Saturday, October 22, 2005Many Thanks to Maggie Gallagher
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. Dean Barnett on the Federalist Society:
According to Dean Barnett, it turns out the Federalist Society isn't so bad after all. Cheater Prospers:
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. Poll on Miers:
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. Update: 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. Light at the End of the Miers Tunnel?:
Here's another sign of a Miers tipping point — hints that the White House is at least pondering the scenario of withdrawing the nomination:
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. Friday, October 21, 2005Kansas Court Forbids Higher Punishment for Same-Sex Misconduct:
The Kansas Supreme Court issued its decision in Kansas v. Limon today, invalidating a Kansas statutory scheme that imposed higher punishments for same-sex sexual misconduct than opposite-sex sexual misconduct.
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. Now That's A Lot of Comments:
As of the time I am posting this, Maggie's final guest post from earlier today has 339 comments. I've heard a rumor that if a VC post ever gets 500 comments, the entire Internet will crash. I dunno if it's true, but we may find out.
Flattery:
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. (show) Miers Confirmation Politics:
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:
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):
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:
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:
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. Calling One First Street:
If you're wondering what kind of case gets granted by the Supreme Court these days, one strong candidate to watch is the Ninth Circuit's decision in Musladin v. Lamarque, initially decided in April and amended today. It's an opinion from the Ninth Circuit by Judge Stephen Reinhardt (check); it granted federal habeas relief to a murder defendant on the ground that the victim's family wore buttons with pictures of the deceased during the trial, relying on Ninth Circuit precedent despite the text of AEDPA (check); the initial panel was divided, with Judge Berzon joining Reinhardt and Judge Thompson dissenting (check); and it drew a dissent from the denial of rehearing en banc authored by Judge Kleinfeld (and another by Judge Bea), joined by Judges Kozinski, O'Scannlain, Tallmann, Bybee, Callahan, and Bea, that starts as follows:
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. Bankruptcy Discussion on the Newshour with Jim Lehrer:
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. The Puzzle Boat:
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. The Marriage Debate, a few last thoughts:
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. Lucky you. 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. More Evidence of the Miers Tipping Point:
Krauthammer is giving exit advice, new questions have arisen about the Senate questionnaire, and the Wall Street Journal editorial page weighs in:
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. 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. Issues Emerging in the Plame Investigation:
This New York Times story may be an important heads-up as to what is likely to happen with the Plame investigation:
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. "Cut Through the B.S. And Provide A Framework":
A commenter to an earlier post on the Miers nomination makes the following suggestion:
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. Was Marx Jewish?
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, 2005Fan Demands More Prison Time To Honor Larry Bird:
Bloomberg has the scoop on one of the more unusual criminal law stories I have heard recently:
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. More Evidence For The Miers Tipping Point,
courtesy of a fascinating story by Byron York. The intro:
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. The Miers Nomination and the Tipping Point:
One of the notable aspects of the Miers nomination is how much trouble the White House is having finding a clean selling point for Miers that they can use to push her case. Looking back over the last few weeks, "trust us" didn't work; religion didn't work; experience didn't work; personal interviews with Senators didn't work; Texas judges coming to the White House didn't work; and letting Miers make her case through her questionnaire didn't seem to work, either. There are a few cards left to be played, but the number is dwindling quickly. [UPDATE: Looks like "judicial temperament" is up next.]
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. Miers and Business Law:
Over at The Conglomerate, Gordon Smith takes a look at whether a Justice Miers would help the Supreme Court in business law cases. His conclusion:
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. Congress Bans Abusive Anti-Gun Lawsuits:
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. Brief Rebuttals:
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 Frank Concession:
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. Is Marriage Innate? More Reply to Orin:
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. The Right to be Wrong:
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. Is Miers in Trouble?
I keep expecting the nomination to turn the corner, but it has yet to happen. If this Bob Novak column is to be believed, it may actually get much worse. Gay Marriage for Some, or Unisex Marriage for All?
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, 2005Understanding the Argument:
Reading over the various posts and comments, I think I'm beginning to understand the argument Maggie is making. The argument is that extending marriage to include same-sex couples would not just give rights to a small subset of the population, but would radically transform what marriage is. So long as only opposite-sex couples can marry, the thinking goes, marriage is linked to procreation; if same-sex couples can marry, too, then marriage is transformed into something else entirely. Adding same-sex marriage would ruin the old institution and create a new one, and the new institution would not longer retain a focus on having and raising children. Viewed in that light, same sex marriage is a threat to society: by redefining the institution, it will kill off its most important feature.
Leaving aside the question of whether this argument is persuasive, am I at least understanding it accurately? Marriage Debate and Motives:
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). The Marriage Debate, What's the Harm? (cont.):
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. . . . More Criticisms of Miers' Response to the Senate.--
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. Question on the Marriage Debates:
Whether states should recognize same-sex marriages strikes me as a very complex question, one that taps into lots of different instincts and arguments. I confess I am a bit puzzled, though, by Maggie's effort to articulate the harm of same-sex marriage for the majority of us that are straight. As I understand her argument, the claim is that reforming the institution of marriage to include same-sex relationships will have a profound negative impact on how straight couples view marriage. My question is, why? As Maggie herself has pointed out, the institution of marriage is one of the basic building blocks of every society. 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? This isn't meant to be a trick question. I guess I just don't see why the existence of same-sex marriages would discourage opposite-sex couples from tying the knot.
Cass Sunstein on Ideological Voting on the Court of Appeals.--
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). Our Secret Is Out:
From John Miller's column in this week's National Review (p. 44):
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. The Marriage Debates: What's the Harm?
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. New London Severs Ties with NLDC:
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:
Update: Tom Blumer has another amazing update on this story, "State Upset With City’s NLDC Vote":
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. Miers Hearings Scheduled for Nov. 7th:
CBS News has the scoop. I was also interested to see that Senators Specter and Leahy penned a letter to Miers asking for more detailed answers to the questions asked in the Senate questionnaire. Do any VC readers have a sense of whether this is unusual?
Marriage Debate DataDump:
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 woma |