RE: Marriage -- the Alito dissent

2013-07-21 Thread Volokh, Eugene
It’s been a while since this thread petered out, so I’d rather 
not burden list members with more on this unless there’s really a good deal of 
interest in reviving it.  But in an earlier post I tried to offer two basis for 
limiting marriage to opposite-sex couples that should, I think, pass the 
rational basis test, 
http://lists.ucla.edu/pipermail/religionlaw/2013-July/026509.html.  They may 
not persuade many people on the merits – they don’t persuade me – but I think 
they are plausible enough to pass the rational basis threshold.  (As to the 
constitutional right to marry, given that the premise for recognizing such a 
right has been longstanding American tradition, the question is whether such a 
sharp departure from tradition would be covered by this tradition-based right.)

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
Sent: Sunday, July 21, 2013 8:40 PM
To: Law & Religion issues for Law Academics
Subject: RE: Marriage -- the Alito dissent

Eugene,

I'm sorry, but I don't understand your comment below. I am aware of excuses but 
not a rational basis for limiting marriage to opposite-sex couples. Nor am I 
aware of how DOMA doesn't violate the constitutional right marry based on 
Loving v. Virginia and Lawrence v. Texas.

The real problem, in my opinion, is that while equality is a core American 
principle, in practice many Americans (including 4 justices) are not committed 
to it.

Bob Ritter

On July 10, 2013 at 11:42 PM "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
Again, if the question is whether there is a rational basis for 
the requirement – the question that we began with, since the presence or 
absence of a rational basis for certain marriage recognition rules is what 
Kennedy and Alito were debating – then the answer is “yes”; there is indeed a 
rational basis for such a requirement.  If the question is whether the 
requirement would violate a constitutional right to marry that the Court has 
recognized, then the answer would be “no,” but that’s because restrictions on 
that right require more than a rational basis.

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
b...@jmcenter.org<mailto:b...@jmcenter.org>
Sent: Wednesday, July 10, 2013 8:35 PM
To: Scarberry, Mark; Law & Religion issues for Law Academics
Subject: RE: Marriage -- the Alito dissent

Could the procreation argument carried to the extreme result in a requirement 
that the marriage applicants be required to certify under oath that they intend 
to have children (biologically) and that to the best of their knowledge they 
are capable of having children? And that if either answer is checked "no", then 
a license is not issued?

Bob Ritter
On July 4, 2013 at 1:13 AM "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.edu>> wrote:
Last night in Maui, before heading back to Malibu (actually we live in Thousand 
Oaks, not on the ocean, but who's complaining), so a full response will have to 
wait, but my point was that if there is an institution designed to channel / 
encourage / honor committed relationships that are likely to produce children 
naturally, then it would be rational or reasonable not to exclude different-sex 
couples due to age or physical condition. This answers the "why don't you 
exclude those couples" argument.

MARK SCARBERRY

Sent from my Verizon Wireless 4G LTE Smartphone



 Original message 
From: "Volokh, Eugene" mailto:vol...@law.ucla.edu>>
Date: 07/03/2013 5:20 PM (GMT-10:00)
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: RE: Marriage -- the Alito dissent
That may be a perfectly sensible policy position; but I don’t 
think that modern constitutional law demands that the government take such a 
view.  To be sure, the government is constrained in its power to restrict 
childbearing or to mandate it, but the government can certainly distribute 
benefits with an eye towards encouraging or discouraging procreation.

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len
Sent: Wednesday, July 03, 2013 7:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent


This is going to sound awfully libertarian of me, but it's none of the state's 
business whether a couple has children or not, regardless of age.  Rather it is 
my understanding that the care and treatment of children resulting from a given 
union (by whatever means) are appropriate state interests.

(Not only was Abraham not a model parent, but als

RE: Marriage -- the Alito dissent

2013-07-21 Thread b...@jmcenter.org
Eugene,

I'm sorry, but I don't understand your comment below. I am aware of excuses but
not a rational basis for limiting marriage to opposite-sex couples. Nor am I
aware of how DOMA doesn't violate the constitutional right marry based on Loving
v. Virginia and Lawrence v. Texas.

The real problem, in my opinion, is that while equality is a core American
principle, in practice many Americans (including 4 justices) are not committed
to it.

Bob Ritter


> On July 10, 2013 at 11:42 PM "Volokh, Eugene"  wrote:
> 
> 
>  Again, if the question is whether there is a rational basis
> for the requirement – the question that we began with, since the presence or
> absence of a rational basis for certain marriage recognition rules is what
> Kennedy and Alito were debating – then the answer is “yes”; there is indeed a
> rational basis for such a requirement.  If the question is whether the
> requirement would violate a constitutional right to marry that the Court has
> recognized, then the answer would be “no,” but that’s because restrictions on
> that right require more than a rational basis.
> 
> 
> 
>  Eugene
> 
> 
> 
>  From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
>  Sent: Wednesday, July 10, 2013 8:35 PM
>  To: Scarberry, Mark; Law & Religion issues for Law Academics
>  Subject: RE: Marriage -- the Alito dissent
> 
> 
> 
>  Could the procreation argument carried to the extreme result in a requirement
> that the marriage applicants be required to certify under oath that they
> intend to have children (biologically) and that to the best of their knowledge
> they are capable of having children? And that if either answer is checked
> "no", then a license is not issued?
> 
> 
> 
>  Bob Ritter
> 
>   > > 
> >   On July 4, 2013 at 1:13 AM "Scarberry, Mark"
> > mailto:mark.scarbe...@pepperdine.edu> >
> > wrote:
> > 
> >   Last night in Maui, before heading back to Malibu (actually we live in
> > Thousand Oaks, not on the ocean, but who's complaining), so a full response
> > will have to wait, but my point was that if there is an institution designed
> > to channel / encourage / honor committed relationships that are likely to
> > produce children naturally, then it would be rational or reasonable not to
> > exclude different-sex couples due to age or physical condition. This answers
> > the "why don't you exclude those couples" argument.
> > 
> > 
> > 
> >   MARK SCARBERRY
> > 
> > 
> > 
> >   Sent from my Verizon Wireless 4G LTE Smartphone
> > 
> > 
> > 
> > 
> >    Original message 
> >   From: "Volokh, Eugene" mailto:vol...@law.ucla.edu> >
> >   Date: 07/03/2013 5:20 PM (GMT-10:00)
> >   To: Law & Religion issues for Law Academics  > <mailto:religionlaw@lists.ucla.edu> >
> >   Subject: RE: Marriage -- the Alito dissent
> > 
> > 
> >   That may be a perfectly sensible policy position; but I
> > don’t think that modern constitutional law demands that the government take
> > such a view.  To be sure, the government is constrained in its power to
> > restrict childbearing or to mandate it, but the government can certainly
> > distribute benefits with an eye towards encouraging or discouraging
> > procreation.
> > 
> > 
> > 
> >   Eugene
> > 
> > 
> > 
> >   From: religionlaw-boun...@lists.ucla.edu
> > <mailto:religionlaw-boun...@lists.ucla.edu>
> > [<mailto:religionlaw-boun...@lists.ucla.edu> ] On Behalf Of Len
> >   Sent: Wednesday, July 03, 2013 7:17 PM
> >   To: Law & Religion issues for Law Academics
> >   Subject: Re: Marriage -- the Alito dissent
> > 
> > 
> > 
> > 
> >   This is going to sound awfully libertarian of me, but it's none of the
> > state's business whether a couple has children or not, regardless of age.
> >  Rather it is my understanding that the care and treatment of children
> > resulting from a given union (by whatever means) are appropriate state
> > interests.
> > 
> >   (Not only was Abraham not a model parent, but also reads as an
> > extortionist and pimp.)
> > 
> > 
> >   -
> > 
> >   From: "Sanford V Levinson"  > <mailto:slevin...@law.utexas.edu> >
> >   To: "Mark Scarberry"  > <mailto:mark.scarbe...@pepperdine.edu> 

From the list custodian RE: Marriage -- the Alito dissent

2013-07-11 Thread Volokh, Eugene
Folks:  Please make sure the discussion is focused on legal analysis, not 
general matters of right and wrong or good or bad policy, except insofar as 
they are tied to the legal analysis.  The recent discussion of marriage 
restrictions has departed in some measure from the list’s focus on the law of 
government and religion, and that’s fine.  But we should keep things focused on 
law here, since the purpose of the list is discussion of the law of government 
and religion (and, in this instance, of marriage) that is helpful for legal 
academics who are doing research on the subject.  Thanks,

The list custodian

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len
Sent: Thursday, July 11, 2013 2:53 AM
To: b...@jmcenter.org; Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent

How so, Bob?  Please explain why the state may interfere in our decision 
whether to have children or not, or HOW, and why procreation should be a 
prescribed goal of marriage?

Marriage is a contract between two consenting individuals.  The terms of that 
marriage are up to the parties involved, presumably so long as no laws are 
broken.

I think a good argument may be made that population growth is unsustainable, 
but I don't recall that its ever been asserted by government that whether one 
has children or not is a state interest.  Except in China, and we see it's 
working well for them.


From: b...@jmcenter.org<mailto:b...@jmcenter.org>
To: "Law & Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, July 10, 2013 11:26:02 PM
Subject: Re: Marriage -- the Alito dissent
Len,

Given the extreme overpopulation of the U.S. and the world, the state does 
indeed have a substantial interest -- at least in the number of children 
parents produce. (The current population footprint is not environmentally 
sustainable.)

Bob Ritter
On July 3, 2013 at 10:17 PM Len 
mailto:campquest...@comcast.net>> wrote:

This is going to sound awfully libertarian of me, but it's none of the state's 
business whether a couple has children or not, regardless of age.  Rather it is 
my understanding that the care and treatment of children resulting from a given 
union (by whatever means) are appropriate state interests.

(Not only was Abraham not a model parent, but also reads as an extortionist and 
pimp.)


From: "Sanford V Levinson" 
mailto:slevin...@law.utexas.edu>>
To: "Mark Scarberry" 
mailto:mark.scarbe...@pepperdine.edu>>, "Law & 
Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, July 3, 2013 9:49:40 PM
Subject: RE: Marriage -- the Alito dissent


I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age?  Why can’t the state come to the altogether rational conclusion 
that it is really unwise for, say, a 55-year-old couple to have children unless 
the couple has enough resources to cover the costs of taking care of children 
even after their retirement (not to mention covering the costs of likely 
medical care)?   I agree that is probably not a compelling state interest, at 
least in a quasi-libertarian society, but I certainly think it is at least a 
rational, say, as the defenses being asserted for DOMA.  Of course it may be 
that medical advances in the future will make Sarah and Abraham models to 
emulate, though I tend to be skeptical.  In any event, Abraham was a dreadful 
father who proved willing to kill his child because of a totally arbitrary 
command to do so.  (It is irrelevant that, at least according to the Bible, God 
sent the innocent lamb to be sacrificed instead  There are Midrash, 
incidentally, that suggest that no lamb appeared, which explains why only 
Abraham climbed down the mountain and Isaac was not heard from again for three 
years, by which time Sarah was dead.  One can only imagine the conversation 
that ensued when Abraham came back to the tent without Isaac and had to explain 
why he was alone.  He’s lucky that she didn’t kill him then and there.  But I 
digress….)

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, July 03, 2013 8:12 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Marriage -- the Alito dissent

The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points:

With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring

Re: Marriage -- the Alito dissent

2013-07-11 Thread Len
How so, Bob? Please explain why the state may interfere in our decision whether 
to have children or not, or HOW, and why procreation should be a prescribed 
goal of marriage? 

Marriage is a contract between two consenting individuals. The terms of that 
marriage are up to the parties involved, presumably so long as no laws are 
broken. 

I think a good argument may be made that population growth is unsustainable, 
but I don't recall that its ever been asserted by government that whether one 
has children or not is a state interest. Except in China, and we see it's 
working well for them. 


- Original Message -
From: b...@jmcenter.org 
To: "Law & Religion issues for Law Academics"  
Sent: Wednesday, July 10, 2013 11:26:02 PM 
Subject: Re: Marriage -- the Alito dissent 


Len, 

Given the extreme overpopulation of the U.S. and the world, the state does 
indeed have a substantial interest -- at least in the number of children 
parents produce. (The current population footprint is not environmentally 
sustainable.) 

