Yesterday the Tenth Circuit ruled that Lawrence v. Texas struck down state sodomy laws under a rational basis test. The Ninth and First Circuits have ruled that Lawrence recognized a fundamental right to private adult sexual intimacy. Dale Carpenter comments: "There is a real and growing circuit split on this basic doctrinal issue with potential consequences to a range of governmental policies. Whatever one thinks of the result in Lawrence, the Supreme Court has created a mess that only it will be able to clean up."
Wednesday, June 11, 2008
The Lawrence mess
Suburb-to-Suburb
I agree with Rick's amendments to my post, but I wanted to disagree with one part of his comments. It is true that many suburban residents have nothing to do with the center city and that roughly half of commuters are suburb-to-suburb. Now, half is not all, so moving towards the core would help, but Rick is right that it would not free suburban dwellers of the need to commute. On the other hand, travel to work is just one way that people use cars, and moving from the outskirts of a metropolitan area to walkable, transit-friendly neighborhood in a closer-in suburb or to a city center would help to eliminate reliance on the car for trips to the store, school, church, the gym, etc. One recent study found that residents of New Urbanist, transit-oriented developments made roughly 50% fewer vehicle trips than residents of traditional suburbs. It's not the whole solution, but it is one way to reduce dependence on the car. Getting employers to move closer in would obviously help as well, but if gas prices remain high, employers located near transit are going to find it easier to recruit employees and enjoy some competitive advantages that might lure other employers back in from the corn fields.
A quick response to Eduardo
I am (pretty much) on the same page as Eduardo with respect to his recent post on sprawl and housing-development patterns. Two quick (and, I think, friendly) amendments.
First, in order to compare the cost (to the owner, putting aside externalities) of suburban v. urban housing, it is true (as Eduardo says) that we need to factor in the cost of transportation. We also need, though, to factor in the fact that, in most of our metropolitan areas, urban public schools are lousy. (Perhaps this would change, if many suburbanites moved back to the cities.) The point is just that, at least in the short run, a move back to the city is likely -- not guaranteed, but likely -- to entail either financial costs (for private schools) or other opportunity costs.
Also, I think it needs to be a part of this conversation that, these days, the typical suburb-dweller is no longer (necessarily) commuting from a radial suburb to an urban job. Suburb-to-suburb commutes are just as common, I'm told. So, it is not the case that suburb-dwellers could simply move in, and thereby drive less. They might well be moving *away* from the job (in the suburban office park).
Tuesday, June 10, 2008
Stuntz on survival
In the course of updating readers on the progress of his cancer treatment, Harvard law prof Bill Stuntz offers a powerful and challenging reflection on the objectives of medical care:
Doctors see their job as fixing the broken places in our ailing bodies. When it comes to the kinds of brokenness that can be repaired, that is as it should be. But there is another set of medical problems that cannot be fixed: cancers that won’t disappear, pains that will last as long as life does. When it comes to those problems, repair is not the proper goal. A better word is redemption: the enterprise of carving out some space, however small, for life—not mere survival—in the midst of diseases that seek to squelch it. . . .
That mind-set follows naturally from my faith, I believe—but a good many of my fellow believers seem to disagree. One of the more surprising aspects of Christian culture in our time and place is the widespread embrace of longevity and survival not just as moral goods, but as moral imperatives. That embrace seemed all too evident in the Terri Schiavo controversy of a few years back, and in the long-running conversation about medical treatment of dying patients. I’m no fan of euthanasia, but I’m also no fan of the idea that physical longevity is a morally proper goal in circumstances like Schiavo’s—or in circumstances like mine. Just because medicine can sustain the body for awhile longer, that doesn’t mean it should always do so. Life is more than a beating heart. And life is what we should be seeking. The good news is, if you look in the right places, it’s usually there to be found.
Just a bit more on SSM
Regarding my earlier post, a readers asks why I have a problem with renaming civil marriage as "civil unions" and leaving marriage to religious communities. My problem is with the set of norms (or lack thereof) that come with civil unions. "Marriage" comes with a lot of cultural baggage -- some bad, but mostly good. The expectations of permanence, exclusivity, and openness to child-rearing are hugely important signals and encouragements to marriage participants. Maybe we could load some of that into the institution of "civil unions," but I'm not sure how.
I have two comments on Fr. Araujo's helpful response to my post. First, if we're going to convince society to reject same-sex marriage, I'm not sure that it's enough to argue that, in light of the natural differences between the genders, marriage must consist of different genders. There needs to be a nexus between the biological fact and the function/purpose of marriage, doesn't there? With the prevalence of adoption and assisted reproduction technology, the nexus is not as obvious as it once was. If studies could show that same-sex parenting leads to sub-optimal outcomes in children, we might have that nexus. But I don't think we can know that at this stage.
