Saturday, November 5, 2005

Brady Campaign Misrepresents Judge Alito's Position on Machine Gun Possession:

Here's the Brady Campaign's press release, from last Monday:

[Title:] 'Machine Gun Sammy,' a Perfect Halloween Pick, Says Brady Campaign

How could it have gone in any other direction, from a White House that just gave blanket immunity to the gun industry, which refuses to bar terrorists from buying guns, that broke a campaign promise and put Uzis and AK-47s back on America's city streets, and insisted that records of gun purchases be destroyed before the sun sets on them twice?

It had to be a Supreme Court pick that favors legal machine guns. . . .

Of course, the opinion of Judge Alito's to which the Brady Campaign points does not favor legal machine guns: It simply concludes that Congress is limited in its ability to ban private possession of machine guns, and that the power to decide whether to ban such possession is left to the states. This, of course, was based on the then-recent Supreme Court decision holding precisely the same as to private possession of guns in school zones. In the opinion's words,

Needless to say, the Commerce Clause does not prevent the states from regulating machine gun possession, as all of the jurisdictions within our circuit have done. Moreover, the statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element--a common feature of federal laws in this field and one that has not posed any noticeable problems for federal law enforcement. In addition, as I explain below, 18 U.S.C. § 922(o) might be sustainable in its current form if Congress made findings that the purely intrastate possession of machine guns has a substantial effect on interstate commerce or if Congress or the Executive assembled empirical evidence documenting such a link. If, as the government and the majority baldly insist, the purely intrastate possession of machine guns has such an effect, these steps are not too much to demand to protect our system of constitutional federalism.

Doesn't sound like "favor[ing] legal machine guns" to me.

The press release also quotes Jim Brady as saying, "[T]he man I worked for, who gave us Sandra Day O'Connor and signed the 1986 machine gun ban, would be shaking his head." Well, Sandra Day O'Connor was one of the Court's leaders in reasserting the limits on federal power. Under the Brady Campaign's logic, Justice O'Connor must "favor legalized possession of guns in school zones" — and of course she must "favor legalized violence against women," since she also voted to strike down the federal Violence Against Women Act on the grounds that such matters are the constitutional province of the states.

Yet presumably, if Jim Brady is praising Sandra Day O'Connor, he must not really think that she "favors legalized possession of guns in school zones," and he must not be ready to dub her "Guns-in-School-Zones Sandy" — he must understand that her vote had to do with who decides what to do about possession of guns in school zones (the states or the federal government), and that states would remain free to outlaw such possession. Why then does his organization say that Judge Alito "favors legal machine guns"?

Virginia Postrel on a Starbucks Cup!

(Better than on a milk carton, I guess.) We got some coffee from Starbucks for Ben's birthday party — yes, for the adults — and what do I see on one of the cups but a quote from Virginia Postrel: "The most successful innovations are the ones that we stop noticing almost immediately. We often don't appreciate the things we'd least like to give up." It's #55 in Starbucks' "The Way I See It" series, carefully marked "This is the author's opinion, not necessarily that of Starbucks." Cool.

UPDATE: I originally attributed the quote to Virginia's The Substance of Style, but she notes in the comments that she wrote it specifically for Starbucks, so I changed the post accordingly.


Friday, November 4, 2005

[Dale Carpenter (guest-blogging), November 4, 2005 at 10:24pm] Trackbacks
The Traditionalist Case – Last Thoughts:

Thanks again to Eugene for letting me in the forum this week.

In the end it comes down to this: Given that gay families exist, and are not going to be eliminated or converted by any means acceptable to the American people, what is to be done with them? Is it better for society that they be shunted aside, marginalized, ostracized, made to feel alien to traditional values and institutions? Or is it better that they be included in the fabric of American life, including the most important social institution we have for encouraging, recognizing, and reinforcing loving families? I can see why a sexual liberationist, or a radical of any stripe, might say, “Keep them out.” I have never been able to understand how a conservative could say that.

In the end I doubt this issue will be decided on the basis of debaterish points and arguments. It will be decided on the basis of the lessons we tend to draw from the real-world experiences we have and the people we know. What I have tried to do is outline a different way of thinking about gay marriage that might allow the thoughtful traditionalist conservative to reconcile his innate and healthy suspicion of change with his insight that marriage really is good for people and their families.

Analogies can obfuscate, but in their own way they can distill a matter to its essence. In her last post two weeks ago, Maggie described the issue of gay marriage by use of a vivid analogy that I will never get out of my mind:

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.

That’s one way to see it. Here’s another:

Imagine you stand with your loved one and child in the middle of a vast, hostile desert. You are burdened – stumbling, loaded down, tired. These are the conditions of modern life for you and they are not favorable, but you’ve been trying to make it. To get across that desert you need a camel.

Along comes a caravan with a hundred camels, three of them with no riders, more than enough for you and your family. You plead to use them, agreeing to pay your way and live by their rules for the journey.

But they say, "No, you might disturb the camels we’re riding on."

That’s what the denial of marriage to gay families looks like, to me.

In a world where gay families had nothing to do with the problems marriage now faces, it’s pretty odd to “defend” marriage by keeping them out. With these wholly unrelated challenges to marriage out there, William Eskridge recently said that defending marriage by opposing gay marriage is like building a Maginot Line. You get all excited about your fine fortress, you preen and prance around about your impending victory, you pop open some champagne, and then . . . the enemy sneaks through the Ardennes and overruns you.

Chief Justice Roberts and the 11-day Gap: Michael Froomkin and Steve Vladeck have co-authored a very interesting post about whether and when the D.C. Circuit can issue opinions with John Roberts on the panel following his resignation from the D.C. Circuit. Ann Bartow's comment seems about right to me: "This is completely awesome pedantic weeniedom, and I mean that in the best possble way."
Lots of Very Interesting Posts at recently. Check out the comments, too.
[Dale Carpenter (guest-blogging), November 4, 2005 at 5:48pm] Trackbacks
The Traditionalist Case – Getting From Here to There:

The traditionalist reformer must not simply be satisfied that the reform is headed in the right direction, but must also be satisfied with the pace of that reform and with how the reform is brought about. The process considerations demand that any reform be based not simply on reasoned judgment, but on reasoned judgment informed by actual lived experience. Moreover, the reform must proceed slowly and incrementally to allow a consensus to develop in favor of the reform and to gauge what effects the effort is actually having.

This Burkean process of “a slow but well-sustained progress” is already very much in motion toward the ultimate destination of gay marriage.

1. The incremental path to gay marriage: the steps taken

Over the past 50 years or so a remarkable development has occurred in America: the increasing normalization and acceptance of gay life. This process has advanced incrementally and its vector has been toward the formation and growth of gay families. It is what makes gay marriage for the first time thinkable.

You can see this phenomenon in numerous legal and social changes. First, laws criminalizing gay sex were gradually either legislatively or judicially wiped away in almost every state until the Supreme Court invalidated the few remaining such laws in Lawrence v. Texas. At the same time gay communities were forming in neighborhoods in the large cities with a burgeoning culture of bars, organizations, and newspapers. Professional organizations like the APA removed homosexuality from the list of mental disorders and declared that efforts to “cure” or convert gays were unethical. Homosexuals began emerging from the closet in large numbers, helping to dispel myths about gays, moving out of urban centers and into the suburbs. And they began looking for more in life than fleeting and furtive sexual encounters. This was all a predicate for the flourishing of gay families.

Gay families, first just couples, began to spring up in the new climate. Adoption was available to gays in 49 states, foster parenting in all 50. Advances in reproductive science made it possible for gays to procreate their own biological children (outside of prior heterosexual marriages). So gays began raising children in increasing numbers, fueling what is today sometimes called a “gayby boom.” A quasi-marriage culture was sprouting.

It was inevitable that law would take notice of these changes, and of new learning about sexual orientation, and adjust to accommodate the realities of family life. Changes in family law allowed gays to obtain custody of their children after divorce without having their sexual orientation considered an automatic disqualification. Many jurisdictions began recognizing second-parent adoptions that provided some measure of legal protection to the parents and children in gay families.

All of this bottom-up momentum toward the formation of families led to some recognition of the relationships of gay couples. It started primarily in the private sector, where companies began offering health and other benefits to the same-sex “domestic partners” of their employees. This practice spread until today most major companies in the country offer these benefits.

Then cities and counties began recognizing the domestic partnerships of their employees. Then states began to recognize gay relationships, first domestic partnerships offering only some benefits to certain gay couples. Now states are beginning to recognize civil unions, which give gay families all of the benefits of marriage yet save the word “marriage” for opposite-sex couples. The big barrier was broken in 2004, when one state began recognizing full-fledged gay marriages. Some of these state-level changes have been pushed judicially (civil unions in Vermont and gay marriages in Massachusetts). But, much more remarkable, they are now happening legislatively (civil unions in Connecticut and very broad domestic partnerships in California).

Abroad, the move to gay marriage in countries with legal and political heritages similar to our own has been dramatic. There’s full gay marriage now in Belgium, the Netherlands, Spain, and most importantly for our purposes, in Canada. Within ten years, I am confident that all or nearly all of the European Union will recognize gay marriages. The dissonance will be increasingly difficult to maintain.

There has been a counter-trend, of course, represented by the recent passage of state constitutional amendments banning the recognition of gay marriages (and often much else). But these have passed mostly in states (like Mississippi) that were not headed toward recognition anyway. There is nothing inevitable about gay marriage. But the overall trend toward the formation of gay families and toward some recognition and protection of those families has been unmistakable.

Moreover the trend has been largely a Burkean one: incremental and based on real-world experience with gay people and families. This incrementalist experimentation has allowed us to begin to judge whether any of the harmful effects predicted by opponents of these reforms have materialized.

Consider, for example, the comments of Massachusetts state senator Brian P. Lees, a Republican who is the state senate minority leader and was a co-sponsor of a state constitutional amendment that would have banned gay marriage. After more than a year of gay marriage in his state he changed his mind and opposed the amendment he had previously sponsored. “Gay marriage has begun and life has not changed for the citizens of the commonwealth,” he said, “with the exception of those who can now marry who could not before.” “Massachusetts Rejects Bill to Eliminate Gay Marriage,” New York Times A12 (Sept. 15, 2005). It’s too early to draw any definitive conclusions about the Massachusetts example, but the preliminary returns are in and they offer no support to doomsday scenarios about gay marriage.

2. The incremental path to gay marriage: the steps ahead

Where do we go from here? I think a Burkean approach dictates two things. First, there should not be an immediate, nation-wide resolution of this issue either in favor of gay marriage or against it. That counsels strongly against either a decision from the Supreme Court forcing gay marriage on the country or the passage of a federal constitutional amendment banning gay marriage throughout the country. Either resolution of the issue would be profoundly un-Burkean because either, at this point, would necessarily be based on a priori reasoning rather than practical knowledge and experience. Fortunately, neither of these national, top-down resolutions of the issue seems likely to occur. Federalism, the historic design of American government, will be allowed to work its magic on this issue.

Second, the reform toward gay marriage should continue incrementally and with a strong preference that it move legislatively. That is, state legislatures should generally begin by taking moderate steps toward recognition that fall short of marriage. This could mean setting up a same-sex domestic partnership registry, and extending to registered partners some of the rights and obligations typical of marriage. Things like the right to visit a sick or dying partner in the hospital and the right to make important decisions for an incapacitated partner come immediately to mind. Perhaps allowing partners to transfer property to one another free of gift taxation. Second-parent adoptions, which even Maggie said she might support, should be allowed for registered partners. If things go well, the state could over time attach new rights and responsibilities to domestic partners.

It may be that in a few states, citizens who already have much experience with gay families can move more quickly. They could grant gay families all (or nearly all) of the rights and responsibilities of marriage and call the relationships “civil unions” or something else, but not marriage. Connecticut is an example of this. California is pretty close. New York and a few other states seem ripe to be next. I see no reason why such states could not move with dispatch toward full gay marriage, especially as the evidence from Massachusetts becomes clearer. There is already a consensus, a "general conciliation," in these states pretty close to gay marriage.

Once more evidence of the effects of protecting gay families is in, states can of course draw on the lessons learned in other states and move more confidently and quickly.

3. The incremental path to gay marriage: disadvantages

There are two disadvantages to this generally go-slow, state-by-state approach. One is that incrementalism necessarily means that states will be creating relationship statuses apart from marriage. Jon Rauch, who supports gay marriage, has argued forcefully that creating a menu of statuses may have the effect of knocking marriage off its perch as the “gold standard” for relationships. It’s a real concern, but I think its force can be blunted. In creating alternative statuses states should be careful to limit participation to same-sex couples. Domestic partnerships and civil unions should not be available to opposite-sex couples, who already have marriage available to them. This can be done constitutionally and, I think, it’s politically viable. Connecticut is a good example. That state legislatively created civil unions for gay couples but not for straight couples. California has (with a limited exception for elderly couples who lose certain important legal benefits if they marry) also limited its domestic partnerships to same-sex couples.

Also, once a state moves to full gay marriage, it should say good-bye to any alternative status it created for gay couples. Once marriage is allowed, gay couples should not retain an option unavailable to straight couples. I think this, too, may be politically viable since there’s some evidence that private employers in Massachusetts have begun to eliminate their domestic partnership benefits. If the pre-marriage alternative status has been limited to gay couples, as I suggested above could be done, there’s not going to be any politically sustainable argument why the alternative status should be available to them (and only to them) once they’re eligible for marriage.

The second disadvantage of incrementalism is that, while we are waiting around, a lot of states will be cementing anti-gay-marriage policy into their state constitutions. Eighteen states have already done so and my home state of Texas is about to become the next (an especially pointless action, since there’s no chance that Texas’s extremely conservative and elected judiciary will force gay marriage on the state). It will be very hard to dislodge these amendments once they’re in place. Long after the evidence is in that recognizing gay families is a good thing for the families and for their communities, these places will be stuck with the frightened prejudgments of an earlier generation that did not have the knowledge or experience the later generation will by then have. That will be terrible for gay families in those states, who will suffer needlessly for decades. I don’t know what to say except that if the alternative to state-by-state incrementalism is a Supreme Court decision mandating gay marriage anytime in the near future, the price of that would be even higher. It would be a constitutional amendment banning gay marriage throughout the nation for the rest of our lives.

Finally, while I believe civil unions are a huge and often necessary step toward gay marriage, they should not be confused with the ultimate destination, which is marriage itself. I have asked many married couples I know whether they would, if given the option, trade in their marriages for a civil union. Every one of them said no, even though civil union would make no difference in their legal rights and relations — assuming federal recognition. (I am sure there are some couples who would have said yes, but I suspect they’re a small minority of married folks.) That’s because marriage is much more than the sum of its legal attributes. It has a cultural, social, and historical significance no other status can touch. Whatever it is that caused my married friends to say no, that’s exactly the thing that gay families with civil unions will be lacking.

Let me be clear: I favor full-fledged gay marriage. In a few states, very soon, it may be possible to recognize gay families in marriage. The traditionalist in me sees the strong arguments for it as the end result, and I have made those arguments this week. But the Burkean in me wants us to get there the right way, and that means doing it in many places slowly and by degree.

Next: last thoughts.

Drive a Hybrid, Get Pulled over by Virginia Police:

The swell new blog Spacebeagle supplies the details. More evidence that government is way too big, and has too many people not engaged in legitimate government services.

Florida Court Orders Disclosure of Breathalyzer Source Code:

Declan McCullagh ( reports on this decision by a three-trial-judge panel in Florida. Note that the decision relies heavily on Florida statutes -- it's not clear whether courts in other states would take the same view, though one can certainly argue for the same result using a more general right-to-discovery-of-relevant-evidence argument that isn't limited to Florida law.

Alito By The Numbers:

John Lott has some interesting numbers on Alito's tenure on the Court of Appeals. I thought this was sort of interesting:

Law professors Stephen Choi of New York University and Mitu Gulati of Georgetown University did a study of the circuit court judges appointed from the administration of presidents Jimmy Carter through the first term of Bill Clinton on several issues. Among them was whether a judge votes in lockstep with other judges nominated by the same political party. They found that Alito was the 12th-most politically independent Republican of the 55 that they studied. If he had been a Democrat, his ranking would have made him the eighth- most politically independent out of 42.

Alito has had some influence on the most important legal issue of the day, ranking about in the middle of the circuit court judges based on how frequently the Supreme Court cites his decisions. He also works hard, placing in the top 30 percent based on the number of opinions he has written. His legal background is stellar: a graduate of Yale Law School, he served on the law review, clerked for the circuit court, and is widely published in law journals.

For those less quantitatively inclined:

The Almanac of the Federal Judiciary regularly surveys lawyers who practice before federal judges. Half of those surveyed viewed him as politically neutral; all of those polled thought he had a good judicial temperament.


Professor Frank Cross challenges Lott's interpretation of Choi and Gulati in the Comments:

Perhaps unsurprisingly, this review by John Lott is quite misleading. Under Choi & Gulati's citation-based measure of judicial quality, Alito comes out very poorly, well down in the bottom half of all circuit court judges. That was their primary measure, and Lott doesn't mention it. Now, I've got a forthcoming paper that argues that this measure is an unreliable one and Alito suffers not for lack of quality but because it is a minimalist. But it's still misleading to cite a couple of categories where he does well but ignore their leading category, where he did quite poorly.

And independence in their study doesn't mean judicial independence, or anything like it. His high score here probably just means that 3rd Circuit Republicans are pretty liberal, as has been noted on this blog, so he is more likely to disagree with them and write a conservative opinion.

For those who want more, the relevant papers by Choi and Gulati are available here and here.

Smith on Calabresi on Alito: Judge Guido Calabresi, Sam Alito's Torts professor at Yale, had the following comment about Alito's performance as a first-year law student:
  "I remember his exam, and I remember that it was lucid, well-written and that he had an imagination which, like many first-year students, he was careful about exercising," Calabresi said. "He was careful to walk before he would run."
  Over at The Right Coast, Yale Law grad Tom Smith is, well, a bit skeptical. An excerpt:
  I mean, seriously. A first year torts exam from thirty years ago? I can barely remember my own life thirty years ago. I took torts from Guido and actually attended many of the classes, and I remember it only vaguely. I have not the faintest recollection of what I wrote on my exam. Guido is much smarter, richer, and more accomplished than I, but I simply do not believe it. And I say that as a Catholic, a Republican, a middle aged novice surfer, and someone whose spouse still tells him he is good looking, i.e., a person prepared to believe a lot of improbable things. By way of disclosure, I should say I certainly hope my teachers at Yale do not remember me, since I was, in retrospect, pretty insufferable, but then, in my own defense, so were many of my teachers.
  There's more over at The Right Coast.
California Prop. 77 (Redistricting):

I know little about redistricting; my intuitive sense is that Prop. 77 -- which would shift California redistricting from the legislature to a special, supposedly less partisan, commission -- is a good idea, but my colleague Dan Lowenstein (who co-chairs the No on 77 campaign) thinks otherwise. I much respect Dan's judgment and his election law expertise, so I thought I'd pass along a white paper that the No on 77 campaign put together on the subject. And here is the Yes on 77 site, which I assume has similar documents on the other side.

Bainbridge on Catholic Judging:

Steve Bainbridge has a good post on the difference between Catholic judging versus legislating.

The Kennedy Court: Edward Lazarus offers a perceptive essay about the dynamics of the Supreme Court over at The New Republic. Hat tip: H.J. Bashman.
An Odd Sort of "Activism":

"Appeals Court Declares Parenthood Unconstitutional, Group Says," reads an item on

A new ruling from the 9th U.S. Circuit Court of Appeals is prompting cries of judicial activism.

On Wednesday the court dismissed a lawsuit brought by California parents who were outraged over a sex survey given to public school students in the first, third and fifth grades.

Among other things, the survey administered by the Palmdale School District asked children if they ever thought about having sex or touching other people's "private parts" and whether they could "stop thinking about having sex."

The parents argued that they — not the public schools — have the sole right "to control the upbringing of their children by introducing them to matters of and relating to sex."

But on Wednesday, a three-judge panel of the 9th Circuit dismissed the case, saying, "There is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children . . . Parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students." . . .

"Anyone who wonders why pro-family organizations like ours have been so concerned about activist courts only has to look at this case," said a spokesman for Focus on the Family. . . .

Carrie Gordon Earll, an issues analyst with Focus on the Family Action, called the ruling "one of the most abhorrent examples of judicial tyranny in American history. . . .

Earll said the court essentially declared parenthood unconstitutional. . . .

The panel's decision is not activism, under any sensible definition of activism. If "activism" has any substantive meaning, then activism is what the plaintiffs were asking the court to do.

The plaintiffs argue that they have a constitutional right to stop the public schools (or to be precise, researchers working with the schools' authorization) from asking their children about sex. That's not in the copy of the Constitution that I have; nor is it in the Court's jurisprudence of parental rights, a rather "activist" creation of the Court's (which incidentally used the same "substantive due process" framework that many conservatives fault the Court for using in the abortion cases). Constitutional parental rights, as the Court has interpreted them, do include the right to send your kids to private school, if you wish. (Such a right should in my view also be recognized under the First Amendment.) But they don't include a constitutional right to send your kids to public school yet block the school from asking the kids about sex.

"Activist," as I've argued before, is a pretty ambiguous term (see also Orin's posts on the subject, and Larry Solum's) — but no definitions of it, other than the purely rhetorical and unsubstantive "judges not adopting the legal rules that I think they should adopt," encompasses what the Ninth Circuit did here. Sometimes "activism" is used to mean "willingness to overturn precedent," but the Ninth Circuit didn't do that. Sometimes it's used to mean "willingness to overturn the judgment of legislators and executive officials," but the Ninth Circuit refused to do that; it's the plaintiffs who sought such a result. Sometimes it's used to mean "willingness to use remedial schemes that aren't traditionally judicial," such as coming up with legislative-looking rules (such as the Miranda principles) or executive-looking supervisory schemes (such as taking over a prison or school system), but the court surely didn't do that. There's nothing "active" about the court's refusal to recognize a new constitutional right that would trump the politically accountable branches' actions.

Perhaps the plaintiffs could fault the court for being unduly passivist — for refusing to take an active role in defending what the plaintiffs see as their legal rights. As it happens, I think that even this would be substantively mistaken, since I don't think that the Constitution ought to be interpreted as securing a right to be free from public schools' talking to your kids about sex. But at least such an argument would acknowledge that the court's alleged failure is undue passivity, not undue assertion of its own power; failure to stand up to what plaintiffs see as executive tyranny, not an example of judicial tyranny; refusal to prevent supposedly unconstitutional encroachments on parenthood, not a declaration of parenthood or parents' actions as being unconstitutional.

I am not defending here what the school did; perhaps its actions were proper and perhaps they were wrong (I express no opinion on that here). But if the plaintiffs don't like what their school district is doing, they should go to the polls and elect a school board that's more to their liking; elect state legislatures that would enact laws banning such actions by the school board; propose such a law by initiative; or otherwise act through the political process. They aren't entitled to have judges impose their will (the parents' and the judges') on the school district. And they certainly shouldn't be unfairly criticizing the judges' actions, and mischaracterizing allegedly excessive passivity as "activism."

UPDATE: Whoa! Now this is shocking. "Reconsider[ing a] position"? Because you've read an argument, of all things? That's just not allowed.

A Dark Fantasy Indeed:

Paul Caron writes about a proposal for a Fantasy Law School League.

Vioxx Defense Verdict:

Excellent coverage over at PointofLaw.

[Dale Carpenter (guest-blogging), November 4, 2005 at 8:30am] Trackbacks
The Traditionalist Case – What Would Burke Do?:

For many liberals, gay marriage is nowadays an easy case. It eliminates discrimination against a class of people. It signals tolerance for diverse families. It eliminates an archaic distinction. If the benefits seem to outweigh the harms, as they do, let’s go for it. And the sooner the better.

For a principled conservative, embracing gay marriage is not nearly so easy. A venerable principle of conservatism, rooted in the work of Edmund Burke, is that we should respect tradition and history. This strain of conservatism prefers stability to change, continuity to experiment, and the tried to the untried. Burke was the father of modern traditionalist conservatism. Others were more analytically rigorous (Hayek and Oakeshott) or more directly influential on American political conservatism (Kirk and Buckley). But Burke was the first among the modern writers to lay out the basic principles and to do so in an almost poetic way.

Understanding Burke’s philosophy is key to understanding a traditionalist conservative’s take on gay marriage. Two aspects of Burke’s thought – his faith in the possibility of slow progress and his willingness to depart from an original design, even one based on ancient values – are especially relevant.

1. Traditionalist conservatism and reform

Burke has often been identified as a defender of existing practices and traditions against innovation. There is much in Burke’s writings and speeches to support this view. He wrote in Reflections on the Revolution in France:

[I]nstead of casting away all our old prejudices, we cherish them to a very considerable degree, and, to take more shame to ourselves, we cherish them because they are prejudices; and the longer they have lasted and the more generally they have prevailed, the more we cherish them. We are afraid to put men to live and trade each on his own private stock of reason, because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and of ages.

However, the common reading of Burke as simply a defender of tradition often misses the richness and subtlety of his philosophy. He did not oppose all evolution of a society’s practices, traditions, and values. Rather, he counseled deliberation and patience in reform.

For Burke, the operation of change should be “slow and in some cases almost imperceptible.” He urged forbearance and consensus-building. He defined a statesman as having “a disposition to preserve and an ability to improve.” He believed deeply in the possibility of “a slow but well-sustained progress.” In other words, Burke supported incremental change rather than the convulsive social upheavals he saw in events like the French Revolution.

Burke’s leading modern American disciple, Russell Kirk, took a similar approach to social change. “Society must alter,” Kirk wrote in The Conservative Mind, “for slow change is the means of its preservation, like the human body’s perpetual renewal.” In his analysis of Burke, Kirk noted:

Does the observance of prejudice and prescription, then, condemn mankind to a perpetual treading in the footsteps of their ancestors? Burke has no expectation that men can be kept from social change, or that a rigid formalism is desirable . . . . Even ancient prejudices and prescriptions must sometimes shrink before the advance of positive knowledge . . . .

Kirk added: “Conservatism never is more admirable than when it accepts change that it disapproves, with good grace, for the sake of a general conciliation.”

Burke also saw that the original design of an institution would inevitably undergo change: “[N]othing in progression can rest on its original plan,” he wrote. “We may as well think of rocking a grown man in the cradle of an infant.” Edmund Burke, “Letter to the Sheriffs of the City of Bristol on the Affairs of America (1777),” in Edmund Burke: Selected Writings and Speeches 245-46 (Peter J. Stanlis, ed., 1963). From Britain’s mistreatment of the colonies, Burke drew a valuable lesson about the fallibility of human reliance on supposed venerable beliefs and the need to re-examine those beliefs in the light of experience. On March 22, 1775, he articulated this lesson in a famous speech to Parliament:

Our late experience has taught us that many of those fundamental principles formerly believed infallible are either not of the importance we imagined them to be, or that we have not at all adverted to some other far more important and far more powerful principles which entirely overrule those we had considered omnipotent.

Edmund Burke, “Speech on Moving Resolutions for Conciliation with the Colonies, March 22, 1775,” Selected Writings, at 196.

This passage reveals two important components of Burke’s traditionalist conservatism. First, what we presently regard as “fundamental principles” are not immune to critique and revision based on the lessons derived from experience. Second, experience may reveal that our operating principles are subordinate to even more fundamental principles that should overrule them. This is hardly a static philosophy of governance. It is one that does not shy from drawing lessons from experience that cause us to revise even our deepest notions of right and wrong.

Thus, the popular image of the conservative as the person who stands “athwart history yelling ‘Stop!’” needs to be amended. Rather, the dominant strain of principled conservatism has stood athwart history yelling, “Slow down!”

