating Remarriage: Another Decade of Progress, 62 J. Marriage & Fam. 1288, 1292 (2000).
Existing scientific data thus suggests that the law of marriage protects children to the extent it increases the likelihood that children will be born to and raised by their own mother and father in a reasonably harmonious union.
1. "How would you describe the atmosphere here — Is it more like a labor camp or a slave ship?"
2. "I heard there was this guy who came here and only billed like three hours a week. They say it took the firm two years to kick him out, and they gave him a nice bonus to leave, too. Is that true?"
3. "Is it as bad as they say?"
4. "No. Should I?"
5. "I'm sorry, can you repeat the question?"
6. "Is your managing partner qualified to be on the Supreme Court?"
7. "Is there a bathroom on this floor?"
8. "How many partners here are still on their first wives?"
9. "Where am I? All of these firms look alike."
10. "Where else are you interviewing?"
These are just suggestions, of course. Other ideas welcome in the comment section. (Thanks to a colleague for Question #1.)
UPDATE: I forgot this bonus question for current judicial clerks: "How long do I have to stay before I can keep all of my clerkship bonus?"
The written response of Harriet Miers to Senate questions does little to comfort those of us concerned about her writing ability (tip to Conglomerate).
(I have been unable to find a copy on the Senate Judiciary Committee's website, relying instead on a pdf posted on NRO. As before, it is possible that there has been some sort of transcription error.)
Consider this passage on page 50 of Miers' questionnaire:
My experience on the City Council helps me understand the interplay between serving on a policy making board and serving as a judge. An example, of this distinction can be seen in a vote of the council to ban flag burning. The Council was free to state its policy position, we were against flag burning. The Supreme Court’s role was to determine whether our Constitution allows such a ban. The City Council was anxious to encourage minority and women-owned businesses, but our processes had to conform to equal protection requirements, as well.
My City Council service and working in economic development activities afforded me with special insight into the importance of a stable, respected, and fair judiciary in which the public can have confidence.
Everyone makes mistakes in writing (I certainly do) and nobody is perfect. But in reading Miers' writing, I keep looking for a spark. Where is the good stuff? Where are the passages that show a bright, analytical mind — or failing that, a basic competence in placing commas?
Were the women and minority-owned businesses burning flags? Did we switch topics? I'm confused.
Yes, everyone makes typos/spelling errors. However, most of us catch them before we hand them to the Senate in our application for one of the most powerful positions in the country, which is the most powerful in the world.
The Pocket Part is the online companion to The Yale Law Journal. As members of the legal community know, legal publications often contain "pocket part" supplements with up-to-date information and commentary. The Pocket Part plays an analogous role. It features op-ed length versions of Journal articles and responses from leading practitioners, policymakers, and scholars. The Pocket Part also serves as a forum for our readers and authors to discuss legal scholarship.I've been wondering when law journals would try something like this; kudos to the YLJ editors for going first. Hat tip: Heidi Bond at Crescat.
While full-length scholarly works remain at the center of legal debate, students, professors, and practicing lawyers are increasingly turning to the Internet to read about, and comment on, developments in the law. With The Pocket Part, the Journal hopes to combine the strengths of both print and online media, broadening the readership and influence of traditional legal scholarship while enriching the dialogue among the academy, bench, and bar.
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Tuesday, October 18, 2005
Just a bit more, Todd:
Given how powerfully pro-technology we Americans are (yes, me too), I think it’s worth pointing out out that in the vast majority of cases described as instances of “reproductive technology”, what we are talking about is the technology of the turkey baster. People have known for hundreds of years how to do this. (Artificial insemination is documented in animals from the 18th century). For good or ill, the main changes that make reproductive technology prominent are social, not technological.
I’d also like to reply to some significant pushback I’m getting, in my personal letters. (And maybe Todd a certain undertone in your post). Many people don’t recognize in this somewhat flat description of marriage I'm laying out, their own marriages, or their religious tradition’s vision of marriage. (I’m getting chastized by certain Catholics who want to point out marriage is a one-flesh union that cannot be "reduced" to procreation)
Let me say two things. First, what I’ve been rather methodically laying out so far is the state’s interest in marriage. People don’t get married in order to satisfy the state’s interest. Moreover, marriage is not an institution the law created, or can create. It pre-exists law, and has meaning only if many actors other than the law sustain it. Marriage has social power and can serve the law's purposes, only if it is embedded in a culture in which people highly value and idealize the union marriage embodies. People protect children by entering faithful, permanent "one flesh" unions, but they don't view these marriages as mere instruments for making babies. Nor do I.
Secondly, behind the flat language I'm describing as "procreation and paternity" is great erotic mystery. This is the way I put it in a recent syndicated column “How I Entered the Penguin Wars. (All of my columns are archived at www.uexpress.com, if you want the full context).
“the human experience of generativity—sexual love (or lust) joining male and female in a physical act that produces new life; gestation, birth, and the transformation of one another through acts of our bodies into something as mysterious as a mother and a father; and most marvelous of all, making a baby—this is a big, brute, fact about human existence. It’s not going to go away.. .
Of course not everyone does this amazing thing. But those who don’t, whether straight or gay, need not set themselves against this story, or view it through the lens of grievance culture. We can all choose to participate, if only vicariously. We are products after all of this mysterious Eros, and our shared future depends on men and women willing to give themselves to it.”
But if I say anything like that here, people might say I’m emotional. . .
An e-mail that I got today:
Thank you . . . for inviting Maggie Gallagher to guest-blog at your website this week . . . . While it is true my first instinct would be to reflexively disagree with one such as Ms. Gallagher should she write that "water is wet," I instead find myself intrigued by her writing. Perhaps this is just a function of taking all of my arguments in favor of same-sex marriage from facially reasonable people and the arguments against from those who appear to be, at least, less sophisticated. I whole-heartedly welcome the inclusion of someone who is able to get me to question some of my own assumptions and think more deeply about an issue that is all too often dominated more by sentiment than reason.And a post I saw yesterday on another blog (a blog subtitled "A collection of real-world libertarian, individualist and laissez-faire rants on law, economics, politics, culture and other current events by an average, everyday lawyer & investment banker and part-time pop scholar"):
Eugene Volokh is "delighted" that Maggie Gallagher is guest-blogging at his site to debate same-sex marriage.
I'm "delighted" that I de-blogrolled him well over a year ago. It saves me having to do it now.
Gallagher, a notoriously vicious anti-gay bigot, is not a constitutional law scholar (in fact she's not even an attorney) and has nothing jurisprudential to bring to any debate on same-sex marriage. This "debate" will really be about the "pros and cons" of anti-gay bigotry, rationalized as a legal debate on same-sex marriage.
Perhaps next Volokh will invite some of those Ohio Nazis to guest-blog to discuss the "pros and cons" of anti-Semitism and rationalize it as a debate on the heckler's veto.
Readers can no doubt infer which of these reactions strikes me as the wiser one; still, let me offer three thoughts about the second reaction:
1. A sense of proportion: If disapproval of same-sex marriage is analogous to Nazism, then I suppose we live in a nation where the majority of the voters — and apparently both major candidates for President last election — are tantamount to Nazis. And of course the parallels are striking. Nazis: Exterminated homosexuals. Opponents of same-sex marriage: Are skeptical about departing from a millennia-old tradition to extend full legal equality to homosexual relationships. Nope, I can't tell the two apart, either; sounds like a great analogy to me.
