Since Michael Worley asked these questions of Marty in a post, rather than private email, I'd like to ask for a clarification of what he's asking with number 2: Permissions from whom? Who/what is entitled to, is able to, and/or is in the habit of conveying such “permissions”?
David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On May 3, 2015, at 9:22 PM, Michael Worley <mwor...@byulaw.net<mailto:mwor...@byulaw.net>> wrote: Marty, Sorry to pick hairs, but I'm curious. You think it is "easy" for the Court "to say that the denial of SSM does not satisfy rational basis review." You also said to Alan that you do not believe "that religious beliefs opposing same-sex sexual relationships are purely an irrational bias." It seems to me hard, if not impossible to argue both that laws prohibiting same-sex marriage are not rational and for that to not impact our culture. This cultural impact, to me, will imply "that religious beliefs opposing same-sex sexual relationships are purely an irrational bias." I simply don't trust the state of public discourse enough for people to distinguish between rational basis review with a bite and religious rationality. So I ask: 1) Do you support a decision that man-woman marriage laws fail rational basis review? (This isn't a gotcha question; I just think it is important to start at the basic level either way) 2) If the court rules that man-woman marriage laws fail rational basis review, will that convey permission for citizens to labal those who continue to support man-woman marriage laws as irrational, or at least, "insensitivity caused by simple want of careful, rational reflection" as ruled in Garrett. 3) If, contrary to your hopes, one or more of the following become a part of our culture, will that hurt religious people and institutions? A) that religious beliefs are "simply" a "product of time and culture", B)"are purely an irrational bias," or C) are dependent upon, or necessarily reflect, "bigotry" (or "animus," for that matter) D) "that conservative Christian teachings about sex have the same place in the church that former teachings about race did." 4) Assuming opposition to same-sex marriage is seen as irrational, is there any reason universities should be allowed to discriminate against same-sex couples? I ask these questions because in my mind, a ruling based on "no rational basis" impacts the public square in such a way that makes any university that holds the religious values we've mentioned (and at least 10 or 20 will continue to do so) up for attack? I feel like you see a distinction I'm missing here, or oppose a ruling based on the lack of rational basis. I look forward to your and any others responses. Thanks, Michael
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