2. Traditionalist conservatism and gay marriage

For a traditionalist, the direction of a reform certainly matters. On Monday and Tuesday, I tried to show how a traditionalist might view gay marriage as a good direction for reform. It will likely stabilize and traditionalize gay couples and their families, with positive effects not only for individuals and their children but also for their communities, for the cause of limited government, for marriage, and for traditionalist values even in gay culture. It will also make available the most traditionally moral life possible for the gay person. On Wednesday and Thursday, I responded to traditionalist concerns about the definition of marriage, the dangers of loosening the ethic of monogamy within marriage, polygamy, and procreation.

But all that is still not enough. A traditionalist case for gay marriage must also grapple with four strong aspects of Burkean conservatism: (1) a preference for stability over change; (2) a sense that existing practices embody a wisdom of the ages that a reformer’s “private stock of reason” may not fully appreciate; (3) when reform is needed, a loathing for basing it on abstract ideas divorced from actual lived experience; and (4) a preference for incremental and small reform over dramatic and radical reform.

It is easy to construct from this a powerful Burkean case against gay marriage. (1) Gay marriage is of course a change, so we should be suspicious and resistant on that account alone. (2) Marriage is a long-standing, cherished, and important institution that has never before included the union of a man and a man or a woman and a woman; its historic practice of uniting men and women, and not same-sex partners, may have a reason that our logic cannot fully perceive. (3) Gay marriage is being brought to us in the service of non-marital and abstract causes, like “equality” and “inclusion” and “tolerance.” (4) And worse yet, it is a radical change being thrust upon us suddenly by impatient activists and courts.

All of this has great force, and it may be decisive for a Burkean conservative. It is in my view the best argument against gay marriage.

Let me suggest, very tentatively here, that gay marriage, approached as a reform of marriage in the right way, might be consistent with Burke’s approach. It is certainly not commanded by traditionalist conservatism, but is perhaps consistent with it. Let’s consider each of the Burkean concerns.

First, it’s obvious that all change should not be implacably resisted. Change is a means of society’s preservation. The fact that gay marriage is a change is not enough by itself to overcome any argument in favor of it. Burkean conservatism, applied to this controversy, puts the onus on the reformers. That’s why gay-marriage advocates have the burden of proof. But it is not an impossible burden.

Second, it’s also true that the man-woman definition may embody a logic of its own that we cannot fully appreciate. This urges special caution, since the man-woman feature of marriage has lasted long and prevailed generally. But this, too, cannot be a complete barrier to changing marriage, just as it could not have been a barrier to past dramatic reforms of human practices, values, and institutions. When the first reformers proposed that women should be given the right to vote, for example, it would have been easy to say in response that men-only voting embodied a wisdom we could not fully appreciate, even though we could not come up with very good reasons for women’s disfranchisement. Burke’s insight here about the fallibility of reason is not a justification for stopping all change, even to cherished institutions; it is a warning to base change on actual lived experience and not simply reason.

Third, gay families are a part of our lived experience as a nation; they are not abstractions. There are 250,000 children being raised by 600,000 gay couples, at a minimum. There are 1-2 million children overall being raised among the estimated 9 million gay Americans. Gay families, including those raising children, have grown from the bottom-up, not from the top-down. They have sprung up organically from the experience of millions of people who have the same yearnings for connection, for love, for fidelity, for security, for family, and even for faith, that straight Americans have. Our positive knowledge about gay individuals and families has advanced tremendously over the past few decades, from a time when they seemed nothing more than a diaspora of perverted criminals, to today, when Americans increasingly recognize them as our perfectly responsible and normal friends, co-workers, brothers, sisters, mothers, and fathers. They have shown themselves capable of the kind of commitment associated with marriage.

In the face of the advance of this positive knowledge, it is possible that, from a Burkean perspective, it is some of the opponents of gay marriage who operate on abstract theories that have little to do with real human lives. Some, but not all, opponents of gay marriage appear to cling to an anachronistic view of gay people that is increasingly divorced from all learning, law, life, and experience.

Up to now, gay marriage has indeed been pitched mostly by ambitious reformers with no reverence for traditional institutions, and even with a deep hostility to those institutions, operating on abstract political theories. But as I have tried to show this week it is possible, just possible, to see gay marriage as a reaffirmation of our best traditions of marital commitment, devotion to others for whom one is responsible, and even as accepting the communal obligation to help raise the next generation. Or instead of a simple reaffirmation of long-standing values, gay marriage might be a translation of them into modern times and experience. Radical reformers advocating gay marriage are likely to be bitterly disappointed by what their reform produces.

Fourth, is gay marriage really a radical change, as many opponents (and commentators this week) have insisted? Is it especially unwise in this time of 50% divorce rates and 33% illegitimacy rates to experiment with marriage?

Throughout the extensive history of fundamental changes in the institution of marriage cries of radicalism have greeted every proposed reform. In 1911, the Supreme Court rejected the right of women to sue their husbands for abuse, calling such an idea “revolutionary, radical and far-reaching.” Thompson v. Thompson, 218 U.S. 611, 31 S. Ct. 111, 112 (1912).

The type of reform matters for whether we should consider it radical and destabilizing, and therefore un-Burkean. No-fault divorce led to unexpected and unintended consequences that have weakened marriage in some respects; the divorce rate skyrocketed. But that was a change in an exit rule for marriage, allowing people to get out easily. And it potentially directly affected every single marriage in America, since everyone was eligible to exit.

Gay marriage is a proposal to change an entrance rule, to let more people in. There have been many changes in marriage entrance rules over our history: interracial marriage, age requirements, consanguinity requirements, to name a few. I am not aware of any evidence that a change in marriage entrance rules has ever harmed marriage as an institution. And gay marriage does not directly affect every marriage, since every other marriage remains heterosexual. To believe gay marriage affects every marriage is to rest on very abstract theorizing about present “social meaning” or wild speculation about distant future social meanings. A traditionalist conservative should distrust such reasoning.

Some will object, as Maggie has, that gay marriage is not merely a change in an “entrance rule” of marriage, but in the “substantive conception” of marriage. If that’s so, it’s also not unprecedented.

There has been no more profound change in the history of marriage than the evolution of women from being the property of their husbands to being the equals of them. Women’s equality in marriage was a fundamental change in the “substantive conception” of marriage that directly affected every marriage in the land. It was fiercely resisted as a harbinger of the end of marriage and the end of civilization. There were costs associated with that change and it certainly altered the social meaning of marriage. But it was worth it, on balance. Next to that, allowing a 3% increase in the number of people who can get married, which will at least not directly affect the 97% of marriages that are heterosexual, is not radical at all.

There remains a final serious issue for the Burkean conservative: the pace and process of reform. More on that in the next post.

How Bush Can Win the Base Back

and win the respect of the general public, besides.

As we all know, Congress has been on a pork spree, such as the infamous Alaska "bridge to nowhere." This is where the Bush Administration comes in. To spend money on blatantly wasteful projects like the bridge to nowhere is not only bad policy, it's contrary to the executive branch's duty to spend money only for the "general welfare." The President should undertake a constitutional review (which should be deferential to Congress, but not supine) of all recent highway bill appropriations, and refuse to spend money when it would not advance the general welfare. To put himself above partisanship, particular focus should be on spending in Republican congressional districts.

Note that refusing to spend money for constitutional reasons is different than the old executive claim of a general "impoundment" power, rejected by Congress during the Nixon years. Don't have the time to go into a full defense here, but I doubt the courts would intervene in an assertion of the Executive's constitutional authority.

There is the question of hypocrisy, given that the president signed the highway bill. But (1) in the absence of the legislative line-item veto, signing $270 billion legislation that includes some non-general welfare items is inevitable; and (2) if Bush could declare campaign finance laws unconstitutional and then sign one, he could certainly sign a bill and then declare parts of it unconstitutional.

UPDATE: Contrary to some comments, exercise of "executive review" would be unlikely to significantly reshape the balance of power between Congress and the President, nor would it be, more generally, "the end of the world as we know it." From Washington to Nixon, presidents had and exercise the implicit power to refuse to spend money Congress appropriated, though they didn't assert a constitutional justification for doing so, they just refused. The power was exercised moderately and responsibly.


Thursday, November 3, 2005

[Dale Carpenter (guest-blogging), November 3, 2005 at 10:39pm] Trackbacks
Response to commentators – Day 4:

I’m afraid I didn’t have time to read much of the commentary today. I do plan to go back and skim the commentary from this week later on. Since this will be my last commentary response, let me encourage you to send any burning questions I haven’t answered to me directly at

I do have a couple of quick responses.

First, thanks to the commentator who pointed out that all this talk about gays and gay couples as “non-procreative” or “sterile” is actually a bit misleading. Many gay people have biological children through various means. It’s especially common among lesbians, who have an easier time with artificial insemination than gay men do with hiring surrogates. Plus, of course, gay people raise their biological children from prior marriages. They will be raising these children no matter what we decide about gay marriage.

Second, a commentator brought up an essay by Stanley Kurtz purporting to show that “gay marriage” has led to a number of social pathologies in Scandinavia, including more out-of-wedlock births. Stanley Kurtz, “The End of Marriage in Scandinavia,” Weekly Standard (February 2, 2004). This thesis has been carefully rebutted in M. V. Lee Badgett, Will Providing Marriage Rights to Same-Sex Couples Undermine Heterosexual Marriages? Evidence From Scandinavia and the Netherlands, Discussion Paper (Council on Contemporary Families and Institute for Gay and Lesbian Studies, July 2004), and in William N. Eskridge, Darren R. Spedale, and Hans Ytterberg, “Nordic Bliss? Scandinavian Registered Partnerships and the Same-Sex Marriage Debate,” Issues in Legal Scholarship (available at

Daubert and Amended FRE 702:

I'm working on a paper on the admissibility of expert testimony, and I've noticed a disturbing trend: courts that want to admit questionable expert testimony frequently cite permissive-sounding language from the 1993 Supreme Court Daubert opinion. Daubert was indeed a rather ambiguous opinion, and could indeed provide comfort to judges who want to shirk their "gatekeeper" role.

The problem, however, is that Daubert (and for that matter, its stricter, but still occasionally ambiguous progeny, Joiner and Kumho Tire) is not the governing rule for the admissibility of expert testimony. In 2000, amended Federal Rule of Evidence went into effect. The amended rule was intended to codify the "Daubert trilogy", but wound up containing some stricter language than the Daubert trilogy itself has: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

Thus, for example, while Kumho Tire suggested that some experts can simply rely on their experience to justify their conclusions, amended Rule 702 requires that the expert be able to DEMONSTRATE that he applied his experience reliably to the facts of the case. This may be impossible in many cases, which is very problematic, but it's equally problematic for a partisan, paid, experience-based expert to be able to testify simply based on his say-so, with no real hope of effective cross-examination. (How would you cross-examine the Kumho Tire Court's example, the perfume-tester, who claims to be able to distinguish among hundreds of perfumes via one sniff? Even if his sniffing is generally reliable, how do you know whether he's correct in this particular case, or is either just wrong or shading his testimony? And how is it helpful to the jury to have two equally qualified perfume-testers, one paid for by each side, both swearing based on nothing more than their say-so that the perfume is, respectively, Chanel or Gorgio?) (I have an idea how to rescue experience-based testimony from Rule 702 oblivion, but I'll save that for another time.)

To take another example, way too many courts have relied on language from the trilogy in admitting phony "differential diagnosis" testimony on causation that in fact constitutes nothing more than "post hoc ergo propter hoc" reasoning. Allowing an expert to testify that exposure to substance X caused injury Y simply because the expert can't identify any other cause, and in the absence of any proof that substance X CAN cause injury Y, is not exactly reliable principles and methods being applied reliably to the facts of the case. It's more like, in many instances, allowing paid hired guns to speculate wildly to a conclusion mandated not by science but by the necessity of supporting a plaintiff's causation theory.

In short, it is obviously illegitimate for federal courts to rely on language from Daubert, or even Joiner or Kumho Tire--each of which interpreted OLD Rule 702, when there is contradictory, stricter language from NEW Rule 702.

I'd welcome examples to add to my collection of courts privileging language in the Daubert trilogy over the text of new Rule 702.

UPDATE: On further reflection, there are two potential problems with courts relying too much on the Daubert trilogy to the exclusion of the text of 702. The first arises if Rule 702 is exactly as strict as the trilogy. The problem here lies with courts that wish to be more permissive citing language from either Daubert or Joiner that is less strict than subsequent developments in Joiner or Kumho Tire (e.g., Joiner states only that courts MAY examine an expert's reasoning process, Kumho Tire suggests that, in some way or another, they MUST]. To the extent that Rule 702 mimics exactly the Daubert trilogy, one could argue that it was intended to prevent exactly that scenario.

The second assumes, as I claim, that the text of Rule 702 is a bit stricter than how the Daubert trilogy evolved, and that the text trumps any contrary "intent," if the intent was merely to mimic the trilogy. If that's the case, the problem with citing the trilogy instead of the text when the two conflict is patent. For example, Kumho Tire suggests that an experience-based expert can be admitted if he merely follows the methodology of such experts (perfume-sniffer does what perfume-sniffers do). But under 702, I just don't see how taking the perfume-sniffers word that he sniffed in an "objective" (and reliable) way, the way he would for a client who WASN'T paying him to reach a particular result, meets the burden of proving that "the witness has applied the principles and methods reliably to the facts of the case."

Alito's Yale Law Journal Note: The editors of the Yale Law Journal have posted a .pdf copy of Samuel Alito's law student note: Samuel A. Alito, Jr., Note, The Released Time Cases Revisited: A Study of Group Decisionmaking by the Supreme Court, 83 Yale L.J. 1202 (1974). The Journal's Pocket Part site is also hosting a forum for a discussion of the Note here.
[Dale Carpenter (guest-blogging), November 3, 2005 at 6:47pm] Trackbacks
The Traditionalist Case – The Procreation Argument (Gallagher Version):

Maggie said a lot two weeks ago and I will not begin to respond to it all here. A big problem I have with her argument is that she never gets around to acknowledging how gay marriage might help gay families. I don’t think she hates gay families, I just don’t think she’s thought about them much. I’d be very curious to see what she has to say about my Monday and Tuesday postings. For her, gay marriage is, on one side of the ledger, all potential cost (to marriage, to society, to traditional families) and, on the other side of the ledger . . . nothing.

Another big problem I have with her argument is that she conceives gay marriage as simply an effort to satisfy adult needs, or as just another trophy gays want to carry around in the culture wars to show how inclusive and tolerant we’ve all become. I can understand why she has that impression; many gay-marriage advocates have talked about gay marriage in these rather loose and abstract terms. But I don’t think these views even begin to explain the deep yearning of gay families to be united in marriage. Their struggles are not abstract.

Maggie’s argument against gay marriage comes down to her answers to two important questions: What is marriage for? How will gay marriage undermine it?

1. What is marriage for?

Maggie’s answer to this question, as I understand it from her posts here two weeks ago, comes in this key quote (obviously her argument is much longer than this), followed by my response:

“Procreation . . . is the reason for marriage’s existence as a public (and yes legal) institution.”

I can imagine three different possible views of the role of procreation as the public purpose of marriage: (1) Procreation, and procreation alone, explains why we have marriage (Maggie’s view); (2) Procreation is an important reason why we have marriage, but not the only one (my view); and (3) Procreation is not a reason why we have marriage.

I can’t see how the third view could be correct. As Maggie says, sex makes babies, society needs babies, and when those babies are born out of marriage the children themselves and society suffer in all kinds of ways. Marriage, through many of its legal features and the social expectations that attach to it, is the institution that encourages people to have children and to have children within marriage.

But I also can’t see how Maggie is correct that procreation-within-marriage is the only public purpose of marriage.

Legally, procreation has never been a requirement of marriage, as Maggie well knows. (Legal consummation requirements are not the same thing.) Two states, Wisconsin and Arizona, even require that first-cousins not be able to procreate before they can marry.

Maggie could respond, I suppose, that the one man-one woman legal definition is in fact the procreative purpose written implicitly into law. But that is a rather indirect way of getting at what is supposedly an exclusively procreative purpose since many one man-one woman couples neither have nor want children. If, legally, procreation were the only purpose of marriage, the requirement could be made explicit. Yet the law allows and supports childless marriages.

Culturally, Maggie’s procreation-only view of marriage is even more questionable. Even couples who have children do not view their marriage as being only or even primarily about procreation. Their marriages are about children, yes, but also love, religious faith, commitment, and caretaking. For those couples who can’t or won’t have children, their marriages are obviously also not justified by procreation.

When confronted with this powerful cultural and familial reality that so sharply contests her vision of marriage, Maggie responds that people “don’t view these marriages as mere instruments for making babies. Nor do I.” Here Maggie recognizes, as she must, that marriage functions culturally and socially in ways that contrast sharply with her view of its sole public purpose. It’s worth asking why we should adopt a view of marriage that reduces its public essence to one single purpose if neither the legal nor the cultural/social understanding of marriage supports the view that it’s only about that one purpose.

That leaves my view, and I think the law’s and our culture’s, that procreation is an important public reason for marriage but not the only reason. We know that it’s an important purpose because, legally, many attributes of marriage relate directly to the rights and responsibilities of married couples who have children. Culturally and socially, the expectation of having children is a common reason we celebrate a new marriage. The new couple is going to raise a family, and in that fact they are happy and we are happy.

But both legally and culturally/socially we have public interests in marriage besides procreation. Notice that the legal rights and responsibilities associated with children apply to all legal parents of children, no matter whether they got those children through procreation, adoption, surrogacy, or reproductive technology. These distinctive child-raising-related legal features of marriage can apply, and do apply, even to parents who can’t or won’t procreate. And they apply with a force that’s just as great no matter the provenance of the children.

(So yes, as one commentator notes, child-rearing explains many of the distinctive features of marriage law. But as I have pointed out, many gay couples are raising children, so they will be able to make use of these features. The rest, who are not raising children, will make use of the many other distinctive features of marriage, just as childless straight couples do.)

The law imposes some duties of care and mutual responsibility on spouses, apart from any children they’re raising. Culturally, the expectations that spouses will love one another, care for another, be committed to each other, live together, are even greater.

There is a public interest in recognizing marriages that can be expected to produce, on balance, both individualistic and communitarian benefits. Procreation is an important individualistic and communitarian purpose of marriage — but it is not, and need not be, the only purpose.

2. How will gay marriage undermine marriage?

Maggie’s answer to this question is a bit harder to pin down. But I think it comes down to these two quotes, each followed by my responses:

“[S]omething big has changed when marriage becomes a union of any two persons. Procreation and family structure are out.”

For purposes of procreation, marriage already is the union of any two persons. Non-procreative straight couples already marry. Non-procreative gay couples, in this sense, change nothing in the existing practice of marriage: most married couples can procreate, but a few can’t. That practice will remain the same.

Why does gay marriage mean procreation and family structure are out? It would seem to mean the opposite, at least with respect to family structure. Maggie’s answer comes in the next quote.

“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.”

I take this to be a kind of social-meaning argument. Gay marriage, on this view, would change the meaning of marriage for everybody by sending a message that procreation is dispensable and that mom-and-dad-raising-kids is not the best environment for children.

Social meaning arguments of this sort are very hard to dispute, no matter what the issue is. You can just make a frightening assertion about some future instability brought about by mysterious forces and, really, what can anybody say in response? We don’t believe you? I have frankly struggled with her point, not because I think it’s true but because I’m at once horrified by the result she foresees and very unclear how gay marriage would get us there.

Here’s one way to get at the problem with her prediction. Suppose I said this: “If a sterile couple can get 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.”

We’d know I was wrong about this social-meaning prediction because we already live in this world and we can see that it has not come true. So if these existing marriages don’t send the harmful message why would gay marriages?

Maggie comes closest to answering this question when she says: “[B]oth 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.”

What does she mean that sterile straight couples are part of “the natural life-cycle of marriage” but sterile gay couples are not? I don’t know for sure, but I can guess. She might be drawing on modern natural-law theorists who argue that sterile straight couples can engage in sexual “acts of a reproductive-kind,” while gay couples cannot. Which comes down to saying, gay couples can’t have straight sex. In other words, gay couples – alone among all sterile couples – must be denied marriage because they are not straight couples. That’s a conclusion, not an argument.

Moreover, given how abstract this idea of “the natural life cycle of marriage" seems it’s hard to see how anybody would take any particular message away from it. Millions of childless married couples are already part of our lives. The presence of gay couples in the mix, to use Maggie’s formulation, “doesn’t signal anything in particular at all.”

One commentator has suggested that perhaps Maggie means that gay marriage would have a “norm-related magnification” effect, adding to an already potent set of harmful cultural signals against procreation and mom-dad-raising-child. But for gay marriage to have a magnification effect we must know what it is magnifying and how. If it sends no signal that the rest of the 97% of marriages will notice, it has no magnification effect. If it sends a positive signal about marriage, it has a (small) subtraction effect from the existing harmful messages.

Similarly, another thoughtful commentator suggests that maybe gays, who he hypothesizes have an unusually large cultural voice, will send signals disproportionate to their small numbers. I doubt gays’ alleged cultural power is really that strong, but even if it were we’d have to ask this question: is it better to have these powerful cultural and intellectual speakers outside the marriage tent throwing rocks at it or simply ignoring it? Or is it better to have them inside the tent absorbing its values?

Let me suggest an alternative message gay marriage might send to the culture: “Marriage is good for you. You should get married. If you’re raising kids, you better get married. Family structure matters.”

Let me suggest a message that’s being sent through the denial of gay marriage: “Marriage is just one alternative among many. Look at us, we’re happy. You don’t need it. You can raise kids successfully without it. Marriage is invidious discrimination.”

Don’t get me wrong, I think gay marriage will send almost no message that heterosexuals will pay much attention to, after the initial furor subsides. They will be 3% of marriages so the numbers will just be too small for people to much notice in their daily lives. The people who don’t like it will dismiss gay marriages with scare quotes, the way they do now: gay “marriages.” They will see these gay “marriages” as counterfeits, their own marriages as the real thing, and go on about their lives.

Others will rejoice that we’ve finally let in a group of people who believe in marriage so much, who need it in their lives so much, whose children will benefit from it so much, that they fought for it as if fighting for their lives.

Tomorrow: Burke, process, and last thoughts.

Types of Judicial Conservatism: Randy's post below brings up an important point: As he and Ann point out, conservative approaches to law include a wide range of different methods and approaches. Some conservatives identify with Frankfurterian restraint; others Scalia's traditionalism; some Borkian originalism; others Harlan's legal process; some Posnerian pragmatism; some a Burkean commitment to stare decisis; others a more Lochneresque libertarianism. These different methods can support similar results in some cases, but often lead to disagreement.
Alito's Conservatism: Ann Althouse comments on (and quotes from) a report in the NYT analyzing Judge Alito's dissents:
Liptak and Glater don't manage to pull out any inflammatory dissents, and they seem most drawn to the conclusion that his brand of conservatism is not the pursuit of politically conservative outcomes but simply judicial restraint:
"One theme that runs through Judge Alito's dissents is deference to the views of the people and the agencies closest to the facts and thus, in his view, best situated to make decisions."
There are, we need to recognize, varieties of judicial conservatism. If you want to characterize a judge as a conservative, please tell me what kind of conservative you mean.
Log Me In: For some time now I have been wrestling with the issue of keeping my files current and synced on my home PC, my office PC, and my laptop. And for years now I have also been flying with virtually no backup to my precious data files. Once I knew I was visiting at Georgetown, I figured had to do something. I first tried LapLink Gold, of which I had a free copy, but could never get it configured to run. I then shopped around for an Internet service that would accomplish this with greater ease.

After some searching and reading reviews, I settled on logmein. While I know there are several other worthy competitors, I wanted to report my extreme satisfaction with this service. I chose it because (1) its price is very reasonable ($69.95 per year) for a service with all its features (see below), (2) it is a completely browser-driven service requiring no installation of any programs, so (3) you can access your data from any PC, and (4) it is fast and very easy to set up and use. [UPDATE: I also chose it because, unlike other solutions, it does not require you to store your data on its servers. It is simply a peer-to-peer file sharing system.]

Here's how it works: You need to set one of your PC's as your base or home PC. (The subscription price is for each base or home PC to which you want to sync other PCs.) I use my PC at my home in Boston which is always on. You then can sync as many other PCs to the home PC as you wish. I sync both my office PC at Georgetown and my laptop to my home PC. All my PCs now have the same data files which also serves as an up-to-date data backup. Every time I finish a session in which I have edited or created new files, I sync my PCs before logging off.

Essentially, as I understand it, this is a java-script program running a closed peer-to-peer file sharing network. The initial sync takes a while as it copies all your files, but updates of a just a few currently modified or new files are lightning fast.

In addition to file management, the service also allows you to share large files with others (eliminating the need to email large files), give others guest privileges to access your home PC, and control your home PC by remote control. Using the last function, your home desktop is replicated on your remote PC and you can control it as though you were in front of the home PC. Close and open windows, run programs, or reboot. I have not taken advantage yet of these other functions other than once to control my home PC, which worked really well.

As I said, other services do some or all of these tasks, but this one has really worked for me. If you are interested, you can try the full "pro" version as a free trial. If you purchase the service, you can use the discount code HDUA-P4YT to get a $10 discount off the first year's subscription. Click here for purchase information.

My apologies for what I know sounds like a commercial, but I have needed a service like this for a long time and was at a loss as to what to do. I thought others could benefit from my experience.

I am opening comments so others are free to post their own favored solutions to this problem of syncing data on multiple PCs. I cannot promise to answer questions about the service. You can contact logmein directly at 800-993-1790 or by email at Their tech support has been very personal, prompt, and knowledgeable.
More from Cathy Young on Same-Sex Marriage,


Important Interview With Justice Kennedy: This summer, the Academy of Achievement interviewed my former boss Justice Kennedy about a wide range of topics, including his childhood, being a young judge, becoming a Justice, deciding cases, stare decisis, interpreting the Constitution, and the role of the Supreme Court.

  I don't know if Justice Kennedy has talked about these questions in such depth for a public audience before, but I think the discussion was revealing. If you're interested in who Justice Kennedy is, and his approach to being a judge, this interview is a good place to start.

  You can find the interview transcript starting here. Unfortunately, the video is broken up into segments, and not all of it has been posted, so you need to click on the individual links on the transcript page to view that portion of the interview. Anyway, it's worth doing; the interview is quite interesting.
[Dale Carpenter (guest-blogging), November 3, 2005 at 8:13am] Trackbacks
The Traditionalist Case – The Procreation Argument (Standard Version):

The most common argument of all against gay marriage is the procreation argument. It can be stated this way: “Procreation is indispensable to human survival. Marriage is for procreation, and procreation should occur within marriage. Procreation is the one important attribute of marriage that supplies the male-female definition. Gay couples can’t procreate as a couple, so gay couples shouldn’t be allowed to marry.”

The argument over procreation has generated a back-and-forth between advocates and opponents of gay marriage that follows a familiar and somewhat tedious pattern. It goes something like this:

Thrust (by gay-marriage opponents): Marriage is for procreation. Gay couples can’t procreate. So gay couples should not be allowed to marry.

Parry (by gay-marriage advocates): But procreation has never been required for marriage, so the premise that “Marriage is for procreation” is wrong, or at least incomplete. Sterile couples, old couples, and couples who simply don’t want to procreate are all allowed to marry. Nobody objects to their marriages, so nobody should on this ground object to same-sex marriages.

The parry by gay-marriage advocates is sometimes called the “sterility objection.” Let’s take the argument beyond this standard thrust-and-parry.

1. The sterility objection to the procreation argument: two responses and counter-responses.

The procreationists have a couple of fairly standard responses to the sterility objection.

First, they say that laws are made for the general rule, not the exceptions. Most opposite-sex couples can reproduce, but no gay couple can. Second, they argue that the failure to require married couples to procreate is only a concession to the impracticality and intrusiveness of imposing an actual procreation requirement. It is not an abandonment of the procreation principle itself. We need no intrusive test to know same-sex couples can’t reproduce (as a couple), the procreationists observe.