2. A sense of tactics: It would seem to me that, given that (1) most Americans oppose legal recognition of same-sex marriage, and (2) supporters of same-sex marriage presumably think that their arguments are more persuasive, the same-sex marriage supporters should welcome online debates on the subject. Silence, I would think, would tend to help the status quo. Debate would tend to help those who would change the status quo. (It's possible that Volokh Conspiracy readers are somewhat more pro-same-sex-marriage than the public at large, though the opposite is surely possible, too. But in any event, even if factor 1 isn't applicable among our readers, one would think that factor 2, as perceived by supporters of same-sex marriage, would still lead them to welcome more debate.)
This of course brings up another weakness of the Nazi analogy: It's actually possible that Nazi vs. anti-Nazi debates might help the Nazis, just because Nazis are so unpopular that maybe there's no place for them to go but up. But I would think that pro-same-sex-marriage debates (either Maggie Gallagher vs. Dale Carpenter or Maggie Gallagher vs. the commenters on her posts) would be in the interests of the pro-same-sex-marriage forces. Unless, of course, one gets more joy out of calling the other side names than one gets out of actionally winning.
3. A sense of superiority: Oh, and "Gallagher . . . not a constitutional law scholar (in fact she's not even an attorney) and has nothing jurisprudential to bring to any debate on same-sex marriage" — nice touch! Of course, debate about same-sex marriage absolutely requires a law degree, and preferably constitutional law scholarship, plus something "jurisprudential to bring." No possibility that maybe some topics actually have more to do with what's good for society, what's likely to happen if some policy is changed, and what's fair (whether that leads you to support same sex marriage or oppose it) than with technical constitutional law doctrines.
In terms of its relation to marriage you can do one of two things with reproductive technology. You could say, only married people can use it, on the grounds that you should not be affirmatively at law encouraging people to have babies out of wedlock.
Or you could instead analogize to unwed childbearing and say, gee, if we are going to permit so many single parents to have babies as a result of sexual passion, why should we ban thoughtful single parents from reproducing using technology?
But neither line of argument threatens the core case for marriage.
Todd, thanks for the question!
I don’t think reproductive technologies change the legal principles surrounding marriage, much, with one big exception, which I’ll get to.
Marriage is a universal human institution because every society needs to regulate the procreative consequences of male-female sexual attraction. (Marriage regulates people who aren’t married by the way, e.g. by making it clear when a baby is going to be born “out of wedlock” . . .This turns out to be quite substantively important for women, who often confuse things like cohabitation with a man’s willingness to be married to them. Marriage as a public category also lets single, as well as married people know when they are committing an act of adultery. Without clear boundaries it could be pretty hard to tell sometimes!)
So marriage as a legal status is one of the ways we get young men and women to do any one of the hard things necessary to make sure they postpone babies until they are married. Marriage is a way of wrestling with the fact that, men and women attracted to the opposite sex can just make a baby, with no intention or forethought, under the grip of a pretty powerful passion to boot: One drink too many and 9 months later, boom there’s a baby. Mom (if she doesn’t abort) is bound to be somewhere around. Dad isn’t necessarily anywhere nearby.
Reproduction via technology is never the result of male-female sexual passion. Let me put it this way: there may be a need for special laws regulating parenting around reproductive technology but they will be distinct from, and need have little to do with, the function that marriage is performing. And if we had to depend on reason and reproductive technology rather than sexual passion to produce the next generation, we’d be in trouble. I mean numberswise.
Secondly, there is an important distinction in law and public policy between encourage, permit, permit but discourage, and ban. Women are legally free to have a baby out of wedlock, too. but that doesn’t mean we no longer care whether children are born to married couples. Marriage is about trying to encourage the ideal. Like adoption, reproductive technology (in current law) is probably best seen not as normative but ameliorative—a happy answer to a less-than-ideal situation. (Some of us are enthusiastic about the former and dubious about the latter, but that’s not part of the marriage debate, particularly).
The one part of reproductive technology that I think is a direct attack on marriage, has nothing to do with technology at all: it is the decision of the law to strip some children of their legal and natural right to father, merely because the mothers in this instance do not want their child to have a father. This is the only instance in which the law permits parents to bargain away their child’s right to the support and care of a father. I can’t do it in a bar, why should I be able to do it in a medical clinic?
There’s a small but growing group of adult children of donor insemination who are getting quite vocal on this point. When the clinic points out their mom and dad signed a contract, they say “I never signed it!”
The same-sex marriage debate is really three debates: a legal debate, a social policy debate and a moral debate.
Of course people’s views on these things are intertwined, but intellectually the failure to separate these three related but distinct inquiries is one reason that exchanges of views on this topic are so often circular and futile, rather than progressing towards better mutual understanding.
When you make a point on the social policy question, people will often jump horses to the legal question, and vice versa.
So let me focus for a moment just on the legal debate. I’ll try to keep it brief.
When marriage has lost in court, we’re mostly losing on the rational basis test. This is really hard to do, and also quite insulting. It is a declaration by the court that only madness or malice can possibly explain why 60 to 70 percent of Americans today see marriage as the union of husband and wife.
Here’s how it looks from my side: You want to strip from the law of marriage the one feature that has been practically universal in human experience: and you can’t imagine even one reason why a person of sound mind and good will might object? Gee, Horatio, maybe there are more things on heaven and earth . . .
If courts really are applying a rational basis test, then marriage easily meets the test.
The classification used in marriage (sexual union of male and female) is clearly substantively related to a legitimate state purpose (“procreation and paternity” or creating the only kind of sexual unions in which men and women can make babies and raise them together).
The fact that not all married couples have children does not make their marriage unrelated to this state purpose. At a minimum no married couples who lives up to their vows will produce out of wedlock children, so all unions of male and female serve these state purposes in a way that no same-sex couple can. The only practical way a couple can guarantee that all the children they conceive will have this benefit is to first enter an exclusive faithful sexual union.. (People who want the data on the prevalence unintentional pregnancy in male-female sexual unions can consult the link to the U of Thomas essay listed below. It has lots of footnotes).
(BTW, under the rational basis test, it is not even necessary to provide the evidence I’ve offered below that the one of theprimary purposes of marriage has long been understood to be procreation. The court must consider any conceivable rational reason the legislature may have had.)
Many folks in this debate want something else than a rational relation: they want direct evidence of the harm that would come to this purpose of marriage by including gay couples. That is an important question for a state legislature, but it is not (or should not) be necessary to justify our marriage laws under a rational basis test. (Some better scholar than I might want to contemplate what the idea of "substantive rational relations" is going to do to our constitutional theory)
Every classification used by law excludes some people who could be included without obviously harming that law’s purpose. (e.g. If the purpose of speed limits is safety, then “drivers who do 56 mph” could be included without harming the state interest at stake. )
As the Goodridge dissent noted some undisclosed form of heightened scrutiny on some undisclosed suspect class must be being brought to bear. The Goodridge majority are the people with some motive here they do not want to disclose.
On strict scrutiny, I’m not going to delve deeply into this. I think it’s not hard to show the interests at stake in marriage are compelling, but figuring out what “narrowly tailored” means in this instance reveals a certain oddity of the structure of the pro-SSM argument. The remedy SSM advocates seek is not to tailor marriage more narrowly to this interest, but to widen it, to make the classification employed by the law even less related to this compelling state interest.
(I think the actual role of the fact that some marriage couples have no children in the structure of the pro-SSM legal argument is to suggest that procreation is not now, nor has ever been, one of the primary purposes of marriage, and those who suggest this are hiding some other motive. I also think this argument is pretty hard to sustain, if reason prevails).