Bob Ritter 

On July 3, 2013 at 10:17 PM Len  wrote: 



This is going to sound awfully libertarian of me, but it's none of the state's 
business whether a couple has children or not, regardless of age. Rather it is 
my understanding that the care and treatment of children resulting from a given 
union (by whatever means) are appropriate state interests. 

(Not only was Abraham not a model parent, but also reads as an extortionist and 
pimp.) 



From: "Sanford V Levinson"  
To: "Mark Scarberry" , "Law & Religion issues 
for Law Academics"  
Sent: Wednesday, July 3, 2013 9:49:40 PM 
Subject: RE: Marriage -- the Alito dissent 




I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age? Why can’t the state come to the altogether rational conclusion that 
it is really unwise for, say, a 55-year-old couple to have children unless the 
couple has enough resources to cover the costs of taking care of children even 
after their retirement (not to mention covering the costs of likely medical 
care)? I agree that is probably not a compelling state interest, at least in a 
quasi-libertarian society, but I certainly think it is at least a rational, 
say, as the defenses being asserted for DOMA. Of course it may be that medical 
advances in the future will make Sarah and Abraham models to emulate, though I 
tend to be skeptical. In any event, Abraham was a dreadful father who proved 
willing to kill his child because of a totally arbitrary command to do so. (It 
is irrelevant that, at least according to the Bible, God sent the innocent lamb 
to be sacrificed instead There are Midrash, incidentally, that suggest that no 
lamb appeared, which explains why only Abraham climbed down the mountain and 
Isaac was not heard from again for three years, by which time Sarah was dead. 
One can only imagine the conversation that ensued when Abraham came back to the 
tent without Isaac and had to explain why he was alone. He’s lucky that she 
didn’t kill him then and there. But I digress….) 



sandy 





From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark 
Sent: Wednesday, July 03, 2013 8:12 PM 
To: religionlaw@lists.ucla.edu 
Subject: Re: Marriage -- the Alito dissent 




The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points: 





With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.) 





With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate. Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus there are good reasons not to set 
an age limit. 





Mark Scarberry 






Sent from my Verizon Wireless 4G LTE Smartphone 
___ 
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RE: Marriage -- the Alito dissent

2013-07-10 Thread Scarberry, Mark
In my view, the answer to Bob’s questions is “no.” Marriage applicants could 
not be required to make such certifications. The constitutional right to marry 
is firmly established in our history and traditions, and its content as firmly 
established does not permit such a certification to be required.

As I’ve suggested before, I don’t think the same is true of a requirement that 
the couple express a commitment to sexual fidelity/exclusivity within the 
marriage; our history and traditions would seem to support a state in requiring 
a certification of that intent. And I think that, at the appropriate level of 
specificity (a matter subject to dispute, of course), our history and 
traditions do not require recognition of the right to same-sex marriage.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: b...@jmcenter.org [mailto:b...@jmcenter.org]
Sent: Wednesday, July 10, 2013 8:35 PM
To: Scarberry, Mark; Law & Religion issues for Law Academics
Subject: RE: Marriage -- the Alito dissent

Could the procreation argument carried to the extreme result in a requirement 
that the marriage applicants be required to certify under oath that they intend 
to have children (biologically) and that to the best of their knowledge they 
are capable of having children? And that if either answer is checked "no", then 
a license is not issued?

Bob Ritter
On July 4, 2013 at 1:13 AM "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.edu>> wrote:
Last night in Maui, before heading back to Malibu (actually we live in Thousand 
Oaks, not on the ocean, but who's complaining), so a full response will have to 
wait, but my point was that if there is an institution designed to channel / 
encourage / honor committed relationships that are likely to produce children 
naturally, then it would be rational or reasonable not to exclude different-sex 
couples due to age or physical condition. This answers the "why don't you 
exclude those couples" argument.

MARK SCARBERRY

Sent from my Verizon Wireless 4G LTE Smartphone



 Original message 
From: "Volokh, Eugene" mailto:vol...@law.ucla.edu>>
Date: 07/03/2013 5:20 PM (GMT-10:00)
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: RE: Marriage -- the Alito dissent

That may be a perfectly sensible policy position; but I don’t 
think that modern constitutional law demands that the government take such a 
view.  To be sure, the government is constrained in its power to restrict 
childbearing or to mandate it, but the government can certainly distribute 
benefits with an eye towards encouraging or discouraging procreation.

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len
Sent: Wednesday, July 03, 2013 7:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent


This is going to sound awfully libertarian of me, but it's none of the state's 
business whether a couple has children or not, regardless of age.  Rather it is 
my understanding that the care and treatment of children resulting from a given 
union (by whatever means) are appropriate state interests.

(Not only was Abraham not a model parent, but also reads as an extortionist and 
pimp.)

From: "Sanford V Levinson" 
mailto:slevin...@law.utexas.edu>>
To: "Mark Scarberry" 
mailto:mark.scarbe...@pepperdine.edu>>, "Law & 
Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, July 3, 2013 9:49:40 PM
Subject: RE: Marriage -- the Alito dissent

I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age?  Why can’t the state come to the altogether rational conclusion 
that it is really unwise for, say, a 55-year-old couple to have children unless 
the couple has enough resources to cover the costs of taking care of children 
even after their retirement (not to mention covering the costs of likely 
medical care)?   I agree that is probably not a compelling state interest, at 
least in a quasi-libertarian society, but I certainly think it is at least a 
rational, say, as the defenses being asserted for DOMA.  Of course it may be 
that medical advances in the future will make Sarah and Abraham models to 
emulate, though I tend to be skeptical.  In any event, Abraham was a dreadful 
father who proved willing to kill his child because of a totally arbitrary 
command to do so.  (It is irrelevant that, at least according to the Bible, God 
sent the innocent lamb to be sacrificed instead  There are Midrash, 
incidentally, that suggest that no lamb appeared, which explains why 

RE: Marriage -- the Alito dissent

2013-07-10 Thread Volokh, Eugene
Again, if the question is whether there is a rational basis for 
the requirement – the question that we began with, since the presence or 
absence of a rational basis for certain marriage recognition rules is what 
Kennedy and Alito were debating – then the answer is “yes”; there is indeed a 
rational basis for such a requirement.  If the question is whether the 
requirement would violate a constitutional right to marry that the Court has 
recognized, then the answer would be “no,” but that’s because restrictions on 
that right require more than a rational basis.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
Sent: Wednesday, July 10, 2013 8:35 PM
To: Scarberry, Mark; Law & Religion issues for Law Academics
Subject: RE: Marriage -- the Alito dissent

Could the procreation argument carried to the extreme result in a requirement 
that the marriage applicants be required to certify under oath that they intend 
to have children (biologically) and that to the best of their knowledge they 
are capable of having children? And that if either answer is checked "no", then 
a license is not issued?

Bob Ritter
On July 4, 2013 at 1:13 AM "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.edu>> wrote:
Last night in Maui, before heading back to Malibu (actually we live in Thousand 
Oaks, not on the ocean, but who's complaining), so a full response will have to 
wait, but my point was that if there is an institution designed to channel / 
encourage / honor committed relationships that are likely to produce children 
naturally, then it would be rational or reasonable not to exclude different-sex 
couples due to age or physical condition. This answers the "why don't you 
exclude those couples" argument.

MARK SCARBERRY

Sent from my Verizon Wireless 4G LTE Smartphone



 Original message 
From: "Volokh, Eugene" mailto:vol...@law.ucla.edu>>
Date: 07/03/2013 5:20 PM (GMT-10:00)
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: RE: Marriage -- the Alito dissent

That may be a perfectly sensible policy position; but I don’t 
think that modern constitutional law demands that the government take such a 
view.  To be sure, the government is constrained in its power to restrict 
childbearing or to mandate it, but the government can certainly distribute 
benefits with an eye towards encouraging or discouraging procreation.

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len
Sent: Wednesday, July 03, 2013 7:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent


This is going to sound awfully libertarian of me, but it's none of the state's 
business whether a couple has children or not, regardless of age.  Rather it is 
my understanding that the care and treatment of children resulting from a given 
union (by whatever means) are appropriate state interests.

(Not only was Abraham not a model parent, but also reads as an extortionist and 
pimp.)

From: "Sanford V Levinson" 
mailto:slevin...@law.utexas.edu>>
To: "Mark Scarberry" 
mailto:mark.scarbe...@pepperdine.edu>>, "Law & 
Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, July 3, 2013 9:49:40 PM
Subject: RE: Marriage -- the Alito dissent

I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age?  Why can’t the state come to the altogether rational conclusion 
that it is really unwise for, say, a 55-year-old couple to have children unless 
the couple has enough resources to cover the costs of taking care of children 
even after their retirement (not to mention covering the costs of likely 
medical care)?   I agree that is probably not a compelling state interest, at 
least in a quasi-libertarian society, but I certainly think it is at least a 
rational, say, as the defenses being asserted for DOMA.  Of course it may be 
that medical advances in the future will make Sarah and Abraham models to 
emulate, though I tend to be skeptical.  In any event, Abraham was a dreadful 
father who proved willing to kill his child because of a totally arbitrary 
command to do so.  (It is irrelevant that, at least according to the Bible, God 
sent the innocent lamb to be sacrificed instead  There are Midrash, 
incidentally, that suggest that no lamb appeared, which explains why only 
Abraham climbed down the mountain and Isaac was not heard from again for three 
years, by which time Sarah was dead.  One can only imagine the conversati

RE: Marriage -- the Alito dissent

2013-07-10 Thread b...@jmcenter.org
Could the procreation argument carried to the extreme result in a requirement
that the marriage applicants be required to certify under oath that they intend
to have children (biologically) and that to the best of their knowledge they are
capable of having children? And that if either answer is checked "no", then a
license is not issued?

Bob Ritter

> On July 4, 2013 at 1:13 AM "Scarberry, Mark" 
> wrote:
> 
>  Last night in Maui, before heading back to Malibu (actually we live in
> Thousand Oaks, not on the ocean, but who's complaining), so a full response
> will have to wait, but my point was that if there is an institution designed
> to channel / encourage / honor committed relationships that are likely to
> produce children naturally, then it would be rational or reasonable not to
> exclude different-sex couples due to age or physical condition. This answers
> the "why don't you exclude those couples" argument.
> 
>  MARK SCARBERRY
> 
>  Sent from my Verizon Wireless 4G LTE Smartphone
> 
> 
> 
>   Original message 
>  From: "Volokh, Eugene" 
>  Date: 07/03/2013 5:20 PM (GMT-10:00)
>  To: Law & Religion issues for Law Academics 
>  Subject: RE: Marriage -- the Alito dissent
> 
> 
> 
>  That may be a perfectly sensible policy position; but I don’t
> think that modern constitutional law demands that the government take such a
> view.  To be sure, the government is constrained in its power to restrict
> childbearing or to mandate it, but the government can certainly distribute
> benefits with an eye towards encouraging or discouraging procreation.
> 
> 
> 
>  Eugene
> 
> 
> 
>  From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len
>  Sent: Wednesday, July 03, 2013 7:17 PM
>  To: Law & Religion issues for Law Academics
>  Subject: Re: Marriage -- the Alito dissent
> 
> 
> 
> 
>  This is going to sound awfully libertarian of me, but it's none of the
> state's business whether a couple has children or not, regardless of age.
>  Rather it is my understanding that the care and treatment of children
> resulting from a given union (by whatever means) are appropriate state
> interests.
> 
>  (Not only was Abraham not a model parent, but also reads as an extortionist
> and pimp.)
> 
> 
> 
>  -
> 
>  From: "Sanford V Levinson"  <mailto:slevin...@law.utexas.edu> >
>  To: "Mark Scarberry"  <mailto:mark.scarbe...@pepperdine.edu> >, "Law & Religion issues for Law
> Academics" mailto:religionlaw@lists.ucla.edu> >
>  Sent: Wednesday, July 3, 2013 9:49:40 PM
>  Subject: RE: Marriage -- the Alito dissent
> 
> 
> 
>  I realize that my following question gets into another hot-button area, but
> is Mark suggesting that there is a strong constitutional interest in
> procreation at any age?  Why can’t the state come to the altogether rational
> conclusion that it is really unwise for, say, a 55-year-old couple to have
> children unless the couple has enough resources to cover the costs of taking
> care of children even after their retirement (not to mention covering the
> costs of likely medical care)?   I agree that is probably not a compelling
> state interest, at least in a quasi-libertarian society, but I certainly think
> it is at least a rational, say, as the defenses being asserted for DOMA.  Of
> course it may be that medical advances in the future will make Sarah and
> Abraham models to emulate, though I tend to be skeptical.  In any event,
> Abraham was a dreadful father who proved willing to kill his child because of
> a totally arbitrary command to do so.  (It is irrelevant that, at least
> according to the Bible, God sent the innocent lamb to be sacrificed instead
>  There are Midrash, incidentally, that suggest that no lamb appeared, which
> explains why only Abraham climbed down the mountain and Isaac was not heard
> from again for three years, by which time Sarah was dead.  One can only
> imagine the conversation that ensued when Abraham came back to the tent
> without Isaac and had to explain why he was alone.  He’s lucky that she didn’t
> kill him then and there.  But I digress….)
> 
> 
> 
>  sandy
> 
> 
> 
>  From: religionlaw-boun...@lists.ucla.edu
> <mailto:religionlaw-boun...@lists.ucla.edu>
> [<mailto:religionlaw-boun...@lists.ucla.edu> ] On Behalf Of Scarberry, Mark
>  Sent: Wednesday, July 03, 2013 8:12 PM
>  To: religionlaw@lists.ucla.edu <mailto:religionlaw@lists.ucla.edu>
>  Subject: Re: Marriage -- the Ali