The first response to the sterility objection – that laws are made for the general rule — is an evasion. Laws do often state general rules, and they are often over- or under-inclusive in some way. But laws also provide exceptions where appropriate and just, where some policy purpose is served by the exception. Gay marriage, like non-procreative straight marriage, might be a good policy exception to the procreationists’ rule that marriage exists for procreation. Whether gay marriage is a good exception to the asserted general rule that marriage is about procreation depends upon arguments extrinsic to the procreation argument, e.g., whether encouraging stable gay coupling through marriage would benefit gay families and society. (Remember, I’m not making a constitutional argument about whether the government should, as a constitutional matter, be able to make marriage laws that are not narrowly tailored to the state’s claimed interests.)

The second response to the sterility objection – that a procreation requirement would be unduly intrusive – is equally unavailing. If we were serious about the procreationist project – that is, if we were serious that procreation is the only public interest in marriage – we could require prospective married couples to sign an affidavit stating that they are able to procreate and intend to procreate. (We could entirely bar from marriage elderly couples beyond a certain age.) If, say, in ten years they had not procreated we could presume they are either unable or unwilling to do so and could dissolve their union as incapable of satisfying the only public purpose of marriage. That system would not require invasive fertility examinations.

Yet we would never require opposite-sex couples to fill out such a fertility form. I think most people would scoff at the idea, and rightly so. They would even think it’s cruel, especially perhaps to elderly couples. But why? They would scoff at the idea because marriage today is not understood to be essentially about procreation, although procreation-within-marriage is important. Marriage is understood today to have other important public functions and purposes – including providing the individualistic and communitarian benefits I have outlined.

Here the procreation argument suffers an experiential flaw; it is like an argument from another world, not the world we inhabit. In the world we inhabit, procreation is an important but not essential attribute of the public institution of marriage.

This may also expose a potential political flaw in the procreation argument: by repeatedly emphasizing that the only public purpose of marriage is procreation, opponents of gay marriage run the risk of demeaning the many married couples for whom children are either unwanted or impossible. Yet their marriages are celebrated, not simply tolerated and certainly not disdained.

Further, this second response to the sterility objection suggests that the general rule of procreation must bend (1) to the overriding needs and interests of society to help individuals settle down and (2) to the interests of the couples unable or unwilling to live by the procreation purpose. If that exception exists for non-procreative straight couples, why not for non-procreative gay couples? If it would be cruel or pointless to deny them marriage, why not gay couples? If there is an answer to this question, it cannot be found in the procreation argument.

2. Practical consequences to procreation of admitting gay couples to marriage.

Even if the procreation argument seems logically weak, are there practical consequences to human procreation of admitting gay couples to marriage? I can think of two possible fears. One fear is that procreation itself would slow down, perhaps below the “replacement rate,” the level at which humans must reproduce in order to stay ahead of deaths. This slowdown would eventually imperil the species. The other fear is that, as the connection between marriage and procreation is loosened, procreation may increasingly occur outside of marriage. Both could happen at once, and both would be bad.

But neither of these consequences is very plausible. Start with the fear of a population implosion. How would allowing gay couples to wed cause a decline in reproduction rates? It’s not clear why straight couples would stop procreating, or even procreate less, if gay couples could marry. The factors driving people to reproduce — the needs for love and to love another, the instinct to propagate one’s genes, religious obligations — would all still exist if Adam and Steve could marry. If Western civilization is truly facing a population implosion, as some suggest, that is attributable to many complex factors that are already in play (like great wealth and better health in old age), long before gay marriage was even a twinkle in Andrew Sullivan’s eye.

Here’s one possible mechanism arising from gay marriage that might lead to population decline. Professor Douglas Kmiec, quoting Robert Bork, has argued that gay marriage “‘will lead to an increase in the number of homosexuals.’” Kmiec, The Procreative Argument, 32 Hastings L. Q. 653, 661. Perhaps, the procreationist might conjecture, there are some “waverers” – people who stand somewhere between homosexuality and heterosexuality – who will be brought toward more homosexual behavior by the stigma-easing effect of permitting gay marriage. More homosexuals means less procreation, the theory goes.

There’s been a lot of research on sexual orientation in the past few decades, and I’ve never seen good evidence for the waverers theory. Sexual orientation, whatever its causes, appears for the vast majority of people to be unchosen and at least strongly resistant to change based on incentives in public policy. The idea that the incidence of homosexuality in a society varies with the degree of legal repression or acceptance shown toward homosexuality has no empirical support. Richard Posner, Sex and Reason, at 163, 296-97. Homosexual preference appears to be no more common in tolerant societies than in repressive societies. Id. at 296.

But even assuming there are waverers, the idea that they would contribute meaningfully to a population implosion is not plausible. Remember, for this theory to be correct, there need not only to be waverers but enough of them brought into homosexuality by the gay marriage to make any real difference in rates of reproduction. There is no evidence to support the idea that they exist in such substantial numbers.

Not only that, these waverers would have to more than offset the gains in reproduction from allowing gay marriage. After gay marriage is allowed, closeted homosexuals will be less likely to enter unhappy and unstable marriages with partners of the opposite sex. This will free up their heterosexual spouses to seek marriageable partners with whom they can procreate and form more lasting relationships. The resulting reduction in the number of such unstable marriages should be good for procreation rates and good for marriage as a whole, not bad. But this, too, will not be a large enough number to affect reproduction rates.

It’s also not clear why gay marriage would drive more straight couples to reproduce outside of marriage. The legal and social-reinforcement benefits of marital procreation would still be available to them, after all. The problems of non-marital procreation would still be there to discourage it. (Maggie has a theory about this, which I’ll address in the next post.)

But fortunately we do not have to guess at the probability of these cataclysmic consequences. We already have much experience with a world in which there is no requirement to procreate within marriage. No couple has ever been required to procreate in order to marry. No couple has ever even been required to be able to procreate in order to marry. Sterile couples and old couples can marry. Couples physically able to procreate but who do not want to procreate can get married.

These non-procreative categories of childless married couples are already a larger segment of the married population than the small number of gay married couples would be. Everybody knows married couples who can’t or won’t have children. Yet despite their inherent or explicit rejection of the putative marital duty to procreate, and despite the fact that we nevertheless let these non-procreative straight couples wed with abandon, humans continue to procreate and marriage continues to be the normative situs for procreation.

Nobody blames non-procreative married straight couples for the alleged population implosion; and nobody blames them for illegitimacy rates. Why should non-procreative gay couples, once allowed to wed, get the blame for these phenomena?

So here’s where we are: millions of existing married opposite-sex couples are just as non-procreative as any married gay couple would ever be, yet gay couples are to be denied marriage because they are non-procreative.

Does Maggie have an answer for why this different treatment might be justified? I’ll address Maggie’s argument against gay marriage in the next post later today.

Alito on the Right to Privacy: More interesting stuff from Alito's meeting with Senator Durbin:
  Supreme Court nominee Samuel Alito Jr., meeting with lawmakers on Capitol Hill, told one senator that the U.S. Constitution guarantees a right to privacy and won praise from Democratic Senator Ben Nelson of Nebraska.
  Senator Richard Durbin, an Illinois Democrat, said Alito told him in their meeting that he recognized a right to privacy, the principle that underlies the Supreme Court's abortion rights rulings. "I think he believes in that fundamental right," Durbin told reporters in Washington. . . .
  Thanks to HJB for the link.

Wednesday, November 2, 2005

Alito on Struggling With Casey: The Thursday New York Times has a very interesting report on Judge Alito's meeting with Senator Durbin, and in particular Alito's views about his Casey dissent:
  Judge Samuel A. Alito Jr., President Bush's choice for the Supreme Court, told a pivotal Democrat that he had wrestled intensely with a 1991 opinion favoring an abortion restriction that has become a flashpoint in the debate over his confirmation.
  Senator Richard J. Durbin, an Illinois Democrat who sits on the Judiciary Committee, said that in a private meeting he had asked Judge Alito about his dissent in the appeals court case Planned Parenthood v. Casey. The majority opinion in the case struck down a law requiring a married woman to notify her husband before having an abortion. Judge Alito, in dissent, would have upheld that provision.
  "He said he had spent more time worrying and working over that decision than over any other decision he made when he was a judge," Mr. Durbin said.
  Mr. Durbin's account of the conversation . . . was not disputed by a spokesman for the White House . . .
  Mr. Durbin . . . said Judge Alito had told him that, rather than addressing the broader subject of abortion, he had struggled to interpret Justice O'Connor's opinions about prohibiting an "undue burden" on a women's right to have the procedure.
  "He said it happened in the first year he was on the bench, and he said it was a tough decision to write because he had to decide what was an 'undue burden' on a woman seeking an abortion," Mr. Durbin said.
Alito's Four Favorite Justices: As reported in the New York Times, in response to a question by Senator Durbin: Rehnquist, Harlan II, White, and Brennan.
[Dale Carpenter (guest-blogging), November 2, 2005 at 10:39pm] Trackbacks
Response to commentators -- Day 3:

I think I've written more than enough today for everybody. Again, readers are responding to each other quite a bit, relieving me of that duty. Just three quick replies to some commentary.

First, I want to highlight what one commentator said today that I think sums up what I've called the malign neglect of many conservatives toward gay families. The commentator basically said, I'm seriously paraphrasing here, that it doesn't matter whether marriage would be any good for gay families because there are so few gay families. They're trivial. They don't matter. This is what they have been told by our society almost since they were born and that is what they are being told now through the denial of marriage. I spent two days on this blog pointing to the real ways in which millions of adults and children living in the U.S. will have their families made stronger. Those things may not matter to the tens of millions of people in this land who can get married, divorce, get married again, and divorce again, at will. But it matters a great deal to gay families. And to their children. And to their families and friends. And to anyone who thinks these are human beings whose needs really do count for something in the world.

I'm all in favor of giving careful consideration to the claimed harm to opposite-sex marriages that might come from uniting these gay families in marriage. We must do that. But really, to consider only these claimed problems, without even pausing for a moment to reflect on the good that might come of marriage for gay families, is a form of single-entry book-keeping. And it is a cruel form of single-entry book-keeping at that. I think Americans are better than that.

Second, let me emphasize again that I am not making a case against polygamy. I could be wrong about all, some, or none of the claims I made about polygamous marriage. It doesn't much matter. My only real point is to note that the questions raised by polygamy are distinct from the questions raised by gay marriage. They are independent issues. Gay marriage will not take us any further down the slope toward polygamy. And no argument I've yet heard tells me clearly why it would.

Third, some commentators have suggested that I've been attacking "strawman" arguments (definitions, contagious promiscuity, slippery slopes). Others believe these arguments are devastating against gay marriage, central to the matter. All I can say is that if these are strawman arguments, they are cluttering up just about every field. They are ubiquitous in the arguments against gay marriage.

Why do these posts always end up being longer than I plan them to be?

[Dale Carpenter (guest-blogging), November 2, 2005 at 7:53pm] Trackbacks
The Traditionalist Case – The Polygamy Slippery-Slope Argument:

A somewhat better argument than the first two I’ve addressed today (the definitional argument and the contagious-promiscuity argument) is the polygamy slippery-slope argument.

Slippery-slope arguments offer a parade of horribles that might be brought about by gay marriage, but they always have this form: “If we allow gay marriage, we’ll end up with [policy X], and that would unquestionably be bad.” The usual bad destination claimed to await us after gay marriage is polygamy. But one occasionally hears that gay marriage will also bring incestuous marriages, bestial marriages, etc. Here I will consider only the polygamy variant of the slippery-slope argument because it's by far the most common, but much of what I have to say would apply to other slippery slopes.

Theoretically, slippery slopes can be initiated in one of two ways: (1) the logic of the proposed step (gay marriage) entails a slide down the slope; or (2) the politics of the proposed step, e.g., in terms of the way in which it might liberalize public attitudes about further reform, risks a slide down the slope. In reality, however, if there is no political momentum for a reform, logic alone will not likely produce a slide.

If gay marriage led to polygamy that might please some people, but it would not be welcome news to the traditionalist.

1. The political slide to polygamy.

The political slide that might be initiated by gay marriage has been addressed in some detail by Eugene in Same-Sex Marriage and Slippery Slopes, 34 Hofstra L. Rev. ___ (forthcoming 2006), available at He concludes that the political prospects for polygamy, after gay marriage is adopted, will be “lousy.” The political right will not support it. And the political left will likely not be supportive, either, for several reasons he lists. You can find a few leftish supporters of polyamorous marriages, especially among academics. But academics have many esoteric causes.

If neither the right nor the left will line up behind you, your prospects of success are very dim. So no matter what we do about gay marriage, polygamy will not arrive, especially in the West, where liberal individualism, sex equality, and the loss of polygamy’s own religious adherents, all combine to make it a very rare and dying practice.

2. The logical slide to polygamy.

That leaves the supposed logical slide to polygamy, which is almost always the slide envisioned by gay-marriage opponents.

What is the necessary logic behind gay marriage that will leave us no principled choice but to accept polygamy? To be sure, one could make (and some have made) arguments for gay marriage that seem very open-ended.

One possible principle uniting gay marriage and polygamous marriage is that gay marriage, like polygamous marriage, extends marriage beyond partners who may procreate as partners. If there is no necessary link between marriage and procreation then maybe we will have to recognize all arrangements, like polygamous marriages, which cannot form a child from all of the partners.

The notion that gay marriage fundamentally severs the link between procreation and marriage, and thus leads to polygamy, founders on the same logical and experiential shoals as does the procreation argument (which I’ll discuss tomorrow). Briefly, procreation is already not a requirement of marriage. Sterile opposite-sex couples have already taken that step down the slope for us, yet we are no closer to polygamy.

A second possible uniting principle is that gay marriage necessarily makes marriage a private affair, catering to the wants and needs of private adult citizens, not an institution with a profound public purpose, like ensuring the raising of the next generation. If marriage is a private matter, the argument goes, then the state has no business regulating entry to it, so polygamous groups cannot be denied marriage.

This supposed uniting principle misconceives the argument for gay marriage, which, as I have outlined it, is not necessarily based solely on augmenting the private happiness of two adults. Further, using marriage to recognize adult love is a step down the slope already taken by straight couples. Like it or not, many people in the West already understand marriage as companionate; they don’t need gay marriage to reach that conclusion. So even if gay marriage were justified solely by the love same-sex partners have for one another, recognizing such relationships would be more analogous to taking a step to one side on a slope already partially descended, not an additional step down the slope.

I think this should be enough to reject the idea of a logical slide. There's just no good reason to think that recognizing a new form of monogamous marriage logically entails recognizing polygamous marriage.

But for those still uncertain, let me take the argument one step further. Gay marriage and polygamy are not only not united by any single common principle necessary to the argument for gay marriage, but for the traditionalist, the affirmative arguments for them are quite distinct.

Here’s why. Any proposal for the expansion of marriage must be good for both individualistic reasons and communitarian reasons. Gay marriage meets both criteria, as I have shown. While I don’t want to offer any definitive conclusions about polygamy here, I think the case for polygamous marriage is distinguishable (and weaker) on both counts, especially the second.

On the first issue - - the individualistic benefits - - there are good reasons to doubt whether polygamous marriage would produce the same degree of caretaking and social benefits gay marriage would produce.

While multi-partner marriages might benefit the partners involved, the much greater potential for jealousy and rivalry among the partners make for a potentially more volatile arrangement than a two-person marriage, reducing the expected caretaking benefits to its participants. In a multi-partner marriage, it may also be unclear who has primary caretaking responsibility if a partner becomes sick or injured; there is no such uncertainty in a two-person marriage. While we have good evidence that children do well when raised by two parents, including same-sex couples, we have no evidence they do well when raised in communal living arrangements.

The expected social benefit from polygamy (e.g., the reinforcement of the marriage by others) should also be smaller if, as I argued above, public resistance to polygamy will be large and unyielding.

On the second issue — the communitarian benefits — the differences between gay marriage and polygamous marriage are potentially more pronounced. There are communitarian benefits to gay marriage; there may well be serious communitarian harms to polygamy.

Since multi-partner marriages have almost always taken the form of one man having many wives, recognizing them presents special risks of exploitation and subordination of women, which is inconsistent with our society’s commitment to sex equality. There is no comparable concern raised by gay marriage.

In human history, polygamy has correlated strongly with societies that were illiberal and undemocratic. Gay marriage is arising in the most liberal societies, characterized by representative democracy, widespread franchise, and universal education.

Is this correlation relevant? Why does it exist? Several explanations are possible, but two are most important here. First, modern liberal societies have emphasized values like individualism and sex equality that seem inconsistent with polygamy as it has been practiced. Gay marriage, by contrast, is fully consistent with these values.

Second, polygamy takes many more women than men out of the marriage pool. This leaves heterosexual men with fewer marriage opportunities. Unattached men with poor marital prospects destabilize societies, and large numbers of such men in a society require strong mechanisms of state control to rein them in. Gay marriage helps ensure marriageable partners for everyone; polygamy does the opposite, with potentially anti-liberal, undemocratic, and socially destabilizing consequences. (The communitarian harm from polygamy might be small because few people will be polygamous, but a small harm is still a harm.)

Whatever the strength of a Burkean case against gay marriage (and I’ll get to that Friday), the Burkean case against polygamy is much stronger. Polygamy, unlike gay marriage, has been tried and rejected. Many human societies have practiced it at one time or another and almost all have abandoned it; gay marriage, by contrast, has never been tried and rejected.

Perhaps none of these considerations is decisive against the recognition of polygamous marriages, nor do they need to be in order to make the point. This discussion shows that gay marriage and polygamous marriage present very different issues of history, data, logic, and experience. And nothing in this complex discussion of history, data, logic, or experience turns on whether gay marriages have previously been recognized. Gay marriage and polygamous marriage should each be evaluated on its own merits, not treated as if one is a necessary extension of the other.

Finally, it should be said that slippery-slope arguments about marriage have a certain Chicken Little quality about them. The ominous slide to polygamy has been a favorite trope. For example, the same polygamy red flags were raised about interracial marriage. In the Nineteenth Century, the Tennessee Supreme Court warned that the recognition of such marriages would lead to “the father living with his daughter . . . in wedlock” and “the Turk . . . establish[ing] his harem at the doors of the capitol.” State v. Bell, 66 Tenn. 9 (Tenn. 1872).

This is not to say that warnings about slippery slopes, even about slippery slopes in marriage reform, have never proven true. But it is to say that nothing in the traditionalist case for gay marriage brings us any closer to the harem than we were when the Tennessee Supreme Court warned us about it more than a century ago. And if gay marriage is ever accepted in America, I believe it will be on the basis of something like the traditionalist grounds I have offered. That is, it will be accepted when Americans have become convinced that gay marriage is a good idea for traditionalizing individualistic and communitarian reasons.

Tomorrow, I’ll deal with the procreation argument in two parts: one post on the standard version and one post on Maggie’s more subtle version.

More on Alito, from Blue Mass Group

An excerpt:

I could go on and on, but you get the idea - this list doesn't paint quite the same picture as those other lists. Now, does this prove that Alito is in fact a closet super-liberal who will unexpectedly break to the left if he is confirmed? Of course not - we can most likely expect Alito to be a pretty reliable conservative on the Supreme Court (though I have no doubt that he, like every other Justice in the history of the Supreme Court, will from time to time surprise and disappoint those who backed his nomination). All that this - or any of the other "lists" floating around - can prove is that Alito has been a judge for a long time; that he has decided a lot of tough cases that could have gone either way; and that you should be very careful about reading too much into selective "case summaries" proffered by interest groups with an agenda.

Cathy Seipp on Religion, Books, and Riots:

A great read, as always.

[Dale Carpenter (guest-blogging), November 2, 2005 at 4:43pm] Trackbacks
The Traditionalist Case – The Contagious-Promiscuity Argument:

An oft-heard argument against gay marriage is that it will hurt traditional marriages by loosening the ethic of monogamy among married heterosexual couples. The reasoning goes this way:

Premise (1): gay men are more promiscuous than either straight men, straight women, or lesbians;

Premise (2): married gay male couples will therefore be more promiscuous than straight couples or lesbian couples;

Premise (3): the non-monogamous behavior of gay male couples will, by their notorious example, weaken the monogamous commitment of married straight couples;

Conclusion (4): which will hurt and destabilize traditional marriages, with all manner of harmful consequences for children and for marriage as an institution.

Promiscuity and non-monogamy will have spread from married gay couples to married straight couples (and even married lesbian couples?) like a deadly, transmissible avian flu decimating whole families and moral codes that come into contact with it. (I’m only slightly exaggerating this argument for effect.) Let’s call this the contagious-promiscuity argument.

Is there any reason to think it’s plausible? Certainly if Premises 1-3 are correct, then Conclusion 4 is right. And if the conclusion is correct, gay marriage would indeed cause some harm. We should be very concerned if heterosexual marriages become more non-monogamous than they already are. It might cause so much harm, in fact, that it would more than offset the large individualistic and modest communitarian benefits that I argued for on Monday and Tuesday. If that’s true, gay marriage should be rejected no matter how important it is to gay families. It would certainly not be a cause that any traditionalist should embrace.

But it’s not plausible to believe that married gay male couples will spread non-monogamy to marriages between men and women. Here’s why:

1. Problems with Premises 1 and 2

Premises 1 and 2 are at most half correct, and even the half that’s correct is often wildly exaggerated. They’re only half correct because they leave out married lesbian couples, who will probably be half of all gay marriages and may be even more monogamous than married straight couples. If it’s fair to use the presumed non-monogamy of gay men in the argument as if it’s some kind of contagion, it should also be fair to use the super-monogamy of lesbians as an inoculation against this presumed contagion. If gay men will set a bad example, lesbians will set a good example. Why are lesbians almost never discussed by opponents of gay marriage? Why do they not count?

Even as just a claim about gay men, Premises 1 and 2 are usually overstated. I have already argued, in my post on the magnitude of the benefit last night, that claims about hyper-promiscuity among gay men are empirically unsupported. They are based on untutored prejudgments about gay men, anecdotes, and junk science. There are differences but they are not large.

Further, as I also noted in last night’s post, even to the extent that there are differences, those differences can be attributed somewhat to the fact gay men have been denied the social encouragement of monogamy through marriage. Marriage itself should help reduce any moderate differences that already exist, even in gay-male marriages where there is no woman to encourage it, weakening Premise 2. Also weakening Premise 2 is the fact that traditionally minded and monogamously committed gay male couples will be the ones most likely to marry, reducing the moderate differences between gay men and others at the outset.

2. Problems with Premise 3

We come to Premise 3 (gay male marriages will loosen the ethic of monogamy in heterosexual marriages), then, with an already weak set of predicates. For Premise 3 to be correct, straight married couples will have to overlook the example set by super-monogamous married lesbian couples in order to follow the moderately more – and declining – non-monogamous example of a few married gay male couples who might be openly non-monogamous. By itself, this makes Premise 3 very dubious.

But there are yet three more reasons to doubt Premise 3.

First, there is no reason to believe that heterosexuals look to homosexuals as role models for their own sexual behavior. Indeed, many heterosexuals seem to define their lives almost in opposition to what they see as the gay “lifestyle.”

Second, women will always be present in straight marriages and women will for the most part continue to demand fidelity. Jill is not going to agree to let Jack live it up because she heard somewhere that Adam and Steve down the block are swinging from the chandeliers.

Third, as some commentators on this blog have repeatedly noted, we are talking about a very small group of people. (Gay marriage is very important to gay couples, but not terribly important to most others.) If married gay male couples were going to be, say, 50% of all marriages, we might expect their behavior to have some effect on the way the rest of married couples view the importance of monogamy in marriage. But that will certainly not be the case. It’s not reasonable to think they will loosen the ethic of monogamy for everybody else, even assuming they are uncontrollably and openly promiscuous and that access to marriage will not change that.

To see why the truly troublesome gay male marriages will be such a small number, let's do some math.

As I noted on Monday, homosexuals are probably no more than 3% of the population. (Many conservative critics of gay equality argue that the number is even lower than that, perhaps 1%.) Gay couples will likely get married at a lower rate than the general population, at least at first, so gay married couples will likely represent less than 3% of all marriages. Male married couples will be even rarer at first. The experience of Vermont civil unions shows that twice as many lesbian couples as gay male couples get hitched. Half of gay marriages would be lesbian – and they will be super-monogamous.

The potentially problematic gay couples – the gay men – will therefore represent perhaps 1.5% of all marriages (using assumptions most generous to the contagious-promiscuity argument). Some of them will manage to be faithful all or most of the time, so the truly troublesome unfaithful gay male couples will probably represent less than 1% of all marriages. Of these non-monogamous gay-male marriages, some portion of them will be very discreet about it, not wishing to incur the disapproval of their families and friends. Thus, the notoriously, openly, innoculation-resistant gay male couples setting a bad example for everybody else will likely represent somewhere around one-half of 1% of all marriages in the country. That’s 0.5%. And I think that’s probably high.

These paltry numbers will undermine the institution of marriage? Undermine it more than the large percentage of married people who already acknowledge in surveys that they have been unfaithful? Undermine it more than married straight couples who go to swingers’ conventions and troll websites devoted to non-monogamous sexual liaisons among married people? Undermine it more than the super-monogamous married lesbians will help it?

Which is more likely: That the 0.5% of openly non-monogamous married gay male couples will exert an irresistible gravitational pull on the morals of the 99.5% of all the other married couples? Or that the 99.5% will exert tremendous social pressure on the recalcitrant 0.5% to change their ways?

I’ll get to some better arguments against gay marriage soon. Next up, the polygamy slippery slope argument.

Madison & Marshall on McCulloch v. Maryland: In the comments on my previous post, Marty Lederman asks,
[W]asn't the Madisonian view of the *Necessary &Proper Clause*, in particular, laid to rest in McCulloch v. Maryland, for better or for worse . . . ? If so, are you genuinely proposing a reconsideration of Justice Marshall's apparent resolution of that question?
This is actually a rather complicated question that is not easily answered in a blog post. The short answer (which is here no more than an assertion) is that McCulloch v. Maryland was seriously "reinterpreted" by the New Deal Court to be much more permissive than it originally was written (as explained by David Currie in The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, p. 165). This was perhaps, Currie suggests, because Marshall failed to apply his own test to the case at hand.

Even so limited, Marshall's opinion was widely condemned as a usurpation at the time it was issued, including by James Madison who, as President, had signed the very law that Marshall had upheld in the McCulloch. Wrote Madison:
[O]f most importance is the high sanction given to a latitude in expounding the Constitution, which seems to break down the landmarks intended by a specification of the powers of Congress, and to substitute, for a definite connection between means and ends, a legislative discretion as to the former, to which no practical limit can be assigned.
Madison then both acknowledged the supposedly modern insight that the national economy is interconnected and rejected this as a basis for a latitudinarian interpretation of “necessary”:
In the great system of political economy, having for its general object the national welfare, everything is related immediately or remotely to every other thing; and, consequently, a power over any one thing, if not limited by some obvious and precise affinity, may amount to a power over every other thing. Ends and means may shift their character at the will and according to the ingenuity of the legislative body.
As Madison contended:
Is there a legislative power, in fact, not expressly prohibited by the Constitution, which might not, according to the doctrine of the court, be exercised as a means of carrying into effect some specified power?
For Madison, the main problem with the definition of "necessary" used by Marshall was that it made judicial review impractical: “Does not the court also relinquish, by their doctrine, all control on the legislative exercise of unconstitutional powers?" Madison objected to interpreting necessary as merely expedient or convenient, in part, because doing so would place the matter “beyond the reach of judicial cognizance. . . . By what handle could the court take hold of the case?” (For the entire text, click here.)