On the gender equality issue, here I think there are sharp differences between marriage as the union of husband and wife and bans on interracial marriage (Loving v. Virginia). Marriage plays an integrative function with regard to gender: its a mixed sex institution. Moreover unlike bans on miscegenation (which were formally equal but substantively served to help keep the races separate so that one race can oppress the other), marriage not only formally, but substantively furthers gender equality, by helping reduce the likelihood that women as a class will bear the high and gendered costs of parenting alone.
(Orientation has not yet been declared a suspect class subject to strict scrutiny, to my knowledge.)
Ok, next, onto the question: What am I worried about? What’s the possible harm of SSM?
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What I would do is appoint people to the federal bench that will not legislate from the bench, who will interpret the Constitution.Can anyone remember the month and year in which President Bush made this exact statement?
For the answer, click
One of the common refrains I hear is that Kelo really wasn't that big of a deal, because citizens can simply act through their state legislatures or amend their state constitutions to regulate takings and just compensation. This assumes, of course, that citizens and legislatures can actually make their views known and enact them into law.
Well, apparently not in Oregon. Tom Blumer at Bizzyblog notes that an Oregon Judge has overturned Measure 37, which although not an anti-Kelo measure, had expanded the circumstances under which a landowner to require compensation when a land-use regulation reduce the value of an individual's property. The measure passed by a statewide 61%-39% vote.
On Friday, a judge overturned the measure as unconstitutional under Oregon's state constitution. Tom quotes one of the lawyers who brought the action to overturn the law:
I will put a couple of enlightened attorneys up against a million Oregonians any day, since the masses do not make right in this Republic, no matter how many you stack up against the wall!!
The state has said it will appeal.
It is not clear to me what kind of similar hurdles may be raised in states with respect to efforts to reverse Kelo via legislative activity, but this case suggests that hurdles indeed will be raised. It also suggests that the mere possibility that a particular decision by the Supreme Court might possibility be reversed by later legislative action may not provide a compelling argument for refusing to enforce a specific constitutional provision in the first place.
A reader sends in a useful comment:
I was upset at the opinion at first and almost blogged about it, but then I saw that the measure created two classes of land, a grandfathered class that got expanded property rights for compensation from regulation (including retroactively), and a non-grandfathered class that was ineligible for the expanded compensation. That may or may not be problematic, but the question appears to be more complex than one of property rights or no property rights.
I think the comment may be aimed more at the piece that I linked to then my riff on it. My simple observation is that the ability of states to craft a legislative fix for Kelo may turn out to be more difficult than assumed, even leaving aside the standard public choice problems that might prevent majority opinion from prevailing.
Each of the items below is number 10 on some list. Determine what rule I have used to make each list. None of them are overly contrived (e.g., "List of Presidents in order of the heights of their wives"). They vary in difficulty quite a bit, and are not sorted in order of difficulty.
And, of course, no googling.
The Spy Who Loved Me
The Grapes of Wrath
The Game: Penetrating the Secret Society of Pickup Artists
January 29, 2005
The Lord of the Rings: The Fellowship of the Ring
Super Bowl XII
Guess Who's Coming to Dinner
And the continuance of their parents' rage
Helen R. Walton
UPDATE: I changed item 2. As stated it was incorrect.
A few weeks ago, I criticized Yahoo, Google, Microsoft, and Cisco for cooperating with evil, because each of those companies assists the Chinese suppression of dissent, in order to be able to make money from the lucrative and growing Chinese market. Some apologists for the companies replied that, even though the companies were assisting repression and making it more efficient and pervasive, the companies were somehow encouraging the long-run development of freedom in China.
Today, the Financial Times reports on a letter which a leading Chinese dissident, Liu Xiaobo, has sent to Yahoo. Having spent time in prison for speaking the truth about China's ruling Communist Party, Liu "says Yahoo has enough market clout not to need to toady to authorities." He explains the corporate-communist deal: coporations make profits at the expense of human rights; the communists are given Internet control, and new means to squelch dissent. Thus:
“The collusion of these two kinds of ugliness means that there is no way for western investment to promote freedom of speech in China, and that in fact it greatly increases the ability of the Communist party to blockade and control the internet,” he writes.
“You are helping the Communist party maintain an evil system of control over freedom of information and speech,” he writes.
Simply put, there appears to be no way to be an ethical Internet company in China today, just as there was no way to be an ethical supplier of spy equipment to the USSR or Nazi Germany. Corporations are generally supposed to maximize their profits, but there is a point at which a particular form of profit maximization becomes unethical. It's ethical for companies to make barbed wire, but it's not ethical for the company to sell barbed wire to a regime which the company knows will use the barbed wire to build concentration camps.
The American Internet companies which do business in China are assisting the creation of the world's most sophisticated architecture of repression. No company should make profits at such a terrible cost to human rights. After American companies left, the Chinese tyrants would undoubtedly find other, inferior, foreign companies to provide Internet services and assist with the suppression of liberty. It would be better, though, if China's architecture of repression were built by inferior, less efficient companies, rather than by the best minds of the world's best computer companies.
If expelled from China, an ethical company could further assist human rights by setting up major offices in free Taiwan.
As a result of my enthusiastic review of Ken Kersch's Constructing Civil Liberties posted yesterday, the book went from 400,000 to as high as 932 on Amazon yesterday. I don't know how many books that represents, but still, wow! Book reviews, radio talk show appearances, etc., will rarely move an academic book that high. Methinks academic book publishers would do well to target some of their marketing to blogs with relevant audiences.
Maggie: Thanks for guest-blogging with us this week. You raise some great questions. Historically, you are correct when you state:
Sex makes babies, Society needs babies, babies need mothers and fathers.
My question (and I am genuinely asking--I think that this is an unusually difficult issue to which I certainly don't have any easy answer): if marriage arises from procreation, what impact does modern reproductive technology have on the definition of marriage? With invitro fertilization, sex is no longer a necessary condition for producing a baby. Two women could have a baby with donated sperm; two men could have a baby using a surrogate. At that point you have procreation and two parents, just not male and female.
My current thinking, for what its worth, is that the best argument in favor of traditional marriage may be a Hayekian (and perhpas Oakeshottian) one--marriage by long and western tradition has been one man and one woman, and that the long-lived and widespread nature of the tradition gives rise to a presumption that should be rebutted only by relatively strong evidence.
[If you are interested in my thinking on the issue of same-sex marriage, my thoughts are continued under the hidden text]
Having said that, it could be argued that this puts heavy weight on the scale in favor of preserving tradition and providing a compelling reason for overturning it by constructive rationalism. Such reasons certainly can be provided, but I believe that they must be provided in terms of compelling moral and/or consequential reasoning (such as was the case with the abolition of slavery for instance). Not to mention, of course, the clear and massive negative externalities imposed upon nonconsenting parties from such institutions as slavery and discrimination. Here, by contrast, the externalities imposed by denying the benefits of particular types of marriages are not nearly as clear or large as cost-externlizing traditions.
Identifying when the burden has been carried to rebut a long-lived and widespread tradition can be a difficult question in any given case in any given historical context, and there will certainly be room for disagreement. To my mind, in light of what is known today, the case for recognition of same-sex marriage has not sufficiently rebutted the presumption of preserving the traditional definition.