Second, I agree that racial differences are a superficial distinction on which to base a marriage ban. But propopents of those bans did not think so. If they viewed marriage as the means by which to propagate the race, keeping marriage within the race might be an understandable (but erroneous) limitation flowing from marriage's purported nature. There is a much stronger case for marriage, by its very nature, being limited to a man and woman, but we still need to connect the dots, and that's where it becomes trickier. We can't just assert a biological fact as the public policy conclusion.
Finally, I hope that I do not come across as purporting to possess all the answers to these very difficult questions. I'm struggling not only to articulate where I stand on these huge socio-legal-political-moral issues, I'm struggling to discern where I stand. I greatly appreciate the constructive feedback and challenging perspectives offered by others.
Comments on Schemes for Benefits for “friends” and others
I am grateful for the thoughts other contributors have made regarding marriage, relationships, and benefits. Today I shall respond to Rob’s post made earlier today [HERE]. I am grateful to him for presenting his interesting views.
So, let me begin with his reference to a “real-world” example of social reformation proposed by the organization BeyondMarriage. I have read their statement; moreover, I have studied the list of endorsers of the statement to which Rob gave us the link. I think it vital to our discussion that we take stock of the underlying current that has motivated the BeyondMarriage organization to craft the statement advocating the end of marriage. As they state in their own words,
In April 2006 a diverse group of nearly twenty LGBT and queer activists—some organizers, some scholars and educators, some funders, some writers and cultural workers—came together to discuss marriage and family politics as they exist in the United States today. We met over the course of two days for lively conversations in which there was often spirited disagreement. However, we do all stand in agreement with the statement entitled “Beyond Same Sex Marriage”. We offer this statement as a way to challenge ourselves and our allies working across race, class, gender and issue lines to frame and broaden community dialogues, to shape alternative policy solutions and to inform organizing strategies around marriage politics to include the broadest definitions of relationship and family.
The members of the BeyondMarriage organization assuredly have a stake in the outcome of the debate on same-sex marriage. By doing away with marriage, or by recognizing relationships as substitutes for marriage, the hurdles that stand in the way of the “equality” argument for SSM will be eliminated. The membership in this organization identifies with “LGBT” activism and their reasons for proposing an alternative to marriage likely emerge from the realization that same-sex relationships cannot be marriages. I do not see among its ranks representatives or activists for those relationships comprised of elderly siblings who care for one another in their old age, or of single or widowed children who care for elderly parents or grandparents or other elderly blood relatives who have no one to care for them. Before I recommend endorsement of some group advocating a political cause that will dramatically alter civil society in a fashion that contravenes Catholic principles, I believe that it is vital to understand what this group is about, and they have given me a good understanding of what they want, and implicit in this is why they want to go BeyondMarriage. Marriage is an institution that cannot be duplicated in the relationships they value most.
This brings me to a second point raised by Rob in his opposition to state-registered “friendships.” (I wonder, by the way, if the state would have some role in the dissolution of these friendships that the state would register, but I digress.) In his disagreement with the proposals for blunting advocacy for SSM with the state-registered friendship substitute, Rob states that, “Marriage should be privileged because of its channeling function: it calls us to a commitment… that is greater than our own cost-benefit maximizing episodic calculation.” I agree that marriage should be privileged but not for the reasons Rob tenders. Marriage as the world has known it (and surely as the United States has known it) is the foundation of the basic unit of society. It is the coming together in a special relationship between a man and a woman that ensures the posterity of our human race. It is a commitment, indeed, but a very particular commitment that is identified and fortified by the inexorable complementarity of man and woman. In this context, “marriage” between same-sex couples is impossible. The relationship of same-sex couples can be fueled by a sense of commitment, but it is a commitment of a very different sort that can never be the equal of marriage, which out of necessity requires the complementarity of the sexes.
This brings me to a third point that anticipates Rob’s potential objection to what I have just said. He mentions, “For those who oppose SSM, the challenge will be to articulate (in secularly accessible terms) a distinction between opposition to SSM and opposition to interracial marriage. The categorically procreative/biologically unitive argument is unlikely to do the trick.” I must disagree. First of all, reliance on Loving v. Virginia and analogizing opposition to SSM to the past opposition to interracial marriage does not withstand rational—secular or otherwise—scrutiny. The prohibition on interracial marriage was based on a superficial characteristic—skin pigmentation that had no bearing on the complementarity of the male and female. This prohibition paralleled the Nuremberg laws that prevented Jews from marrying Aryans because of another superficial feature. The anti-miscegenation statute in Loving and the racial purity laws of National Socialism could not deny the nature of the biology of the human person. The opposition to SSM is not the same as the opposition to interracial marriage. Advocates for SSM rely on the parallel but they astutely avoid making the critical distinction because it will not serve their objectives. The prohibition in Loving and the Nuremberg laws ignored human biology and the purposes for which man and woman were made; the prohibition to SSM does not.