RE: Marriage -- the Alito dissent

2013-07-10 Thread Volokh, Eugene
I’m skeptical of claims that the U.S. is overpopulated; indeed, 
I’m tentatively inclined to say that we ought to have a considerably larger 
population.  But surely if this is just a matter of the rational basis test, 
the government would have a rational basis for policies aimed at decreasing the 
population, as well as having a rational basis for policies aimed at increasing 
the population.  Some population control, or population expansion, policies 
might well violate constitutional rights, but not because they lack a rational 
basis.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
Sent: Wednesday, July 10, 2013 8:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent

Len,

Given the extreme overpopulation of the U.S. and the world, the state does 
indeed have a substantial interest -- at least in the number of children 
parents produce. (The current population footprint is not environmentally 
sustainable.)

Bob Ritter
On July 3, 2013 at 10:17 PM Len 
mailto:campquest...@comcast.net>> wrote:

This is going to sound awfully libertarian of me, but it's none of the state's 
business whether a couple has children or not, regardless of age.  Rather it is 
my understanding that the care and treatment of children resulting from a given 
union (by whatever means) are appropriate state interests.

(Not only was Abraham not a model parent, but also reads as an extortionist and 
pimp.)


From: "Sanford V Levinson" 
mailto:slevin...@law.utexas.edu>>
To: "Mark Scarberry" 
mailto:mark.scarbe...@pepperdine.edu>>, "Law & 
Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, July 3, 2013 9:49:40 PM
Subject: RE: Marriage -- the Alito dissent


I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age?  Why can’t the state come to the altogether rational conclusion 
that it is really unwise for, say, a 55-year-old couple to have children unless 
the couple has enough resources to cover the costs of taking care of children 
even after their retirement (not to mention covering the costs of likely 
medical care)?   I agree that is probably not a compelling state interest, at 
least in a quasi-libertarian society, but I certainly think it is at least a 
rational, say, as the defenses being asserted for DOMA.  Of course it may be 
that medical advances in the future will make Sarah and Abraham models to 
emulate, though I tend to be skeptical.  In any event, Abraham was a dreadful 
father who proved willing to kill his child because of a totally arbitrary 
command to do so.  (It is irrelevant that, at least according to the Bible, God 
sent the innocent lamb to be sacrificed instead  There are Midrash, 
incidentally, that suggest that no lamb appeared, which explains why only 
Abraham climbed down the mountain and Isaac was not heard from again for three 
years, by which time Sarah was dead.  One can only imagine the conversation 
that ensued when Abraham came back to the tent without Isaac and had to explain 
why he was alone.  He’s lucky that she didn’t kill him then and there.  But I 
digress….)

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, July 03, 2013 8:12 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Marriage -- the Alito dissent

The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points:

With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.)

With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate.  Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus there are good reasons not to set 
an age limit.

Mark Scarberry

Sent from my Verizon Wireless 4G LTE Smartphone

___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get p

Re: Marriage -- the Alito dissent

2013-07-10 Thread b...@jmcenter.org
Len,

Given the extreme overpopulation of the U.S. and the world, the state does
indeed have a substantial interest -- at least in the number of children parents
produce. (The current population footprint is not environmentally sustainable.)

Bob Ritter

> On July 3, 2013 at 10:17 PM Len  wrote:
> 
> 
>  This is going to sound awfully libertarian of me, but it's none of the
> state's business whether a couple has children or not, regardless of age.
>  Rather it is my understanding that the care and treatment of children
> resulting from a given union (by whatever means) are appropriate state
> interests.
> 
>  (Not only was Abraham not a model parent, but also reads as an extortionist
> and pimp.)
> 
> 
> 
>  -
>  From: "Sanford V Levinson" 
>  To: "Mark Scarberry" , "Law & Religion issues
> for Law Academics" 
>  Sent: Wednesday, July 3, 2013 9:49:40 PM
>  Subject: RE: Marriage -- the Alito dissent
> 
> 
>  I realize that my following question gets into another hot-button area, but
> is Mark suggesting that there is a strong constitutional interest in
> procreation at any age?  Why can’t the state come to the altogether rational
> conclusion that it is really unwise for, say, a 55-year-old couple to have
> children unless the couple has enough resources to cover the costs of taking
> care of children even after their retirement (not to mention covering the
> costs of likely medical care)?   I agree that is probably not a compelling
> state interest, at least in a quasi-libertarian society, but I certainly think
> it is at least a rational, say, as the defenses being asserted for DOMA.  Of
> course it may be that medical advances in the future will make Sarah and
> Abraham models to emulate, though I tend to be skeptical.  In any event,
> Abraham was a dreadful father who proved willing to kill his child because of
> a totally arbitrary command to do so.  (It is irrelevant that, at least
> according to the Bible, God sent the innocent lamb to be sacrificed instead
>  There are Midrash, incidentally, that suggest that no lamb appeared, which
> explains why only Abraham climbed down the mountain and Isaac was not heard
> from again for three years, by which time Sarah was dead.  One can only
> imagine the conversation that ensued when Abraham came back to the tent
> without Isaac and had to explain why he was alone.  He’s lucky that she didn’t
> kill him then and there.  But I digress….)
> 
> 
> 
>  sandy
> 
> 
> 
>  From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
>  Sent: Wednesday, July 03, 2013 8:12 PM
>  To: religionlaw@lists.ucla.edu
>  Subject: Re: Marriage -- the Alito dissent
> 
> 
> 
>  The biological issues with regard to different sex couples mostly can be
> answered fairly easily, I think, including with these points:
> 
> 
> 
>  With regard to medical or similar issues that prevent procreation, a state
> inquiry would intrude substantially on privacy, which would justify the state
> in not inquiring. (Also, some couples who have given up on conceiving, later
> are surprised to find that they have.)
> 
> 
> 
>  With regard to age, no bright line can be set that accurately distinguishes
> those who can from those who cannot procreate.  Any line based on experience
> as to an age after which procreation cannot occur would either be impossible
> to set - men can procreate to a very old age - or would have to discriminate
> against women, who lose the ability to become pregnant by a particular upper
> bound (absent miracles as with Sarah and Abraham) that is much younger than
> any age that could possibly be set for men. Thus there are good reasons not to
> set an age limit.
> 
> 
> 
>  Mark Scarberry
> 
> 
> 
>  Sent from my Verizon Wireless 4G LTE Smartphone
> 
> 
>  ___
>  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.
> 

___
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Anyone can subscribe to the list and read messages that are posted; people can 
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RE: Marriage -- the Alito dissent

2013-07-10 Thread b...@jmcenter.org
Sandy,

I'm 63 and have an 8 year old daughter, making me 55 when my wife and I had her.
I'm not sure that the state can come to your "rational suggestion."

Bob Ritter

> On July 3, 2013 at 9:49 PM "Levinson, Sanford V" 
> wrote:
> 
> 
>  I realize that my following question gets into another hot-button area, but
> is Mark suggesting that there is a strong constitutional interest in
> procreation at any age?  Why can’t the state come to the altogether rational
> conclusion that it is really unwise for, say, a 55-year-old couple to have
> children unless the couple has enough resources to cover the costs of taking
> care of children even after their retirement (not to mention covering the
> costs of likely medical care)?   I agree that is probably not a compelling
> state interest, at least in a quasi-libertarian society, but I certainly think
> it is at least a rational, say, as the defenses being asserted for DOMA.  Of
> course it may be that medical advances in the future will make Sarah and
> Abraham models to emulate, though I tend to be skeptical.  In any event,
> Abraham was a dreadful father who proved willing to kill his child because of
> a totally arbitrary command to do so.  (It is irrelevant that, at least
> according to the Bible, God sent the innocent lamb to be sacrificed instead
>  There are Midrash, incidentally, that suggest that no lamb appeared, which
> explains why only Abraham climbed down the mountain and Isaac was not heard
> from again for three years, by which time Sarah was dead.  One can only
> imagine the conversation that ensued when Abraham came back to the tent
> without Isaac and had to explain why he was alone.  He’s lucky that she didn’t
> kill him then and there.  But I digress….)
> 
> 
> 
>  sandy
> 
> 
> 
>  From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
>  Sent: Wednesday, July 03, 2013 8:12 PM
>  To: religionlaw@lists.ucla.edu
>  Subject: Re: Marriage -- the Alito dissent
> 
> 
> 
>  The biological issues with regard to different sex couples mostly can be
> answered fairly easily, I think, including with these points:
> 
> 
> 
>  With regard to medical or similar issues that prevent procreation, a state
> inquiry would intrude substantially on privacy, which would justify the state
> in not inquiring. (Also, some couples who have given up on conceiving, later
> are surprised to find that they have.)
> 
> 
> 
>  With regard to age, no bright line can be set that accurately distinguishes
> those who can from those who cannot procreate.  Any line based on experience
> as to an age after which procreation cannot occur would either be impossible
> to set - men can procreate to a very old age - or would have to discriminate
> against women, who lose the ability to become pregnant by a particular upper
> bound (absent miracles as with Sarah and Abraham) that is much younger than
> any age that could possibly be set for men. Thus there are good reasons not to
> set an age limit.
> 
> 
> 
>  Mark Scarberry
> 
> 
> 
>  Sent from my Verizon Wireless 4G LTE Smartphone
> 

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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.

RE: Marriage -- the Alito dissent

2013-07-03 Thread Scarberry, Mark
Last night in Maui, before heading back to Malibu (actually we live in Thousand 
Oaks, not on the ocean, but who's complaining), so a full response will have to 
wait, but my point was that if there is an institution designed to channel / 
encourage / honor committed relationships that are likely to produce children 
naturally, then it would be rational or reasonable not to exclude different-sex 
couples due to age or physical condition. This answers the "why don't you 
exclude those couples" argument.

MARK SCARBERRY

Sent from my Verizon Wireless 4G LTE Smartphone



 Original message 
From: "Volokh, Eugene" 
Date: 07/03/2013 5:20 PM (GMT-10:00)
To: Law & Religion issues for Law Academics 
Subject: RE: Marriage -- the Alito dissent


That may be a perfectly sensible policy position; but I don’t 
think that modern constitutional law demands that the government take such a 
view.  To be sure, the government is constrained in its power to restrict 
childbearing or to mandate it, but the government can certainly distribute 
benefits with an eye towards encouraging or discouraging procreation.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len
Sent: Wednesday, July 03, 2013 7:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent


This is going to sound awfully libertarian of me, but it's none of the state's 
business whether a couple has children or not, regardless of age.  Rather it is 
my understanding that the care and treatment of children resulting from a given 
union (by whatever means) are appropriate state interests.

(Not only was Abraham not a model parent, but also reads as an extortionist and 
pimp.)