On the other hand, I could see the evidence accumulating in such a manner that at some point in the future the argument could be carried--for instance, if the rush of alternative reproductive technologies leads to a growth in the number of children being raised by same-sex couples and available empirical evidence demonstrates that recognizing such marriages would indeed further the traditional purposes of marriage and would not undermine the strength of traditional marriages. It could be that if people are having children, it is better to have them raised by two people involved in a long-term relationship than one person or a more temporary relationship, in that this allows for the possibility of specialization and division of labor within the family (on the other hand, the entry of women into the workforce has also reduced the strength of this argument about the traditional division of labor and specialization within the family).
Perhaps my thinking can be clarified by comparing it to my current thinking about how both traditional and same-sex marriage can be distinguished from polygamy. While I see same-sex marriage as a relatively close call and somewhat fluid at the current time, I think at the current time the argument for recognizing polygamous marriage is weaker and even more speculative. It is not clear that the marginal benefit of household specialization is much larger from adding more parents to a given household, and I think that there are clear benefits of societal stability and productivity of marrying men into monogamous relationships. Polygamy for some men, of course, means that other men will not be married and procreate at all. I suspect that the overall impact in terms of the damage that can be done to a society by a posse of unmarried men, and the oppressive and unproductive social investments that have to be made to control them, suggests that the net costs of permitting polygamy clearly outweigh the net benefits. As I noted, the costs and benefits of same-sex marriage are closer. This assumes, of course, that the number of men and women engaged in same-sex marriages remain relatively small and basically symmetrical (i.e., that the marriages do not displace a sufficiently large number of men who want to marry women so as to give rise to some of the social concerns triggered by polygamy).
This also implies that the argument for or against recognition of certain sorts of marriage must turn on something more than the private preferences of those involved, but some social benefits that arise from the institution. On this point I think that Maggie is clearly asking the right questions. After all, marriage is defined as a legal concept by the state, and so I think there is inherently a social, and not merely private, element to the analysis.
Now Maggie's response may simply be that we should place greater limits on the use of alternative reproductive technologies or encourage a return to greater household specialization. But I would be interested in hearing how she wrestles with the issues raised by modern technologies that uncouple procreation from male-female sex and the implied male-female child rearing that results.
Here's a pretty narrow question to which I have never been able to figure out the precise answer, so I will ask our readers if any of you have ever seen this. Assume that the trustee avoids a transfer in bankruptcy under 544(b) of the Code, using the UFTA as applicable state law. Section 550 provides that the trsutee can always recover from the immediate transferee. UFTA section 8, however, provides that a transfer is not avoidable for actual fraud (UFTA 4(a)(1)) if the transferee takes the property in good faith and for reasonably equivalent value even as to the initial transferee (although it will likely be rare that the debtor commits actual fraud yet the transferee pays reasonably equivalent value and in good faith). Section 548 thus seems to avoid the transfer and 550 seems to allow the porperty to be recovered against the initial transferee and to give the transferee a lien (because of the good faith). But the UFTA--and thus seemingly by implication 544(b)--states that the transfer is unavoidable if taken in good faith.
The issue, then, does section 550 of the Bankruptcy Code trump UFTA section 8 when it comes to avoidance of the transfer to the initial transferee if the transfer is made with actual fraudulent intent by the debtor, but taken in good faith and for reasonably equivalent value by the transferee?
My inclination is to say yes, in that 544(b) derives the substantive standards for when avoidance is permissible from state law, but that the remedy upon avoidance is a matter of federal law. And UFTA section 8 is a remedy provision rather than a substantive provision, thus it yields to section 550. If the relevant provision were part of the substantive law in UFTA 4(a)(1), then I would say otherwise.
I have never been able to find a good discussion of this and I suspect that this issue rarely arises given the need for good faith in the context of an actually fraudulent transfer and that the substantive cause of action arises under 544(b) (the issue doesn't arise if the avoidance is under 548, of course). I've asked about a dozen bankruptcy friends in the past several years and none of them had ever noticed the issue before.
Has anyone out there ever thought about this issue?
Schumer told a throng of reporters camped outside his Capitol Hill office that Miers either withheld her opinions — or didn't have enough knowledge of landmark privacy rights cases to answer specific questions.Of course, it's hard to judge that based only on Schumer's recollection; among other things, we don't know exactly what questions Schumer asked.
"I didn't learn answers to so many important questions," the Brooklyn Democrat said. "On many she wouldn't give answers. On many others she deferred, saying 'I need to sort of bone up on this a little more, I need to come to conclusions.'"
UPDATE: For a skeptical view of the Harriet Miers "relaunch," see this column by Dana Milbank.
Q The President doesn't want anyone who would legislate from the bench. Can you define that a little bit more? For example, is Brown versus the Board of Education of Topeka, Kansas — was that legislating? Was Miranda legislating? Was the right to a lawyer legislating from the bench?
MR. McCLELLAN: These are great questions. I'm not the one who's going through the confirmation process. These are questions that will come up in the confirmation hearing process, I imagine. I'm sure the —
Q But I want to know what you are saying. You keep saying —
MR. McCLELLAN: I'm sure that members of the Senate —
Q — you can't legislate from the bench. Would all of those rulings been wrong under your —
MR. McCLELLAN: And what we mean by it is that she is someone who will strictly interpret our Constitution and our laws, that will not try to make law from the bench. That's what the President means by it.
And that means that she is someone who will look at the facts of a case and apply the law, what the law says, and that's what the American people expect in a Supreme Court justice. And that's what the President has always looked for. He's nominated more than 200 people to the bench. And Harriet Miers has been very involved —
Q Is Roe versus Wade the law —
MR. McCLELLAN: — has been very involved in that process.
Now, in terms of cases that could come before the Court, I don't think anyone has an expectation that a future judge should answer a question about a case that could come before that Court. A judge should be fair and open-minded and look at the facts of a case and then apply the law.
What you heard from these Supreme Court justices just now was that Harriet Miers is someone who is very fair-minded, and she is someone who will look at the facts and apply the law. And these are all questions about legal issues that she will be answering.
Q But you bring them up. I mean, you —
MR. McCLELLAN: That's right. And she looks forward to —
Q — keep talking about legislating from the bench. Does that mean that nothing changes in 200 years?
MR. McCLELLAN: Of course not, Helen. She will be talking about these issues when she goes before the Senate Judiciary Committee to answer questions. And she looks forward to answering their questions, and we look forward to the American people seeing her before the Judiciary Committee, where she will have an opportunity to discuss these issues and more.
There's a petition circulating in Massachusetts to define marriage as the union of husband and wife in the state constitution. In a bid to discourage anyone from signing the petition, a couple of activists have posted the petition names on the internet.
A friend pointed out to me the following post from Livejournal.com: http://www.livejournal.com/users/mmeubiquitous/119651.html?thread=253795#t253795
"You do realize, I hope, that the names and addresses of all the signatories will be posted on the web, since it's a matter of public record... if you signed, don't be surprised if it has reprocussions (sic) in your future. I, for example, am professionally a manager, and from time to time I do hiring. I will most certainly be vetting all applicants against the list of petitioners in the future to ensure I don't hire anyone who signed, because I wouldn't be able to trust them to behave professionally toward gay coworkers. . ."
No doubt it is mostly hot air. Still, does this whole thing give anyone else the creeps? Can anyone explain why?
All Related Posts (on one page) | Some Related Posts:
- The Marriage Debate and ReproTech:
- Maggie Answer on Marriage, P.S.
- Answer from Maggie About Marriage:...
- The Legal Marriage Debate:
- Marriage Debate Digression:
- The Marriage Debate, Round 3 (or 4, but who’s counting?):...