For his part, Marshall denied that his decision provided no effective limit to the powers of Congress. Writing anonymously as A Friend of the Constitution, he defended his decision in McCulloch:
In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the Constitution. Not only is the discretion claimed for the legislature in the selection of its means, always limited in terms, to such as are appropriate, but the court expressly says, “should congress under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government, it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land.
Of course, there is much more pertinent evidence to be discussed, but I have confined myself to Madison's reaction to McCulloch and Marshall's denial that his decision in McCulloch provided a blank check to Congress. I think neither man's views match Justice Scalia's rendition of the Necessary and Proper Clause in his Raich concurrence, but certainly Madison's does not.

The fundamental error is to read McCulloch and, for that matter, Gibbons v. Ogden through the eyes of the New Dealers. In Raich we contested neither case because we did not need to. Nor, for that matter, did we need to contest Darby or Wickard. It was the majority, joined by Justice Scalia, who decided to extend the Commerce Clause/Necessary and Proper Clause combo beyond Wickard—which upheld a statute that was limited by Congress to commercial farms over a certain size—to reach entirely personal noncommercial intrastate backyard behavior. I do not deny that, for decades, law professors have assumed that Congress had such broad powers, but even the New Deal Court never claimed this degree of power for Congress.

[Those who want to know more about the original meaning of the Necessary and Proper Clause can click here.)

Related Posts (on one page):

  1. Alito's Conservatism:
  2. Madison & Marshall on McCulloch v. Maryland:
  3. Roberts & Alito: The Triumph of Roosevelt Over Madison?:
Originalism in Crisis:

Randy's post reminded me that I've been wanting to note that conservative judicial originalism is currently in a state of crisis, precisely because of Justice Scalia's "fainthearted" originalism. If Justice Scalia, originalism's supposed great champion, is unwilling to overturn or even go out of his way to distinguish as anti-originalist opinion as Wickard v. Filburn (holding that growing grain on one's own land for consumption on one's own farm can be regulated under Congress' power to regulate "interstate commerce"), then what is left of originalism?

One could say that it's simply "too late" to reconsider sixty-two year old precedents like Wickard. But why sixty-two year-old precedents, and not thirty-two year old precedents (i.e., Roe v. Wade)? Scalia's fainthearted originalism begins to look a lot like, "I got into this business to overturn Warren Court decisions, and I'll use originalism as tool to that end, but I'm not especially interested in reconsidering New Deal precedents."

It especially looks like political preference because judicial deference to government exercise of arbitrary power was traditionally a "Progressive", not [conservative idea. Conservatives adopted "judicial restraint" as a mantra to attack the Warren Court, not because it's either a conservative or an originalist idea.

I expect that Scalia's problem is that to be a true originalist, many New Deal precedents would have to go out the window, and this is neither politically, nor, in many instances, practically feasible (In Raich, Randy certainly provided Scalia with some easy ways to distinguish Wickard, but I suspect Scalia felt that Wickard should either be interpreted rather broadly, or overturned entirely, and he opted for the former). But to be a sincere originalist, one has to grapple with how to resolve this quandry, not simply refuse to apply originalist reasoning out of "faintheartedness."

Thus, the task for the emerging conservative majority on the Supreme Court is to figure out how to be as true as possible to the original meaning of the Constitution, given that the Court has strayed so far from it for so long. Michael Greve of AEI, who really needs to write a book on the subject, has some intriguing ideas. But simply pulling a Scalia, and begging off from the tough issues as distractions from what I beleive he sees as the real task of preventing the liberal elite from enacting its agenda through the judiciary just won't do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism, and Scalia's failure to identify any theory of originalism that justified his opinion in Raich dramatically lowered my estimation of him as a jurist.

I once had a talk with Justice Thomas (when he was still Judge Thomas) where he expressed concern that some of his older conservative allies believed in the principle of "judicial restraint" for the sake of judicial restraint. I suggested to him that older conservatives are less concerned with adopting a principled view of the constitution, and more concerned with preventing liberals from doing harm. Thomas responded, "Yeah, but we're in charge now" (which I took to mean, "and therefore we need a governing ideology, not simply a reactive one"). Not surprisingly, it's Justice Thomas who has expressed the most willingness to try to figure out how to reconcile originalism with the facts created by stare decisis. Let's hope that he succeeds Scalia as the intellectual leader of the conservative majority. I hope that Alito and Roberts, as members of Thomas's generation and not Scalia's and Bork's, will not prove to be "fainthearted."

UPDATE: This should go without saying, but I don't mean to endorse every vote Justice Thomas has ever cast, as opposed to his non-"fainthearted" approach to originalism.

FURTHER UPDATE: Liberal critics of Scalia have also (correctly) noted that he is strangely silent in affirmative action cases with regard to the original understanding of the Fourteenth Amendment, which arguably would allow racial preferences, at least for African Americans. Thomas receives the same criticism, but I tend to agree with Scott Gerber that in race cases, Thomas's originalism manifests itself in resolving the ambiguous meaning of the equal protection clause by reference to (what he sees as) the founding and enduring principles of the American experience. Whether this is a sincere alternative "natural rights" form of originalism, or "too convenient," I'll leave for another time, but it's at least an attempt at originalism.

Related Posts (on one page):

  1. Balkin on Originalism:
  2. Originalism in Crisis:

The subtitle ("Prosecutors are from Neptune, defense attorneys are from Pluto") for Rod Smolla's interesting Slate piece on prosecutors and defense lawyers reminded me of something I noted in 2003: Women, it is said, are from Venus, and men are from Mars -- but many men (including me) just aren't very martial.

Maybe we're from other planets. The mercurial are from Mercury. The jovial from Jupiter (that's where I'm from). The saturnine from Saturn. Sailors are from Neptune -- there's actually a very old and now obsolete term, "Neptunist," which referred to "[a] nautical person." The solitary (OK, the root is wrong here, but work with me here) are from the Sun. Loonies are from the Moon (obviously). And the really far-out and eccentric are from Pluto.

What's more -- and I am not making this up -- homosexuals are apparently from Uranus. From my New Shorter Oxford: "Uranian . . . . B n. A homosexual. Now arch. or literary." This is attested to the early 20th century, with "uranism" for "homosexuality" dating to the late 19th; I have seen it credited to Karl Heinrich Ulrichs, a German lawyer and early gay -- er, Uranian -- rights activist. The etymology apparently goes back to Plato, but philosophy makes my head hurt, so I'll leave it at that. Ceres, Halley's Comet, and Quaoar are still up for grabs.

Warren Court Critic: Guess who made the following statements recently:
  "I always felt that judges should interpret law, not make law," he said. "I remember in college and law school in the late 60’s and early 70’s, even though I agreed with the substance of the Warren Court’s decisions, I thought that some of them were making law."
  Not, [he] quickly added, with civil-rights rulings like the decision in Brown v. Board of Education, which was issued in 1954. But the Warren Court also greatly strengthened defendants’ protections against police searches.
  "I think they went too far on criminal law," [he] said.
The answer is
The Nelson Visit Goes Well: This may be an important sign of the future of the Alito nomination:
  A centrist Democratic senator complimented Supreme Court nominee Samuel Alito Wednesday as a moderate jurist who won't "hammer away and chisel away" existing law.
  While Sen. Ben Nelson did not endorse President Bush's latest nominee for the high court, he did say he was impressed by what he heard from Alito during his introductory visit.
  Via the Bashmanator.

  UPDATE: Several commenters to this thread suggest that this isn't at all surprising.
Gallup Poll on Alito:

An early Gallup Poll on Alito here. Probably not worth much at this point, but here's the summary (HT: Byron York at The Corner):

About the same number of Americans rate Alito's selection either excellent or good (43%) as rate it fair or poor (39%). Miers received a similar rating, but Roberts' rating was somewhat more positive: 51% excellent or good, 34% fair or poor.

More people feel positive rather than negative about Alito personally — 44% to 19%, respectively — with another third offering no rating. Again, Miers' rating was similar, but a majority, 54%, gave Roberts a favorable personal rating.

About half of those interviewed Tuesday night believe Alito's views are mainstream, while a quarter think his views are too extreme, and another quarter have no opinion.

It doesn't bother most Americans (75%) that Alito is a man nominated to replace the first woman ever appointed to the Supreme Court. About the same percentage were not bothered when Roberts was first nominated to replace O'Connor (after Chief Justice William Rehnquist died, President Bush nominated Roberts to become chief justice).

The public is evenly divided as to whether Alito probably would or would not vote to overturn Roe v. Wade. Thirty-eight percent believe he would, and an equal percentage think he would not, with the rest offering no opinion.

If it becomes clear Alito would vote to reverse Roe v. Wade, Americans would not want the Senate to confirm him, by 53% to 37%.

If most Senate Democrats oppose the nomination and decide to filibuster against Alito, 50% of Americans believe they would be justified, while 40% say they would not.

If the Republicans then decide to eliminate the filibuster on judicial nominations, to ensure an "up-or-down vote" on the nomination, Americans would be evenly divided as to whether that tactic was justified — 45% say it would be, 47% say it would not. The views about Alito, especially whether he should be confirmed if he opposes Roe v. Wade, are highly partisan. Majorities of Republicans and conservatives favor confirmation in that circumstance, while even larger majorities of independents, Democrats, moderates, and liberals are opposed.

Barone on Alito:

The sage political commentator Michael Barone predicts that Alito will be confirmed and that Democrats will not filibuster him either. The reason? The same northeastern Democrats who would be most likely to lead a filibuster because of the abortion issue are also those who have the most to fear from offending Italian-American constituents (as much as 12-14% of the electorate in some northeastern states) from filibustering him.

I would add (for reasons suggested a few days ago) that there may be members of other ethnic groups who may also feel some vicarious enthusiasm for an Italian-American Justice who might further add to these figures in those states.

Federalist Society Lawyers' Division Convention:

It's happening next Thursday through Saturday (Nov. 10-12) at the Mayflower Hotel in D.C., and it will have lots of great panels. I'll be participating in the Friday panel on "What Is the Press?," which will ask whether special media privileges, such as the campaign finance law exemption or the journalist's privilege, apply to bloggers. For a full schedule, see here; to register, click here.

Another Government Attempt to Suppress Religious Speech:

The Foundation for Individual Rights in Education, which I've generally found to be highly reliable, reports:

[T]he University of Wisconsin–Eau Claire (UWEC) has banned resident assistants (RAs) from leading Bible studies in their own dormitories. The university claims the ban is necessary because some students might not feel RAs who lead Bible studies are “approachable.” . . .

The controversy began on July 26, when UWEC Associate Director for Housing and Residence Life Deborah Newman sent a letter saying RAs could not lead Bible studies in their dorms at any time. Her reason for this was that students might not think Bible study-leading RAs were sufficiently “approachable.” The letter was sent to RAs who were members of the Student Impact religious group and who had been leading Bible studies — not as official residence hall activities, but in their own dorm rooms and on their own time.

Newman’s letter added that Koran and Torah studies would be similarly prohibited and that RAs who did conduct a Bible study in their dorms would face “disciplinary action.” . . .

[In a letter to the university,] FIRE . . . pointed out a 2004 article in UWEC’s student newspaper in which the Office of Housing and Residence Life praised an RA who for three years in a row staged the controversial feminist play The Vagina Monologues as an official “residence hall activity.” This praise came despite the RA’s acknowledgement that “with the Vagina Monologues…she [did not have] as much time as she would have liked for her wing.” . . .

“UWEC’s position that leading a Bible study is more likely to make students uncomfortable than leading a controversial play like The Vagina Monologues simply doesn’t hold water,” noted FIRE’s French. He continued, “The First Amendment doesn’t end with a Bible study or with The Vagina Monologues — it guarantees a student’s right to perform both.”

FIRE is quite right here, both as a matter of academic freedom and of First Amendment rights, and the university is quite wrong. It's possible that the university might be able to insist that its RAs engage in no ideological group meetings at all in their dorm rooms, though even that would likely be unconstitutional. But to let them engage in a wide range of ideological speech, but singling out religious speech for special burden, is pretty clearly unconstitutional (under the Free Speech Clause, see Rosenberger v. Rector, and in my view under the Free Exercise Clause as well, McDaniel v. Paty).

Consider also the University's reasoning: "We have a fair number of students in each of our halls who do not practice Christianity, as well as some Christians who may follow a different doctrine than might be proposed at a bible study. It is very important to us that these students still feel that they can turn to you in a crisis, for information, or for support and hopefully that they would not feel judged or pushed in a direction that does not work for them." Is it really the case that some University of Wisconsin students are so hostile to out-of-the-closet Christians that they are reluctant to seek help from them? Or that they are so naive that they assume that most RAs have no religious or ideological views at all (at least unless the RAs reveal those views by hosting a Bible study), and thus would never "judge[]" a student who comes asking for support? If that's so, then it seems to me that the University should be working on those problems, and trying to prepare students for a world in which many of their bosses, mentors, and others will be prominent Christians, Jews, atheists, or whatever else — not giving in to students' perceived discomfort with those who prominently follow other religions.

[Puzzleblogger Kevan Choset, November 2, 2005 at 11:20am] Trackbacks

Prior to Harriet Miers, who was the last Supreme Court nominee to withdraw their nomination (or ask the President to withdraw the nomination)? Answer below.


Roberts & Alito: The Triumph of Roosevelt Over Madison?: I have been too swamped with teaching and writing commitments to comment on the nomination of Judge Alito. I cannot say that I am enthused, however, which also probably accounts for my silence on the subject. To appreciate my reservations take a look at one endorsement of the Alito nomination by the thoughtful law professor David Wagner in the Weekly Standard, entitled, Alito and "Rational Basis." In particular, consider his final paragraph:

More importantly, Judge Alito's Casey opinion shows him to be faithful to the judicial duty not to "legislate from the bench," an overused phrase which means simply that judges should go the long mile before substituting their views for those of the people's elected representatives.

This view of the role of judges was perhaps the New Deal's most bipartisan achievement. The departures from it during the heyday of the Warren Court produced friction among the liberal Justices appointed by FDR (notably between Douglas and Frankfurter), as well as controversy with a new generation of conservatives who saw the New Deal-type of rational basis test as key to preserving the democratic accountability of public decision-making. Conservatives felt odd, and still do, defending a New Deal doctrine (and being attacked for it from the left). But this particular New Deal doctrine is an established tradition with bipartisan support, and Judge Alito's Casey dissent show him standing squarely within it. Nothing could be more mainstream.
I plan to say more about this in my Federalist Society Convention talk on November 12th.

I fear that the Federalist Society coalition may be at a crossroad that was brought to a head by the split between justices Scalia and Thomas in Gonzales v. Raich. I am thinking a lot about this now because (a) I am teaching the case next week in Con Law, (b) I am reading the papers in a Symposium on Gonzales v. Raich in the Lewis & Clark Law Review so I can write the Foreword to the issue (the papers are really good, though depressing), and (c) our brief in the case asserting our Due Process Clause claim is due to the Ninth Circuit on November 23d.

The doctrinal crossroad involves, not the Commerce Clause, but the Necessary and Proper Clause. In Raich, Justice Scalia endorses the Roosevelt New Deal Court's approach to that clause; while Justice Thomas endorses Madison's approach. To the extent that we can predict justices Roberts and Alito will side with Roosevelt/Scalia over Madison/Thomas, then their appointments represent the triumph (once again) of Rooseveltian judicial restraint over the text and original meaning of the actual Constitution. It is hard to be cheerful about this development. Of course, we cannot know for certain which direction they will take, but a strong professed commitment to precedent—read: New Deal precedent—which is the preference also expressed by Justice Scalia in his "fainthearted" (his term [862], not mine) approach to originalism, harbingers the triumph of Roosevelt over Madison—ironically with the endorsement of a goodly portion of the Federalist Society.

But then again, that's just my opinion (today). I could be wrong.

Update: Oh yes. Based on this assessment, I predict that, like Chief Justice Roberts, Judge Alito will be easily confirmed by the Senate without a fillibuster. This is not the battle some were waiting for.

Related Posts (on one page):

  1. Alito's Conservatism:
  2. Madison & Marshall on McCulloch v. Maryland:
  3. Roberts & Alito: The Triumph of Roosevelt Over Madison?:
Greenpeace Goof:

The Rainbow Warrior, flagship for the international environmental group Greenpeace, inadvertently damaged portions of a coral reef off of the Phillipines, according to this report. The accident allegedly caused significant damage to a portion of the reef, which is located in the Tubbataha National Marine Park, a designated World Heritage site. Greenpeace blames faulty charts for the accident, and will pay a fine of approximately $7,000.

Alito on Opinio Juris:

The team at Opinio Juris has posted several items on Judge Alito's record as it relates to international law and foreign law. For instance, check out Roger Alford's posts on Alito's handling one asylum case dealing with forced sterilization and another dealing with forced abortion. There's more, so it's worth starting at the top and scrolling down.

Defending NCPA:

Last week I was critical of the National Center for Policy Analysis's decision to dismiss Bruce Bartlett for writing a book harshly critical of the Bush Administration. For a more sympathetic take on the NCPA's decision, see Zach Wendling's post here.

The Catholic Second Amendment

At the beginning of the second millennium, there was no separation of church and state, and kings ruled the church. Tyrannicide was considered sinful. By the end of the thirteenth century, however, everything had changed. The "Little Renaissance" that began in the eleventh century led to a revolution in political and moral philosophy, so that using force to overthrow a tyrannical government became a positive moral duty. The intellectual revolution was an essential step in the evolution of Western political philosophy that eventually led to the American Revolution.

The above is a summary of my new law review article "The Catholic Second Amendment," which will be published in the Hamline Law Review in 2006. Please feel free to offer useful comments and suggestions, as long as they related to the period covered the article. Please don't include arguments about the New Testament, patristic Christianity, or modern Catholicism--all of which are interesting, and all of which I'm writing about in other articles.

[Dale Carpenter (guest-blogging), November 2, 2005 at 7:56am] Trackbacks
The Traditionalist Case -- The Definitional Argument Against Gay Marriage:

Having made the affirmative traditionalist case the past two days, today and tomorrow I’ll respond to some of the most common arguments against gay marriage.

One of the most common arguments against gay marriage is definitional. This definitional argument against gay marriage generally takes the following form: “Marriage just is the union of one man and one woman. What same-sex couples are asking for is not marriage. So same-sex couples cannot be married.” It offers no normative defense of the definition; it stops there.

A variation of the definitional argument involves some analogy to species-confusion. For example, this is a common variation: “Gay marriage is like trying to call a cat a dog. A cat will never be a dog no matter how much you try to call it a dog or treat it like a dog or pretend it’s a dog.” You can substitute an infinite variety of species combinations for “cat” and “dog” here and you have the same variation of the definitional argument. The species-confusion variation of the definitional argument is another way of saying that marriage is definitionally male-female. It is saying, without further argument, that same-sex couples cannot be married just as dogs cannot be cats.

Another variant of the definitional argument involves some analogy to a government-benefits program. For example: “Allowing gay marriage is like allowing non-veterans to get veterans benefits; non-veterans are not part of the veterans program, just like gay couples are not part of marriage. The marriage program is not for gay couples, just like the veterans program is not for non-veterans.” Or, as one commentator put it: “Two people of the same-sex cannot ‘marry’ any more than a man can claim a right to ‘maternity’ leave.” Stephen C. Whiting, “Gay Marriage” Is an Oxymoron, 19 Me. B. J. 79, 83 (2004). You can just as easily substitute young adults seeking retirement benefits from Social Security, or renters seeking a home-buyer’s mortgage-interest deduction from their taxes, or what have you. The variations are as numerous as the government-benefits programs that inspire them. This variation of the definitional argument, too, is another way of arguing that marriage is definitionally male-female. It is saying, without further argument, that same-sex couples simply cannot qualify for marriage just as non-veterans cannot qualify for veterans’ benefits.

There are other variations on this same definitional point (e.g., there’s one that objects to gay marriage on the grounds that two people of the same sex cannot “consummate” their relationship in the way that two people of the opposite sex can), but I hope this is enough to set the table for a response.

What’s distinctive about the definitional argument is that it makes no attempt to defend the male-female definition of marriage as a normative matter. The definition itself is asserted unadorned as an argument against gay marriage. As soon as a normative defense of the male-female definition is attached to the argument (for example, “the male-female definition of marriage is right because children need mothers and fathers”), the argument is no longer the pure definitional argument as I use that term here.

The obvious problem with the definitional argument is that it suffers a very serious logical flaw. It is circular and conclusory. In the gay-marriage debate, it’s the definition of marriage that’s being challenged. Gay-marriage advocates are saying, in effect, “The definition of marriage as the union of one man and one woman is an unjustifiable limitation. The definition of marriage should be expanded to include couples of the same sex. And we have good reasons for this expansion of the definition of marriage. Let’s talk about them.”

Given this challenge to the definition of marriage, the definition alone cannot be offered in its own defense. It must be accompanied by reasons that show why the male-female definition is the right or best one. Unless the definition is defended with reasons that go beyond simply asserting the definition itself, the defense suffers a fatal circularity. It asserts the conclusion (the proper definition of marriage) as the argument. It’s the equivalent of saying, “I’m right because I say so.” That may work in the parent-child relationship, but it cannot suffice in public-policy debate.

Let’s apply this lesson to the species-confusion analogies so popular among gay-marriage opponents. Consider the dog-cat analogy introduced above. Gay-marriage opponents argue that gay marriage is like calling a “cat” a “dog,” and that simply can’t be, no matter how hard we try.

But this misses the point of the case for gay marriage, which is to argue that gay couples (for multiple reasons) sufficiently meet the purposes of marriage (properly understood) such that they should be permitted to marry. To use the analogy, gay-marriage advocates argue that gay marriage is indeed a dog that we have unfairly been calling a “cat,” refusing to recognize it as a species of dog. On this view, gay-marriage advocates are not trying to get the world to accept cats as dogs, but to accept dogs as dogs. It’s those who refuse to call this dog a dog who are in error.

A similar response applies to the various government-benefits analogies offered against gay marriage. Consider the analogy to veterans benefits, where gay-marriage opponents claim that gay couples are like non-veterans trying to get veterans benefits. Gay-marriage advocates are arguing that (for multiple reasons) gay couples are “veterans,” and that denying them veterans benefits is therefore wrong.

Maybe gay-marriage advocates are wrong on the substance: perhaps gay couples can’t meet the purposes of marriage (properly understood). But that conclusion has to be debated, with reasons offered for why gay couples can or can’t meet the properly understood purposes for marriage. The conclusion cannot simply be asserted once the existing definition is challenged.

In debates, one often hears the complaint from gay-marriage opponents that gays are “trying to change the definition of marriage.” Exactly so, but this is hardly a decisive objection, just as it would not be a decisive objection to any proposed change in existing practices or laws.

None of this is to argue that there should be no definition of marriage. There should be a definition of marriage. But given the powerful affirmative case for gay marriage, it must be debated. Perhaps the man-woman definition is the best one, but to reach that conclusion we need substantive arguments supporting the definition, not simply the definition itself.

Given how logically weak the bare definitional argument is, why does it persist?

The answer, I think, is that behind it is a powerful, unstated intuition that important social institutions ought to have stable attributes (meanings) over time. This is a deeply conservative instinct and I share it to a very large degree. I will address this Burkean argument, which I ultimately think is the best argument against gay marriage, later in the week.

Would Alito Vote To Overturn Roe?: Over at the The New Republic Online, Ethan Leib takes a look at Alito's abortion decisions. An excerpt, discussing Alito's dissent in Casey:
. . . Alito's dissent was not ideological and did not show any disrespect to governing Supreme Court abortion precedent. On the contrary, Alito's analysis was a careful application of the framework laid out by Justice O'Connor in her many opinions on the subject. It was also relatively mainstream: Opinion polls then and now show that 60 to 70 percent of Americans generally favor spousal notification provisions. Moreover, the notification provision at issue in Casey was narrowly drawn. It did not apply to unmarried women, it provided for many exceptions, and it required only that a woman sign a statement attesting that she had complied with the law. What's more, in his dissent, Alito presumed that 95 percent of married women do notify their spouses if they have an abortion; and no one was able to show that the other 5 percent wouldn't fall within the statute's many exceptions. In short, Alito's opinion was careful, modest, pragmatic, and reached a fairly mainstream result. This was hardly the work of an anti-Roe firebrand.
Terrorist Plots Thwarted, Secret CIA Prisons: Don't miss two important GWOT-related news stories in tomorrow's papers: The first concerns thwarted terrorists attacks in the UK, apparently including one plot cracked after investigator decrypted an encrypted computer, and the second is a very interesting piece on the front page of tomorrow's Washington Post about CIA secret prisons around the world.

Tuesday, November 1, 2005

[Dale Carpenter (guest-blogging), November 1, 2005 at 9:44pm] Trackbacks
Response to commentators – Day 2:

Some brief responses to some very good and provocative comments today:

First, one commentator asks for “evidence” that gay marriage will produce the individualistic and communitarian benefits I predict. Asking for evidence of results is perfectly appropriate once a proposition has been tested somewhere. But of course there were no gay marriages anywhere until the day before yesterday, so there’s no direct evidence about the effects yet. It’s coming, now that we’ve got gay marriage in one state and several countries. I expect it will favor the argument for gay marriage, though even then we’ll be having lots of debates about what the evidence means. This subject is full employment for family policy wonks for many years to come.

In the meantime, the lack of direct evidence is hardly decisive against any proposed reform. The best we can do when any reform – like giving women the right to vote – is proposed is to reason from our common experience, our values, and whatever evidence we have that seems relevant to the question. I’ve tried to do that.

Second, one commentator notes a potential contradiction in my claim that gay marriage will give state-provided benefits to gay families and at the same time reduce services those families demand from the state. It’s not a contradiction, but perhaps a paradox, that’s true of all marriages. Most of the legal marriage “benefits” that cost the government resources come at the end of the relationship or at selected points of weakness during the relationship. The relative service reduction, on the other hand, is an ongoing product of the fact that people with caretakers already have a triage expert on hand to deal with health and other problems that arise.

Third, some commentators have suggested that the best thing would be to give up on marriage entirely, for libertarian or practical reasons, and leave the marriage business to churches. I think this would be a bad idea for lots of reasons, but it’s beyond the scope of the argument about gay marriage. I am arguing for gay marriage within the existing framework, a framework that is likely not going away.

Fourth, please have patience with me on polygamy and questions like, why experiment now with an institution that’s already in trouble? etc. I promise I won’t let the week go by without dealing with these very important considerations.

Fifth, in response to “Humble Law Student” and “Law Student Kate”: Great ideas. I’d seriously consider reforms to strengthen marriage, like divorce reform, counseling periods, etc. Even civil adultery penalties, enforced at dissolution. Perhaps covenant marriages, for people who really want that old-time commitment. It’s not in the interest of gay families to go to all this trouble only to enter a weakened and dying institution. I think these other reform questions can and should be addressed independently of gay marriage because I think gay marriage is a proposal to strengthen marriage, although almost nobody except Jon Rauch has yet thought of it that way. This very debate, through which the traditionalist case for gay marriage is reaffirming what’s best and most important about marriage, is in its own way a contribution to revitalizing marriage. Gay marriage is a good idea, but it also matters how and why we get there.

By the way, Rauch’s book, “Gay Marriage: Why It is Good for Gays, Good for Straights, and Good for America,” is the best single book making the case for gay marriage.

Finally, I want to thank the commentator who noted that, in linking two otherwise distinct families, marriage also provides spouses with a network of supporters (or caregivers) who now take a special interest in their in-law that they tend not take before the marriage. And, of course, the children in the marriage get two sets of families to care about their future. Double the birthday presents!

University of Michigan Posts Alito Opinions: Check them out here.
Confrontation Clause cert. Grants:

Virtually lost in the hullaboo over the Alito nomination is the Court's grant of cert. yesterday in two Confrontation Clause cases. Unfortunately, we won't be able to follow the action on the Confrontation blog because the blog's author, my Michigan colleague Rich Friedman, is counsel for one of the petitioners, and thus, as he says, must be "abstemious" in his blog comments.

