Fair enough, Richard -- I can't of course speak for Posner, but I shouldn't have suggested that Alito views opposition to same-sex marriage, and to federal benefits for gay couples, as necessarily "emotional and sectarian." What I meant to refer to was the fact that Alito thinks this is a question that philosophers, historians, social scientists, theologians . . . and *legislatures *are capable of examining, but that is "intractable to typical judicial processes of decisionmaking." (Of course, one of my initial points was that this is a non sequitur: Just because courts, *like* legislatures, cannot resolve the question of what the "true" or "intrinsic" nature of marriage is, does not mean that they cannot assess what legislatures have in fact done (and why) *on behalf of the state *in terms of defining marriage, something that is common fodder for the "judicial processes of decisionmaking.")
On Sat, Jun 29, 2013 at 12:10 PM, Richard Dougherty <dou...@udallas.edu>wrote: > > Well, I don't know what Alito may say about Posner's characterization, but > I'm guessing he would not embrace the view he forwarded as "emotional and > sectarian, rather than rational." Indeed, I'm finding it hard to imagine > that anyone would characterize their own view that way. (Well, maybe > Westboro Baptist, but Alito is not of that persuasion, I would imagine.) > While it may be true that the view he suggests is close to the Vatican's > view (which Posner derisively calls its "sex doctrine"), it is also the > dominant view of marriage over the past thousands of years. There's > nothing necessarily sectarian about it, and it's certainly not > non-rational. It might not be persuasive to all, or to many, but it would > be an injustice to dismiss it so cavalierly. > Richard Dougherty > On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman <lederman.ma...@gmail.com > > wrote: > >> As a couple of you have pointed out to me, Judge Posner has addressed the >> Alito dissent; in Slate ( >> http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), >> he writes: >> >> Alito is drawn to such arguments for DOMA as “the institution of marriage >> was created for the purpose of channeling heterosexual intercourse into a >> structure that supports child rearing,” and “marriage is essentially the >> solemnizing of a comprehensive, exclusive, permanent union that is >> intrinsically ordered to producing new life, even if it does not always do >> so.” The first argument would have force only if one supposed (as virtually >> no one does any longer) that banning same-sex marriage would channel gays >> into straight marriages. The bearing of the second argument (a close >> paraphrase of official Vatican sex doctrine) eludes me. A sperm bank is >> intrinsically ordered to producing new life, even if it does not always do >> so. So what? A marriage of a man to a woman known to be sterile could not >> be thought intrinsically ordered to producing new life, yet it would surely >> be recognized by Alito as a valid marriage entitled to federal marital >> benefits. *So far as yet appears, opposition to same-sex marriage, and >> to federal benefits for gay couples, is emotional and sectarian, rather >> than rational.* >> >> I'm not sure this is quite responsive to Alito, because I'm not sure >> Alito would disagree: As I read his dissent, his view is that *because >> *opposition >> to same-sex marriage, and to federal benefits for gay couples, is indeed >> "emotional and sectarian, rather than rational" (not quite how Alito would >> put it, of course, but basically his point), courts cannot assess it . . . >> but legislatures can and must do so. >> >> >> On Sat, Jun 29, 2013 at 10:55 AM, Marty Lederman < >> lederman.ma...@gmail.com> wrote: >> >>> 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 arrogantlegal >>> culture that has lost all appreciation of its own limitations could >>> take such a suggestion seriously.* >>> >> >> >> _______________________________________________ >> To post, send message to conlawp...@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof >> >> Please note that messages sent to this large list cannot be viewed as >> private. 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