- The Marriage Debate
- The Marriage Debate:
- Maggie Gallagher Guest-Blogging About Same-Sex Marriage:
Perhaps President Bush was conflating liberal dominion over constitutional law and activist courts since the New Deal with intellectualism. That is easy to do, given the pervasiveness of liberal ideology in legal scholarship and academia more broadly. It is tempting to blame the root for the branch. If the liberal jurisprudential establishment emerged from elite schools and journals and spoke in large words and grand theory, the thinking might go, it can only be tamed by reaching outside the Washington-New York intelligentsia to let some Texas common sense cut them down to size.He concludes on a note of semi-dispair:
But law, unlike politics, is inescapably an intellectual exercise, and reason is the bedrock of the rule of law. It is about the careful articulation of principles and nuanced applications, made persuasive by a compelling understanding of the constitutional order and the role of courts. Law is not molded simply by the votes of judges and justices, but in the power and cogency of written opinions and the philosophy they express, which become the fodder of law-review articles, commentaries, and conference panels, and eventually permeate the classroom teaching that forms the next generation of judges, lawyers and scholars. To bypass the opportunity to strengthen a conservative intellectual core — an elite — on the Court is not to make it a populist protector of freedom, but to abandon the field to the liberal elite.
The nomination of Harriet Miers is another chapter in the lost promise of the Reagan revolution. From the heady days of the 1980s, there have been so many missteps, perhaps including the selection of the current president's father as the custodian of the Reagan revolution. The judicial legacy of the Bushes has been raised hopes and dashed expectations: The father left us Thomas, but also Souter; the son brings Roberts, but now Miers. This may be Bush's last opportunity to make an imprint on the Supreme Court, unless health forces Justice Stevens off the bench. The next resignation may well be that of Justice Scalia, fleeing in frustration.This summarizes better than most that has been penned on the Miers nomination why so many of those—perhaps all—who have devoted their time and energy to this matter are reacting to this decision as they have.
The Republican hold on the presidency is razor thin, control of the Senate uncertain. There could well come a day, possibly sooner rather than later, when a Democratic president places a nominee before a Democratic Senate, and there will be little talk of keeping a balance on the Court. The Court will resume its leftward march, occasionally staggering back to the right. Conservatives slowed, but did not reverse, this trend.
The moment has passed; unless this nomination is derailed by the oddest of bedfellows, it would seem that this is, as Jim Morrison intoned, the end.
Monday, October 17, 2005
Judiciary Committee Chairman Arlen Specter . . . met with Miers and said afterward she told him "she believes that there is a right to privacy" in the Constitution, the key underpinning of the Roe v. Wade ruling.
Specter also told reporters Miers told him she considered as settled law a 1965 Supreme Court ruling that invalidated a Connecticut law prohibiting the use of contraception by married couples.
But Specter's office later issued a statement, saying Miers called him to say "he misunderstood her and that she had not taken a position" on the 1965 case or the privacy issue. The statement by Specter's office said the senator "accepts Ms. Miers's statement that he misunderstood what she said."
O.K., I think we are actually making progress. Progress, I mean, towards the goal of achieving disagreement. I’m no Socrates. I have no illusions that if you accept certain opening premises (like, say, the broad and deep historical connection between marriage and procreation), down the road you are going to have to say, “Gee, Maggie, only a fool could disagree.”
One of the signs of progress towards disagreement is the shift among commentators to another key question: well, o.k. Maggie, so just how exactly will SSM threaten procreation? It is an important question. And I’m going to answer it. But not yet.
I want first to continue on the foundational question: why I think procreation is the main public purpose of marriage, in the sense of being the driving force behind its unique legal status (Remember, individuals or religions may have other reasons; I’m talking about why government in our system is involved in marriage and not other intimate adult relations).
Let me offer 2 additional reasons why I believe in the primacy of procreation (not, remember, as the definition or the essence of marriage—marriage is a sexual, financial, emotional union of husband and wife) but as the main reason why marriage exists as a legal status and as a universal human idea.
1. Internal coherence. The first reason is internal evidence from the structure of marriage in our received legal tradition. Procreation provides the “coherence” for our received definition, the thing that explains its core features, in way that other reasons do not. The California Baker court in 1859 laid out the the prime reason as procreation and a second reason as the happiness of the couple. Fair enough. But how does the happiness of the couple explain why two and only two people can get married? Or why two people, in order to be happy, must have sex?
By contrast, procreation (or to be more accurate, managing the procreative consequences of sexual attraction between men and women) provides an answer to all these questions: Why two? Because two and only two people make the baby. Any other arrangement involves not a full union of parents but a subdivided one. Why a sexual union and not some other loving kind? Because sex makes babies.
One of the problem SSM advocates have is coming up with an alternate reason for marriage that explains why, out of all the intimate relations adults forms, only certain kinds of interpersonal unions are eligible to be marriages. Marriage is about love they say. Legally, love defines marriage even less tightly than procreation. You can love your mistress and hate your wife, and that doesn’t mean your mistress is your wife. You can love many people but only have one wife. Why? And why do you have to have sex with people you love? (Note: I'm not arguing that SSM will lead to polygamy. Personally, I think it will lead to de-institutionalization of marriage altogether, not to polygamy.Instead I'm pointing out that under their theory of why marriage exists, advocates of SSM cannot explain any of marriage's ordinary legal features).
2. Universality. Many features of our specific marriage system are not universal. Monogamy for example, is the exception in human history (although most large complex societies have this marriage system). But all of these systems (with very few and very limited exceptions) define marriage as male and female. Why? You don’t find that many human universals.
BTW this is true even in the many small tribal societies that institutionalize and approve same-sex (male) relations in many contects. That is these societies also seem to reserve marriage for those relations that are as Kingsley Davis said socially approved for sexual intercourse and baby-making.
The argument I am making is this: every society needs to come up with some solution to the fact that the default position for male-female sexual attraction (that is unregulated by law or society) is many children in fatherless homes. The second human reality societies must face is that procreation is not optional, it is necessary. Individuals don’t have to do it but societies do. The word for the social institution that addresses these problems, in this and every known human society is marriage.
Sex makes babies, Society needs babies, babies need mothers and fathers.
I think there is powerful evidence that these “facts on the ground” really do explain marriage in some sense better than any alternative explanation on the table.
Next post: how these facts on the ground affects the legal arguments for SSM.
All Related Posts (on one page) | Some Related Posts:
- The Marriage Debate and ReproTech:
- Maggie Answer on Marriage, P.S.
- Answer from Maggie About Marriage:...
- Marriage Debate Digression:
- The Marriage Debate, Round 3 (or 4, but who’s counting?):
- The Marriage Debate:...
- The Marriage Debate
- The Marriage Debate:
- Maggie Gallagher Guest-Blogging About Same-Sex Marriage:
The only statement other than Bush's was by John Hill, Chief Justice of the Texas Supreme Court in the 1980s. Hill is a personal friend of Miers who was appointed by Bush to the Texas Lottery Commission in 1997. Here is Hill's statement in its entirety:
"Mr. President, we just all want to thank you for this nomination. We’re excited about it, and we’re here to try to let the people of America know what we all know, that she is an absolutely fantastic person and a great lawyer and will make a great judge."Does anyone know if we're going to hear more from these judges? That seems like a rather short quote for such a long trip.
I hunted around Google News for additional statements, and found another news report that offers two more quotes. In it, Hill adds "I'd trust her with my wife and with my life." Former Texas Supreme Court Justice Craig Enoch says, "I think this is an excellent choice by the president of the United States and I think when people get to know her and understand her like we do, they'll find her an excellent choice. And she'll be a legend on that court before her career is finished." But I haven't been able to find anything else.