From: "Sanford V Levinson" 
mailto:slevin...@law.utexas.edu>>
To: "Mark Scarberry" 
mailto:mark.scarbe...@pepperdine.edu>>, "Law & 
Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, July 3, 2013 9:49:40 PM
Subject: RE: Marriage -- the Alito dissent


I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age?  Why can’t the state come to the altogether rational conclusion 
that it is really unwise for, say, a 55-year-old couple to have children unless 
the couple has enough resources to cover the costs of taking care of children 
even after their retirement (not to mention covering the costs of likely 
medical care)?   I agree that is probably not a compelling state interest, at 
least in a quasi-libertarian society, but I certainly think it is at least a 
rational, say, as the defenses being asserted for DOMA.  Of course it may be 
that medical advances in the future will make Sarah and Abraham models to 
emulate, though I tend to be skeptical.  In any event, Abraham was a dreadful 
father who proved willing to kill his child because of a totally arbitrary 
command to do so.  (It is irrelevant that, at least according to the Bible, God 
sent the innocent lamb to be sacrificed instead  There are Midrash, 
incidentally, that suggest that no lamb appeared, which explains why only 
Abraham climbed down the mountain and Isaac was not heard from again for three 
years, by which time Sarah was dead.  One can only imagine the conversation 
that ensued when Abraham came back to the tent without Isaac and had to explain 
why he was alone.  He’s lucky that she didn’t kill him then and there.  But I 
digress….)

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, July 03, 2013 8:12 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Marriage -- the Alito dissent

The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points:

With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.)

With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate.  Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus t

RE: Marriage -- the Alito dissent

2013-07-03 Thread Volokh, Eugene
That may be a perfectly sensible policy position; but I don’t 
think that modern constitutional law demands that the government take such a 
view.  To be sure, the government is constrained in its power to restrict 
childbearing or to mandate it, but the government can certainly distribute 
benefits with an eye towards encouraging or discouraging procreation.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len
Sent: Wednesday, July 03, 2013 7:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent


This is going to sound awfully libertarian of me, but it's none of the state's 
business whether a couple has children or not, regardless of age.  Rather it is 
my understanding that the care and treatment of children resulting from a given 
union (by whatever means) are appropriate state interests.

(Not only was Abraham not a model parent, but also reads as an extortionist and 
pimp.)


From: "Sanford V Levinson" 
mailto:slevin...@law.utexas.edu>>
To: "Mark Scarberry" 
mailto:mark.scarbe...@pepperdine.edu>>, "Law & 
Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, July 3, 2013 9:49:40 PM
Subject: RE: Marriage -- the Alito dissent


I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age?  Why can’t the state come to the altogether rational conclusion 
that it is really unwise for, say, a 55-year-old couple to have children unless 
the couple has enough resources to cover the costs of taking care of children 
even after their retirement (not to mention covering the costs of likely 
medical care)?   I agree that is probably not a compelling state interest, at 
least in a quasi-libertarian society, but I certainly think it is at least a 
rational, say, as the defenses being asserted for DOMA.  Of course it may be 
that medical advances in the future will make Sarah and Abraham models to 
emulate, though I tend to be skeptical.  In any event, Abraham was a dreadful 
father who proved willing to kill his child because of a totally arbitrary 
command to do so.  (It is irrelevant that, at least according to the Bible, God 
sent the innocent lamb to be sacrificed instead  There are Midrash, 
incidentally, that suggest that no lamb appeared, which explains why only 
Abraham climbed down the mountain and Isaac was not heard from again for three 
years, by which time Sarah was dead.  One can only imagine the conversation 
that ensued when Abraham came back to the tent without Isaac and had to explain 
why he was alone.  He’s lucky that she didn’t kill him then and there.  But I 
digress….)

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, July 03, 2013 8:12 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Marriage -- the Alito dissent

The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points:

With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.)

With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate.  Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus there are good reasons not to set 
an age limit.

Mark Scarberry

Sent from my Verizon Wireless 4G LTE Smartphone

___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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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.
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To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailm

Re: Marriage -- the Alito dissent

2013-07-03 Thread Len

This is going to sound awfully libertarian of me, but it's none of the state's 
business whether a couple has children or not, regardless of age. Rather it is 
my understanding that the care and treatment of children resulting from a given 
union (by whatever means) are appropriate state interests. 

(Not only was Abraham not a model parent, but also reads as an extortionist and 
pimp.) 


- Original Message -
From: "Sanford V Levinson"  
To: "Mark Scarberry" , "Law & Religion issues 
for Law Academics"  
Sent: Wednesday, July 3, 2013 9:49:40 PM 
Subject: RE: Marriage -- the Alito dissent 




I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age? Why can’t the state come to the altogether rational conclusion that 
it is really unwise for, say, a 55-year-old couple to have children unless the 
couple has enough resources to cover the costs of taking care of children even 
after their retirement (not to mention covering the costs of likely medical 
care)? I agree that is probably not a compelling state interest, at least in a 
quasi-libertarian society, but I certainly think it is at least a rational, 
say, as the defenses being asserted for DOMA. Of course it may be that medical 
advances in the future will make Sarah and Abraham models to emulate, though I 
tend to be skeptical. In any event, Abraham was a dreadful father who proved 
willing to kill his child because of a totally arbitrary command to do so. (It 
is irrelevant that, at least according to the Bible, God sent the innocent lamb 
to be sacrificed instead There are Midrash, incidentally, that suggest that no 
lamb appeared, which explains why only Abraham climbed down the mountain and 
Isaac was not heard from again for three years, by which time Sarah was dead. 
One can only imagine the conversation that ensued when Abraham came back to the 
tent without Isaac and had to explain why he was alone. He’s lucky that she 
didn’t kill him then and there. But I digress….) 



sandy 





From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark 
Sent: Wednesday, July 03, 2013 8:12 PM 
To: religionlaw@lists.ucla.edu 
Subject: Re: Marriage -- the Alito dissent 




The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points: 





With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.) 





With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate. Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus there are good reasons not to set 
an age limit. 





Mark Scarberry 






Sent from my Verizon Wireless 4G LTE Smartphone 
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RE: Marriage -- the Alito dissent

2013-07-03 Thread Volokh, Eugene
I would think that if a state were to say that it doesn’t want 
to give the various benefits of marriage to couples who marry past some age, 
but to reserve those benefits to couples who are below that age, that would 
pass the rational basis test.  (Whether it passes the heightened scrutiny 
appropriate to restrictions on the right to marry, which has traditionally 
covered couples of all ages, is a separate question.)

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Wednesday, July 03, 2013 6:50 PM
To: Scarberry, Mark; Law & Religion issues for Law Academics
Subject: RE: Marriage -- the Alito dissent

I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age?  Why can’t the state come to the altogether rational conclusion 
that it is really unwise for, say, a 55-year-old couple to have children unless 
the couple has enough resources to cover the costs of taking care of children 
even after their retirement (not to mention covering the costs of likely 
medical care)?   I agree that is probably not a compelling state interest, at 
least in a quasi-libertarian society, but I certainly think it is at least a 
rational, say, as the defenses being asserted for DOMA.  Of course it may be 
that medical advances in the future will make Sarah and Abraham models to 
emulate, though I tend to be skeptical.  In any event, Abraham was a dreadful 
father who proved willing to kill his child because of a totally arbitrary 
command to do so.  (It is irrelevant that, at least according to the Bible, God 
sent the innocent lamb to be sacrificed instead  There are Midrash, 
incidentally, that suggest that no lamb appeared, which explains why only 
Abraham climbed down the mountain and Isaac was not heard from again for three 
years, by which time Sarah was dead.  One can only imagine the conversation 
that ensued when Abraham came back to the tent without Isaac and had to explain 
why he was alone.  He’s lucky that she didn’t kill him then and there.  But I 
digress….)

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, July 03, 2013 8:12 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Marriage -- the Alito dissent

The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points:

With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.)

With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate.  Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus there are good reasons not to set 
an age limit.

Mark Scarberry

Sent from my Verizon Wireless 4G LTE Smartphone
___
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RE: Marriage -- the Alito dissent

2013-07-03 Thread Levinson, Sanford V
I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age?  Why can’t the state come to the altogether rational conclusion 
that it is really unwise for, say, a 55-year-old couple to have children unless 
the couple has enough resources to cover the costs of taking care of children 
even after their retirement (not to mention covering the costs of likely 
medical care)?   I agree that is probably not a compelling state interest, at 
least in a quasi-libertarian society, but I certainly think it is at least a 
rational, say, as the defenses being asserted for DOMA.  Of course it may be 
that medical advances in the future will make Sarah and Abraham models to 
emulate, though I tend to be skeptical.  In any event, Abraham was a dreadful 
father who proved willing to kill his child because of a totally arbitrary 
command to do so.  (It is irrelevant that, at least according to the Bible, God 
sent the innocent lamb to be sacrificed instead  There are Midrash, 
incidentally, that suggest that no lamb appeared, which explains why only 
Abraham climbed down the mountain and Isaac was not heard from again for three 
years, by which time Sarah was dead.  One can only imagine the conversation 
that ensued when Abraham came back to the tent without Isaac and had to explain 
why he was alone.  He’s lucky that she didn’t kill him then and there.  But I 
digress….)

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, July 03, 2013 8:12 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Marriage -- the Alito dissent

The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points:

With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.)

With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate.  Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus there are good reasons not to set 
an age limit.

Mark Scarberry

Sent from my Verizon Wireless 4G LTE Smartphone
___
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Re: Marriage -- the Alito dissent

2013-07-03 Thread Len

I think the assumption is, that opposite-sex couples are "expected" to have 
children in the "normal" way, while same-sex couples cannot. This is a poor 
assumption. My point is that with increasing frequency straight couples cannot, 
which puts them (us) in the same predicament as same-sex couples. 

With increasing frequency, same-sex couples choose to raise a family -- by 
whatever means, and I think that our reasonable observer realizes this, and it 
will soon become a normal expectation if it hasn't already. Just like straight 
folks. I think that the "conjugal" view is actually elastic enough to 
incorporate this. In any case I do not see exclusionary language in the 
definition. 

Thanks again. 

-Z 


- Original Message -
From: "Mark Scarberry"  
To: religionlaw@lists.ucla.edu 
Sent: Wednesday, July 3, 2013 9:12:14 PM 
Subject: Re: Marriage -- the Alito dissent 


The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points: 


With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.) 


With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate. Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus there are good reasons not to set 
an age limit. 


Mark Scarberry 



Sent from my Verizon Wireless 4G LTE Smartphone 
___ 
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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 
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messages to others. ___
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read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Marriage -- the Alito dissent

2013-07-03 Thread Scarberry, Mark
The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points:

With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.)

With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate.  Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus there are good reasons not to set 
an age limit.

Mark Scarberry

Sent from my Verizon Wireless 4G LTE Smartphone
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: Marriage -- the Alito dissent

2013-07-03 Thread Len
I am going to step out of lurking mode for a change. Some of this conversation 
is fascinating. 

Someone please answer me this: Why cannot both the "conjugal" and "consent" 
definitions also apply to SSM's rather than only the latter? Obviously the 
"conjugal" view requires a third party at a certain crucial point, but some gay 
couples do happen to commit for the purpose of raising families, whether 
blended or new (via adoption, surrogate or in vitro), so long as "intrinsically 
ordered" is not a sneaky euphemism for "biologically." 

The way I see it (and have seen it), either view applies regardless of the 
orientation of the couple. 

For that matter, being "biologically ordered" also doesn't work for some 
straight couples, who are biologically incapable of conceiving, sometimes for 
purely natural reasons. I'm sure many on this list know of a few examples. 


Thanks, 

Len Zanger 
Camp Quest 



- Original Message -
From: "Stuart Buck"  
To: "Religion Law"  
Sent: Wednesday, July 3, 2013 5:24:24 PM 
Subject: RE: Marriage -- the Alito dissent 


Marty-- 


Why do you say that footnote is extraordinary? 


Best, 
Stuart 



From: lederman.ma...@gmail.com 
Date: Sat, 29 Jun 2013 10:55:27 -0400 
Subject: Marriage -- the Alito dissent 
To: conlawp...@lists.ucla.edu; religionlaw@lists.ucla.edu 

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 
A

RE: Marriage -- the Alito dissent

2013-07-03 Thread Stuart Buck
Marty-- 
Why do you say that footnote is extraordinary? 
Best,Stuart
From: lederman.ma...@gmail.com
Date: Sat, 29 Jun 2013 10:55:27 -0400
Subject: Marriage -- the Alito dissent
To: conlawp...@lists.ucla.edu; religionlaw@lists.ucla.edu

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 Alex

Re: Marriage -- the Alito dissent

2013-07-01 Thread Jean Dudley
Lifestyle?  What lifestyle?  
On Jul 1, 2013, at Mon, Jul 1,  9:58 PM, "Brad Pardee"  
wrote:

> I wasn't discussing lifestyle.  There are hedonists among the gay and 
> straight communities alike, just as there are faithful and monogamous 
> relationships within the gay and straight communities alike.
>  
> However, you actually confirm the point I was making.  What people believe is 
> right and what people believe is wrong in moral questions is rarely, if ever, 
> the result of statistical analysis or scientific study.  That does not make 
> them, by definition, irrational.

