I am not sure what Paul's reservation is with the concept that for First Amendment purposes, a belief is the belief being held right now by the believer, regardless of tradition or history. I had thought the courts had settled on that concept, and its adjunct theory, which is that no court can tell a religious believer that their belief is not religious or that it is not true.
In any event, the opposition to same sex marriage has to be treated as sectarian, because it is. There are vanishingly few conservative Burkeans on this issue and an overwhelming majority of religious believers. While we can conjure up the secular monogamist, or two, this is a religious movement against gay marriage, as the history of Prop 8 so ably demonstrates. Not to mention that the criticism of the Court's decisions this week was loudest from Cardinal Dolan and Tony Perkins, among other religious leaders. It would be helpful for political scientists to add up the dollars spent on lobbying and by whom against gay marriage, because I suspect that would underscore my point. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -----Original Message----- From: Paul Horwitz <phorw...@hotmail.com> To: Marci Hamilton <hamilto...@aol.com> Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; conlawprof <conlawp...@lists.ucla.edu> Sent: Sat, Jun 29, 2013 6:14 pm Subject: Re: Marriage -- the Alito dissent I'm not sure that the second sentence of Marci's comment below is correct for all constitutional purposes. But I think the first part of the first sentence can be true. A standard part of the story of religion and science as dual magisteria is that the domain of factual claims made by religion tends to recede as the domain of scientific explanatory claims expands. So a factual claim that was once generally accepted, such as claims about the origin of life or the age of the universe, can effectively move from non-sectarian acceptance to solely sectarian acceptance. Claims about male-female complementarity *might* fall into that category. That said, I don't think that renders all anti-SSM claims impermissibly sectarian. A Burkean conservative might plausibly believe that changing the scope of marriage in the face of what he believes to be a well-established and well-proven tradition is unwise, and that resistance to this change is prudent and rational. Or one might believe as a factual matter, rightly or wrongly (the latter, in my view), that children and society fare better under heterosexual family arrangements. These views might be wrong, but I don't see why they must be treated as sectarian, if that is even constitutionally relevant, just because the outcome they suggest is consistent with a prominent sectarian view. Paul Horwitz Sent from my iPhone On Jun 29, 2013, at 2:18 PM, "Marci Hamilton" <hamilto...@aol.com> wrote: > Of course history (people) can make sectarian views nonsectarian and vice versa. A religious belief under the Constitution is what the religious believer says it is right now, > not what history said it was or should be. Alito is following Vatican (religious) dogma. In current US society, the push against gay marriage is based on religious believers who believe it is sinful for same sex couples to marry. That is the discourse regardless of the source of their current beliefs. > > Marci > >
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