For those who want evidence that procreation is an important public purpose for marriage, A quick sampling:
From U.S. law.
“[T]he first purpose of matrimony, by the laws of nature and society, is procreation.” Baker v. Baker, 13 Cal. 87, 103 (1859). “he procreation of children under the shield and sanction of the law” is one of the “two principal ends of marriage.” Sharon v. Sharon, 75 Cal. 1 (1888) (quoting Stewart on Marriage and Divorce, sec. 103. “Procreation, if not the sole, is at least an important, reason for the existence of the marriage relation.” Davis v. Davis, 106 A. 644, 645 (N.J. Ch. Div. 1919). “The great end of matrimony is . . . the procreation of a progeny having a legal title to maintenance by the father.” Laudo v. Laudo, 197 N.Y.S. 396, 397 (App. Div. 1919); Poe v. Gerstein, 517 F.2d 787, 796 (5th Cir. 1975) (“[P]rocreation of offspring could be considered one of the major purposes of marriage. . . .”); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. App. 1974) (“[M]arriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.”); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810 (1972) (“The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”); Heup v. Heup, 172 N.W.2d 334, 336 (Wis. 1969) (“Having children is a primary purpose of marriage.”); Zoglio v. Zoglio, 157 A.2d 627, 628 (D.C. App. 1960) (“One of the primary purposes of matrimony is procreation.”); Frost v. Frost, 181 N.Y.S.2d 562, 563 (Supr. Ct. New York Co. 1958) (discussing “one of the primary purposes of marriage, to wit, the procreation of the human species.”); Ramon v. Ramon, 34 N.Y.S. 2d 100, 108 (Fam. Ct. Div. Richmond Co. 1942) (“The procreation of off-spring under the natural law being the object of marriage, its permanency is the foundation of the social order.”); Stegienko v. Stegienko, 295 N.W. 252, 254 (Mich. 1940) (stating that “procreation of children is one of the important ends of matrimony”); Gard v. Gard, 169 N.W. 908, 912 (Mich. 1918) (“It has been said in many of the cases cited that one of the great purposes of marriage is procreation.”); Lyon v. Barney, 132 Ill. App. 45, 50 (1907) (“[T]he procreating of the human species is regarded, at least theoretically, as the primary purpose of marriage . . .”); Grover v. Zook, 87 P.638, 639 (Wash. 1906) (“One of the most important functions of wedlock is the procreation of children.”); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980), aff’d 673 F.2d 1036 (9th Cir. 1982) (observing that a “state has a compelling interest in encouraging and fostering procreation of the race”);
A New Jersey court waxed lyrical on this point: “Lord Penzance has observed that the procreation of children is one of the ends of marriage. I do not hesitate to say that it is the most important object of matrimony, for without it the human race itself would perish from the earth.” Turney v. Avery, 113 A. 710, 710 (N.J. Ch. 1921)
Some evidence on the anthropological point: “Although the details of getting married – who chooses the mates, what are the ceremonies and exchanges, how old are the parties – vary from group to group, the principle of marriage is everywhere embodied in practice. . . . The unique trait of what is commonly called marriage is social recognition and approval . . . of a couple’s engaging in sexual intercourse and bearing and rearing offspring.” Kingsley Davis (ed.), Contemporary Marriage: Comparative Perspectives on a Changing Institution (New York: Russell Sage Foundation) (1985).
"Marriage is a universal social institution, albeit with myriad variations in social and cultural details. A review of the cross-cultural diversity in marital arrangements reveals certain common themes: some degree of mutual obligation between husband and wife, a right of sexual access (often but not necessarily exclusive), an expectation that the relationships will persist (although not necessarily for a lifetime), some cooperative investment in offspring, and some sort of recognition of the status of the couple’s children. The marital alliance is fundamentally a reproductive alliance." Margo Wilson & Martin Daly, Marital Cooperation and Conflict, in Evolutionary Psychology, Public Policy and Personal Decisions 197, 203 (Charles Crawford & Catherine Salmon eds., Lawrence Erlbaum Assoc. 2004)
Its certainly possible, guys, to argue that marriage's public purpose has changed, or is no longer relevant, or that same-sex marriage doesn't threaten this interest.
But really not to say that I'm just making up this whole procreation and marriage thing.
All Related Posts (on one page) | Some Related Posts:
Thanks by the way for all your comments, especially this one: "Before belly-flopping into an already acrimonious debate on same-sex marriage, would someone please define exactly what marriage is supposed to accomplish. Perhaps then the debate can proceed on firmer terra."
Here’s my short answer: marriage serves many private and individual purposes. But its great public purpose, the thing that justifies its existence as a unique legal status, is protecting children and society by creating sexual unions in which children are (practically) guaranteed the love and care of their own mother and father.
The vast majority of children born to married couples begin life with their own mother and fathers committed to jointly caring for them. Only a minority of children in other sexual unions (and none in same-sex unions) get this benefit.
Sex makes babies. Society needs babies. Babies need fathers as well as mothers. That's the heart of marriage as a universal human institution.
Please note: Procreation is not the definition of marriage. It is the reason for marriage’s existence as a public (and yes legal) institution. People who don’t have children can still really be married (just as people who aren't married can and do have babies).
But if sex between men and women did not make babies, then marriage would not be a universal human institution, or a legal status in America. Yes, many people like intimacy—is that a good reason for the government to stamp the good housekeeping seal of approval on certain intimate relationships, but not others?
(Note: I’m aware the short description above does not answer all legal arguments about equal protection. Patience. BTW, the legal debate would be sharpened if more people participating in it distinguished between the individual interest and the state interests in marriage).
For a longer explication of this argument see my debate with Andrew Koppelman in the U. of St. Thomas Law Review, "(How)Will Same-Sex Marriage Weaken Marriage as an Institution?"
Although signed into law in April, most of the provisions of the bankruptcy reform legislation become effective today. If you are not sick of hearing about the topic, I will be discussing it on the Newshour with Jim Lehrer either today or tomorrow depending on the press of other business.
For those who wonder whether consumers respond to the incentives provided by the bankruptcy code, bankruptcy filings last week shattered all previous records.
In response to my post on Anti-Kelo legislation in Pennsylvania, Skip Oliva calls my attention to this interesting use of the eminent domain power. The facts are a bit sketchy and he seems to be relying primarily on an antitrust complaint filed by the Pennsylvania AG's office--I'm relying on his post as well as the AG's press release, so please let me know if I have any of the facts wrong.
Cramer Airport Parking was a private company that competed with the airport parking owned by the local airport authority, the Susquehanna Area Regional Airport Authority which owned the Harrisburg airport. The airport charged more than Cramer and was operating at below capacity. The airport invoked its eminent domain power to seize Cramer's land, even though it apparently has announced no plans to put the land to any public use. Skip summarizes the eminent domain portion of the case as follows:
[Attorney General] Corbett does outline a persuasive case against HIA’s invocation of eminent domain. The complaint alleges that HIA “has no actual plans for the Cramer property,” and that the property isn’t directly adjacent to the airport, which “precludes most development directly related to aviation.” The complaint also cites unnamed employees of HIA as saying that the taking of the Cramer property is intended to eliminate the parking competition and to aid the airport in a “dispute with the Middletown Area School District on the imposition of a parking tax.”
The PA AG's press release is here and adds the following facts from its complaint:
The Cramer land does not abut SARAA's property, and instead is surrounded by property owned by Amtrak and Norfolk Southern, plus other commercial and residential lots.