I must respectfully disagree with Rob on the next point. The procreative/biological argument does do the “trick.” Moreover, it is not for the opponents to SSM to articulate the distinction because they have. The burden, in fact, is on the advocates for SSM. They shy from the scientific explanation that, “in secularly accessible terms”, provides the justification for opposition based on scientific fact. That is why the argument based on “commitment” becomes an attractive substitute, but it must and will fail. Its failure is inextricably linked to the reality that there are many relationships that have commitments—but commitments can be ignored. And when they are, what happens to the commitment so vital to the advocacy for SSM?
This brings me to a final point for today which relates to Rob’s contention that “The status quo will not hold.” He then offers a robust explanation why he thinks this is the case. But I must test his justification by presenting it word for word and merely delete the specific references to “gay,” “lesbian,” “homosexual,” and “homosexuality” and replace them with substitutes. When I do, the reason for maintaining the status quo in opposition to SSM should be all the more clear:
“_____ and _____ are visible, and they (and their relationships) are rapidly gaining acceptance as more Americans encounter them in their everyday circles. The shift in attitudes on _______ from my parents’ generation to mine has been remarkable, but I would predict it will be nothing compared to the shift in attitudes from my generation to the next. From what I have seen thus far, moral opposition to ______ relationships is just not conceivable to 98% of the law students I’ve taught.”
Allow me to make a Loving substitution that preserves Rob’s language but not his point:
“Blacks and whites are visible, and they (and their relationships) are rapidly gaining acceptance as more Americans encounter them in their everyday circles. The shift in attitudes on interracial relationships from my parents’ generation to mine has been remarkable, but I would predict it will be nothing compared to the shift in attitudes from my generation to the next. From what I have seen thus far, moral opposition to interracial relationships is just not conceivable to 98% of the law students I’ve taught.”
Same-sex marriage is not an option, but that does not mean the path our nation and our world should take is not evident. It is, and it is to stay the course. It may be that the status quo will not hold, but its failure to do so will not be because of any flaw in its justifying rationale that is based on objective reason. It will be due to the imposition of pure positivism and its recurrent ally, totalitarianism.
RJA sj
Traditional Marriage ... from a Woman's Perspective
THE BOTTLE OF WINE
For all of us who are married, were married, wish
you
were married, or wish you weren't married, this
is something to smile
about the next time you see a
bottle of wine:
Sally was
driving home from one of her business
trips in Northern Arizona when she
saw an elderly
Navajo woman walking on the side of the road.
As the trip was a long and quiet one, she
stopped
the car and asked the Navajo woman if she would like a ride.
With a silent nod of thanks, the woman got into the car.
Resuming the journey, Sally tried in vain to make
a bit
of small talk with the Navajo woman. The old
woman just sat silently,
looking intently at
everything she saw, studying every
little detail,
until she noticed a brown bag on the seat next to Sally.
"What's in the bag?" asked the old woman.
Sally looked down at the brown bag and said, "It's
a
bottle of wine. I got it for my husband."
The Navajo woman was
silent for another moment or two.
Then speaking with the quiet
wisdom of an elder, she said:
"Good trade."
Answer for Susan
Elizabeth Brown’s answer to Susan’s question sums up my reasons eloquently. I am not necessarily advocating for an “Intimate Partnership Act,” but I do think there are good reasons for society to promote such bonds. When I said, it is "irrelevant to the state as to why someone would want to form such an association," what I had in mind was an analogy to the law of charitable deductions.
The charitable deduction imposes costs on society, including the cost of less tax revenue. The imposition of those costs is justified by the desire to promote a certain type of giving. But, it is irrelevant to the state why someone forms a non-profit organization or why someone gives to organization “A” rather than organization “B.” In short, the community has decided that promoting charitable giving by privileging such expenditures is in the common good. Employing principles of subsidiarity, the community allows individuals to form their own charitable organizations and to decide which, if any, organizations will receive their money. The same rationale could be employed with respect to state promotion of friendships; the state provides a broad form, leaving individuals free to decide whether to seek the benefits and burdens that this form of friendship entails.
Gas Prices and Sprawl
Back in December, we discussed an op-ed I wrote for the Washington Post suggesting that rising oil prices might be having an impact on Americans' taste for exurban homes. At the time, the data in support of this thesis was still very anecdotal. In the six months since then, more data has been gathered, and it points in the direction one would expect. The housing crisis, while severe, is not being experienced the same way by all homeowners. Owners of homes near urban centers and accessible to public transit are finding that their homes are holding their values pretty well. On the other hand, the largest declines in property values are being experienced in more far-flung developments, where the only way to get anything done is to hop into the car.