[Dale Carpenter (guest-blogging), November 1, 2005 at 7:09pm] Trackbacks
The Traditionalist Case – The Magnitude of the Benefits:

Marriage will have one of three consequences for gay families united in marriage: they will be better off, worse off, or it will have no effect on them. It’s hard to imagine how marriage would have no effect on their lives, and even harder to imagine how they would be made worse off than they are now. So married gay couples should be better off than unmarried gay couples in terms of the durability, happiness, and stability of their relationships. Similarly, their children should be better off in many ways.

The only question, then, is what the magnitude of these benefits will be. Here we run into some thorny issues.

One possibility is that we could simply extrapolate the benefits from marriage that opposite-sex couples enjoy over unmarried people. If these benefits can simply be extrapolated, the benefits to gay families united in marriage would then be huge as compared to unmarried people.

Another possibility is that gay families united in marriage will capture some, but not all, of the magnitude of the benefits that straight families derive from it. Why not expect that they will get the full benefit from marriage? There are, I think two reasons for this that apply to both gay male and lesbian couples, and one additional reason that applies only to gay male couples. If my analysis is right, lesbian couples will probably capture somewhat more of the benefits of marriage than will gay men. But we must be careful not to exaggerate these possible limitations on how much of the benefit of marriage gay families will get.

Here are two limiting factors on the magnitude of the marriage benefit to lesbian and gay male couples:

(1) It will take time for some gay people, generations of whom have led their lives with no expectation of marriage, to orient their lives and relationships toward the possibility of the deeper commitment marriage involves. While the most traditionally minded gay couples will likely be disproportionately represented among the new marriages, even some of these couples will need time to adjust. This will, I think reduce to a small degree some of the caretaking benefits that we could otherwise expect. But I suspect this will be a very small difference, and will quickly fade.

(2) There will initially be some social resistance to the idea that gay marriages are real marriages, so the social reinforcement of them will be on average weaker than it would be for a straight couple. This will reduce to some extent, at least initially, the expected social benefit a straight couple could expect. As time passes and the people around these couples, including their extended families, become accustomed to gay marriage, this social benefit will increase. I also think this will tend to happen rapidly for the immediate family and friends of gay couples, who are unusually likely to be thrilled that their loved one is getting hitched. Resistance to gay marriage will last longest and remain deepest among people who don’t know any openly gay people, or who at least don’t know any gay people who want to marry. But the resistance of these strangers to gay marriage matters least for the social benefit that couples get from marriage. What matters most is that their close families and friends fully support their marriages.

Both of these limitations on the expected benefits are transitory and small, so lesbian couples at least should get something approaching the full benefit of marriage almost right away. Since they will be half or more of all gay marriages, and since they are more likely to be raising children, the individualistic benefits to their families should be quite large.

Finally, here is third possible limiting factor on the magnitude of the benefit that will apply only to gay-male couples:

(3) There is a traditionalist objection to gay marriage that runs something like this: “Gay men are promiscuous, more than straight men, straight women, or lesbians. That makes them unlikely to benefit much from marriage. It is not marriage that settles men down, giving them the health and other benefits of marriage. It is women who do this. Women will be absent from gay male marriages, and thus much of the benefit of marriage will be absent from their marriages.” If this is right, it may seriously limit both the caretaking and social benefits gay male couples get from marriage. Let’s call this the promiscuity objection to gay marriage (the promiscuity objection is also offered to show how gay marriage might loosen marital norms of fidelity for everybody, about which I’ll say more in the coming days).

Several observations should be made about the promiscuity objection that make it a very weak factor in the magnitude of the benefits to be expected from gay marriage.

First, it does not question the benefits that should be obtained by married lesbian couples, who will probably be among the most monogamous of all married couples on average, and who may well end up being at least half of all gay married couples. So 50% of the magnitude issue is already off the table. It is not really an objection to gay marriage at all; it is an objection only to guy marriage.

Second, even as applied to gay male couples, it goes only to the magnitude of the benefits; it does not negate the possibility of any benefit at all. Thus, even if the promiscuity objection is largely correct in its empirical claims about men, gay male couples should still enjoy the legal, caretaking, and social benefits to some extent.

Third, there is no good evidence for the junk-science idea that gay men are freakishly promiscuous, even in the absence of marriage. They are somewhat more promiscuous, yes, but not hyper-promiscuous. My take on this complex issue, drawing largely on Eugene’s analysis two years ago on this blog, can be found here .

Fourth, surely socialization within a gay culture that has never had marriage, combined with the stigma and even criminality long associated with attachments to members of the same sex, has had some effect on rates of promiscuity and overall stability in relationships. The promiscuity objection takes a possible effect of the lack of marriage as a “natural” condition of men or gay men, and then uses that effect as an argument for justifying the very result (no marriage) that helped to produce it. This is circular. Marriage, because of the social and individual expectations that accompany it, should have the effect of somewhat reducing levels of promiscuity among gay male couples, even if it does not eliminate the differences between them and male-female or lesbian couples.

Fifth, the most traditionally minded and monogamously committed gay male couples are the ones most likely to marry. As male sexual liberationists never tire of pointing out, marriage is not for them. Thus, whatever moderate difference in rates of promiscuity there are between gay men and others, these differences are likely to be smaller in the pool of gay-male couples who get married.

Sixth, conservative social theory would predict that marriage itself, and not just the presence of women in the relationship, should have some domestication effect on men. It would predict, I think, that men simply cohabiting with women will have higher rates of promiscuity than men who marry their female partners. This effect is obviously not produced solely by women demanding and policing monogamy, since women are present in both the unmarried opposite-sex cohabitation and the marriage. It must be that marriage itself adds something to the pressure to settle down. The reasons for this are complex, but they surely have to do both with the seriousness with which people take themselves and their relationships when they are married and with the seriousness with which others treat their marital bond.

All of this points toward the conclusion that the promiscuity concern is a lot of sound and fury, signifying something, but very little.

Both gay male and lesbian couples will get the full legal benefits of marriage, and a large and growing portion of the caretaking and social benefits that we expect when people marry. Much of this same analysis will apply to their children, who will get the full legal benefits of marriage and will enjoy a large and growing amount of the benefit that can be expected from the increased stability of their families.

Similarly, bracketing until tomorrow the possibility of some negative effects, gay marriage will have one of three effects on the communities in which these gay families live: the communities will be helped, harmed, or not at all affected. Here any positive effect on the community will likely be very small since there will be so few gay couples. Since, as I’ll argue, we should not reasonably expect any harmful effect from gay marriage, that leaves us with some positive effect on the communities in which these gay families will live.

Cass Sunstein on Alito: Over at The New Republic (free registration required), Cass Sunstein has posted a brief and preliminary take on Judge Alito's opinions as an appellate judge. An excerpt:
  A reading of the opinions of Samuel Alito reveals that he is an unexpectedly interesting judge, with a conservative record that shows a very different tone from that of Justice Scalia or Justice Thomas. He does not press ambitious claims, and each of his opinions is firmly anchored in the law. At the same time, his overall pattern of votes shows a great deal of deference to established institutions.
  Unlike, say, Justice Scalia, Judge Richard Posner, and Judge Michael Luttig, Alito avoids theoretically ambitious claims. He rarely asks for large-scale reorientations of the law. His opinions are both measured and low-key. He does not insist that the Constitution must mean what it meant when it was originally ratified. If each opinion is read in isolation, the evaluation, even for those who disagree, would almost always be this: solid, more than competent, unfailingly respectful, and plausible.
  Thanks to the Basher for the link.
Judge Alito and the Pauline Thomas Case: Does Sam Alito care more for the needy than Justice Ginsburg? Is he more sympathetic to the little guy than Justice Stevens? Yes, he certainly is. And I have proof: Thomas v. Commissioner of Social Security, 294 F.3d 568 (3d Cir. 2002).

  In Thomas, a disabled 54-year old woman named Pauline Thomas was laid off from her job as an elevator operator. Pauline had terrible health problems, ranging from irregular heartbeats and high blood pressure to dizziness and fatigue. She applied for disability benefits to help her get by, but the government bureacracy said "no." A trial court agreed, saying that Mrs. Thomas didn't deserve the benefits because even though she was disabled, she wasn't disabled in the right way. Judge Alito steppped in and reversed that decision. Over three dissents, and cutting across the grain of some other courts, Judge Alito ordered the lower courts to try again, this time reviewing her claim with a legal standard that very much favored giving her benefits. However, Alito's generosity to Pauline Thomas was too much for the Supreme Court to take. The Court reached out and reversed Alito, using a technicality to strip away her benefits. The opinion was written by leading right-wing warrior Antonin Scalia, and it was unanimous. That's right — Alito proved himself more symathetic and generous than any of the so-called liberal Justices, including Ginsburg, Breyer, and Stevens.

  Now, some of you will object that my description of this case is completely ridiculous. You'll say I am pretending that Alito was making a political decision rather than trying to follow the law. And you'll say it is wrong to assume that how Justices later voted in the case is a reflection of Alito's political views. And of course, you'll be absolutely right. But here's a thought experiment: What if all of the votes in the Thomas case had come out the other way? Imagine that Alito had voted to deny benefits to Pauline Thomas, cutting against the grain of existing law, and that the Supreme Court had taken the case and voted unanimously to give Thomas a good shot at prevailing. It's just a hypothetical, so we'll never know for sure. But based on the debates in the last 24 hours, I would guess that Thomas v. Commissioner would have become one of the key cases used by Alito opponents to show that he is a right-wing extremist. You can imagine the talking points — "Even Clarence Thomas and Antonin Scalia agreed that the disabled woman deserved her benefits - but not Samuel Alito."

  Now perhaps there is a plausible argument that Alito's conservative-seeming decisions should be considered more revealing than his liberal-seeming ones. Lots of people say Alito is conservative, and Alito's conservative decisions tend to reaffirm that impression. At the same time, I think the Thomas case shows why it helps to approach reports of Judge Alito's individual decisions with considerable skepticism. It's very easy to misrepresent what a case was about by substituting a political question for the legal issue the court decided. As always, reader beware.

  UPDATE: This post from Blue Mass. Group makes the same point.
Other Federal Appellate Judges on Machine Guns:

In United States v. Rybar, Judge Alito's dissent persuasively argued that the Supreme Court's precedent in Lopez meant that Congress could not ban the simple possession of machine guns--at least not without an assertion of a basis of federal jurisdiction and Congressional findings about the effects of machine guns on interstate commerce. While Judge Alito's dissenting opinion did not carry the day, the dissent was hardly an outlier among federal judges.

For example, district court Chief Judge Barbour in Mississippi used similar reasoning to hold the ban unconstitutional.United States v. Bownds, 860 F. Supp. 336 (S.D. Miss. 1994). See also United States v. Gambill, 912 F. Supp. 287, 290 (S.D. Ohio 1996) ("mere possession of a machine gun may not implicate interstate commerce").

On appeal, the Fifth Circuit reversed the Mississippi district court and upheld the ban by a 2-1 vote. In dissent, Judge Edith Jones suggested that Congress lacks the power to prohibit possession of a machine gun under the commerce power. Rejecting the majority's theory that a ban on possession of an item is a permissible exercise of the power to ban interstate commerce in an item, Judge Jones argued:

The statute is not limited to possession in or even affecting interstate commerce, or to possession of a firearm that has traveled in interstate commerce. Rather, it criminalizes the mere private possession of a machine gun. The majority infer from the fact that Section 922(o) prohibits "transfer" as well as "possession" that channels or things in commerce were intended to be regulated. This inference seems unwarranted for two reasons. First, transfer as well as possession of a thing can be of a wholly intrastate character. Second, when the government criminalizes conduct in the disjunctive, it may prosecute separately each type of conduct disjunctively named. Thus, as in this case, possession alone is criminalized independent of any transfer of a machine gun.

Judge Jones concluded her analysis by pointing out that:

Lopez reminds us forcefully that Congress's enumerated power over commerce must have some limits in order to maintain our federal system of government and preserve the states' traditional exercise of the police power. Section 922(o) is a purely criminal law, without any nexus to commercial activity, and its enforcement would intrude the federal police power into every village and remote enclave of this vast and diverse nation.

United States v. Kirk, 70 F.3d 791, 799, 802 (5th Cir. 1996) (Jones, J., dissenting).

The Fifth Circuit reheard the case en banc, and split eight-to-eight, thereby leaving the original decision intact. United States v. Kirk, 105 F.3d 997 (5th Cir. 1997).

In the en banc case, eight judges voted to affirm per curiam. Three of them joined a lengthy opinion by Judge Higginbotham which (like Justice Breyer's dissent in Lopez) stitched together excerpts from various popular magazine articles which allegedly showed that machine guns were sometimes used in crime; repeatedly asserted how dangerous machine guns are; said that machine guns have no social utility, and claimed that while Congress would not ban mere possession of ordinary guns, machine guns were on a different plane, and could be banned.

The dissenters (Garwood, Jolly, Smith, Duhe, Barksdale, Emilio M. Graza, and DeMoss), joined an opinion by Judge Jones. They argued replied that the ban on possession could not be justified as carrying out a ban on commercial transfer--since a person could acquire a machine gun through a non-commercial transfer, such as a bequest; or a malfunctioning semi-automatic might fire two bullets with a single trigger press, and thereby be classified as a machine gun by federal law.

In the Sixth Circuit, a machine gun/Lopez case led to a 2-1 split upholding the statute. United States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996)(dissent by Judge Suhrheinrich).

In the Third Circuit's Rybar case, the majority was forced to made the preposterous argument that although 18 U.S.C. 922(o)(the ban on possession of machine guns manufactured after May 19, 1986) had no legislative history or findings about interstate commerce, the legislative history of other portions of the Gun Control Act--which had been enacted in different years and which said nothing about machine guns--supplied sufficient findings about interstate commerce. Rybar at 279-80.

Judge Alito's dissent pointed out that not all cases of possession in violation of 922(o) involve any form of commerce, let alone interstate commerce. For example, the owner could have converted a semiautomatic to automatic. Nor is every illegal transfer an interstate transfer. Further, the possession of a machine gun on one's property has no more genuine connection with interstate commerce or commerce of any sort than does possession of a gun within a school zone (the federal law struck down in Lopez).

Neither Congress nor the government attorneys defending 922(o) have produced any evidence that the occasional intrastate possession of machine guns by interstate criminals (e.g. controlled substance merchants, racketeers) has a substantial effect on interstate commerce.

Regarding the post-hoc efforts of various courts to conclude that Congress-- while remaining utterly silent on the subject--had somehow determined that machine guns burden interstate commerce, Stephen Halbrook writes in the Firearms Law Deskbook (the only national practice manual on firearms law):

The suggestion that Congress secretly made such a finding is just as speculative as it would be to suggest that Congress secretly thought such firearms to be a burden on raising armies, collecting taxes, coining money, establishing post offices, punishing piracies on the high seas, or other subjects of Congress's enumerated powers in Article I, Section 8 of the Constitution.
That many federal courts have upheld the machine gun ban--despite its manifest unconstitutionality under Lopez--shows the breadth of the problem of federal courts ignoring the law in order to achieve particular policy results. Judge Alito's opinion in Rybar shows him to be conscientious and intellectually honest in following precedent.

Besides acting illegitimately in disobeying Lopez in order to reach a preferred policy result, the fedeal judges who have taken positions contrary to the opinions of judges such as Alito and Jones have been unreasonable. Today in the United States, machine gun possession is lawful in 41 states. (It is banned for non-government employees in Delaware, Hawaii, Iowa, Illinois, Kansas, New York, Rhode Island, and Washington. California's permit law is applied so as to make possession possible only by the film industry.) There are over 200,000 lawfully possessed machine guns in the United States, every one of them registered and taxed according to the strict requirements of the National Firearms Act of 1934. Neither Congress nor any scholar has ever produced evidence showing that the 1986 ban on manufacturing new machine guns for the civilian market has contributed in the slightest to public safety.

UPDATE: A commenter points to United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003), in which Judges Kozinski and Nelson wrote for a 2-1 majority holding that the interstate commerce power did not reach a machine gun which had never entered the stream of commerce, because the gun had always been the property of its inventor, who had created a completely original design for the gun, not even resembling ordinary machine guns (and thus not even affecting the market for ordinary machine guns). After deciding Ashcroft v. Raich, the U.S. Supreme Court vacated the Stewart decision, and remanded it for consideration in light of Ashcroft.

As the Stewart remand implies, it is entirely possible that the current Court is unwilling to follow through on Lopez, and lacks the nerve to challenge the contempt with which many lower federal courts have treated Lopez. See Glenn H. Reynolds & Brannon P. Denning, Lower Court Interpretations of Lopez, or What If the Supreme Court Held a Constitutional Revolution and Nobody Came? 2000 Wisconsin Law Review 369. But to get back to the original point of this post: Alito's position is Rybar was the same as that a significant minority of lower federal court judges who have tried to apply the Supreme Court's precedents faithfully.

[Dale Carpenter (guest-blogging), November 1, 2005 at 2:36pm] Trackbacks
The Traditionalist Case – Communitarian Benefits:

Marriage has many possible private and public purposes. The private purposes can include expressing love and commitment to another, fulfilling a religious obligation, and acquiring the benefits associated with the legal status. These private purposes are what actually motivate many people to marry. But it is the public purposes of marriage that justify its existence and support in civil law.

Marriage does not have to have one single public purpose. One obvious public purpose of marriage is that it encourages procreation and child-rearing within the marital bond. Sex often makes babies, society needs babies, and all of us benefit when those babies are raised within marriage. Let’s call this the “procreative purpose.” Gay couples cannot procreate as a couple and so might be thought incapable of fulfilling this basic public purpose. The story is more complicated than that, but that’s a subject for tomorrow, when I begin to address the arguments against gay marriage.

If gays can’t procreate as a couple, is there any public purpose in recognizing their unions in marriage? Many people seem to think that the only interest in recognizing gay marriages would be the purely private one of helping satisfy their needs for adult intimacy or the non-marital one of advancing the cause of gay rights as a general matter. There is little public purpose in using marriage to achieve these ends.

But there are identifiable public interests, public purposes, in uniting gay families in marriage. With one exception (the last one I list below), these public purposes parallel exactly the kinds of public purposes that justify the recognition of sterile opposite-sex unions through marriage. Neither sterile gay marriages nor sterile opposite-sex marriages can fulfill the procreative public purpose in marriage, but they can satisfy many others, and so we have a public interest in them. I will call these the communitarian benefits of gay marriage, and list them in order of their persuasiveness and likelihood.

1. Communitarian benefits flowing from individualistic benefits.

I have already laid out the ways in which uniting gay families in marriage will produce some measure of individualistic benefits to individuals, couples, and children. Individuals in gay marriages should be healthier, wealthier, and happier, on average, than if they were single or simply cohabiting. They may also lead more traditionally moral lives. Their children should do better in school, commit fewer crimes, and be less likely to use and abuse drugs, among many other advantages, than if their gay parents live alone or cohabit.

The whole community benefits to the extent that each of these individualistic benefits obtain. The community is better off when the individuals that comprise it are better off. More couples united in marriage should mean more stability, less promiscuity, more people connected by a web of familial relationships, more parents invested in the health of schools, and so on. More children raised in marriage should mean less crime. Healthier, wealthier, and happier people are better citizens, more involved generally in maintaining the life of the community, less atomistic. Less “bowling alone.”

2. Communitarian benefits from limited government.

Since married people are better off than single people or unmarried couples, married people make relatively fewer demands on state welfare services, on emergency services, and on the health-care system. Once they’re allowed to marry, gay couples can be expected to make correspondingly fewer demands on the state for all the kinds of support they need when there’s no personal caretaker there for them. This serves the goal of limited government, which is something conservatives support.

You could, of course, see marriage in general as involving massive government involvement in citizens’ lives. I doubt this is the whole story, since in the absence of marriage I’d predict we’d need a huge government to deal with all the resulting social ills. As long as we’re going to have marriage, there’s an expected service-reduction effect from the recognition of any particular marriage.

3. Communitarian benefits to the institution of marriage.

Obviously, there are problems with marriage today: an almost 50% divorce rate, 1/3 of children born out-of-wedlock, too many children raised by single parents and unmarried cohabitants, too much domestic abuse, and so on. (Notice that these problems with marriage were not caused by gays.)

There is a movement in the country toward strengthening marriage and there are signs it is having limited success. That is healthy. The question is, will gay marriage have no effect on this movement, a negative effect on this movement, or a positive effect on it? A full answer to this question depends on consideration of the argument that gay marriage might somehow undermine heterosexual marriage, which I’ll start addressing tomorrow.

But for now, let me note one way in which gay marriage could slightly strengthen the norm of marriage in our society. (I say “slightly” because any harm or benefit from gay marriage to marriage as an institution would have to come from what will be a small proportion of marriages.)

We are in the midst of a project to revive the idea that marriage is the gold standard for relationships and for having and raising children. Consider that it may be somewhat harder to convince people that marriage is the gold standard for relationships, that marriage and raising children really go together, if a subclass of the population is carrying on life entirely without marriage, including procreating and raising millions of children outside marriage, and appearing to be quite successful at it. At the very least, the children of marriage-less gay parents are more likely to see marriage not as some “gold standard” but as one option among many, an equal among equals.

Gay marriage, both by example generally and by instruction to children being raised in gay homes, could help reinforce the idea that marriage is the normative status for people who are willing to make the legal and social commitment it entails. To the extent that heterosexual couples look to homosexual role models at all, which I seriously doubt, allowing their homosexual role models to marry – rather than simply to cohabit, as they do now because they cannot marry – might strengthen the norm of marriage. A married homosexual couple is a rebuke to the idea that simply cohabiting is the optimal way to structure a relationship and to raise children. Far from destroying marriage, gay marriage could be a small part of the project of saving it.

So instead of conceiving gay marriage as a threat to marriage we ought to see it as part of this movement to revive, protect, and strengthen marriage. But as I say, this conclusion depends on an argument I’ll make soon: that there’s no good reason to believe that gay marriage will undermine marriage for heterosexual couples.

4. Communitarian benefits to gay culture, especially gay-male culture.

We have all seen the destructive effects that come when a sub-class of people live without marriage. Traditionalist theory rightly predicts that such a sub-class will experience high levels of single-parent families, children born out-of-wedlock, promiscuity (and all the ills, including STD’s, that come with it), high rate of substance abuse, crime, and a host of other social pathologies.

In much gay male culture, as that culture is manifested in bars, publications, and on the Internet, there is much that this conservative social theory would predict about a marriage-less culture: relatively less respect for relationships, monogamy, and long-term commitment, than is given to these values inside marriage-opportunity culture. This is a point Andrew Sullivan made quite persuasively in his pathbreaking book, Virtually Normal: An Argument About Homosexuality. I agree that some, perhaps much, of this is the artifact of male sexuality and not of the denial of marriage itself. But at least some of it is plausibly the product of the fact that our law gives gay men absolutely no incentive to settle down with one other person. Lesbians may not need this incentive nearly as much (though marriage is even more important to them in other ways, since they’re more likely to raise children), but gay men surely do.

American law embodies a huge asymmetry. It says to gay people, “You may have as much sex as you like.” (And it said this, in practice, long before the Supreme Court struck down the few remaining unenforced sodomy laws in 2003.) In the very same breath, it says to gay people, “There will be nothing available to you to encourage you to channel all this sex into productive and healthy long-term and monogamous relationships.” I cannot think of another significant sub-class of the population to whom that asymmetrical message is sent.

While the absence of the proper incentives does not itself make men sexual, it surely doesn’t help matters. Marriage should produce more gay couples, more gay couples who will be visibly, and in fact, somewhat more monogamous, and who will be more likely to commit to one another for the long-term. It will generate role models that gay youth, in particular, have simply not had up to now. The effects of this will probably take many years, maybe generations, to be fully felt. But felt they will be.

Perceptive sexual liberationists and some feminists see this clearly and have feared precisely this consequence of gay marriage. Michael Warner argued in his appropriately titled book, The Trouble With Normal, that gay marriage would valorize and privilege some sexual behaviors and relationships (long-term, faithful, two-person) over others (one-night stands, open relationships, and polyamorous ones). This, he suggested, would be another form of discrimination, potentially changing the whole tenor of gay life.

Precisely so. What sexual liberationists fear traditionalists should cheer. To just the extent that gay marriage has this traditionalizing effect on gay culture and the individuals who comprise it, all of us should be better off. Traditionalists, in particular, should welcome any movement in that direction.

I must admit, however, that this fourth communitarian benefit is the most speculative of the group since the factors that go into producing a "culture" are very complex. I expect marriage to help the cause of those in the gay community who want to see the values associated with marriage elevated, but I cannot say how much, or whether marriage can blunt the effect of the forces pulling the other way.

One more post later today dealing with the expected magnitude of the individualistic and communitarian benefits I have outlined. Tomorrow and Thursday, I’ll start to respond to the arguments about how gay marriage might produce harms that must also be considered.

Alito and Geography:

I suspect others have pointed this out already, but it strikes me as odd that, with political power in this country moving inexorably towards the "Sunbelt" states, the Supreme Court looks like it's getting more and more Rust Belt-ish. If Alito is confirmed, by my count that will leave only one sitting Justice -- Kennedy -- from any place west of the Mississippi River. Particularly ironic given outgoing Justice O'Connor's writings on the subject and her views of the importance of the "western" perspective.

Was it Yale Law, or Have Times Changed?:

I attended Yale Law School from 1988-1991, and the atmosphere of political correctness, enforced via social sanction (e.g., one could get socially ostracized by a significant segment of your classmates for a host of pecadillos, such as referring to a very young woman as a "girl," or, worse yet, arguing in Contracts class that Williams v. Walker Thomas Furniture was wrong*), was almost unbelievable.

So here I am visiting at another elite Law School, the University of Michigan, fourteen years later. A student walks into my class proudly wearing a JAG t-shirt, which would have gotten him virtually tarred and feathered at Yale (because of the military's anti-gay policies); the student newsletter has a photo spread of the Law School Senate's Halloween party featuring, among other things that I'm sure I never would have seen at Yale Law, five women dressed up as "St. Pauli's girls", and one woman dressed as a Playboy bunny; several men dressed as women; and two students dressed as Michael Jackson and Prince, respectively. Meanwhile, to top it off, the executive editor asks elsewhere in the issue, "Why don't undergrad girls wear clothes anymore?.... Do these girls own pants that fit?"

So, I'm wondering: has political correctness at elite law schools declined across the board, or is [was?] Yale just a "special place?"

*[Update: This is a slight exaggeration, but a classmate of mine told me [only recently] that a significant number of my Yale classmates shunned me [first semester] because of "what you said in [first semester] Contracts class." I responded that I don't remember saying anything all that controversial--after all, we didn't discuss abortion, affirmative action, gay rights, or any other especially hot button issues in Contracts class, and my views on such issues were not especially out of the mainstream at Yale, anyway. My classmate responded, and I swear he seemed at least 80% serious, "yes, but you kept saying that contracts should be enforced." By contrast, a friend of mine who attended University of Chicago at the same time told me that his classmates gave a student a bit of a hard time for arguing that Walker was correctly decided, which suggests individual school differed greatly then, and perhaps I shouldn't generalize from my Yale experience.]

FURTHER UPDATE: I'm glad to see from some of the commenters that the atmosphere at YLS has apparently changed for the better, though I'm not sure why they seem to believe that this means that my account of the atmosphere a decade earlier is false. Also, I'm only referring to the student atmosphere; the faculty, led especially the dean, Guido Calabresi, were scrupulously fair and open to students of all political persuasions, in my experience; they, and good friends, made my time there very happy.