According to the complaint, Cramer Airport Parking offers 1,000 spaces less than one mile from HIA and can expand to 2,000 spaces. The current rates are $5 per day, $28 per week and a reduced fee if the customer uses available discount coupons. The parking facility provides shuttle service to the airport.
SARAA offers 2,474 parking spaces in its parking garage at the airport. The rates are $1 per hour for the first two hours and $2 for each additional hour up to a daily maximum of $14. Garage parking is adjacent to the HIA terminal.
In addition, SARAA offers 3,100 parking spaces at its Economy Long-Term Parking lot known as "SmartPark," less than a mile from the terminal by shuttle. Customers using that facility pay $5 per day and $30 per week. SARAA has the potential to expand its facility by 9,000 parking spaces using space in its daily lots, "SmartPark" and property in front of Penn State's Middletown Campus.
The complaint states that HIA parking lots already operate well below capacity. The airport also purchased property from Bethlehem Steel that remains undeveloped.
I haven't been able to determine whether Cramer challenged the eminent domain proceeding before launching the antitrust case, nor does it seem obvious that he would have succeeded. Even though there apparently is no plan to use the confiscated land for any sort of public use, Kelo seems to pretty clearly reject the idea that a specific plan for public use be proposed at the time of the taking. Moreover, by providing a monopoly to the city airport, presumably this will increase government revenues, which seems to put it within the capacious scope of Kelo. Other cases have permitted eminent domain to be used against churches as tax-exempt entities in order to turn their land over to private businesses (see Charles Haynes's summary of some of those cases as well as the Beckett Fund's amicus brief in Kelo).
So I don't see anything in Kelo that would prevent a city from condemning the property of its competitor so as to give itself a monopoly in the provision of an economic service, but perhaps I've missed something that readers can point out to me.
There is a point here, as well as in my post the other day on New Jersey. Boosters of Kelo might say that these are not the kind of takings that the Supreme Court had in mind. But the problem is that inherent in the Court's decision is an assumption about the nature of the political process, namely that it usually operates in a deliberative and even-handed fashion. As a result, the Court essentially put local governments on the honor system when it comes to use of the eminent domain power to take private property and give it to other private parties. There are very few other provisions in the Constitution where the Supreme Court has decided to simply leave the protection of constitutional rights up to the democratic processes--imagine if the Supreme Court interpreted the First Amendment, Fourth Amendment, or Fifth Amendment in the same "honor system" manner that it has interpreted the "public use" clause.
And I submit that what underlies this hands'-off approach of the Supreme Court is a particular assumption about the nature of the political process, that in can be trusted in taking people's property, but not for protecting speech, religion, or criminal rights. So the corruption and self-interest of local governments in using the eminent domain power is plainly a part of this debate, because it goes to the central core of the proposition embraced by the Supreme Court, that it can trust the political process in this area more than with respect to other rights. I disagree that the political process can be trusted any more here than anywhere else. If anything, the defects of the political process are even greater here because of the opportunities for individuals and governmental actors to use political processes transfer wealth to themselves from others (searching a house without a warrant, for instance, harms the suspect but there is no particular benefit to the government from doing it).
Indeed, Madison warned in Federalist 10 that factions are most dangerous when it came to the protection of property precisely because of the incentives that private actors have to plunder the property rights of others. And what we are seeing in cases such as this one (and the New Jersey case) is that the Court's assumption in Kelo that the political process can be trusted to prevent improper use of the eminent domain power rests on a questionable characterization of the political process.
My personal view is that the honor system should never apply to the protections of the Bill of Rights--whether the First, Second, Fourth, or even the Takings Clause of the Fifth Amendment. Nor do I find it persuasive to argue that because a majority of Americans reject Kelo and are moving against it legislatively to think that shows that the Court isn't necessary. A majority of Americans also presumably support the Free Speech and Free Exercise Clauses of the Constitution but that doesn't seem like a very good argument to me that therefore the Supreme Court should stop enforcing those too.
Here's my very enthusiastic review, out in the current American Historical Review: This is a relentlessly interesting book, one that can’t help but change the way the reader understands twentieth century American constitutional development. As Kersch persuasively argues, for much of the late twentieth century, American constitutional history was dominated by a whiggish narrative in which progressive forces consistently supportive of civil rights and civil liberties triumphed over the dark forces of reaction. This whiggish narrative, however, is full of holes.
For example, progressives of the early twentieth century fought mightily against privacy rights protected by the fourth and fifth amendments, in the name of the right of publicity. More specifically, the statebuilding project supported by progressives required that American businesses be subjected to intrusive and unprecedented inspection by regulatory and other legal authorities. Even future Supreme Court Justice Louis Brandeis’s famous 1890 article supporting a constitutional “right to privacy”—later cited as the progenitor of modern “right to privacy” cases such as Griswold v. Connecticut—actually did not advocate a right to privacy that modern civil libertarians would even begin to recognize. Quite to the contrary, the article advocated recognition of a tort for invasion of privacy as a means of censoring even rather tepid tabloid journalism. Only after progressives had soundly defeated the “old” right to privacy in the economic sphere and established the modern bureaucratic state did they reimagine the right to privacy in terms congenial to modern liberalism, as an island of personal autonomy in a sea of statism. This victory also allowed them to revive the Fourth and Fifth Amendments in the service of protecting street criminals.
The whiggish narrative also asserts that a defining characteristic of American progressivism has been solicitude for the rights of oppressed minorities, especially African Americans. In fact, however, before the New Deal era most progressives were at best indifferent to African Americans’ plight. Indeed, some were openly hostile to African American, and launched such progressive schemes as the wave of residential segregation laws that swept through the United States in the 1910s. These laws were invalidated by a unanimous decision of the “conservative” Supreme Court in Buchanan v. Warley in 1917, to a chorus of criticism by progressive legal scholars.
Organized labor, not civil rights, was the favored cause of progressives in the early twentieth century, and labor unions, especially AFL and railroad unions, were themselves hostile to African Americans. African Americans, in turn, for the most part fiercely opposed labor unionism. In alliance with the businesses that often provided them with work over white workers’ objections, African Americans supported such “reactionary” policies as labor injunctions, strikebreaking, and the legality of yellow dog contracts. Kens argues that progressives only embraced the cause of civil rights when African Americans dropped their prior attachment to pre-New Deal individualistic conceptions of rights, and, modeling themselves on the successful model of organized labor, organized themselves as a constitutional class entitled to group rights in a statist legal and economic superstructure.
Finally, progressive conceptions of appropriate education policy were for the most part driven far more by a vision of imposing a centralized, statist school system on the American people than on any principled conception of civil liberties and separation of church and state. Progressive intellectuals strongly opposed the Meyer, Pierce, and Tokushige Supreme Court opinions of the 1920s, which protected local school board prerogatives and private schooling against progressive demands for homogenization and centralization of education. Progressives, in fact, were overtly hostile to the very existence of Catholic parochial schools; the constitutionality of banning such schools was at the heart of the Pierce case. By the 1960s, progressives and their allies on the scholarly community reinterpreted the quintessentially conservative Supreme Court cases—which their roots in the “reactionary” Lochner v. New York tradition—as civil libertarian cases protecting individual autonomy from conservative religious forces (see Griswold v. Connecticut and Roe v. Wade). However, progressive hostility to traditional Catholicism continued, as the history of both of these cases makes clear.