This makes good sense. In the debate over sprawl, proponents of the status quo have argued that suburban development has delivered for American homeowners a lot of home for very little money. Setting aside questions of taste and focusing on square footage, there's a great deal of truth to this. But when you factor in the cost of transportation, the issue becomes far more complex. Housing that provides owners with no alternative to the private car is more expensive than it at first appears. That cost remained largely out of view when gas was $1.50 per gallon, but with gas prices nearly tripling over the past five years, and threatening to continue to increase for the foreseeable future, that hidden cost has jumped out into the foreground. (The average American family of four consumes roughly 1500 gallons of fuel per year, so, barring a shift to more fuel-efficient vehicles, every $1 rise in gas prices costs about $1500 per year, per family.) The people at the Center for Neighborhood Technology have put together a great interactive map that allows you to compare the cost of housing in different parts of various metropolitan areas with the cost of housing+transportation. The (predictable) consequence is that, when you factor in transportation, housing far from urban centers becomes much more expensive, and in many cases more expensive than housing in or near downtown.
More on friends with benefits (and same-sex marriage)
In response to the thoughtful observations/questions by Elizabeth and Michael, my concern with the push to recognize friendships legally is not so much focused on the good-faith desire to remedy a particular case of injustice, say where a friend cannot gain hospital visitation privileges; my concern derives from the extent to which the push is part of a broader effort to end the law's "privileging" of marriage. Here's a quote from Laura Rosenbury's paper, Friends with Benefits:
"[A] more radical aspect of this type of proposal would be its rejection of private contracting to readjust the current consequences of marriage determined by the state. Instead, some or all of the benefits, obligations, and default rules currently reserved for spouses would be available alike to spouses, friends, or the other individuals designated. Such a proposal would therefore allow all individuals, not just married couples, to decide how they would like the state to support their personal relationships, if at all. Unlike the current state of the law, marriage or a marriage-like relationship would not be a prerequisite for taking on the packages of benefits, obligations, and default rules provided by federal, state and local governments. Instead, individuals could choose to apply those packages to other types of personal relationships without engaging in private contracting." For a real-world example of the movement's vision, read the "Beyond Same-Sex Marriage" statement from 2006. Participating in a state-registered marriage entitles you automatically to certain benefits and privileges. In my view, participating in a state-registered friendship should not. I support the possibility of allowing individuals to contract with each other or with third parties to attain some of the benefits that automatically flow to married couples. Such contracts do not require the state to elevate friendship as a relationship of equal importance to marriage -- indeed, they do not require the state to do anything except to refrain from invalidating the contracts. I oppose the suggestion that groups of friends should be able to register their relationships and receive a certain set of benefits by operation of law (as opposed to the operation of the agreements they reach on a case by case basis). Marriage should be privileged because of its channeling function: it calls us to a commitment (or at least should call us to a commitment) that is greater than our own cost-benefit maximizing episodic calculation. Michael also asks why I assert that "It is difficult to imagine marriage maintaining its privileged status (as I believe it should) twenty years from now if a significant portion of the population is ineligible." Our society is on the path toward extending full citizenship to gays and lesbians, and I do not think there is anything that can knock us off that path at this point. I have not seen compelling arguments as to how full citizenship can be maintained without extending the same rights and privileges as heterosexuals enjoy in terms of the state's support of their intimate relationships. (I'm talking about as a matter of politically persuasive justification, not as a matter of constitutional right.) For those who oppose SSM, the challenge will be to articulate (in secularly accessible terms) a distinction between opposition to SSM and opposition to interracial marriage. The categorically procreative / biologically unitive argument is unlikely to do the trick. If the compromise position becomes civil unions for same-sex couples, my fear is that civil unions will become the non-discriminatory norm, and that the state will eventually get out of the marriage business entirely, leaving it as a relic of "illiberal" religious communities. For some, maybe that's the "least bad" choice, but to me, that would be a shame. The status quo will not hold. Gays and lesbians are visible, and they (and their relationships) are rapidly gaining acceptance as more Americans encounter them in their everyday circles. The shift in attitudes on homosexuality from my parents' generation to mine has been remarkable, but I would predict it will be nothing compared to the shift in attitudes from my generation to the next. From what I've seen thus far, moral opposition to homosexual relationships is just not conceivable to 98% of the law students I've taught. I don't think a two-tier system is a long-term solution: eventually the most inclusive form of state-sanctioned commitment will win out, either because citizens vote with their feet or because the state decides that it no longer has a legitimate justification for maintaining the two-tier status. My question is, what do we want marriage to look like 20 or 50 years from now, and what is the most likely path by which it will even remotely approximate that vision? If same-sex marriage is not an option, what path should we take?
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