David Frum's Prediction on the Alito Nomination: "My guess: After a week of fussing and some intense hearings, Alito goes on the bench with at least 65 votes and probably more like 70+."
People Unclear on the Concept:

In the comments thread to one of Dale Carpenter's posts on same-sex marriage, I admonished a commenter for calling another's comments "asinine." A third commenter responded:

Lessons I learned from Professor Volokh: Using the word 'assinine' is wrong, but comparing gay people to brother/sister incest is OK.

Racial invective, wrong. Incest comparison, OK.

Religious bigotry, wrong. Incest comparisons, OK.

Sexism... well, that's usualy OK, as long as it's not too overt. But if it's overt, it's wrong, and comparing same sex relationships to incest is OK. . . .

Except for his bottom line, the commenter is almost precisely correct: Our general policy in the comments is generally to tolerate a vast range of substantive argument, because it's important that those arguments be aired. For instance, the analogy of same-sex marriage to incestuous marriage is sometimes an important and eminently legitimate argument (though most certainly not a dispositive one, which is why I myself support recognizing same-sex marriage but do not support recognizing most incestuous marriages). To take the most obvious example, if someone is arguing — as Dale Carpenter is not, but as some do — that consenting adults have an inherent right to have their marriages be legally recognized, then it's entirely fair (and in my view persuasive on this point) to point out that this argument would legitimize incestuous marriages as well as same-sex marriages.

However, all arguments — good or bad, bigoted or saintly — should be framed without the use of personal insults or invective, since such devices are not only offensive and likely to lead to a worsening of the discussion, but also unnecessary. Offensive ideas, fine; offensive modes of expressing those ideas, unnecessary and thus not fine. Cohen v. California is a good guide for constraining government repression of speech. I don't think it's a necessary or wise rule for editorial decisions in publications such as this one.

My critic then responded: "You're failing to see that the legitimizing of the analogy is, in it's self, an insult. Incest is not mentioned because it's gaoing to happen, it's mentioned because there's a moral taboo around it, and an odd one, because distant cousins marrying is somewhat OK, but not siblings. Siblings don't choose to marry knowing they're siblings, but the comparison contains the same taboo. What the opponents of same sex marriage are trying to do is invoke the taboo, and the sense of moral dissaproval. It's the same with the 'gays are promiscuous' attacks. Cloaking it in politeese changes nothing. Bigotry is by nature, rude."

Folks, let me mention something that I hoped I didn't need to: If you don't like reading arguments that condemn homosexuality or homosexual relationships, don't read a debate on same-sex marriage. Conversely, if we were to exclude all arguments that you think of as "bigotry" against homosexuals, or that convey "moral disapproval" of homosexuality, it wouldn't be much of a debate, would it?

As it happens, I support legislative recognition of same-sex marriage, for many of the reasons that Dale does. I hope that the debate between Maggie Gallagher and Dale Carpenter will persuade some readers to join me in this. I think that our side has the better arguments, so I'm happy — both as an abstract intellectual matter and as a tactical political matter — to have people hear both sides.

But you can't rebut substantive arguments by simply condemning them as rude "moral disapproval" of homosexuality. The whole point is that many people do morally disapprove, in some measure, of homosexuality, or at least find homosexual relationships less morally worthy than heterosexual ones. To persuade the audience, you have to let these arguments be aired and then respond to them on the merits. That, at any rate, is the theory of this blog.

Finally, as I've noted before, let me preemptively respond to the near certain response: "But would you let commenters advocate the Holocaust? Slavery? Mass rape?" Well, though I support same-sex marriage, we need to have some sense of perspective: The denial of equal rights here ain't the Holocaust. There may well be a pale that certain things are beyond. Yet the pale should be pretty far out, and the fact that advocacy of mass murder is beyond it doesn't tell us much about condemnation of homosexuality.

But — vastly more importantly — no matter how deeply you support equal rights for gays and lesbians, remember that we are in the minority. Some views are so marginal that you can just ignore them, or conclusorily condemn them as evil and not see the need to confront them on the merits. That's just not true as to opposition to same-sex marriage, or condemnation of homosexuality. You're up against the majority view. It's got to be confronted, not just peremptorily dismissed as rude. Get clear on that, and perhaps you'll win; ignore it, and you'll lose.

[Puzzleblogger Kevan Choset, November 1, 2005 at 12:02pm] Trackbacks
What do these words

have in common?

  • Wash

  • Ham

  • Steeple

  • List

  • Blue

  • Book

Volokh Conspiracy Generally Pleased Hour in D.C. on Friday, November 11:

I'm told that it can't be quite a happy hour, because we're having it at 8:30 pm. But then again it will probably last more than an hour. All I can say is that some of my coconspirators and I will be hanging out at the Town & Country bar at the Mayflower Hotel, 1127 Connecticut Ave. (which is right near the Farragut North metro stop), starting at 8:30 pm on Friday, November 11. Hope to see you there!

[Dale Carpenter (guest-blogging), November 1, 2005 at 10:35am] Trackbacks
The Traditionalist Case -- Individualistic Benefits to Children:

Children raised by married couples do better in school, are less apt to commit crime, less likely to use and abuse drugs, and so on, than children raised by single people or by unmarried couples. Right now children being raised by gay parents have no access to these advantages. Part of the case for gay marriage rests on protecting these children’s families in marriage, thereby benefitting the children themselves.

1. Gay parenting: data and existing policy

As I have noted, there are probably between 1 and 2 million kids being raised in households headed by a gay person, single or coupled. Of these 1-2 million, the Census tells us that children are being raised in at least 162,000 households headed by same-sex unmarried partners. If we assume, conservatively, that these households average 1.5 children each, that’s about 250,000 kids being raised by unmarried gay partners. As I’ve said, even this is almost certainly an undercount of the children being raised by gay couples in the U.S.

Most often gay parents are raising their own biological children produced during a prior failed heterosexual marriage. Judith Stacey and Timothy Biblarz, “(How) Does the Sexual Orientation of Parents Matter?”, 66 Amer. Sociological Rev. 159, 165 (2001). Other gay parents get kids through adoption, the process by which gay parents rescue children from the public child welfare system after heterosexual sex has produced children that their biological parents can’t, won’t, or shouldn’t raise. More rarely still, gay parents get these kids through the use of reproductive technologies or surrogacy.

How are these kids doing, even without marriage protecting their families? The available studies on the effects of gay parenting, while not methodologically ideal, seriously undermine any argument that gays are not at least competent to raise children (the “competence argument”). While the studies may not yet prove that gay couples are just as good as heterosexual couples at raising children (the “optimality argument”), they point strongly to the conclusion that gays are at least fit parents.

William Meezan and Jonathan Rauch, who support same-sex marriage, recently reviewed most of the literature on same-sex parenting, including more than 50 studies, many literature reviews, and dissertations and conference papers dating back to the 1970s. William Meezan and Jonathan Rauch, “Gay Marriage, Same-Sex Parenting, and America’s Children,” 15 The Future of Children 97, 100 (2005) (available at There are methodological problems with many of the gay-parenting studies, as Meezan and Rauch acknowledge. These problems have to do with things like small sample sizes, non-representative samples, and the like. But Meezan and Rauch looked, in particular, at four recent studies with sound methodologies, including large and representative samples, and one which looked at long-term effects. The recent studies reached the same conclusions as the previous studies on the issue.

Three conclusions from their review of the data and studies are most relevant to this debate: (1) lesbian and gay parents are very similar to heterosexual parents; (2) children of gay parents are no more likely to be confused about their gender identity or to be homosexual; and (3) children of gay parents “show no differences in cognitive abilities, behavior, general emotional development, or such specific areas of emotional development as self-esteem, depression, or anxiety.” Meezan and Rauch, at 103. In fact, as Meezan and Rauch note, in some ways children raised by gay parents do better than the children raised by heterosexual couples. This is probably partly a consequence of the fact that for many gay couples having and raising children is a careful and deliberate choice for which they have prepared themselves financially and otherwise over a long time period; “oops” babies are not a phenomenon common to gay life.

While more work must be done to shore up these conclusions, a strong provisional judgment can be made that gay people are at least competent – not unfit – to raise children.

But don’t take my word for it or the word of these researchers: It is the policy judgment of all 50 states that gays are competent to raise children. In no state are gays categorically prohibited from raising kids. In 49 states gays may adopt children. (In only one state, Florida, are gays prohibited by statute from adopting children and even there gays are allowed to serve as long-term foster parents.) In many jurisdictions, the unmarried partner of a child’s parent may become the legal “second-parent” of the child. In child-custody disputes between divorcing biological parents, one parent’s homosexuality is never a categorical bar to custody and is increasingly not even viewed as relevant per se to the custody decision. Gays may also use reproductive technology to procreate kids and may enter surrogacy arrangements, just as straight couples may.

The national public-policy verdict is in and it is decisively in favor of gay parenting. The argument that gays are not competent to raise children has no factual basis, no support in the research, and no support in public policy anywhere in the country.

Then there’s the optimality argument. We don’t know how married same-sex couples would compare to married opposite-sex couples in raising children because we haven’t had gay marriage anywhere until very recently. Comparisons between straight married couples and unmarried gay couples to prove the optimality argument are off the mark, and premature. Many people have a powerful intuition that, all else being equal, an opposite-sex couple would be better at child-raising than a same-sex couple. It’s a reasonable proposition, and it may be correct, but there’s no direct evidence for it. The studies on the effects of fatherlessness are not evidence for the optimality argument, since these studies largely compare married couples to single parents and reach the rather obvious conclusion that two married parents do better on average than one single mother. And of course none of this fatherlessness literature compares gay couples to straight couples. Maybe opposite-sex couples are generally better than same-sex couples at raising kids, maybe they aren’t. We don’t know. But as I will now argue, it doesn’t really matter to the debate on gay marriage.

2. Children and the gay-marriage debate

Even if we conceded what most people assume – that opposite-sex married households are the best environment for raising children, and in particular would be better than married same-sex households — that’s no argument against gay marriage. Gay marriage won’t take children away from mothers and fathers who want to raise their children together.

No responsible opponent of gay marriage advocates removing all children from the care of gay parents. I suppose that could be proposed and we could debate it, but such an unimaginably cruel and destabilizing policy is not even on the table. So whether or not gay marriage is allowed, children will continue to be raised by gay parents in very large absolute numbers.

The only real question is, will these 1-2 million children be raised in homes that are eligible for the protections and benefits of marriage or will they not be? If it’s better for children to be raised by married opposite-sex couples than by unmarried opposite-sex couples (as the evidence shows it is), it would surely be better for children to be raised by married same-sex couples than by unmarried same-sex couples. The marriage of their parents will have some effect and it won’t be to make them worse off. For purposes of the gay-marriage debate, that’s the relevant comparison, not the comparison between existing married opposite-sex couples and hypothetical married same-sex couples.

I suppose the optimality argument would be relevant if gay marriage would encourage gays to procreate children, through reproductive technologies and surrogacy, that they would not procreate in the absence of marriage. Given the expense and uncertainty involved, the numbers of people who use these methods are so small that any such effect would be trivial. Any disadvantage from the optimality perspective would, in any event, likely be overwhelmed by the advantages given (1) to the much larger number of children already living in gay families and (2) to the children such families will continue to raise in the future through the more common routes I’ve listed.

Gay marriage might also increase the number of children gay families adopt. But given that there’s no shortage of children who need adoptive parents, and given that child-welfare experts agree that adoption is far preferable to foster care, any increase in adoptions should be seen as a benefit – not a harm – of gay marriage.

Further, while everyone assumes that gay marriage will mean more gay parenting, the opposite might well occur. Many gay parents are raising children from heterosexual marriages they entered in the hope of escaping their own shame or the consequences of anti-gay stigma. To the extent gay marriage reduces that shame and stigma over time, we should expect to see fewer gays entering such marriages and producing children through them, children that will have to undergo the pain and dislocation of divorce. Stacey and Biblarz, at 165.

Traditionalists are rightly concerned about the stability of home life for children. Gay marriage, in many conceivable ways, should lead to greater stability in hundreds of thousands of homes raising children in this country. The result should be that, to some extent, these children will do better in school, be less likely to commit crime, be less likely to use and abuse drugs, and so on, than they would be if we continue to keep their parents from marrying. If it’s really a concern for children that’s motivating opponents of gay marriage, they should be pounding the table for gay marriage as a way to protect millions of children.

A. Leon Higginbotham: "Alito Is My Kind of Conservative": The Legal Intelligencer has a fascinating interview with self-described liberal and former Third Circuit Judge Timothy K. Lewis about Samuel Alito. The article is important not only because it reports Lewis's very positive views about Alito, but also because it recounts how the late liberal judge A. Leon Higginbotham was a big fan, too:
  "To call him 'Scalito' is to completely misunderstand him," said attorney Timothy K. Lewis of Schnader Harrison Segal & Lewis, a former 3rd Circuit judge who was Alito's colleague for seven years.
  Lewis, who describes himself as liberal, said Alito is solidly conservative and that the two sometimes disagreed, but that it was "always a deeply respectful disagreement."
  "First and foremost," Lewis said, "Sam Alito is intellectually honest. This is what makes him a wonderful judge and also why I feel very good about his appointment to the Supreme Court."
  Lewis recalled that when he joined the 3rd Circuit in 1992, he met with the court's former chief judge, A. Leon Higginbotham, to discuss the cast of characters who would soon become his colleagues.
  When Alito's name came up, Lewis said, Higginbotham, who died in 1998, had only good things to say. "He said 'Sam Alito is my kind of conservative,'" Lewis said, and went on to describe Alito as "full of integrity" and "a pleasure to sit with."

  Lewis said Higginbotham's description proved to be an accurate one, and that, despite their occasional disagreements, he found Alito to be a "careful" and "thoughtful" judge who is “reticent to the point of being shy.”
  "Perhaps the best word to describe him is principled," Lewis said.
  Those familiar with the late Judge Higginbotham will recognize this praise as quite notable, even if it is hearsay. I think it's fair to say that Higginbotham was one of the most severe critics of conservative legal thought in his day; as I recall, his articles and books dismissed the entire project as essentially corrupt and racist. The fact that Higginbotham had such high praise for Alito is telling. (Hat tip: Howard)
More Liberal Support For Alito: This time from Rutgers law prof Ron Chen, a fellow Garth clerk. Thanks to reader Marc Bohn for the link.
New Leiter Law School Rankings:

Now available.

Jonathan Adler on Alito:

And why he's not "Scalito." In today's WSJ.

Another Law Clerk Take on Alito: The Legal Times has a profile of Judge Alito with a very interesting passage:
  According to at least one former Alito clerk, Nora Demleitner, [Alito] is not the rabid conservative he's so far been made out to be. Demleitner cites Alito's majority decision in the 1993 case Fatin v. INS, in which Alito held that an Iranian woman could be granted asylum if she could show that complying with her country's "gender specific laws and repressive social norms" would be deeply abhorrent to her.
  "To this day, it remains one of the most progressive opinions in asylum law on gender-based persecution," says Demleitner.
  A law professor at Hofstra University who clerked for Alito from 1992 to 1993, Demleitner said she and her former clerks are scratching their heads at the appellation "Scalito," which news reports say is Alito's nickname, and which plays into the notion that Alito is a carbon copy of Justice Antonin Scalia.
  "The only thing we can think of is demographics," she says. "They're both Italian Catholics from Trenton.
  "He's not an originalist; that's the most important thing. I don't see him saying, 'As the Framers said in 1789,' the way Scalia writes his opinions," adds Demleitner, who says she's a liberal Democrat. "I was listening to one reporter this morning and I thought she was describing Attila the Hun and not Sam Alito."
Alito, Not Scalito: Ann Althouse has a thoughtful and interesting op-ed on the Alito nomination in the Tuesday New York Times.
Viewing Rosa Parks at the Capitol Rotunda: Spencer Overton blogs the experience.

Monday, October 31, 2005

Alito on Precedent: The Washington Post has a report that includes a bit on Judge Alito's meeting with Senator Specter:
Yesterday, Specter met with Alito for more than an hour. He later told reporters the nominee signaled he would be reluctant to overturn any Supreme Court ruling that had been reaffirmed many times over many years, as Roe has been. "I think he went farther than [Chief Justice John G.] Roberts went" in agreeing that long-standing rulings deserve great respect, Specter said. "He used the term 'sliding scale,' and said that when a case has been reaffirmed many times, it has extra -- I think he said 'weight' -- as a precedent."
The VC Had About 65,000 Visits On Monday, at least according to Sitemeter. Okay, so it was probably just our usual readers who nervously hit "refresh" all day to make sure they had the latest on the Alito nomination. But hey, it's still pretty cool. Thanks to everyone for visiting.
[Dale Carpenter (guest-blogging), October 31, 2005 at 11:03pm] Trackbacks
Response to Commentators -- Day 1:

Today's posts have obviously spawned a lot of commentary, though I think Maggie wins in sheer volume. Many of the commentators are responding effectively to each other, and some of the questions raised (especially related to various slippery slopes, and possible harms to marriage) will be addressed in coming days, so I won't add much now.

First, as one commentator reminded me, and as I wrote in an essay on National Review Online last week (available at, I think gay-marriage advocates have the burden of proof in this debate. But I think the burden can be met.

Second, I have been struck by how quickly the debate among commentators has centered on gay male promiscuity. I'll address the promiscuity question tomorrow, as I think it goes mostly to the magnitude of the benefits I'm outlining, and again when I get to the prominent arguments against gay marriage. But for now, I'll just note that it shows the debate about gay marriage is often conducted as if it's only really a debate about guy marriage.

Third, one commentator asked why anything at all must be done about gay families. Why not just do nothing? That has been the default position of most traditionalist conservatives for some time now, while familial tectonic plates are shifting under their feet. It's what I'd call malign neglect. If there's one thing the past 40 years or so should have shown us, it's that we ignore the health of families and family structure at our peril. I hope I've shown so far that doing nothing, pretending that the welfare of millions of people in gay families is of no concern to public policy, is not an attractive option for a traditionalist who cares about families and marriage.

Finally, I want to thank Anna for noting one benefit to gay marriage that I hadn't thought about directly: when couples get married it improves the lives of the people who love them by reassuring them that their loved one is being cared for, and are less likely to live, as Anna put it, "lonely and depressed" lives.

My mother, who is 61, recently married a man who is 77 and with whom she'd lived for 18 years. Their sex will not make babies, yet everyone in both families was thick with happiness for them. Why did she marry? Did it change anything in a relationship that was already a marriage in just about every way except the name and the license? When I asked her this, she responded, "Now we're more one." I don't fully understand the magic of that moment, but I didn't have to understand it in order to know that I was more at peace about her future.

"Implicit" = "Explicit"?

One more item that struck me in Dahlia Lithwick's piece on Judge Alito's nomination (emphasis added):

"So rededicated is President Bush to keeping his promise to elevate a Clarence Thomas or an Antonin Scalia to the high court, that he picked the guy in the Scalia costume. Alito offers no surprises to anyone. If explicit promises to reverse Roe v. Wade are in fact the only qualification now needed to be confirmed to the Supreme Court, Alito has offered that pledge in spades: In Planned Parenthood of Southeastern Pennsylvania v. Casey -- which later became the case that reaffirmed Roe, Alito dissented when his 3rd Circuit colleagues struck down Pennsylvania's most restrictive abortion regulations. Alito felt that none of the provisions proved an undue burden, including a requirement that women notify their spouses of their intent to have an abortion, absent narrow exceptions. Alito wrote: "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion."

Sandra Day O'Connor rejected that analysis, and Casey reaffirmed the central holding of Roe. Then Chief Justice Rehnquist quoted Alito's dissent in his own.

Is it really fair and accurate to describe Judge Alito's opinion in Planned Parenthood, whether one agrees with it or not, as an "explicit promise[] to reverse Roe v. Wade," a "pledge" "offered . . . in spades"? Judge Alito was applying the "undue burden" test -- a test that would strike down pre-viability abortion bans, but that would uphold some not very well-defined set of regulations that fall short of bans -- to determine the constitutionality of a spousal notification requirement, a requirement that was indeed quite short of a ban. He read "undue burden" narrowly; the Court read it more broadly.

Perhaps this should lead people to infer that he would reverse Roe if he had a chance. But an "explicit promise[]"? A "pledge" "offered . . . in spades"? True, writers may be allowed some latitude for hyperbole, but isn't "explicit" used as a figure of speech for "implicit" (or, to be more precise, "inferred by me, not implausibly but far from provably") going a little far?

Defining Viciousness Down:

Dahlia Lithwick has what strikes me as a rather overheated criticism of Judge Alito. One item that particularly jumped out at me (emphasis added):

It's magic. Almost as if the whole Harriet Miers debacle never happened, President Bush has rapidly retreated from his judicial preferences of last month. . . . In the true spirit of Halloween, a month of vicious attacks from the right has been papered over, and this nomination is dressed up as if the last one never occurred.

Is it really fair and accurate to describe the criticisms of Harriet Miers as "vicious attacks from the right"? One may agree or disagree with the criticisms from the right, but "vicious"? Really?

Incidentally, would this, this, this, and this qualify as "vicious attacks from the media"? I actually don't think they do, but the stuff I'd seen from the right wasn't generally much more hostile than these items.

"One Liberal Who Likes Alito":

David Kravitz of Blue Mass. Group writes:

Katherine (Kate) Pringle is a partner in a New York law firm. She is also a progressive Democrat who was heavily involved in John Kerry's presidential campaign. And after she graduated from law school in 1993, she spent a year working as a law clerk to Third Circuit Judge Samuel Alito, Jr.

In light of this morning's nomination of Alito to the Supreme Court, I called Pringle to get her take. The short answer: she is very pleased with the nomination. . . ..

I asked Pringle to describe what kind of judge Alito is. She said that Alito is "very thoughtful, very careful, very respectful of Supreme Court precedent. He has a strong conservative intellectual approach to things, but he is respectful, honest, and straightforward." She emphasized that Alito is very respectful of the litigants in the case before the court, and also of the opinions of his colleagues - he always looks for common ground and for opportunities to build consensus. She added that he is "not out there to accomplish a specific agenda," and noted his respect for "the Supreme Court as an institution." Incidentally, Alito's "respect for litigants" was echoed in this NPR story that interviewed Clark Lombardi, also a former Alito clerk (I do not know whether Lombardi self-identifies as a liberal or a conservative). Lombardi emphasized that Alito was very aware of the "human side" of cases, and said that Alito never treated litigants as pawns in a grand ideological chess game. . . .

If you've heard any news stories about Judge Alito, you've heard that his supposed "nickname" (it remains unclear by whom it was bestowed) is "Scalito," the idea being that he's a "little Scalia." I asked Pringle if she thought this was fair to Alito. "No," she said, "I never have." Pringle noted that Scalia and Alito are of course both of Italian ancestry, are both Catholic, and are both conservative, but she thinks there are more important differences between them including temperament, personal style, and the desire (or lack thereof) to find consensus. . . .

Pringle, as I noted earlier, is a liberal Democrat. I wondered whether her ideological bent was an anomaly in Alito's chambers, or whether Alito routinely hired left-of-center law clerks. She didn't know whether Alito intentionally hires law clerks with diverse viewpoints, but she did know that she was not alone - a good number of Alito's past law clerks are far more liberal than he is. She also emphasized that Alito was always asking his clerks for their viewpoints, and that he enjoyed the debate when different opinions emerged on particular cases (this, too, was echoed in the NPR interview with ex-clerk Lombardi). . . .

For more, read David's entire post. Naturally, keep in mind that law clerks tend to be quite fond of the judge for whom they clerked; though we all think that this is because we're unbiased observers (though in my case, it's true!), of course some degree of personal affection doubtless creeps in to the analysis. Still, this seemed worth passing along.

New York Times Profile of Judge Alito: The Tuesday New York Times has a very good profile of Judge Alito that I think captures him pretty well. An excerpt:
  Judge Alito's jurisprudence has been methodical, cautious, respectful of precedent and solidly conservative, legal scholars said. In cases involving the great issues of the day - abortion, the death penalty and the separation of church and state - Judge Alito has typically taken the conservative side.
  Yet he has not flaunted his political views inside or outside the courthouse. Friends say Judge Alito seems to have inherited a distaste for shows of ideology from his father, an Italian immigrant who became research director for the New Jersey Legislature and had to rigorously avoid partisanship.
  Judge Alito won prestigious academic prizes while at Princeton and Yale Law School, where he stood out for his conservative views, which were in the minority, as well as for his civility in engaging ideological opponents.
  "The notion that he's an extreme conservative is wrong," said Mark Dwyer, Judge Alito's fellow student at Princeton and roommate at Yale. "Sam is conservative because he's a straightforward believer in judicial restraint - that is, a judge's personal views should not dictate the outcome of the case."
  Even in the Reagan Justice Department, where a palpable sense of conservative triumph was in the air, "I never got the sense that he thought about legal issues in an ideological way," said Mr. Manning, now a professor at Harvard Law School.
  Read the whole thing.
Espitia and Eberhart: While law geeks everywhere were focused on the Alito nomination today, it is worth noting that the Supreme Court issued two per curiam summary reversals this morning. The first, Kane v. Espitia, is a 2-pager that unanimously reversed a Ninth Circuit panel for failing to apply AEDPA (shocked, aren't ya?). The second, an in forma pauperis case called Eberhart v. United States, clarified the statutory deadlines for filing new trial motions in federal criminal cases.

  Thanks to Doug Berman for the heads-up. (Oh, and for the curious, the Ninth Circuit panel was Canby, Rawlinson, and David Hansen from the 8th Circuit.)
Julian Sanchez Looks At the Alito Record: Julian Sanchez has a helpful post explaining the inaccurate or misleading claims common to some of the initial attacks on Judge Alito's record. I share Julian's basic take here; based on my initial read through some of Alito's key opinions, it seems to me that a lot of the critical spin is hard to square with the opinons themselves.
Alito's College Professors and Classmates Weigh In, from the pages of The Daily Princetonian.
[Dale Carpenter (guest-blogging), October 31, 2005 at 5:38pm] Trackbacks
The Traditionalist Case -- Individualistic Benefits to Gay Couples and Individuals:

When marriage is strong our society is strong: married people are on average healthier, wealthier, and happier than unmarried people. Marriage materially helps families in at least three different ways: there are legal benefits, caretaking benefits, and social benefits. It obviously also benefits the individuals in these families in ways material and, importantly for the traditionalist, moral.

1. Benefits to gay couples

First, the legal benefits are numerous and important, and they come from all levels of government and even from private sources like employers. Most of them help couples during the hard times, as when a spouse is sick, injured, or dead: the right to inherit from one another without estate taxation (even without a will), orderly division of property upon dissolution, rights to child custody and support payments, state and federal tax advantages, the right to visit a sick or dying spouse in the hospital, the right to make medical decisions for a spouse in the event of incapacity, the right to bring a wrongful death action, benefits to a surviving spouse and children through Social Security, testimonial privileges, and immigration rights, to name a few. Public and private employers link marriage to all manner of benefits, from family medical leave policies to care for a sick spouse to health insurance for marital families.

No, marriage is not just a bundle of goodies, like Santa Claus arriving after the ceremony. But the legal rights and obligations attached to marriage come into play when you need them most. Try keeping your house when the tax bill comes after your “unmarried partner” dies and kindly transfers her interest to you. Who gets the child you’ve been raising, the child who’s only ever known you and your unmarried partner as parents, when only she was the child’s legal parent? The destabilizing effects of these problems should be obvious, and they are visited on all of us eventually. Gay couples trying to stay together and support their families need legal support, and could benefit from it, much as straight couples do. (I realize that these and other legal benefits could be given to gay couples seriatim, but that runs into other difficulties like, which should be granted and which denied, and why? Plus, for reasons I’ll discuss Friday, a “menu” approach to marital benefits for non-marital couples raises problems of its own for the traditionalist defender of marriage.)

Second, the caretaking benefits are at least as important. Marriage, by social expectation and custom and in some ways by law, makes one other person responsible for your well being. This provides you with an on-the-scene doctor, police officer, and firefighter. It’s better than any government program could be at serving this caretaking function.

