I'm surprised there hasn't been more attention paid to the quite remarkable dissent that Justice Alito filed in Windsor. In it, he contrasts "two competing views of marriage": what he calls the "conjugal" view, in which marriage is the "solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so" (citing Robby George); and the “consent-based” concept of marriage, "a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons." As Alito notes, "At least as it applies to heterosexual couples, this [consent-based] view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage." [Just as an aside: What is the purpose and implication of his adding "At least as it applies to heterosexual couples"?]
Altio's view is that the judiciary can't possibly give preference to one or the other of these two views: "Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore. [FN7 -- on which more below] Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence." Legislatures, on the other hand, apparently can do so: "Legislatures, however, *have little choice but to decide between the two views*. We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution. Accordingly, both Congress and the States are entitled to enact laws recognizing either of the two understandings of marriage." I'd be curious what others think of this reasoning. For now, just some short, initial observations about Alito's view of the legislative function, before turning to his extraordinary footnote 7: First, Alito does not appear to distinguish at all between the "meaning" of marriage in religious and philosophical traditions, and the "meaning" of *state-conferred marriage licenses*. Windsor and Perry, of course, only involve the latter -- that is to say, they are "merely" about *state action*, and the meaning and effect of a* state-conferred status*, not the "institution" of marriage through the ages. Second, in light of how states in this nation actually implement that governmental function -- most obviously, by affording marital status to many heterosexual couples who cannot or will not procreate -- is it really fair to say that those states' marriage laws are designed to "solemnize a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so"? That is to say, haven't the states *chosen* the consent-based view of marriage . . . and, if so, shouldn't the exclusion of same-sex couples be considered on that basis? (As Alito acknowledges, the consent-based view "now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage." Wouldn't we therefore expect that state marriage laws reflect this overwhelmingly predominant "popular" view today?) Third, Alito does not appear to have considered whether the legislature, like the judiciary, is *not* *empowered *-- indeed, is arguably constitutionally* *forbidden* *-- to "*solemnize* a comprehensive, exclusive, permanent union that is *intrinsically ordered* to producing new life, even if it does not always do so." I would have thought that solemnizing an "intrinsic" ordering is the proper function of the church, not the state. Now, onto footnote 7, which I will quote in full; it speaks for itself. I welcome your reactions, not only with respect to whether Judge Walker's factual findings were so far beyond the judicial ken, but, especially, as to Alito's view of the legal academy. (The particular amicus brief that he excoriates was filed by Bryan Adamson, Janet Alexander, Barbara Atwood, Barbara Babcock, Erwin Chemerinsky, Joshua Davis, David Faigman, Toni Massaro, Arthur Miller, David Oppenheimer, and Larry Yackle.): The degree to which this question is intractable to typical judicial processes of decisionmaking was highlighted by the trial in *Hollingsworth v. Perry,* *ante, *p. ––––. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make “findings of fact” on such questions as why marriage came to be, *Perry v. Schwarzenegger,*704 F.Supp.2d 921, 958 (N.D.Cal.2010)<http://web2.westlaw.com/find/default.wl?mt=208&db=4637&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2030868161&serialnum=2022683934&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=95D0E255&referenceposition=958&rs=WLW13.04>(finding of fact no. 27) (“Marriage between a man and a woman was traditionally organized based on presumptions of division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family”), what marriage is, *id*., at 961<http://web2.westlaw.com/find/default.wl?rs=WLW13.04&pbc=95D0E255&vr=2.0&findtype=Y&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&tf=-1&ordoc=2030868161&mt=208&serialnum=2022683934&tc=-1>(finding of fact no. 34) (“Marriage is the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”), and the effect legalizing same-sex marriage would have on opposite-sex marriage, *id*., at 972<http://web2.westlaw.com/find/default.wl?rs=WLW13.04&pbc=95D0E255&vr=2.0&findtype=Y&rp=%2ffind%2fdefault.wl&sv=Split&fn=_top&tf=-1&ordoc=2030868161&mt=208&serialnum=2022683934&tc=-1>(finding of fact no. 55) (“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”). At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.), pp. 3038–3039. And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge's findings—including those on major philosophical questions and predictions about the future—unless they are “clearly erroneous.” See Brief for Constitutional Law and Civil Procedure Professors as *Amici Curiae *in *Hollingsworth v. Perry,* O.T.2012, No. 12–144, pp. 2–3 (“[T]he district court's factual findings are compelling and should be given significant weight”); *id*., at 25 (“Under any standard of review, this Court should credit and adopt the trial court's findings because they result from rigorous and exacting application of the Federal Rules of Evidence, and are supported by reliable research and by the unanimous consensus of mainstream social science experts”). * Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.*
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