You're right: Just because it hasn't been confirmed by statistical analysis 
doesn't necessarily make it irrational; but once it has been proven one way or 
another it's irrational to continue to state the opposite, something I've seen 
numerous times in the Same-Sex Marriage debate.  
>  
> Brad Parde
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
> Sent: Monday, July 01, 2013 11:45 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Marriage -- the Alito dissent
>  
> Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock 
> births that might pass as "facts."  They suggest that states that allow same 
> sex marriages have lower divorce rates and lower out of wedlock birth rates 
> than state that oppose same sex marriage.  Might we consider this the 
> "hetero-sexual lifestyle"?
>  
>  
>  
> *
> Paul Finkelman, Ph.D.
> President William McKinley Distinguished Professor of Law
> Albany Law School
> 80 New Scotland Avenue
> Albany, NY 12208
>  
> 518-445-3386 (p)
> 518-445-3363 (f)
>  
> paul.finkel...@albanylaw.edu
> www.paulfinkelman.com
> *
> 
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of Brad Pardee [bp51...@windstream.net]
> Sent: Tuesday, July 02, 2013 12:27 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Marriage -- the Alito dissent
> 
> How many moral questions are based on scientific fact?  Whether an argument 
> is in support of same sex marriage/relationships or in opposition to them, it 
> ultimately boils down to a question about what you believe is right and and 
> what you believe is wrong, and those questions, no matter which side of the 
> question you find yourself supporting, are rarely, if ever, supported by 
> scientific fact.  If they were, then nature's display of the law of survival 
> of the fittest, a scientifically verified phenomena to be certain , would 
> seem to suggest that objection to killing is irrational.
>  
> Brad Pardee
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
> Sent: Monday, July 01, 2013 11:00 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Marriage -- the Alito dissent
>  
> Would you kindly provide one argument that isn't irrational?  Understand that 
> it will indeed be scrutinized for basis in scientific fact, and that it if 
> fails, it will have to be deemed irrational.  
> On Jul 1, 2013, at Mon, Jul 1,  6:35 PM, "Esenberg, Richard" 
>  wrote:
>  
> 
>  My intended point is that the notion that opposition to same sex marriage - 
> even if based on traditional arguments about the morality of homosexual 
> relationships - cannot be dismissed as irrational or hateful. 
>  
> ___
> 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.

___
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RE: Marriage -- the Alito dissent

2013-07-01 Thread Volokh, Eugene
I've offered two arguments against recognition of same-sex marriage that aren't 
religious in nature.  But beyond this, a vast range of laws is based on "claims 
that haven't been proven."  That's true of intellectual property law, drug 
laws, gun control laws, rent controls, price controls, labor laws, immigration 
laws, monopolies, economic subsidies, and much, much more.  You can't run 
double-blind experiments with most laws.

The result, of course, is a great deal of unwise legislation.  As voters, we 
should certainly pay attention to whether there's enough evidence for a 
particular law in our judgment.  But it is very rare that we, even as voters or 
legislators, can say that there is "pro[of]" of the claims on which the laws 
rest.  And the rational basis test does not require such proof.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
Sent: Monday, July 01, 2013 9:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent

Dunno about moral questions, but it seems to me that there's lots of arguments 
made on claims that haven't been proven;  Take, for example, the claim that 
children are harmed by being raised by same-sex parents.  Exactly *how* they 
are harmed is never really quantified;  However, there are studies that show 
that children of same-sex parenting are as  well adjusted as their opposite-sex 
parented peers.  In fact, a very recent Australian study says they are 
*healthier* than their peers.

In short, Mr. Pardee, if an argument is made, for or against, it has to be 
*factual*.  How are facts verified?  Science.  And yes, that acknowledges 
errors of bias.  But science, sir, is what gives us *facts*.

As for survival of the fittest, even that hypothesis is in dispute: Nature 
displays a vast supply of examples of cooperation; herd beasts often protect 
the young, the vulnerable, from attack.

So again, I ask for *one* argument against homosexuality that is not religious 
in nature.  Anybody?
On Jul 1, 2013, at Mon, Jul 1,  9:27 PM, "Brad Pardee" 
mailto:bp51...@windstream.net>> wrote:


How many moral questions are based on scientific fact?  Whether an argument is 
in support of same sex marriage/relationships or in opposition to them, it 
ultimately boils down to a question about what you believe is right and and 
what you believe is wrong, and those questions, no matter which side of the 
question you find yourself supporting, are rarely, if ever, supported by 
scientific fact.  If they were, then nature's display of the law of survival of 
the fittest, a scientifically verified phenomena to be certain , would seem to 
suggest that objection to killing is irrational.

Brad Pardee

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On 
Behalf Of Jean Dudley
Sent: Monday, July 01, 2013 11:00 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent

Would you kindly provide one argument that isn't irrational?  Understand that 
it will indeed be scrutinized for basis in scientific fact, and that it if 
fails, it will have to be deemed irrational.
On Jul 1, 2013, at Mon, Jul 1,  6:35 PM, "Esenberg, Richard" 
mailto:richard.esenb...@marquette.edu>> wrote:



 My intended point is that the notion that opposition to same sex marriage - 
even if based on traditional arguments about the morality of homosexual 
relationships - cannot be dismissed as irrational or hateful.

___
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Re: Marriage -- the Alito dissent

2013-07-01 Thread Jean Dudley
When folks tell me they're insulted by being reminded that their terminology is 
bigoted, I am often tempted to respond with my best Betty Davis impression:  
"Butcha AH, Blanche, ya AH in that chair!".  But that, of course, would be 
counter-productive to the discussion at hand.  Usually I just walk away at that 
point, because why beat a dead horse.  Mr. New will either take my advice, or 
he won't.  Whether he's insulted or not really is no longer of concern to me.  

Keep in mind that Paula Deen *still* is tearfully denying being a racist after 
multiple and continued use of the N word toward her workers.  All I can say is, 
'if the shoe fits, wear it, no matter how uncomfortable it is'. 
On Jul 1, 2013, at Mon, Jul 1,  9:46 PM, "Volokh, Eugene"  
wrote:

> Well, many people find others expressly suggesting that they 
> change their political terminology to be demeaning and dismissive.  Indeed, 
> publicly asking people to change how they speak – and calling people bigots – 
> is often felt to be insulting.  One might well suggest that people remove 
> such requests from their terminology.
>  
> Naturally, of course, Ms. Dudley might respond that she is 
> right in suggesting that Mr. New is a bigot, and that her comment should fit 
> within an exception to the principle I mentioned above.  And Mr. New might 
> respond that he was right in calling homosexuality a lifestyle, and that it 
> is her comment that is insulting.  (Or maybe these two people wouldn’t – I 
> can’t read their minds – but others on their side well might.)  But that just 
> highlights, I think, how unproductive these sorts of demands are in public 
> debate, and how unlikely they are to actually persuade people.
>  
> Eugene
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
> Sent: Monday, July 01, 2013 9:32 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Marriage -- the Alito dissent
>  
> Add my intellectual curiousity to Dr. Finkelman's. Homosexuality isn't a 
> lifestyle, any more than heterosexuality is.  Considering homosexuals vary 
> wildly in ethnicities, economic status, religions, moralities, the only thing 
> they have in common is their sexuality.  Kinda like heterosexuals, it seems 
> to me.  
>  
> We in the homosexual sector consider the term "lifestyle" to be demeaning or 
> dismissive.  It is considered insulting and since it is often used by bigots, 
> a bigoted term.  May I suggest you remove it from your terminology, Mr. New? 
>  
>  
> On Jul 1, 2013, at Mon, Jul 1,  8:00 PM, "Finkelman, Paul" 
>  wrote:
> 
> 
> Dear Mr. New
>  
> I would love to know that the "homosexual lifestyle" is. 
>  
>  One of my former students is a law graduate and a sitting judge; her 
> partner/wife has and MBA; they have twin daughters (through a sperm bank); 
> are members of the local Temple, one is on the board of the Temple. They live 
> in a very nice house in the suburbs; They vote, pay taxes; send their kids to 
> school. They have been together since the mid-1990s.
>  
> Another one of my very close friends is an associate dean at a law school; 
> his partner/husband is a physician. They life in really nice apartment in NY 
> City.  My law professor friend writes great scholarship and does a ton of pro 
> bono work.  They have been together for about 14 years.
>  
> Both of these marriages (which lacked legal sanction until just a few years 
> ago) have lasted longer than many of the hetero-marriages I have seen and I 
> suspect have lasted longer than the average hetero marriage does in many 
> places.
>  
> Is there something wrong with these lifestyles?  
>  
> You talk in your post of the "homosexual lifestyle."  I have no idea what you 
> are talking about.
> Care to share this with the list?  My gay friends have lifestyles very much 
> like my straight friends except their marriages seem to be longer lasting.
>  
> Maybe you are opposed to longer lasting marriages?
>  
>  
> *
> Paul Finkelman, Ph.D.
> President William McKinley Distinguished Professor of Law
> Albany Law School
> 80 New Scotland Avenue
> Albany, NY 12208
>  
> 518-445-3386 (p)
> 518-445-3363 (f)
>  
> paul.finkel...@albanylaw.edu
> www.paulfinkelman.com
> *
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of David W. New [david_...@msn.com]
> Sent: Monday, July 01, 2013 8:16 PM
> To: Law & Religion issues for Law Acad

RE: Marriage -- the Alito dissent

2013-07-01 Thread Brad Pardee
I wasn't discussing lifestyle.  There are hedonists among the gay and
straight communities alike, just as there are faithful and monogamous
relationships within the gay and straight communities alike.

 

However, you actually confirm the point I was making.  What people believe
is right and what people believe is wrong in moral questions is rarely, if
ever, the result of statistical analysis or scientific study.  That does not
make them, by definition, irrational.

 

Brad Parde

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Monday, July 01, 2013 11:45 PM
To: Law & Religion issues for Law Academics
Subject: RE: Marriage -- the Alito dissent

 

Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock
births that might pass as "facts."  They suggest that states that allow same
sex marriages have lower divorce rates and lower out of wedlock birth rates
than state that oppose same sex marriage.  Might we consider this the
"hetero-sexual lifestyle"?

 

 

 

*
Paul Finkelman, Ph.D.

President William McKinley Distinguished Professor of Law

Albany Law School

80 New Scotland Avenue

Albany, NY 12208

 

518-445-3386 (p)

518-445-3363 (f)

 

paul.finkel...@albanylaw.edu

www.paulfinkelman.com

*




  _  

From: religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee
[bp51...@windstream.net]
Sent: Tuesday, July 02, 2013 12:27 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Marriage -- the Alito dissent

How many moral questions are based on scientific fact?  Whether an argument
is in support of same sex marriage/relationships or in opposition to them,
it ultimately boils down to a question about what you believe is right and
and what you believe is wrong, and those questions, no matter which side of
the question you find yourself supporting, are rarely, if ever, supported by
scientific fact.  If they were, then nature's display of the law of survival
of the fittest, a scientifically verified phenomena to be certain , would
seem to suggest that objection to killing is irrational.

 

Brad Pardee

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
Sent: Monday, July 01, 2013 11:00 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent

 

Would you kindly provide one argument that isn't irrational?  Understand
that it will indeed be scrutinized for basis in scientific fact, and that it
if fails, it will have to be deemed irrational.  

On Jul 1, 2013, at Mon, Jul 1,  6:35 PM, "Esenberg, Richard"
 wrote:

 

 My intended point is that the notion that opposition to same sex marriage -
even if based on traditional arguments about the morality of homosexual
relationships - cannot be dismissed as irrational or hateful. 

 

___
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RE: Marriage -- the Alito dissent

2013-07-01 Thread Finkelman, Paul
I sent this for posting some time ago but it appears not to have been posted so 
I am resending it


Mr. New posted something (below) about the gay lifestyle without of course 
telling us what it is.  But, perhaps we can get an insight into these issues by 
looking at divorce rate and rate of out-of-wedlock births.  We might call this 
the hetero-sexual lifestyle.