Gay families have problems like everyone else. Gay people have just as great a need for love and affection as straight people; gay couples are just as capable of loving one another, of sacrificing for another, of committing to one another, as straight couples. Encouraging the formation of gay-couple households through marriage will make it more likely that another person will be there when trouble comes in life, as it always does.

Third, there are the social benefits. In our culture, marriage is the way couples signal the ultimate commitment to one another; and through marriage they communicate this deep commitment to their families, to their friends and co-workers, and to their communities. That commitment is then reinforced by the web of familial and other relations, created by marriage, that they have around them. This reinforcement helps strengthen their bond, and therefore their family. It helps keep them together, especially in tough times.

Gay couples need this sort of reinforcement and suffer for the lack of it. As of now, no gay relationship can reach the cultural pinnacle signified by the words, “Will you marry me?” Telling your families and friends that you are “partnered” will not, usually, signal the same depth of commitment that marriage would. And if they doubt whether you have invested heavily in your relationship, why should your families, friends, and communities invest heavily in it?

The benefits of each of these categories – legal, caretaking, and social – can be obtained to some extent by gay and straight couples outside marriage. An unmarried couple can approximate some of the legal benefits of marriage through wills, trusts, powers of attorney, and so forth. They can, of course, pledge to take care of one another and many do. Their families and friends will often respect and be happy about their relationship. Gay families in particular, given the obstacles they have faced, have done a truly heroic job keeping themselves functioning.

But nothing substitutes completely for marriage on any of the dimensions I’ve listed; surely no traditionalist advocate of marriage would think they could. For example, obtaining a measure of legal protection through contract is expensive, time-consuming, and incompletely protective. If the legal, caretaking, and especially social benefits of marriage were not significant, many fewer opposite-sex couples would bother to marry. On average, not surprisingly, marriages last longer and are more stable than unmarried cohabitation. This disparity is at least partly due to a symbiosis: what marriage gives to the married couple and what they give to their marriage.

2. Benefits to individuals

So far, every gay person has lived without the prospect of ever marrying the person she loves, to whom she is committed, and with whom she wants to form a family in a commitment that carries the prospect of a life-long bond. The marriage exclusion denies gay Americans the most powerful social and legal institution we have for encouraging the kind of commitment that makes for a better and richer life. Maybe the exclusion can be justified, but we must acknowledge that it is a serious deprivation.

To the extent gay relationships thrive under a regime of marriage, the individuals in them should be better off in several material ways: more healthy, more wealthy, more happy.

But they may be better off morally as well. Traditionalists are not concerned simply with the material well-being of our society, or with the material well-being of the individuals that comprise it. They are concerned with the moral well-being of our society and its individuals. Traditional morality favors monogamy over promiscuity, stable relationships over unstable ones, marriage over non-marriage. Gay marriage offers the sexually active gay person who wants it the chance to live as morally traditional a life as is possible for him. It is not, for traditional morality, an ideal, since it is still homosexual and sexually active. But it is the closest approximation such a person can come to that moral traditionalist ideal.

Some moral traditionalists will object that no sexually active homosexual can lead a moral life, even one committed monogamously in marriage to one other person, because traditional morality also favors heterosexual acts over homosexual acts. (Full disclsoure: I do not myself share the view that homosexual sex is intrinsically immoral.) A moral traditionalist friend of mine once remarked that it would be better, from the perspective of his religious faith, for a gay person to commit 1,000 sexual acts with 1,000 strangers than to commit 1,001 sexual acts with one partner with whom he shared a marital, monogamous, loving, life-long commitment.

There’s nothing, finally, that I can say to that objection if you are really committed to the idea that there is no consideration of degree here, no thought to be given to the context in which otherwise morally objectionable acts are to occur. But I suspect that to very many moral traditionalists, the moral choice involved in the above example is clear and that it favors the marital, monogamous, loving, life-long commitment. The moral preference here is what we might call a form of moral satisficing, whereby we sacrifice the optimal result, which seems likely to be unattainable (heterosexual marriage for the homosexual), in order to achieve a satisfactorily good result. Perhaps not many married gay couples will attain this moral satisficing ideal (many straight couples do not attain it, either), but at least they will have the opportunity to attain it. Until now, they have been denied even this moral possibility in their lives.

In short, we can reasonably say that gay marriage will bring identifiable benefits to hundreds of thousands of identifiable families and millions of individuals in this country. We have reason to wonder just how large these benefits will be. That’s a question I’ll try to address tomorrow after presenting the communitarian benefits. But I cannot see a reasonable argument under which there would be absolutely no benefits at all.

I certainly don’t want to make gay marriage sound like a government benefits program for a downtrodden people, like it was the forgotten element of the New Deal or the Great Society. Gain to gay couples and individuals is a necessary but not sufficient part of the case I’m making. The public interest in gay marriage must also be identified. But to the traditionalist, who cares about the stability of society and families, the presence of any such benefit must at least be counted for something in the scales. What’s more, the children being raised by these families should benefit as well. That’s for tomorrow.

Catholic Humor:

I know I'm treading on thin ice reprinting humor about Catholics, but I found this to be funny, and assume it's meant affectionately (via Benedict Blog).

Top ten changes the Catholic majority will make at the Supreme Court (see above link for full list):

9) Oral arguments in Latin;

7) Collections between each session of oral argument;

6) Supreme Court windows replaced with stained glass;

3) Supreme Court opinions will be deemed infallible and unreviewable by any earthly authority [[original]Ed. - Sorry - that does not appear to be a change at all]

And, the number one change which a Catholic majority would make to the Supreme Court . . .

1) Wednesday night bingo!

Alito and the Changing Face of Conservatism:

One of the more interesting elements of the Alito is what it says about the changing face of conservatism in the United States and the general drift of ethnic Catholics (some might say "urban Catholics") toward the Republican Party. Alito, along with Scalia, now makes the second ethnic Catholic to be appointed to the Court (no Poles yet, of course). I have yet to see an in-depth profile of his personal life, but one profile I read this morning indicated that he is the son of an Italian immigrant who worked in the New Jersey State Government, presumably from a relatively modest background (I'm just speculating on that point for now). Thus, three of the most conservative Justices (probably the three most conservative) on the Supreme Court would be a black man raised in Georgia poverty and two Italian-Americans, all Catholic as well. This group traditionally has been Democratic and liberal in orientation, which adds to the puzzle. Perhaps this is simply an isolated coincidence, but I wonder whether this demographic fact says something deeper about the nature of modern conservatism and political alignments in the country. In the possibility that there is something larger at work here, I'll take a stab at trying to offer an explanation.

In true old-world style, his mother is even named Rose (yes, her name is actually "Rose Alito" from New Jersey--no word from Bruce Springsteen on the nomination). The New York Times has some great quotes from her in its profile of him:

Alito's mother, Rose, who will turn 91 in December, spent Monday fielding congratulatory telephone calls from her home in Hamilton, N.J., a Trenton suburb. ''I'm so excited I can't even express myself,'' she said.

More candid that her son might wish, she said, ''I think he was upset that he didn't get there in the first shot, that Miers got it.'' That was a reference to Bush's choice of Harriet Miers, since withdrawn.

If confirmed, Alito would be the fifth Catholic on the Supreme Court. ''Of course he's against abortion,'' his mother said, another comment supporters in Washington might wish she'd held back.

I suspect that there were plenty of us who grew up in Italian, Polish, or similar households who feel like we know Rose Alito.

I think that the demographic fact of the make-up of the conservative Justices (Thomas, Scalia, and Alito) is a remarkable statement on the nature of modern conservatism (I'm frankly not sure where Roberts fits in this). I don't know Alito, but I feel like my background growing up is similar enough to his that I will hazard a few speculations on what this says about the nature of modern conservativism. For those like myself (and I hazard to guess Scalia, Alito, and Thomas) conservatism is attractive because it now seems to be the party of meritocracy where one is judged on your character and ability, and not on your connections or demographics. As the doors of schools such as Princeton and Yale Law School (in Alito's case), and the professions themselves have been thrown open to Italians, Poles, Irish, etc., individuals such as Scalia and Alito have had the opportunity to prove themselves. All that is asked is for the opportunity to enjoy the blessings of a free country and to compete on equal terms.

Among other things, I think this cultural upbringing reflects itself in a skepticism about racial preferences in college admissions and hiring. It is difficult to say, from what I can tell, that Sam Alito's ascent to the Supreme Court came about through some sort of unfair advantage, money, or family connections. In the legal arena, I think this cultural temperament may reflect itself in a anti-elitist streak rebelling against the arrogance of the Supreme Court and the federal judiciary and a humility in the face of the common-sense of citizens as reflected through democratically-elected legislatures. These old rules and elitism historically were used by the WASPs to discriminate and exclude ethnic Catholics. From all reports I hear about Alito, he also is a genuinely human, nice, and down-to-Earth guy, or, in other words "a regular guy."

In general then, I think this is more of a populist conservatism with a strong anti-elitist strain to it. Scalia articulates this anti-elitist populism forcefully in many of his opinions, and I suspect that to the extent that Alito is fruit from a similar tree, a similar populism is present in his thought. This is Reagan-style conservatism (perhaps with a bit of Nixonian populism) rather than Bush conservatism.

(Historical footnote: Nixon actually toyed with the idea of appointing an ethnic Catholic to the Court, but in the end chose not to do so. There are some great soundbites in John Dean's book The Rehnquist Choice where you can hear Nixon speculating on whether there are any good "Poles or Italians" out there that he can put on the Court.) Strangely enough, the five most conservative members of the Court are now all Catholic.


Reading the Comments, apparently "ethnic Catholic" is more of a term of art than I was aware. I simply have in mind the more traditionally working-class Catholic cultures of Southern and Eastern Europe (Italy, Poland, plus the Irish), versus the "high Catholicism" of Western Europe (as found in England, France, Austria, etc.). As my relatives would put it, it is the difference between those "whose names end with vowels" and those who do not. I thought this was a fairly conventionally-understood distinction. Perhaps the best way to explain it is to simply illustrate it--Scalia and Alito are "ethnic Catholics" and Roberts and Kennedy are not. Judging from some of the Comments, it may only be ethnic Catholics that draw this distinction.

I should also make clear that I certainly am not implying that the world or conservatism is truly meritocratic--President Bush quite plainly illustrates the continued role of pull and family connections. Class undoubtedly still matters. I'm simply saying that for those like myself (and perhaps Alito) conservatism at least since Reagan (and perhaps even Nixon) appears relatively more meritocratic in principle than liberalism. Perhaps this perception is incorrect, but that doesn't mean it is absent. As an example, consider the changing perception of labor unions in the minds of the ethnic Americans I am describing--do they help out the "little guy" or are they an apparatus for protecting seniority and connections? You will get a strong disagreement of opinion on this issue. More relevantly, one's opinion on this is neither "correct" or "incorrect" but is rather subjective.

I deleted a paragraph from an earlier version.

That Would Be Amazing!

One of the privileges of being a professor is getting official college publications mailed right to my inbox. Here's a highlight from today's "George Mason E-Files":

Amazing Recycling Factoid

Did you know that each day, the average American city-dweller consumes 15 pounds of fossil fuels, 150 gallons of water, 3.3 pounds of food, and produces 120 gallons of sewage, 3.4 pounds of garbage, and 1.3 pounds of pollutants? Please recycle. For questions and/or comments, call Mason Recycling and Waste Management...

If they can come up with some way to "recycle" the water that I consume and the sewage that I produce each day, then I must admit that really would be amazing. I'd just hate to be the guy who gets the recycled versions...

A Few Thoughts on Alito:

A few thoughts on Alito:

1. Thomas, Scalia, Roberts, and Alito--this Court has become a powerhouse of conservative talent. The intellectual energy in the legal culture is now clearly on "the right" (broadly defined). In my Legal Times column criticizing the Miers nomination I wrote:

Inspired by thinkers such as Scalia, Thomas, Robert Bork, and Richard Posner, and nurtured by groups such as the Federalist Society and the Institute for Justice, the conservative legal movement in America has grown in confidence and competence, building a deep farm team of superbly qualified and talented circuit judges primed for this moment.

The prevailing liberalism of the contemporary legal culture was on the ropes and primed for a knockout -- only to have the president let it get off the canvas and survive this round.

In that light, Alito is clearly a big punch.

2. As Orin and others have previously noted, this makes Kennedy the crucial swing vote, even more than previously when he and O'Connor seemed to take turns on this. Given the dubious reasoning that often characterizes Kennedy's opinions in some of his more results-oriented cases, the presence of four true intellectual heavyweights on the "conservative" wing of the Court may make it harder for him to engage in his trademark flights of fancy, whereas with O'Connor's presence on the Court it was easier for him to hide as a results-oriented, unprincipled "swing voter."

3. The "Zywicki Standard": In my Legal Times column criticizing the Miers nomination I expressed my disappointment with the nomination:

There are two possible ways to think about Supreme Court appointments. One is to appoint those who will simply "vote right" on the Court; the other is to be more far-reaching and to try to change the legal culture.


President George W. Bush's nomination of Miers is a clear indication that his goal is merely to change the voting pattern of the Court. One suspects that the best that conservatives can hope is that Miers will consistently "vote right."

By the Zywicki standard, this nomination looks like a home run. It looks like I can retract my more general criticisms on this point.

A Majority of Americans (and of Liberals and of Democrats) Favors Spousal Notification.--

Is opposing spousal notification "out of the mainstream" in America?

Those of us who oppose a law requiring spousal notification of a woman's intention to have an abortion must recognize that ours is the minority view — and has been for nearly two decades. I don't think that this would put us "out of the mainstream" (because about a quarter to a third of the population agrees with us), but we should recognize that a majority of Americans from almost all backgrounds favors notification.

I just examined the Roper Poll database to see what percentage of the US public favors (and favored) a law requiring a woman to notify her husband of an abortion.

The data suggest that a pretty solid majority of Americans favors notification — young and old; black and white; Republican and Democrat; liberal and conservative; North and South; and Protestant, Catholic, and nonreligious (but not Jewish).


January 10-12, 2003


Do you favor or oppose ... A law requiring that the husband of a married woman be notified if she decides to have an abortion?


72% Favor
26% Oppose
2% Don't know/Refused


July 26-28, 1996


Do you favor or oppose ... A law requiring that the husband of a married woman be notified if she decides to have an abortion?


71 % Favor
26% Oppose
4 % Don't know/Refused

DEMOGRAPHICS, % favoring notification

70% White
71% Black
78% Hispanic
78% Republican
66% Democrat
70% Independent
60% Liberal
68% Moderate
79% Conservative
75% 18-29 years old
71% 30-39
64% 40-49
66% 50-59
69% 60-69
79% 70 and over

American National Election Study

September 1 - November 2, 1992


Would you favor or oppose a law in your state that would require a married woman to notify her husband before she can have an abortion?


63% Favor
34% Oppose
4% Don't know

Princeton Survey Research Associates

SPONSOR: Times Mirror
April 30 – May 3, 1992


As I read some restrictions on abortion that are being debated please tell me if you favor or oppose each:... requiring that married women in most cases notify their husbands before they have an abortion.


69% Favor
27% Oppose
4% Don't know

DEMOGRAPHICS, favoring notification:

68% White
73% Black
76% Hispanic
71% Republican
67% Democrat
69% Independent


January 16-19, 1992


Do you favor or oppose ... A law requiring that the husband of a married woman be notified if she decides to have an abortion


73% Favor
25% Oppose
2% Don't know


72% White
76% Black
86% Asian
73% Republican
69% Democrat
75% Independent
57% Liberal
75% Moderate
76% Conservative


1992, Life Magazine:

67% Favor notification of husband

1991, Gallup

63% Favor notification of husband

December 1989, USA TODAY

57% Favor notification of husband or partner

July 1989, USA TODAY

63% Favor notification of husband or partner

UPDATE: Some have asked about where to get these polls. As I indicated, these summaries are from the Roper Poll database. If you have a subscription, they can be accessed here. Otherwise, both LEXIS and WESTLAW have them, if your institution has a subscription to either of these. To access the Roper Poll database in LEXIS, switch to "command searching" and enter: "News;rpoll". For those with subscriptions, the Gallup Polls are available at the Gallup Brain, and the data for the 1992 American National Election Study is downloadable at ICPSR and perhaps elsewhere.

In addition, three 2005 polls show that 74-78% of Americans favor parental notification for minors having abortions, which pretty closely matches the 71-80% favoring parental notification in studies going back to the late 1980s, so there doesn't appear to be much of a trend in the last two decades in the proportion that favors notification statutes.

Religion and Gender:

A local TV reporter just interviewed me about the Alito nomination; the questions began with abortion and then church-state issues, but eventually shifted to gender -- aren't women entitled to more representation on the Court than just one seat out of nine?

I responded that gender "representation" is no more mandated than religious "representation." As this post noted, if Alito is confirmed, 22% of the Court's membership will be Protestants (Stevens and Souter) -- if Stevens and Souter would even self-describe as Protestant rather than agnostic -- as opposed to the 52% of the population that is Protestant. Should this be reason to insist on a Protestant instead of a Catholic? Should we complain about Jews' vast overrepresentation on the Court? No; no religious group is entitled to any particular representation on the Court. Likewise, I think, for no gender.

This having been said, I fully acknowledge that Presidents sometimes have considered race, gender, and religion in selecting Justices, as well as other high office-holders. I generally support race-, religion-, and gender-blindness in government hiring, it seems to me the rules may well be different for high-level government officials. (I won't go into the reasons for this here, since they're complicated, time-consuming, and tangential to my main point.)

But Presidents have done this because there are often good political reasons -- both raw politics and politics in a more statesmanlike sense -- for such decisionmaking. They haven't done this because any group is entitled to a certain level of representation; and I think it's a mistake to insist that groups are entitled to a certain level of representation, whether based on gender, religion, race, or ethnicity, in Supreme Court appointments.

Effects of Mandatory Waiting Periods for Abortions:

In light of the prominence of abortion regulation issues in Judge Alito's nomination, it is somewhat of an coincidence to see this important new paper by Jonathan Klick, "Mandatory Waiting Periods for Abortions and Female Mental Health."

Here's the abstract:

Proponents of laws requiring a waiting period before a woman can receive an abortion argue that these cooling off periods protect against rash decisions on the part of women in the event of unplanned pregnancies. Opponents claim, at best, waiting periods have no effect on decision-making and, at worst, they subject women to additional mental anguish and stress. In this article, I examine these competing claims using adult female suicide rates at the state level as a proxy for mental health. Panel data analyses suggest that the adoption of mandatory waiting periods reduce suicide rates by about 10 percent, and this effect is statistically significant. The result is robust to various attempts to control for unobservable heterogeneity and simultaneity.

Lochner Issue of NYU Journal of Law & Liberty Now Available:

The special Lochner issue of the NYU Journal of Law & Liberty is now available. My article on "Wine, Commerce, and the Constitution" (with my friend and former FTC colleague Asheesh Agarwal) is included in the issue, even though it has nothing to do with Lochner. Randy has an article as well, although his actually deals with Lochner.

The Editors have also posted a Call for Papers for upcoming issues:

Call for Papers:

The NYU Journal of Law & Liberty accepts papers on a range of topics grappling with the many issues affecting human freedom. We publish articles of every ideological stripe, particularly those that either develop or criticize libertarian or classical liberal ideas. Topics of particular interest for 2006 include:

Customary Law: Its History, Function, and Future

The Modern Right to a Jury Trial

Behavioral Law & Economics' Challenge to the Classical Liberal Program

[Dale Carpenter (guest-blogging), October 31, 2005 at 1:35pm] Trackbacks
The Traditionalist Case -- The Numbers:

Raising a family and keeping it together is important and hard work, work the state should assist. Marriage benefits both individuals and their families (individualistic benefits) and the societies in which they live (communitarian benefits).

Very few people doubt these claims; certainly the conservative opponents of gay marriage do not doubt them. I will contend that uniting gay families in marriage will produce, at least in some degree, the same kinds of individualistic and communitarian benefits that traditional marriages produce.

But first, let's look at some relevant numbers that often seem to get overlooked in this debate:

There are a lot of gay people in the United States. Of the roughly 300 million people living in this country, most surveys put the number of homosexuals in the 3-4% range (that’s based on self-reporting, so it’s probably an undercount). Taking the most conservative end of the range, that’s about 9 million homosexuals.

That’s a lot of people to leave with no reasonable prospect of ever marrying.

There are also a lot of gay families in the U.S. According to the 2000 Census, there are about 594,000 same-sex “unmarried partner” households, almost evenly split between gay male and lesbian couples. (Adults living with others were asked by the Census to classify their relationship to the others as, among other things, “husband/wife,” “housemate/roommate,” “roomer/boarder,” and “unmarried partner”). The Census data on unmarried partners can be found at The Census figure of 594,000 is a good low-ball estimate of the number of gay-couple households in the country, though it’s almost certainly an undercount since many gay couples probably reported their status as “boarders” or “roommates” rather than as “unmarried partners.”

At a minimum, this means there are 1.2 million Americans already sharing a home and a life together who will never be able to marry.

Lots of children are being raised by these gay couples. Of the reported female unmarried partners, more than 1/3 are raising children. Of the male unmarried partners, more than 1/5 are raising children. That’s about 162,000 unmarried same-sex households in the U.S. raising children. (This number, too, is almost certainly an undercount, for the reasons given above.) This data is also available at

Once we include single gay people raising children, estimates of the total number of children in the U.S. being raised by gay parents (singles and couples) range from a low of 1 million to a high of 9 million. That’s between 1% and 12 % of all the children in the country. These estimates come from Judith Stacey and Timothy Biblarz, “(How) Does the Sexual Orientation of Parents Matter?”, 66 Amer. Sociological Rev. 159, 164-65 (2001). I think the estimates on the lower end, somewhere in the 1-2 million range, are more reasonable.

That’s a lot of kids whose families by law will never be united in, and protected by, marriage; and who may well grow up thinking marriage is just another option among many.

A striking characteristic of this debate is that few opponents of gay marriage ever acknowledge the existence, extent, or needs of these families. It’s as if they are not real, as if their interests don’t count in a debate that is at least in part about them. Or, if opponents do recognize these families, they often evince little understanding of the function they serve. These families get lectured, somewhat bizarrely, for pushing 1970s disco-era selfishness, for being adults trying to satisfy personal desires for intimacy, for promoting a political cause at the cost of compromising an important social institution, and for distracting responsible people from cleaning up the mess somebody else has made of marriage.

Yet families headed by gay people are families in important ways relevant to social function and state interests. They are not simply strangers who happen to live under one roof. They are doing the hard and critical work of providing for themselves, caring for their loved ones, and raising the next generation. This is what we expect families to do.

They are not going away. If anything, their numbers are growing. The question then is, what is to be done about them? Advocates of gay marriage have an answer: let them wed. Many, though not all, opponents of gay marriage have had nothing to say up to now. I cannot see how a traditionalist, even if he does not favor gay marriage, can just ignore their fate.

This, then, gives you an idea of the dimensions of the problem and some of the familial interests involved in this debate. I don’t ask that gay families’ interests be considered to the exclusion of everybody else. I just ask that they be considered. Obviously, gay families are a small portion of all the families in the country and maybe sacrificing gay families’ interests and needs to some greater good (like the needs of traditional families), if that’s really the trade-off, is worth it. (I’ll address the trade-off argument directly later in the week.) But that calculation cannot even be made until we appreciate that, for gay families, the stakes in this debate could not be higher.

Next, I’ll identify some individualistic benefits these families might get from marriage; tomorrow, I’ll finish up on the individualistic benefits and discuss some of the communitarian ones.

Don't Expect A Showdown: A number of popular liberal blogs are portraying Alito as a right-wing nut, and are predicting that his confirmation hearings will be the Mother of All Confirmation Hearings. Here is the Daily Kos in a post entitled "The Showdown Finally Arrives":
  [T]he Right refused to accept Bush's winks and nods on Miers. They didn't just want a conservative jurist. They wanted a showcase of conservatism they could shove down the throats of the likes of us liberals and the rest of America. They wanted one of those obnoxious touchdown dances.
  Now we have a true-blood conservative on tap, and this now sets up the showdown of ideas that I think we've all craved. Thanks to Miers, ideology is now absolutely open to debate, and it's now time for America to see what conservatism really looks like. . . .
  . . . As the usual vetting process gets underway and people research his background, his writings, his speeches, and the testimony of colleagues, we'll get an even more complete picture of the man. But it's already obvious that the nuts got exactly what they wanted — a nut. Scalito is everything they hoped for and more.
  This initial reaction is to be expected, as I noted earlier today. But Alito is very far from this caricature, and it won't take people long to realize that. Reading over Alito's opinions, the striking thing about them is how modest they are. Alito is not trying to score points, make grand ideological claims, or show the world how smart he is. His opinions are simple and straightforward: they state the facts, apply the law, and call it a day. Don't get me wrong — Alito is a solid conservative. But if he were the kind of ideological crusader Kos imagines, Alito's 15-year career as an appellate judge would have left a mile-long paper trail of controversial decisions. The fact that you're not hearing about that long paper trail of controversial decisions should speak volumes.
Why I Agree Both with Smith and with RFRA:

The Religious Freedom Restoration Act, enacted in 1993, gave religious objectors a presumptive right to exemption from generally applicable laws that violate their religious beliefs — the sort of right that the Court in Employment Division v. Smith (1990) held that they didn’t have. Tomorrow, the Court is going to hear Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, in which the Justices are likely to take their first crack at interpreting the scope of RFRA. As one of the very few people who support both RFRA (as applied to federal law) and Smith, the case that RFRA rejected, I thought I’d say a few words about my unusual perspective.

NOTE: For background on the Smith/RFRA issue, see here; the remainder of this post assumes a knowledge of that subject.

The trouble with the Sherbert-era constitutional exemption model is that it requires courts to decided deeply and inevitably contested normative and empirical issues -- and not just as to narrow areas such as free speech or searches and seizures, but potentially as to every government regulatory action (and many government funding actions). Recall that the Free Exercise Clause applies equally to well-settled, traditional religious beliefs and idiosyncratic (but sincerely held) ones (see Thomas v. Review Bd. (1981)). Thus, one can have religious objections to bans on housing discrimination, assisted suicide, the duty to testify, traffic laws, taxes, and a vast range of other actions. (For some cites, see here.) Therefore, courts will have to decide: Is housing discrimination based on marital status or sexual orientation "really wrong" (in the sense that, say, a trespass is a wrong), so that every instance of such discrimination could be barred? Is applying a hoasca, peyote, or marijuana ban across the board really necessary to prevent leakage from sacramental uses to recreational uses? Are such recreational uses really harmful?

Courts would therefore be routinely resolving -- as a constitutional matter -- basic questions of drug policy, civil rights policy, tax enforcement policy, and a wide range of other subjects, applying their moral and pragmatic judgments to trump the legislative judgment. If the Constitution clearly demanded such a role for judges, then courts would have no choice but to do this. But if the text and original meaning are at least in equipoise (and I think that Justice Scalia's opinion in Boerne makes a strong case that they are at least in equipoise, and likely against the constitutional exemption model, though see O'Connor's responses in her Boerne opinion), that's a strong argument against a constitutional exemption model, and in favor of Smith.

But RFRA, despite its name and its findings, doesn't precisely "restore" the Sherbert regime. It can't, because (1) it's just a statute that creates a statutory right. It therefore doesn't give courts the final call about whether a religious exemption ought to be carved out; if courts create such an exemption and Congress disapproves of it, Congress can always repeal it (for instance, by providing that RFRA doesn't apply to drug laws). And beyond this, (2) courts' creation of religious exemptions under the RFRA regime, unlike the Sherbert regime, won't be a matter of courts' trumping the legislature's moral and pragmatic judgments; rather, courts would be implementing the legislative judgment behind RFRA, following Congress's instructions rather than superseding them.

