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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