As the numbers below show, states which allow same sex marriage have 
substantially lower divorce rates than the average and much lower than a number 
of states which have adamantly attacked the idea of same sex marriages.  This 
may not tell us must about same sex marriages but it does tell us something 
about the social climate in many states that oppose same sex marriage and in 
those that allow such unions.  Below the divorce statistics are the numbers for 
out-of-wedlock births by states for the top 20 states for 1998 which is the 
most recent data I could find.   This data shows that of the 20 states with the 
highest out-of-wedlock birth rates only four allow same sex marriages.   On the 
other hand, in the bottom 20 for out-of-wedlock birth rates, there are 8 states 
that allow same sex marriage.   (I did not include these but you can find them 
athttp://www.state.ok.us/osfdocs/budget/table25.pdf)

The more recent divorce statistics are at

http://www.census.gov/compendia/statab/2012/tables/12s0133.pdf

Perhaps Mr. New should be concerned with the heterosexual life style that leads 
to so many divorces and so many out-of-wedlock children, and at the same time 
are so fearful of same sex marriage.

According to the US Census, in 2009 there were, on average, 3.4 divorces for 
every 1000 people in the US.  Here are the 2009 divorce rates for 13 
jurisdictions that allow same sex marriage (there are no 2009 statistics for 
California and Minn for that year but for the earlier years that the statistics 
are available, they are well below the national average.).  Note that only 5 of 
these places are above the national average, and only two (Maine and 
Washington) are substantially above the average.

Following this are the 12 states with the highest divorce rates.  All prohibit 
same sex marriage.  Some aggressively so.  Note they have much higher divorce 
rates.

Divorces per 1000 people

Conn.   3.1
Delaware 3.6
DC   2.6
Iowa2.4
Maine  4.1
Maryland2.8
Mass   2.2
NH  3.7
NJ2.8
NY  2.6
RI   3.0
Vt   3.5
Washington3.9

TOP Divorce States

Nevada  6.7
Arkansas   5.7
W. Va.   5.2
Wyoming5.2
Idaho 5.0
Oklahoma   4.9
Kentucky   4.6
Alabama4.4
Alaska   4.4
Colorado   4.2
Florida   4.2
Montana4.1

Out of wedlock births by state:


1 Mississippi 45.5%
2 Louisiana 44.9%
3 New Mexico 44.1%
4 South Carolina 38.7%
 5 Arizona 38.4%
 6 Delaware 37.1%
 7 Florida 36.6%
 8 Georgia 36.2%
 9 Arkansas 35.1%
 10 New York 34.9%
 11 Tennessee 34.9%
 12 Nevada 34.7%
 13 Maryland 34.4%
 14 Alabama 34.1%
 15 Missouri 34.1%
 16 Illinois 34.1%
 17 Ohio 34.0%
 18 Rhode Island 33.9%
19 Indiana 33.4%
20 Oklahoma 33.2%





*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Finkelman, Paul [paul.finkel...@albanylaw.edu]
Sent: Tuesday, July 02, 2013 12:45 AM
To: Law & Religion issues for Law Academics
Subject: RE: Marriage -- the Alito dissent

Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock 
births that might pass as "facts."  They suggest that states that allow same 
sex marriages have lower divorce rates and lower out of wedlock birth rates 
than state that oppose same sex marriage.  Might we consider this the 
"hetero-sexual lifestyle"?



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Brad Pardee [bp51...@windstream.net]
Sent: Tuesday, July 02, 2013 12:27 AM
To: &

RE: Marriage -- the Alito dissent

2013-07-01 Thread Volokh, Eugene
My guess is that the great bulk of people who condemn same-sex 
marriage are also quite troubled by out-of-wedlock births and by divorce.  One 
common argument, indeed, is that (1) we tinkered with traditional sexual and 
marital mores, and the result - much greater out-of-wedlock birth rates and 
divorce rates - has been bad for society, so (2) we should therefore stop 
tinker with what sexual and marital mores we have left.   Indeed, my sense is 
that cultural conservatives tend to think that the American heterosexual 
lifestyle is indeed badly broken in many ways, though in ways that are 
politically and socially hard to stop.

As it happens, I don't agree with that argument, for reasons I 
outlined before.  But I don't see how high divorce rates and high 
out-of-wedlock birth rates in opposite-sex-only-marriage states tells us much 
about whether same-sex marriage is or is not a good idea, much less about 
whether opposite-sex-only-marriage rules are or are not rational.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Monday, July 01, 2013 9:45 PM
To: Law & Religion issues for Law Academics
Subject: RE: Marriage -- the Alito dissent

Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock 
births that might pass as "facts."  They suggest that states that allow same 
sex marriages have lower divorce rates and lower out of wedlock birth rates 
than state that oppose same sex marriage.  Might we consider this the 
"hetero-sexual lifestyle"?



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee 
[bp51...@windstream.net]
Sent: Tuesday, July 02, 2013 12:27 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Marriage -- the Alito dissent
How many moral questions are based on scientific fact?  Whether an argument is 
in support of same sex marriage/relationships or in opposition to them, it 
ultimately boils down to a question about what you believe is right and and 
what you believe is wrong, and those questions, no matter which side of the 
question you find yourself supporting, are rarely, if ever, supported by 
scientific fact.  If they were, then nature's display of the law of survival of 
the fittest, a scientifically verified phenomena to be certain , would seem to 
suggest that objection to killing is irrational.

Brad Pardee

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
Sent: Monday, July 01, 2013 11:00 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent

Would you kindly provide one argument that isn't irrational?  Understand that 
it will indeed be scrutinized for basis in scientific fact, and that it if 
fails, it will have to be deemed irrational.
On Jul 1, 2013, at Mon, Jul 1,  6:35 PM, "Esenberg, Richard" 
mailto:richard.esenb...@marquette.edu>> wrote:

 My intended point is that the notion that opposition to same sex marriage - 
even if based on traditional arguments about the morality of homosexual 
relationships - cannot be dismissed as irrational or hateful.

___
To post, send message to Religionlaw@lists.ucla.edu
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Re: Marriage -- the Alito dissent

2013-07-01 Thread Jean Dudley
Dunno about moral questions, but it seems to me that there's lots of arguments 
made on claims that haven't been proven;  Take, for example, the claim that 
children are harmed by being raised by same-sex parents.  Exactly *how* they 
are harmed is never really quantified;  However, there are studies that show 
that children of same-sex parenting are as  well adjusted as their opposite-sex 
parented peers.  In fact, a very recent Australian study says they are 
*healthier* than their peers. 

In short, Mr. Pardee, if an argument is made, for or against, it has to be 
*factual*.  How are facts verified?  Science.  And yes, that acknowledges 
errors of bias.  But science, sir, is what gives us *facts*.  

As for survival of the fittest, even that hypothesis is in dispute: Nature 
displays a vast supply of examples of cooperation; herd beasts often protect 
the young, the vulnerable, from attack. 

So again, I ask for *one* argument against homosexuality that is not religious 
in nature.  Anybody? 
On Jul 1, 2013, at Mon, Jul 1,  9:27 PM, "Brad Pardee"  
wrote:

> How many moral questions are based on scientific fact?  Whether an argument 
> is in support of same sex marriage/relationships or in opposition to them, it 
> ultimately boils down to a question about what you believe is right and and 
> what you believe is wrong, and those questions, no matter which side of the 
> question you find yourself supporting, are rarely, if ever, supported by 
> scientific fact.  If they were, then nature's display of the law of survival 
> of the fittest, a scientifically verified phenomena to be certain , would 
> seem to suggest that objection to killing is irrational.
>  
> Brad Pardee
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
> Sent: Monday, July 01, 2013 11:00 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Marriage -- the Alito dissent
>  
> Would you kindly provide one argument that isn't irrational?  Understand that 
> it will indeed be scrutinized for basis in scientific fact, and that it if 
> fails, it will have to be deemed irrational.  
> On Jul 1, 2013, at Mon, Jul 1,  6:35 PM, "Esenberg, Richard" 
>  wrote:
> 
> 
>  My intended point is that the notion that opposition to same sex marriage - 
> even if based on traditional arguments about the morality of homosexual 
> relationships - cannot be dismissed as irrational or hateful. 
>  
> ___
> 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.

___
To post, send message to Religionlaw@lists.ucla.edu
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Please note that messages sent to this large list cannot be viewed as private.  
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messages to others.

RE: Marriage -- the Alito dissent

2013-07-01 Thread Volokh, Eugene
Well, many people find others expressly suggesting that they 
change their political terminology to be demeaning and dismissive.  Indeed, 
publicly asking people to change how they speak - and calling people bigots - 
is often felt to be insulting.  One might well suggest that people remove such 
requests from their terminology.

Naturally, of course, Ms. Dudley might respond that she is 
right in suggesting that Mr. New is a bigot, and that her comment should fit 
within an exception to the principle I mentioned above.  And Mr. New might 
respond that he was right in calling homosexuality a lifestyle, and that it is 
her comment that is insulting.  (Or maybe these two people wouldn't - I can't 
read their minds - but others on their side well might.)  But that just 
highlights, I think, how unproductive these sorts of demands are in public 
debate, and how unlikely they are to actually persuade people.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
Sent: Monday, July 01, 2013 9:32 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent

Add my intellectual curiousity to Dr. Finkelman's. Homosexuality isn't a 
lifestyle, any more than heterosexuality is.  Considering homosexuals vary 
wildly in ethnicities, economic status, religions, moralities, the only thing 
they have in common is their sexuality.  Kinda like heterosexuals, it seems to 
me.

We in the homosexual sector consider the term "lifestyle" to be demeaning or 
dismissive.  It is considered insulting and since it is often used by bigots, a 
bigoted term.  May I suggest you remove it from your terminology, Mr. New?


On Jul 1, 2013, at Mon, Jul 1,  8:00 PM, "Finkelman, Paul" 
mailto:paul.finkel...@albanylaw.edu>> wrote:


Dear Mr. New

I would love to know that the "homosexual lifestyle" is.

 One of my former students is a law graduate and a sitting judge; her 
partner/wife has and MBA; they have twin daughters (through a sperm bank); are 
members of the local Temple, one is on the board of the Temple. They live in a 
very nice house in the suburbs; They vote, pay taxes; send their kids to 
school. They have been together since the mid-1990s.

Another one of my very close friends is an associate dean at a law school; his 
partner/husband is a physician. They life in really nice apartment in NY City.  
My law professor friend writes great scholarship and does a ton of pro bono 
work.  They have been together for about 14 years.

Both of these marriages (which lacked legal sanction until just a few years 
ago) have lasted longer than many of the hetero-marriages I have seen and I 
suspect have lasted longer than the average hetero marriage does in many places.

Is there something wrong with these lifestyles?

You talk in your post of the "homosexual lifestyle."  I have no idea what you 
are talking about.
Care to share this with the list?  My gay friends have lifestyles very much 
like my straight friends except their marriages seem to be longer lasting.

Maybe you are opposed to longer lasting marriages?


*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of David W. New [david_...@msn.com<mailto:david_...@msn.com>]
Sent: Monday, July 01, 2013 8:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent

Respectfully, I disagree with you. I just finished writing a 3,400 word article 
making the case against homosexuality without using religion in any way. I 
think a very strong case can be made against homosexual lifestyle without any 
reference to God, the Bible, etc. As you can imagine, I am busy trying to find 
a publisher because of its length and in some cases, its content. If I ever get 
it published, the title of my article is:

"Listen To Your Body, 7 Reasons Why Homosexuality is Bad for America." I hope 
that Americans will continue to be extended the courtesy to think for 
themselves--even if its not popular. It seems that defenders of the gay 
lifestyle who want us to be tolerant of homosexuality become very intolerant if 
you dare to disagree with them. We are living in a Joseph McCarthy era in 
reverse. Now it's the left who is intolerant. Sincerely, David W. New, Esq. 
Member Maryland 

RE: Marriage -- the Alito dissent

2013-07-01 Thread Finkelman, Paul
Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock 
births that might pass as "facts."  They suggest that states that allow same 
sex marriages have lower divorce rates and lower out of wedlock birth rates 
than state that oppose same sex marriage.  Might we consider this the 
"hetero-sexual lifestyle"?