What's more, this sort of system in which courts make the first decision about certain moral and pragmatic questions, but the legislature can step in and make a contrary decision, is very close to the courts' traditional common-law-making role. Most tort, contract, property, evidence, and even criminal law was originally made by courts, often courts applying their own moral and pragmatic judgments. The legislatures then generally codified much (though not all) of this law, and sometimes changed in the process. But it is the joint creation of courts' and legislatures' judgments.

And even after legislatures codify certain bodies of law, they sometimes return certain questions (especially defenses) to courts' judgment -- again, later correctable by the legislature if the legislature disagrees with the courts. Thus, when Congress codified the Federal Rules of Evidence, it expressly left it to courts to craft evidentiary privileges (which is a sort of defense against a duty to testify). When Congress enacted the Copyright Act of 1976, it left it to courts to further develop fair use doctrine (again, a defense against a copyright claim). Courts have interpreted the Sherman Act, the foundation of our antitrust law, as leaving it to courts to decide which restraints of trade are barred and which are permitted, so that much modern antitrust law is in practice made by courts but subject to legislative override.

RFRA does something very similar, it seems to me: It doesn't restore the constitutional exemption model of Sherbert -- because, just being a statute, it can't restore such a model. Rather, it creates a "common-law exemption model," under which courts take the lead in carving out religious exemptions, but Congress (and, under state RFRAs, state legislatures) can repeal such exemptions if it comes to a different moral and practical conclusion than the courts did.

So, the bottom line:

(1) The "courts shouldn't trump the legislature's moral and practical judgment" (at least as to the broad range of government regulations, rather than the rather narrow set of regulations that restrict speech, allow searches and seizures, and the like) argument doesn't apply to RFRA. Even if, as Smith holds, courts shouldn't be able to impose their own views as a final constitutional matter, the common law tradition provides ample support for their creating defenses subject to legislative override -- having the first word, rather than the last. And this is especially so given that Congress has expressly delegated this power to the courts, so that they are following the legislative will by carving out exemptions, rather than simply trumping it.

(2) Courts also shouldn't be bashful about carving out such exemptions, if in their judgment the government interest isn't really compelling, or if in their judgment carving out the exemption won't much undermine the interest. They can just follow their best understanding of the strict scrutiny test, recognizing that if Congress disagrees with them, Congress can step in and repeal any exemption that (in Congress's view) was wrongly created.

In any event, this is my very sketchy summary of an argument I develop at much greater length here. For a deeper explanation for why I take the Smith antidiscrimination view of the Free Exercise Clause but take a substantive-liberty view of some other constitutional provisions, see here. For more background on RFRA, Smith, and Sherbert, see here.

Related Posts (on one page):

  1. Don't Expect A Showdown:
  2. Why I Agree Both with Smith and with RFRA:
  3. Some Background on Religious Exemption Law,
Some Background on Religious Exemption Law,

relevant to some posts I'll be putting up about tomorrow's Gonzales v. O Centra Vegetal Supreme Court argument:

Say that you feel a religious obligation to use a prohibited drug — hoasca (the drug at issue in O Centro), peyote, marijuana, or LSD. Or say that you’re a landlord who feels a religious obligation not to rent to unmarried couples (or same-sex couples), even though state law bars marital status discrimination or sexual orientation discrimination in housing. Or say that you feel a religious obligation to help someone commit suicide, in violation of state law — or a religious obligation not to testify against your parent, your child, or a coreligionist, even when you have a legal duty to do so. Should you be entitled to an exemption from the generally applicable law, because of your religious beliefs? Or should the government be free to apply the law to you just as it does to others?

Until 1963 (more or less), the rule was what I call the statutory exemption model -- religious objectors got exemptions if and only if the statute provided for one (as, for instance, draft law historically had). Then in Sherbert v. Verner (1963), the Supreme Court adopted the constitutional exemption model, under which sincere religious objectors had a presumptive constitutional right to an exemption.

Of course, a constitutional exemption model can never simply say "religious objectors get an exemption"; a wide range of generally applicable laws -- murder law, theft law, rape law, and so on -- must be applicable even to religious objectors. Even as to more controversial cases, such as bans on race discrimination in education, or generally applicable tax laws, the Court found (even under Sherbert) that religious objectors' claims must yield. To distinguish cases where religious objectors win from those in which they lose, the Sherbert-era Court used what it called "strict scrutiny" -- religious objectors must prevail unless applying the law to them is the least restrictive means of serving a compelling government interest. But while the "strict scrutiny" test in race and free speech cases was generally seen as "strict in theory, fatal in fact" (Gerry Gunther's phrase), almost always invalidating the government law, in religious freedom cases it was "strict in theory, feeble in fact" (Sager & Eisgruber's phrase); the government usually won, and religious objectors won only rarely.

Then in 1990, the Court changed course: In Employment Division v. Smith (1990), a 5-Justice majority returned to the statutory exemption regime, and rejected the constitutional exemption regime. So long as a law doesn't discriminate against religious objectors, but generally applies to people regardless of their religiosity, it's constitutionally valid. If religious objectors want an exemption, they need to go to the legislature. (This is an oversimplification, but let's go with it for now.)

Then in 1993, Congress enacted the Religious Freedom Restoration Act, which gave religious objectors a statutory presumptive entitlement to exemption from generally applicable laws (subject to strict scrutiny). In City of Boerne v. Flores (1997), the Supreme Court held that RFRA exceeded federal power when applied to state laws, but didn't touch it as to federal law. Since 1997 (and in some measure before), quite a few states enacted similar state-level RFRAs as to state law. Therefore, the rule now is that the federal RFRA applies to federal statutes, and state RFRAs to state statutes in those states that have such state RFRAs. Religious objectors in those jurisdictions may demand exemptions from generally applicable laws, which the government must grant unless it can show that applying the laws is the least restrictive means of serving a compelling government interest.

Related Posts (on one page):

  1. Don't Expect A Showdown:
  2. Why I Agree Both with Smith and with RFRA:
  3. Some Background on Religious Exemption Law,
Man Bites Dog: Oddly enough, a good place for links to blogospheric commentary on the Alito nomination is The New York Times. They need to update it, though.
Alito and Planned Parenthood v. Farmer: While lots of pundits are pondering Judge Alito's dissent in Planned Parenthood v. Casey, no one is talking yet about the other Alito abortion opinion: Planned Parenthhod v. Farmer, 220 F.3d 127, 152 (3d Cir. 2000) (Alito, J., concurring). The opinion concurred in a judgment striking down New Jersey's partial birth abortion statute.

  Farmer involved a challenge by Planned Parenthood to a 1997 New Jersey statute that prohibited what is popularly known as the "partial birth abortion" procedure. A panel of the Third Circuit consisting of Judges Barry, Garth, and Alito heard argument in the case in November, 1999. On January 14, 2000, while the panel was drafting its majority opinion, the Supreme court granted certiorari in a Nebraska case raising the same issue. The Third Circuit panel held its drafted opinion until the Supreme Court decided the Nebraska case on June 26, 2000. Instead of rewriting the panel opinion along the lines of the Suprme Court's new decision, Stenberg v. Carhart, Judge Barry simply added a new introductory paragraph to the opinion that she had drafted before the Supreme Court's decision and published her opinion otherwise "as is." The first paragraph of Judge Barry's opinion explains what happened:
  The majority opinion which follows was in final form before the Supreme Court of the United States heard argument in the appeal of Carhart v. Stenberg, 192 F.3d 1142 (8th Cir.1999). The Supreme Court has now issued its opinion in that case, finding Nebraska's "partial birth abortion" statute--a statute nearly identical to the one before this Court--unconstitutional. See Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). Because nothing in that opinion is at odds with this Court's opinion; because, in many respects, that opinion confirms and supports this Court's conclusions and, in other respects, goes both further than and not as far as, this opinion; and, because we see no reason for further delay, we issue this opinion without change.
  Judge Alito did not join this opinion. Instead, he authored a concurrence reaching the same result by applying Carhart. Here is Judge Alito's concurrence in its entirely:
  ALITO, Circuit Judge, concurring in the judgment.
  I do not join Judge Barry's opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court's decision in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent. I write briefly to explain why Carhart requires us to affirm the decision of the District Court in this case. This is an appeal by the New Jersey State Legislature from a decision of the United States District Court for the District of New Jersey holding the New Jersey Partial-Birth Abortion Ban Act of 1997, 2A:65A-5 et seq., unconstitutional and permanently enjoining enforcement of the Act. Planned Parenthood of Central New Jersey v. Verniero, 41 F.Supp.2nd 478 (D.N.J.1998). The New Jersey statute closely resembles statutes enacted in recent years in many other states.
  On January 14, 2000, the Supreme Court granted certiorari to review the decision in Carhart v. Stenberg, 192 F.3d 1142 (8th Cir.1999), cert. granted, 528 U.S. 1110, 120 S.Ct. 865, 145 L.Ed.2d 725 (2000), which presented the question of the constitutionality of a similar Nebraska statute. The Supreme Court recently held that the Nebraska statute is unconstitutional. Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000).
  The Court based its decision on two grounds. First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother. See 120 S.Ct. at 2608-13. Second, in Part II-B of its opinion, the Court held that the Nebraska statute is unconstitutional because it imposes an undue burden on a woman's ability to choose the method most commonly used for second trimester abortions, the "dilation and evacuation" (D & E) method. See 120 S.Ct. at 2612-17.
  Under Carhart, the decision of the District Court must be affirmed. First, the New Jersey statute, like its Nebraska counterpart, lacks an exception for the preservation of the health of the mother. Without such an exception, the New Jersey statute is irreconcilable with Part II-A of Carhart.
  Second, the Supreme Court's holding in Part II-B of Carhart is also applicable here. As noted, in that portion of its opinion, the Court held that the Nebraska statute applied, not only to the "dilation and extraction" or D & X procedure, but also to the more commonly used D & E procedure. The wording of the relevant provisions of the Nebraska statute is nearly identical to that of the New Jersey statute. Thus, the Supreme Court's holding in Part II-B of its opinion in Carhart must be regarded as controlling in this case.
  In light of this interpretation of the New Jersey statute, the Legislature's argument that the plaintiffs lack standing must fail. As noted above, the New Jersey statute must be interpreted, in light of Carhart, as applying to the D & E procedure, and the plaintiff physicians in this case perform that form of abortion. The Legislature's argument that this case is not ripe because the New Jersey statute has not been authoritatively interpreted by the state courts or state enforcement officials must also fail. In view of the interpretation in Carhart, there is no reason to wait for interpretation by state officials or judges.
  In a post-Carhart filing, the New Jersey Legislature has urged us to certify questions concerning the interpretation of the New Jersey statute to the state supreme court. In Carhart, however, the Supreme Court of the United States turned down a similar request for certification by the Attorney General of Nebraska. 120 S.Ct. at 2616-17. The decision of the Supreme Court of the United States to deny certification in Carhart must be regarded as controlling here, both with respect to the Legislature's request for certification and with respect to its closely related argument that the District Court erred in refusing to abstain pursuant to Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
  In conclusion, Carhart compels affirmance of the decision of the District Court.
[Puzzleblogger Kevan Choset, October 31, 2005 at 11:03am] Trackbacks
Another Thing in Common:

What do Robespierre, Saddam Hussein, and Vladimir Lenin have in common?

UPDATE: Three hints below.





Outstanding pick. I've never met the man, but from what I can tell he's smart, experienced, and principled. I can't imagine him not being confirmed.

For once, the markets actually picked this one right too.

A reminder that Larry Ribstein had a thorough post on Alito's major business law decisions this weekend.

[Dale Carpenter (guest-blogging), October 31, 2005 at 9:20am] Trackbacks
The Traditionalist Case for Gay Marriage -- The Week Ahead:

First, thanks to the Conspiracy for giving me this opportunity. Also, thanks to Maggie Gallagher for her contributions on marriage two weeks ago. Her writing is powerful. It constantly challenges and enlightens me. My hope is that one day the vast majority who share her views can be persuaded that gay families, united in marriage, are no threat to marriage and are even a small part of its revival.

But that day is many years, probably decades, away. My aim here is much more modest. It is to frame the debate in a way that’s quite distinct from the end-of-civilization vs. civil-rights-for-all rhetoric that has come to dominate it.

This week I will sketch the traditionalist case for gay marriage, by which I mean briefly this: (1) Marriage will help support and stabilize gay families, including the many such families raising children; (2) it will help channel these families into traditional patterns of living, providing them and their communities some measure of the private and public goods we expect from marriage; (3) it will, over time, tend to traditionalize gay individuals by elevating respect within gay culture for values like commitment to others and monogamy at the expense of hedonism and promiscuity; (4) it will make available the most moral life (in a traditionalist sense) possible for a sexually active homosexual; (5) and it will do all of this without hurting traditional families or marriage, (6) perhaps even helping to a limited extent with the revival of marriage. Of these, I regard points 1, 2, and 5 as the most important and most likely results. I’ll focus most of my attention on these. Points 3, 4, and 6 are possible, and would be good from a traditionalist perspective if they happen, but are more tenuous or are less likely. I’ll offer only some tentative thoughts on these. There are, in short, both individualistic (private) and communitarian (public, state) interests in recognizing gay families through marriage.

O.K., maybe my project is more ambitious than I thought.

If any significant part of what I described above actually came to pass, it would be a dark day for sexual liberationists, for opponents of marriage, for much of the gay left, and for many others who now say they favor gay marriage; conversely, if any significant part of it came true, it should be cause for rejoicing among conservatives, especially traditionalist conservatives. The key here is the “if.”

Subject to change, here’s how I plan to proceed. Today and tomorrow I will make the affirmative case for marriage for gay Americans. The affirmative case points to both the individualistic and communitarian benefits. Wednesday and Thursday I will respond to some of the most common arguments against marriage for gays, including the procreation and slippery-slope questions. (Sometimes the pro and con arguments will overlap.) Friday will be clean-up day, including suggestions for how to proceed, with some consideration of the role of legislatures vs. courts and marriage alternatives like civil unions.

I’ll try to respond to some reader commentary as we go along, perhaps in a single last post each night. In return, I ask this of commentators. Try to focus narrowly on the discrete point(s) made in the post to which you’re responding. There’s a tendency in this debate, on both sides, to “kitchen-sink” every argument, that is, to respond to specific points with unrelated points or with global observations about the nature of marriage, the world, the meaning of life, and so on.

Here are some things I will not do this week. First, I won’t try to change anyone’s religious views about gay marriage or homosexuality. If your religious faith leads you to oppose gay marriage, and if your faith further commands that this tenet be mandated in secular law, not much I say this week will matter to you. However, if this tenet (like others?) need not necessarily be mandated in secular law, come along for the ride. The faith-based traditionalist opposed to homosexuality, like all those generally uncomfortable with homosexuality, might reluctantly reconcile himself to gay marriage as the most realistic public-policy way to make the best of the bad.

A related point: though there’s no logically necessary connection, attitudes about gay marriage correlate strongly with a person’s underlying views of homosexuality. Is it a harmful or benign variation of human sexuality? Is it chosen or unchosen? The best evidence strongly favors the benign/unchosen answers. I may devote some, but not much, space to these Gay 101 issues if it seems necessary.

Second, I will not make rights-based arguments, e.g., that there is a constitutional right to gay marriage. Lots of people spend lots of time arguing about this; indeed, rights-talk has monopolized the debate. The traditionalist case is consequential and moral, not legal.

Finally, I won’t be accusing the opposition of bigotry. Many Americans oppose gay marriage out of a fear of possible unintended and unforeseeable consequences. These opponents of gay marriage are not bigots; they are prudent. Their prudential concerns must be treated seriously, not dismissed as blind prejudice. Such concerns can and should be accommodated in the time-frame and process by which we get to gay marriage.

At the same time, I hope nobody will think I’m intentionally trying to destroy marriage. Put simply, I believe in gay marriage because I believe in marriage.


Just got off the phone with someone who knows Alito well, and whose perspective I value. Alito, according to him, is "really nice", with a "reserved" personality. Unlike Scalia, there is nothing acerbic about Alito, and his questioning in oral argument tends to be minimal but penetrating. There is "no way" he will become another Souter, or even Kennedy; Alito is devoted to the idea that the role of the judge is to apply the constitution and law faithfully and without embellishment, and he is very principled in his devotion to this idea. Overall, a "great judge."

And from a post of mine on Saturday:

Via the Supreme Court Nomination Blog, I've come across Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001): "There is no categorical 'harassment exception' to the First Amendment's free speech clause.... When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications."

Good to know he takes at least a somewhat Volokhian (and Bernsteinian) view of such issues.

That's Odd: I was just watching CBS News, which put up a graphic with Sam Alito's basic bio. Among them: "Modeled His Career After Justice Scalia." Any idea what that is supposed to mean?
New Bankruptcy Litigation Blog:

The Coleman Law Firm has started a new Bankruptcy Litigation Blog. Some good, high-quality posts up already--including a plea to overturn Moore v. Bay!

A Catholic Majority on the Court?:

There will be, if Alito is confirmed. This is an extraordinary development. It was, let's recall, only forty-five years ago that JFK's Catholicism was a major issue in a presidential campaign. As Ken Kersch and Philip Hamburger have shown, anti-Catholic sentiment played a large role in the development of modern establishment clause jurisprudence (in part through the influence of that old KKKer, Hugo Black). The leading separationist group after WWII was known as Protestants [now, Americans] United for the Separation of Church and State.

We can rejoice that Catholics are now such an accepted part of the American scene that it will hardly raise any eyebrows that a fifth Catholic has been nominated to the Supreme Court (joining, of course, two Jews). I'll leave it to the sociologists to explain this phenomenom in detail, but I'd venture that it's not simply a result of more enlightenment on the part of non-Catholic Americans, but also that Post-Vatican II, the Catholic Church is less foreign, both in prayer (in that mass is now in English), sociologically (because Catholics no longer differ that much from other Americans in where they send their kids to school and how many children they have), and in terms of ideas (e.g., the Church's renouncement of anti-Jewish theology; compare the 19th century Edgardo Mortara case). In short, as with American Jews and other groups, a story of both declining prejudice and assimilation.

Quick Thoughts on the Alito Nomination: I'm very pleased. This was a smart pick by Bush. It will take a few weeks for Senate Democrats to get comfortable with Alito, I think; given the "Scalito" nickname often used to describe him, many initially will fear that Bush has nominated some kind of Scalia clone. In time, though, I think we'll see that Alito is more like John Roberts than Antonin Scalia. Like Roberts, Alito is an institutionalist who spent his career working in government at a very high level (including at the Solicitor General's Office). Like Roberts, Alito is a very likable person. In light of his similarites to Roberts, I expect that Alito will be confirmed without a filibuster.

Related Posts (on one page):

  1. Quick Thoughts on the Alito Nomination:
  2. Will It Be Sam Alito?:
Dale Carpenter on Same-Sex Marriage:

I'm delighted to welcome Dale Carpenter, who teaches law at the University of Minnesota, as this week's guest-blogger on same-sex marriage. Dale is a University of Chicago School of Law graduate, and a founder of the law school's conservative debating group, the Edmund Burke Society. He clerked for Judge Edith Jones on the Fifth Circuit, practiced for several years, and in 2000 started at Minnesota, where he teaches and writes on Constitutional Law, the First Amendment, and Sexual Orientation and the Law. He also writes a regular column called OutRight for several gay newspapers around the country; many of these columns can be accessed here.

Kelo Fallout--Jurors Stepping In Where Judges Fail?

A reader sends along this article reporting on a $7.7 million judgment awarded to a small business owner in San Diego whose property was condemned in order to make way for a new luxury hotel. The article implies that this was an unexpectedly high award. His lawyer "called the verdict a 'home run' ... and important for other property owners." The city had offered $3 million before trial. The city has not announced whether it will appeal.

Given the public choice and other political failures that are endemic to use of the eminent domain power for the benefit of private interests, and the unwillingness of the Supreme Court to do anything about it, it will be interesting to see if verdicts like this signify a beginning for jurors to step up and become more vigilant in ensuring that private property owners are being fully compensated for Kelo-style takings. If so, that would be an interesting and heartening development.

On the other hand, at least some of the award in this case resulted from the business owner's goodwill associated with operating in that location, which presumably would be absent from a homeowner's award.

This is personally interesting to me as well in that several years ago I actually published an article in the Case Western Reserve Law Review where I argued that one function of common law juries was to replicate James Buchanan's Wicksellian unanimity test at the time of application of the law, thereby making up for the non-unanimous voting rules applicable at the time of the enactment of the law. So that juries are one response to the political failures predicted to arise by public choice theory.

Bush Picks Alito: It's Official: President Bush is nominating Samuel Alito to fill Justice O'Connor's slot to the Supreme Court. The official announcement will be at 8 am. I'm very pleased.

Sunday, October 30, 2005

Questions About Juries, Responsibility, and the WTC: My co-blogger David mentions the very interesting jury verdict in the civil case about the 1993 World Trade Center bombing, and the surprising decision holding the Port Authority 68% responsible for the attack. I don't work in any area of law with any remote connection to this case, but my amateurish reaction is that the oddity of the verdict depends in part on the specific legal standard the jury was asked to apply.

  Specifically, I'm not sure I know what it means to assign a victim partial responsibility for an intentional act. The bombing was a planned, purposeful attack, while the Port Authority was at most negligent in failing to defend its property more carefully. But how do you apportion blame between an intentional act and a negligent defense? Is the question who is responsible for the act being attempted? The likelihood that various defenses would have led the wrongdoers to give up and hit another target? The costs of different acts the wrongdoers might have attempted if deterred by better defenses? The extent of the harm following from the attack? Or something else?

  My apologies if the answers to these questions are obvious to others. I haven't followed this trial, and I don't know anything about this area of law. But it seems to me that the jury's answer may seem odd because the jury was required to answer a perplexing set of legal questions.
Extending Daylight:

Jim Lindgren's extending Daylight Savings Time plan sounds good, but I'd much rather extend daylight. L.A., where I live, is already on average warmer and sunnier than most places in the U.S. Why shouldn't it be on average lighter?

This whole everyone-gets-12-hours-of-daylight-a-day-on-average plan sounds wrong to me; another example of hyperegalitarianism run amok. Maybe even Communism. We Americans deserve better -- there ought to be a law, or something. Sixteen hours a day of light on average, with eight hours of darkness, sounds about right to me, but I'll be willing to compromise on 14-10. And, no, I'm not in the mood to move hemispheres myself twice a year; I want the light to come to me . . . .

Related Posts (on one page):

  1. Extending Daylight:
  2. Extending Daylight Saving Time.--
No SCOTUS Announcement Today: So sayeth Fox News, at least according to Bench Memos.
Jury Says that Terrorists Only 32% Responsible for First WTC Bombing:

In yet another ridiculous civil jury verdict, a New York jury held that the Port Authority of New York was 68% responsible for the (first) bombing of the World Trade Center, and the terrorist perpetrators of the bombing were only 32% responsible. To be blunt: the jurors blatantly disregarded the law (and common sense) to ensure that the PA would be found more than 51% responsible, and thus, under comparative negligence rules, would have to pay. [Helpfully, the plaintiffs' attorney told the Times that the PA should have been held 100% responsible!] In too many civil cases, juries serve as a completely lawless element that wreaks havoc with the rule of law; no wonder civil juries have been abolished just about [? I'm not sure they are routinely used anywhere at this point] everywhere but the U.S. Hat tip: Overlawyered.

UPDATE: This post seems to have struck a chord. For more formal (but relatively brief)thoughts on civil jury trials, see here (criticisms, comparisons to other countries, and suggested reforms) and here (discussing abusive opening statements and closing arguments). For the role of the jury trial in the breast implant fiasco, see 87 Calif. L. Rev. 457 (an earlier version may be found here).

My most recent paper discussing juries (though they don't play a central role in the paper) can be found here.

Extending Daylight Saving Time.--

Late this morning I turned on my local FOX TV station and tried to figure out why it was showing a Televangelist rather than the NFL pregame show. It took awhile for me to realize that it must be the end of Daylight Saving Time. I had incorrectly thought that the new Daylight Savings law took effect this year, but it takes effect in 2007:

U.S. Daylight Saving Time Schedule
2005: April 3 - October 30
2006: April 2 - October 29

New Federal Law In Effect
2007: March 11 - Nov. 4
2008: March 9 - Nov. 2

Extending Daylight Saving time through Halloween only makes sense, thus reducing childhood accidents. But we should consider an extension more radical than just adding a month to DST in 2007.

(I have long been interested in Daylight Saving Time. My very first op-ed was an essay on Daylight Saving Time that I delivered on NPR about a dozen years ago.)

With the recurrent energy shortages, I am surprised that there is such resistance to the sort of conservation that really works, such as using Daylight Saving Time to adjust our wake and sleep cycles to the sunlight.

It is pleasant traveling in France in the summer, which based on longitude should be on Greenwich time along with England, but instead is an hour ahead of London; the sun often goes down after 9:30pm. In effect, France and Spain are on double Daylight Saving Time in the summer and single Daylight Saving Time in the winter. This is similar to much of Texas, which should (by longitude) be mostly in the Mountain time zone instead of the Central time zone.

I would recommend that the US generally adopt the practice employed in France, Spain, and much of Texas: moving toward what (based on longitude) would be Double Daylight Saving time in the summer and single Daylight Saving time in the winter.

This site has more on Daylight Saving Time.

Related Posts (on one page):

  1. Extending Daylight:
  2. Extending Daylight Saving Time.--
Zogby Interactive Poll on Virginia Politics:

Zogby International Polling now has a feature that they call "Interactive Polling" where you can sign up to have polls emailed to you every so often and then you can participate in the polls (I can't imagine that they do much with them, giving the sample biases of this sort of poll). I actually think polls are kind of fun though, so I have signed up.

Here's one of the reasons I think polls are kind of fun. In a poll on Virginia politics they asked for expressions of preferences on several hypothetical match-ups against incumbent George Allen next year. In addition to Mark Warner, two of the hypothetical match-ups--I swear I'm not making this up--were Ben Affleck versus Allen and John Grisham versus Allen.

But then again, whoever thought Arnie or Jesse Ventura would ever be Governor...

Ribstein on Alito:

Larry Ribstein has a great and thorough post on the business and commercial law jurisprudence on Judge (Justice designate(?)) Samuel Alito. He focuses on Alito in light of Intrade trends which point to him. Personally, I no longer put any faith in these markets--zero--when it comes to picking Supreme Court Justices.

Here in DC, Luttig is the name I keep hearing from a variety of sources.

Polsby on the Solomon Amendment:

For those who weren't there, Paul Mirengoff has posted a few words summarizing my Dean Dan Polsby's talk Friday on the Solomon Amendment case. Paul adds his own predictions about the outcome of the case and its likely aftermath:

One of the many great points Dean Polsby made about the Solomon Amendment yesterday was that the law schools challenging the Amendment seem motivated more by anti-military sentiment than by sympathy for gay rights (the suit assumes the legality of the underlying "don't ask, don't tell" policy). Polsby, a professor for decades, notes that the liberal professoriate was defending its sensibilities against the military at a time when gay rights were a non-issue.

If, as I expect, the Supreme Court upholds the Solomon Amendment, both sets of lofty motives (anti-military animus and pro-gay rights sentiment) will likely be insufficient to induce liberal law schools to stand on principle and turn down federal money.

A quick explanatory note--The issue of equal rights is a non-issue here because the lawsuit does not challenge the constitutionality of the underlying "Don't Ask, Don't Tell" policy, just the equal-access recruiting rules for the military. Apparently Paul is skeptical of the academy's courage to stand up for principle and reject the government's bigotry-tainted lucre in the event of an adverse ruling in the case. Dean Polsby simply observed that an adverse ruling would truly offer the academy an opportunity for heroism of the bravest sort, by standing firm on principle, even at great cost.