Similarly, after the New Deal, the overtly statist progressive attempt to in the 1920s to outlaw Catholic schools morphed into an attempt to ensure that government aid to Catholic schools was beyond the constitutional pale. The “civil libertarian” doctrine promulgated to accomplish this goal was the “separation of church and state.” Courts initially used this doctrine primarily to suppress government assistance to Catholic schools and Catholic-dominated “release time” programs. However, as atheists and liberal Jews became increasingly influential in separationist organizations, the attack on Catholic education morphed into a broader war against expressions of Christian religious sentiment in the public schools, culminating in the Lemon v. Kurtzman decision in 1971. Not surprisingly, whiggish narratives neglect the anti-Catholic sentiment that initially spurred these constitutional developments.
Kersch puts all of these examples into the broad framework of American political and constitutional development. Most historians, law professors, and political scientists who write about constitutional history likely think of themselves as independent liberal, perhaps even radical, critics of their government. Kersch, however, will have none of it. He accuses the scholars who spun and sustained the fanciful but entirely mainstream whiggish narrative of the development of “civil rights and civil liberties” of “being heavily implicated in the political project of justifying, institutionalizing and ... defending the New Deal constitutional regime.” Rather than serving as the incisive and independent critics of their own imagination, the academic establishment has served as an implicit fourth (or fifth) branch of government, rewriting American history to retroactively justify the revolutionary changes to the American conception of rights, liberties, and the proper role of government that the New Deal precipitated and institutionalized.
Ultimately, this short review cannot do justice to the brilliance of Kersch’s insights, or the breadth of his research. Suffice to say that Kersch is fully up to the challenge of explaining and defending a revisionist thesis of tremendous magnitude. Constructing Civil Liberties is simply the most provocative and enlightening book on constitutional history that I have ever read.
Thanks to Eugene and also to Dale Carpenter whose work I admire a great deal.
Recently I had a front row seat at the great Andrew Sullivan v. David Blankenhorn debate on gay marriage at the Institute for American Value’s annual symposium.. It was like watching two majestic battleships, armed and deadly with torpedoes ready, pass each other harmlessly by. The testoterone level was high but they were punching air.
David, who has spent the last two years researching a book on marriage as a cross-cultural universal human phenomenon, and that last twenty years building the nation’s most influential think tank on marriage and fatherhood, said something like this (I’m quoting from memory here):
David: “Marriage is a trans-legal social institution whose main mission is creating sexual unions between men and women so they create families where children have fathers as well as mothers.”
Andrew Sullivan: “That’s a fantasy.” (Andrew cited the usual argument: lots of married couples don’t have children and lots of children aren’t born to married couples.)
Two very bright people, face to face, mano a mano, looked each other in the eye and saw--a blank wall.
A lot of this debate is like that.
I’ve learned from much experience that when two intelligent people cannot even understand how the other person’s can possibly believe their own argument—that’s when something really interesting is going on.
I have no illusions I’m going to spend this week persuading people to change their minds on gay marriage. So I’d like to try to do something else big and important: to “achieve disagreement”. To figure out for myself, and maybe for you too, what has changed that makes the original, cross-cultural, historic understanding of marriage literally unintelligible to so many of this country’s best and brightest. In the process, maybe some advocates of gay marriage will understand why, quite apart from any disagreement about sexual orientation, so many Americans are deeply disturbed by the idea of gay marriage.
I'm delighted to say that Maggie Gallagher will be guest-blogging this week about same-sex marriage. Maggie is founder and president of the Institute for Marriage and Public Policy; National Journal named her to its 2004 list of the most influential people in the same-sex marriage debate. Maggie has also written extensively on marriage and family more generally; she's the coauthor of The Case for Marriage: Why Married People are Happier, Healthier and Better-Off Financially.
Maggie, as many of you know, is a leading opponent of same-sex marriage. In a couple of weeks, I also look forward to having as a guest-blogger Dale Carpenter, a law professor at University of Minnesota and a prominent proponent of same-sex marriage. (I'd thought of having them guest-blog at the same time, but decided to try a less head-to-head exchange; we'll see in several weeks how well that has worked.) Many thanks to Maggie and Dale for joining us.
On Oct. 3, the day the Miers nomination was announced, Mr. Dobson and other religious conservatives held a conference call to discuss the nomination. One of the people on the call took extensive notes, which I have obtained. According to the notes, two of Ms. Miers's close friends-- [Nathan Hecht and Ed Kinkeade,] both sitting judges--said during the call that she would vote to overturn Roe.
. . . [The conference call was] a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, "Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?"
"Absolutely," said Judge Kinkeade.
"I agree with that," said Justice Hecht. "I concur."
Sunday, October 16, 2005
Cruising around the blogosphere lately,* I've been amazed that there seems to be something approaching a consensus choice among conservatives and libertarians (at least those who blog and who contribute to comments sections of blog) for the Supreme Court: D.C. Circuit judge and former California Supreme Court justice Janice Rogers Brown [eds. acknowledgement: but for confirmability issues, Brown would certainly be among my top choices]. She's popular with all wings of the movement, from libertarians to social conservatives. She's also extremely outspoken, controversial, and likely not confirmable.
This illustrates the disconnect between the White House and its most intellectually active potential allies. In terms of her record, her outspokenessness, her visibility, her willingness to court controversy in defense of her principles, her independent-mindedness, and just about everything else, Harriet Miers is basically the anti-Brown (or, if you prefer, the Brown of the Bizarro universe). The only thing they seem to have in common is that Miers--as dull as Brown is interesting, as moderate-seeming as Brown is radical, as untested as a judge as Brown is experienced, as fiery a rhetoritician as Miers is a mouther of platitudes, as establishmentarian as Brown is individualist--may not be confirmable, either. Oh, and either woman energizes the Republican base; only that Miers has energized them to oppose the president, while Brown would have united them in support.
*The links are just very recent examples compiled from Technorati, I've seen quite a few other expressions of support for Brown over the last couple of weeks elsewhere.
I don't subscribe to the NYT, nor will I pay for Times Select, so I no longer see their op-ed columns. Via Ann Althouse (via Professor Bainbridge), however, I've learned that John Tierney had a recent column on the relative lack of conservatives in academia. Althouse summarizes the Tierney column here, and Bainbridge reiterates his views on the subject (with which I largely agree) here.
Note: I haven't opened comments on this post, but you can discuss the Tierney column on either of their sites.
The president has conservative allies of his own, chief among them a Jedi of Beltway combat, Newt Gingrich. New talking points were issued to them late last week, focusing on Miers's rather thin list of qualifications—bar-association presidencies, corporate legal work and a term as a member of the Dallas City Council. . . .Thanks to Howard for the link.
The idea—the hope—is to generate some positive buzz with testimonials. Strategists have lined up endorsements and op-eds to be doled out day by day, one of them an Oval Office pageant of praise featuring former members of the Texas Supreme Court. Miers will work her way through a series of office visits with senators, with a fairly heavy emphasis on Republicans who have kept their distance so far.
UPDATE: Time Magazine has more:
The White House's 20-person "confirmation team" will line up news conferences, opinion pieces and letters to the editor by professors and former colleagues who can talk about Miers' experience dealing with such real-world issues as the Voting Rights Act when she was a Dallas city council member and Native American tribal sovereignty when she was chairwoman of the Texas Lottery Commission.And this part was interesting, too:
Bush's friends contend that it is the conservative elite, not the President, who miscalculated and that self-righteous right-wingers stand to lose their seats at the table of power for the next three years. "They're crazy to take him on this frontally," said a former West Wing official. "Not many people have done that with George Bush and lived to tell about it."