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Brad Pardee [bp51...@windstream.net]
Sent: Tuesday, July 02, 2013 12:27 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Marriage -- the Alito dissent

How many moral questions are based on scientific fact?  Whether an argument is 
in support of same sex marriage/relationships or in opposition to them, it 
ultimately boils down to a question about what you believe is right and and 
what you believe is wrong, and those questions, no matter which side of the 
question you find yourself supporting, are rarely, if ever, supported by 
scientific fact.  If they were, then nature's display of the law of survival of 
the fittest, a scientifically verified phenomena to be certain , would seem to 
suggest that objection to killing is irrational.

Brad Pardee

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
Sent: Monday, July 01, 2013 11:00 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent

Would you kindly provide one argument that isn't irrational?  Understand that 
it will indeed be scrutinized for basis in scientific fact, and that it if 
fails, it will have to be deemed irrational.
On Jul 1, 2013, at Mon, Jul 1,  6:35 PM, "Esenberg, Richard" 
mailto:richard.esenb...@marquette.edu>> wrote:


 My intended point is that the notion that opposition to same sex marriage - 
even if based on traditional arguments about the morality of homosexual 
relationships - cannot be dismissed as irrational or hateful.

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Re: Marriage -- the Alito dissent

2013-07-01 Thread Jean Dudley
Add my intellectual curiousity to Dr. Finkelman's. Homosexuality isn't a 
lifestyle, any more than heterosexuality is.  Considering homosexuals vary 
wildly in ethnicities, economic status, religions, moralities, the only thing 
they have in common is their sexuality.  Kinda like heterosexuals, it seems to 
me.  

We in the homosexual sector consider the term "lifestyle" to be demeaning or 
dismissive.  It is considered insulting and since it is often used by bigots, a 
bigoted term.  May I suggest you remove it from your terminology, Mr. New? 


On Jul 1, 2013, at Mon, Jul 1,  8:00 PM, "Finkelman, Paul" 
 wrote:

> Dear Mr. New
> 
> I would love to know that the "homosexual lifestyle" is. 
> 
>  One of my former students is a law graduate and a sitting judge; her 
> partner/wife has and MBA; they have twin daughters (through a sperm bank); 
> are members of the local Temple, one is on the board of the Temple. They live 
> in a very nice house in the suburbs; They vote, pay taxes; send their kids to 
> school. They have been together since the mid-1990s.
> 
> Another one of my very close friends is an associate dean at a law school; 
> his partner/husband is a physician. They life in really nice apartment in NY 
> City.  My law professor friend writes great scholarship and does a ton of pro 
> bono work.  They have been together for about 14 years.
> 
> Both of these marriages (which lacked legal sanction until just a few years 
> ago) have lasted longer than many of the hetero-marriages I have seen and I 
> suspect have lasted longer than the average hetero marriage does in many 
> places.
> 
> Is there something wrong with these lifestyles?  
> 
> You talk in your post of the "homosexual lifestyle."  I have no idea what you 
> are talking about.
> Care to share this with the list?  My gay friends have lifestyles very much 
> like my straight friends except their marriages seem to be longer lasting.
> 
> Maybe you are opposed to longer lasting marriages?
>  
>  
> *
> Paul Finkelman, Ph.D.
> President William McKinley Distinguished Professor of Law
> Albany Law School
> 80 New Scotland Avenue
> Albany, NY 12208
>  
> 518-445-3386 (p)
> 518-445-3363 (f)
>  
> paul.finkel...@albanylaw.edu
> www.paulfinkelman.com
> *
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of David W. New [david_...@msn.com]
> Sent: Monday, July 01, 2013 8:16 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Marriage -- the Alito dissent
> 
> Respectfully, I disagree with you. I just finished writing a 3,400 word 
> article making the case against homosexuality without using religion in any 
> way. I think a very strong case can be made against homosexual lifestyle 
> without any reference to God, the Bible, etc. As you can imagine, I am busy 
> trying to find a publisher because of its length and in some cases, its 
> content. If I ever get it published, the title of my article is:
> 
> "Listen To Your Body, 7 Reasons Why Homosexuality is Bad for America." I hope 
> that Americans will continue to be extended the courtesy to think for 
> themselves--even if its not popular. It seems that defenders of the gay 
> lifestyle who want us to be tolerant of homosexuality become very intolerant 
> if you dare to disagree with them. We are living in a Joseph McCarthy era in 
> reverse. Now it’s the left who is intolerant. Sincerely, David W. New, Esq. 
> Member Maryland and DC Bars.
> 
> - Original Message -
> From: Jean Dudley
> To: Law & Religion issues for Law Academics
> Sent: Monday, July 01, 2013 12:27 PM
> Subject: Re: Marriage -- the Alito dissent
> 
> I'm with Eduardo; I can't believe this.  Mr. Esenberg, it's not simply a 
> matter of disagreement, it's a matter of said arguments simply do not hold 
> water without a religious premise.  Put another way, yes, I disagree with the 
> arguments, but that's because they're fallacious to the point of 
> autoeroticism. There are no valid non-religious arguments against 
> homosexuality. 
> On Jun 30, 2013, at Sun, Jun 30,  6:38 PM, "Esenberg, Richard" 
>  wrote:
> 
>> You can certainly disagree with these arguments but they do not proceed from 
>> theological premises.
> 
> 
> 
> ___
> 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

RE: Marriage -- the Alito dissent

2013-07-01 Thread Brad Pardee
How many moral questions are based on scientific fact?  Whether an argument
is in support of same sex marriage/relationships or in opposition to them,
it ultimately boils down to a question about what you believe is right and
and what you believe is wrong, and those questions, no matter which side of
the question you find yourself supporting, are rarely, if ever, supported by
scientific fact.  If they were, then nature's display of the law of survival
of the fittest, a scientifically verified phenomena to be certain , would
seem to suggest that objection to killing is irrational.

 

Brad Pardee

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
Sent: Monday, July 01, 2013 11:00 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent

 

Would you kindly provide one argument that isn't irrational?  Understand
that it will indeed be scrutinized for basis in scientific fact, and that it
if fails, it will have to be deemed irrational.  

On Jul 1, 2013, at Mon, Jul 1,  6:35 PM, "Esenberg, Richard"
 wrote:





 My intended point is that the notion that opposition to same sex marriage -
even if based on traditional arguments about the morality of homosexual
relationships - cannot be dismissed as irrational or hateful. 

 

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Re: Marriage -- the Alito dissent

2013-07-01 Thread Jean Dudley
Would you kindly provide one argument that isn't irrational?  Understand that 
it will indeed be scrutinized for basis in scientific fact, and that it if 
fails, it will have to be deemed irrational.  
On Jul 1, 2013, at Mon, Jul 1,  6:35 PM, "Esenberg, Richard" 
 wrote:

>  My intended point is that the notion that opposition to same sex marriage - 
> even if based on traditional arguments about the morality of homosexual 
> relationships - cannot be dismissed as irrational or hateful. 

___
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RE: Marriage -- the Alito dissent

2013-07-01 Thread Finkelman, Paul
Dear Mr. New

I would love to know that the "homosexual lifestyle" is.

 One of my former students is a law graduate and a sitting judge; her 
partner/wife has and MBA; they have twin daughters (through a sperm bank); are 
members of the local Temple, one is on the board of the Temple. They live in a 
very nice house in the suburbs; They vote, pay taxes; send their kids to 
school. They have been together since the mid-1990s.

Another one of my very close friends is an associate dean at a law school; his 
partner/husband is a physician. They life in really nice apartment in NY City.  
My law professor friend writes great scholarship and does a ton of pro bono 
work.  They have been together for about 14 years.

Both of these marriages (which lacked legal sanction until just a few years 
ago) have lasted longer than many of the hetero-marriages I have seen and I 
suspect have lasted longer than the average hetero marriage does in many places.

Is there something wrong with these lifestyles?

You talk in your post of the "homosexual lifestyle."  I have no idea what you 
are talking about.
Care to share this with the list?  My gay friends have lifestyles very much 
like my straight friends except their marriages seem to be longer lasting.

Maybe you are opposed to longer lasting marriages?


*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of David W. New [david_...@msn.com]
Sent: Monday, July 01, 2013 8:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent


Respectfully, I disagree with you. I just finished writing a 3,400 word article 
making the case against homosexuality without using religion in any way. I 
think a very strong case can be made against homosexual lifestyle without any 
reference to God, the Bible, etc. As you can imagine, I am busy trying to find 
a publisher because of its length and in some cases, its content. If I ever get 
it published, the title of my article is:

"Listen To Your Body, 7 Reasons Why Homosexuality is Bad for America." I hope 
that Americans will continue to be extended the courtesy to think for 
themselves--even if its not popular. It seems that defenders of the gay 
lifestyle who want us to be tolerant of homosexuality become very intolerant if 
you dare to disagree with them. We are living in a Joseph McCarthy era in 
reverse. Now it’s the left who is intolerant. Sincerely, David W. New, Esq. 
Member Maryland and DC Bars.

- Original Message -
From: Jean Dudley<mailto:jean.dud...@gmail.com>
To: Law & Religion issues for Law Academics<mailto:religionlaw@lists.ucla.edu>
Sent: Monday, July 01, 2013 12:27 PM
Subject: Re: Marriage -- the Alito dissent

I'm with Eduardo; I can't believe this.  Mr. Esenberg, it's not simply a matter 
of disagreement, it's a matter of said arguments simply do not hold water 
without a religious premise.  Put another way, yes, I disagree with the 
arguments, but that's because they're fallacious to the point of autoeroticism. 
There are no valid non-religious arguments against homosexuality.
On Jun 30, 2013, at Sun, Jun 30,  6:38 PM, "Esenberg, Richard" 
mailto:richard.esenb...@marquette.edu>> wrote:

You can certainly disagree with these arguments but they do not proceed from 
theological premises.




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RE: Marriage -- the Alito dissent

2013-07-01 Thread Esenberg, Richard
The first sentence of my post got cobbed up - perhaps by my habit of editing 
what I say after I write it. So you can reject what I am about to say on that 
basis.

I certainly believe that one can argue "for" the morality of same sex 
relationships. In fact, I don't think there is anything immoral about them - as 
I have repeatedly argued in published statements elsewhere. My intended point 
is that the notion that opposition to same sex marriage - even if based on 
traditional arguments about the morality of homosexual relationships - cannot 
be dismissed as irrational or hateful.

I meant to respond to Professor Hamilton's argument that the only argument in 
support of DOMA could be sectarian. I don't think so.

From: Esenberg, Richard
Sent: Sunday, June 30, 2013 8:38 PM
To: Law & Religion issues for Law Academics; hamilto...@aol.com
Cc: conlawp...@lists.ucla.edu
Subject: RE: Marriage -- the Alito dissent

The morality of homosexual relationships can only be maintained by someone who 
is unaware of - or ignores - the arguments that are actually made. You can 
certainly disagree with these arguments but they do not proceed from 
theological premises.

Posner's characterization on Slate of Altio's recitation of the argument 
regarding the effect of SSM on marriage in general is of that piece; it fails 
to address what the argument actually says.

It may well be that Burkean conservatives are being driven from the field by 
shrill accusations of "hate" and "bigotry" but I wouldn't count that an 
argument in favor of the outcome in Windsor.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Paul Horwitz [phorw...@hotmail.com]
Sent: Sunday, June 30, 2013 12:38 PM
To: hamilto...@aol.com
Cc: religionlaw@lists.ucla.edu; conlawp...@lists.ucla.edu
Subject: Re: Marriage -- the Alito dissent

On the first point only, the reservation is just that--a reservation. For EC 
purposes, doctrine aside, I'm not sure whether I believe the religiosity of a 
statement or display can be fixed only by contemporary understanding. I suspect 
my conclusion would be that both historical and contemporary meaning are 
relevant if not inextricably linked, but I'd have to think it through more 
carefully. Best, Paul

Sent from my iPhone while driving

On Jun 30, 2013, at 12:00 PM, hamilto...@aol.com<mailto:hamilto...@aol.com> 
wrote:

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.

___
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Re: Marriage -- the Alito dissent

2013-07-01 Thread Jean Dudley
I'd be interested in reading what you have to say.  Would you be interested in 
my rebuttal?  If so, kindly send me a copy off-list.  


On Jul 1, 2013, at Mon, Jul 1,  5:16 PM, "David W. New"  
wrote:

> Respectfully, I disagree with you. I just finished writing a 3,400 word 
> article making the case against homosexuality without using religion in any 
> way. I think a very strong case can be made against homosexual lifestyle 
> without any reference to God, the Bible, etc. As you can imagine, I am busy 
> trying to find a publisher because of its length and in some cases, its 
> content. If I ever get it published, the title of my article is:
> 
> "Listen To Your Body, 7 Reasons Why Homosexuality is Bad for America." I hope 
> that Americans will continue to be extended the courtesy to think for 
> themselves--even if its not popular. It seems that defenders of the gay 
> lifestyle who want us to be tolerant of homosexuality become very intolerant 
> if you dare to disagree with them. We are living in a Joseph McCarthy era in 
> reverse. Now it’s the left who is intolerant. Sincerely, David W. New, Esq. 
> Member Maryland and DC Bars.
> 
> - Original Message -
> From: Jean Dudley
> To: Law & Religion issues for Law Academics
> Sent: Monday, July 01, 2013 12:27 PM
> Subject: Re: Marriage -- the Alito dissent
> 
> I'm with Eduardo; I can't believe this.  Mr. Esenberg, it's not simply a 
> matter of disagreement, it's a matter of said arguments simply do not hold 
> water without a religious premise.  Put another way, yes, I disagree with the 
> arguments, but that's because they're fallacious to the point of 
> autoeroticism. There are no valid non-religious arguments against 
> homosexuality. 
> On Jun 30, 2013, at Sun, Jun 30,  6:38 PM, "Esenberg, Richard" 
>  wrote:
> 
>> You can certainly disagree with these arguments but they do not proceed from 
>> theological premises.
> 
> 
> 
> ___
> 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.
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
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> 
> 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.

___
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Re: Marriage -- the Alito dissent

2013-07-01 Thread David W. New
  Respectfully, I disagree with you. I just finished writing a 3,400 word 
article making the case against homosexuality without using religion in any 
way. I think a very strong case can be made against homosexual lifestyle 
without any reference to God, the Bible, etc. As you can imagine, I am busy 
trying to find a publisher because of its length and in some cases, its 
content. If I ever get it published, the title of my article is: 

  "Listen To Your Body, 7 Reasons Why Homosexuality is Bad for America." I hope 
that Americans will continue to be extended the courtesy to think for 
themselves--even if its not popular. It seems that defenders of the gay 
lifestyle who want us to be tolerant of homosexuality become very intolerant if 
you dare to disagree with them. We are living in a Joseph McCarthy era in 
reverse. Now it's the left who is intolerant. Sincerely, David W. New, Esq. 
Member Maryland and DC Bars. 

  - Original Message - 
  From: Jean Dudley 
  To: Law & Religion issues for Law Academics 
  Sent: Monday, July 01, 2013 12:27 PM
  Subject: Re: Marriage -- the Alito dissent


  I'm with Eduardo; I can't believe this.  Mr. Esenberg, it's not simply a 
matter of disagreement, it's a matter of said arguments simply do not hold 
water without a religious premise.  Put another way, yes, I disagree with the 
arguments, but that's because they're fallacious to the point of autoeroticism. 
There are no valid non-religious arguments against homosexuality. 

  On Jun 30, 2013, at Sun, Jun 30,  6:38 PM, "Esenberg, Richard" 
 wrote:


You can certainly disagree with these arguments but they do not proceed 
from theological premises.




--


  ___
  To post, send message to Religionlaw@lists.ucla.edu
  To subscribe, unsubscribe, change options, or get password, see 
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  Please note that messages sent to this large list cannot be viewed as 
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Re: Marriage -- the Alito dissent

2013-07-01 Thread Jean Dudley
I'm with Eduardo; I can't believe this.  Mr. Esenberg, it's not simply a matter 
of disagreement, it's a matter of said arguments simply do not hold water 
without a religious premise.  Put another way, yes, I disagree with the 
arguments, but that's because they're fallacious to the point of autoeroticism. 
There are no valid non-religious arguments against homosexuality. 
On Jun 30, 2013, at Sun, Jun 30,  6:38 PM, "Esenberg, Richard" 
 wrote:

> You can certainly disagree with these arguments but they do not proceed from 
> theological premises.

___
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Re: Marriage -- the Alito dissent

2013-06-30 Thread Penalver, Eduardo
I'm relatively new to this list, but can you possibly believe this?:

The morality of homosexual relationships can only be maintained by someone who 
is unaware of - or ignores - the arguments that are actually made.

On Jun 30, 2013, at 8:41 PM, "Esenberg, Richard" 
mailto:richard.esenb...@marquette.edu>> wrote:

The morality of homosexual relationships can only be maintained by someone who 
is unaware of - or ignores - the arguments that are actually made. You can 
certainly disagree with these arguments but they do not proceed from 
theological premises.

Posner's characterization on Slate of Altio's recitation of the argument 
regarding the effect of SSM on marriage in general is of that piece; it fails 
to address what the argument actually says.

It may well be that Burkean conservatives are being driven from the field by 
shrill accusations of "hate" and "bigotry" but I wouldn't count that an 
argument in favor of the outcome in Windsor.

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Paul Horwitz [phorw...@hotmail.com<mailto:phorw...@hotmail.com>]
Sent: Sunday, June 30, 2013 12:38 PM
To: hamilto...@aol.com<mailto:hamilto...@aol.com>
Cc: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: Re: Marriage -- the Alito dissent

On the first point only, the reservation is just that--a reservation. For EC 
purposes, doctrine aside, I'm not sure whether I believe the religiosity of a 
statement or display can be fixed only by contemporary understanding. I suspect 
my conclusion would be that both historical and contemporary meaning are 
relevant if not inextricably linked, but I'd have to think it through more 
carefully. Best, Paul

Sent from my iPhone while driving

On Jun 30, 2013, at 12:00 PM, hamilto...@aol.com<mailto:hamilto...@aol.com> 
wrote:

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.

___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto: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 
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___
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RE: Marriage -- the Alito dissent

2013-06-30 Thread Esenberg, Richard
The morality of homosexual relationships can only be maintained by someone who 
is unaware of - or ignores - the arguments that are actually made. You can 
certainly disagree with these arguments but they do not proceed from 
theological premises.

Posner's characterization on Slate of Altio's recitation of the argument 
regarding the effect of SSM on marriage in general is of that piece; it fails 
to address what the argument actually says.

It may well be that Burkean conservatives are being driven from the field by 
shrill accusations of "hate" and "bigotry" but I wouldn't count that an 
argument in favor of the outcome in Windsor.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Paul Horwitz [phorw...@hotmail.com]
Sent: Sunday, June 30, 2013 12:38 PM
To: hamilto...@aol.com
Cc: religionlaw@lists.ucla.edu; conlawp...@lists.ucla.edu
Subject: Re: Marriage -- the Alito dissent

On the first point only, the reservation is just that--a reservation. For EC 
purposes, doctrine aside, I'm not sure whether I believe the religiosity of a 
statement or display can be fixed only by contemporary understanding. I suspect 
my conclusion would be that both historical and contemporary meaning are 
relevant if not inextricably linked, but I'd have to think it through more 
carefully. Best, Paul

Sent from my iPhone while driving

On Jun 30, 2013, at 12:00 PM, hamilto...@aol.com<mailto:hamilto...@aol.com> 
wrote:

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.

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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.

Re: Marriage -- the Alito dissent

2013-06-30 Thread Paul Horwitz
On the first point only, the reservation is just that--a reservation. For EC 
purposes, doctrine aside, I'm not sure whether I believe the religiosity of a 
statement or display can be fixed only by contemporary understanding. I suspect 
my conclusion would be that both historical and contemporary meaning are 
relevant if not inextricably linked, but I'd have to think it through more 
carefully. Best, Paul

Sent from my iPhone while driving

On Jun 30, 2013, at 12:00 PM, hamilto...@aol.com wrote:

> 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.  
> 
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Re: Marriage -- the Alito dissent

2013-06-30 Thread hamilton02
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 
To: Marci Hamilton 
Cc: Law & Religion issues for Law Academics ; 
conlawprof 
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"  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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Re: Marriage -- the Alito dissent

2013-06-29 Thread Paul Horwitz
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"  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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Re: Marriage -- the Alito dissent

2013-06-29 Thread Richard Dougherty
Well, much of the most interesting work on natural law thinking of the past
20-30 years has been done by non-Catholics, some indeed by non-Christians.
I am genuinely surprised that someone of Judge Posner's erudition wouldn't
be aware of that.

RD

On Sat, Jun 29, 2013 at 3:31 PM, Malla Pollack wrote:

> with all due respect. Only a Catholic would contend that this view is
> "natural law."
> Malla
>
>
> On Sat, Jun 29, 2013 at 3:18 PM, Richard Dougherty wrote:
>
>> I understand why it can seem that way, but history can't make a
>> nonsectarian view sectarian. The claim that the majority -- but not all --
>> of the arguments one hears are sectarian is per se evidence that it is not
>> sectarian.  There is a reason why the arguments track, but are not derived
>> from, Vatican teaching, and that is that the Vatican teaching is largely
>> drawn from philosophical principles, not theological ones. The natural law
>> is the common source.
>>
>> Richard Dougherty
>>
>> On Sat, Jun 29, 2013 at 11:25 AM, Marci Hamilton <
>> hamilton.ma...@gmail.com> wrote:
>>
>>> At this stage in history, Alito's view is in fact decisively sectarian.
>>>  The vast majority of opposition is theological w theological sources. That
>>> is the political reality.  And his sources and arguments are derived
>>> directly from Vatican doctrine.
>>>
>>> Marci A. Hamilton
>>> Verkuil Chair in Public Law
>>> Benjamin N. Cardozo Law School
>>> Yeshiva University
>>> @Marci_Hamilton
>>>
>>>
>>>
>>> On Jun 29, 2013, at 12:10 PM, Richard Dougherty 
>>> 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:



>> ___
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>>
>
>
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Re: Marriage -- the Alito dissent

2013-06-29 Thread Marci Hamilton
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

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Jun 29, 2013, at 4:18 PM, Richard Dougherty  wrote:

> I understand why it can seem that way, but history can't make a nonsectarian 
> view sectarian. The claim that the majority -- but not all -- of the 
> arguments one hears are sectarian is per se evidence that it is not 
> sectarian.  There is a reason why the arguments track, but are not derived 
> from, Vatican teaching, and that is that the Vatican teaching is largely 
> drawn from philosophical principles, not theological ones. The natural law is 
> the common source.
> 
> Richard Dougherty
> 
> On Sat, Jun 29, 2013 at 11:25 AM, Marci Hamilton  
> wrote:
>> At this stage in history, Alito's view is in fact decisively sectarian.  The 
>> vast majority of opposition is theological w theological sources. That is 
>> the political reality.  And his sources and arguments are derived directly 
>> from Vatican doctrine.  
>> 
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton 
>> 
>> 
>> 
>> On Jun 29, 2013, at 12:10 PM, Richard Dougherty  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  
>>> 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:
> ___
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Re: Marriage -- the Alito dissent

2013-06-29 Thread Richard Dougherty
Marty:
Agreed.  I take it Alito is asserting the non-policymaking principle on
behalf of the judiciary. But you are certainly right that even such a
position does not prohibit the kind of judgment you identify here.
Richard Dougherty

On Sat, Jun 29, 2013 at 11:40 AM, Marty Lederman
wrote:

> 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 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:
>>
>
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Re: Marriage -- the Alito dissent

2013-06-29 Thread Richard Dougherty
I understand why it can seem that way, but history can't make a
nonsectarian view sectarian. The claim that the majority -- but not all --
of the arguments one hears are sectarian is per se evidence that it is not
sectarian.  There is a reason why the arguments track, but are not derived
from, Vatican teaching, and that is that the Vatican teaching is largely
drawn from philosophical principles, not theological ones. The natural law
is the common source.

Richard Dougherty

On Sat, Jun 29, 2013 at 11:25 AM, Marci Hamilton
wrote:

> At this stage in history, Alito's view is in fact decisively sectarian.
>  The vast majority of opposition is theological w theological sources. That
> is the political reality.  And his sources and arguments are derived
> directly from Vatican doctrine.
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Jun 29, 2013, at 12:10 PM, Richard Dougherty 
> 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  > 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:
>>
>>
>>
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Re: Marriage -- the Alito dissent

2013-06-29 Thread Marty Lederman
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 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  > 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

Re: Marriage -- the Alito dissent

2013-06-29 Thread Richard Dougherty
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
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  > 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 u

Re: Marriage -- the Alito dissent

2013-06-29 Thread Marty Lederman
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
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

Marriage -- the Alito dissent

2013-06-29 Thread Marty Lederman
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,