Tuesday, August 10, 2010
More on Prop 8 Case
Mike Dorf has a characteristically illuminating analysis of the decision over at Dorf on Law, as well as (at fuller length) on Findlaw. The first is located, and the second is accessible, here: http://www.dorfonlaw.org/2010/08/rationality-review.html .
Mike agrees with the outcome, but is troubled by the means used to get there.
For what my own higly inexpert opinion is worth, I continue to wonder why we do not treat civil union as the apt civil category, and treat marriage solely as the religious category that I've always thought it to be. In such case it would be hard - for me, at any rate - to see denial of civil union to any couple, of sound mind that has reached the age of consent, as capable of surviving rationality review. And it would be just as hard - for me, at any rate - to see any justification for state interference with ecclesial organizations' defining their more specific conceptions of the separate category of marriage in what ever manner was consistent with their theologies. But I've written at some length on this already, so I won't belabor the point here.
Here's a post from last November, complete with amusing video clip from a wonderful film: http://www.dorfonlaw.org/2009/11/tale-of-two-marriages.html .
All best,
Bob
https://mirrorofjustice.blogs.com/mirrorofjustice/2010/08/more-on-prop-8-case.html
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Bob, in your view, could a political community's decision to limit civil unions to *couples* -- that is, to refuse to allow the Henricksons of "Big Love" fame to enter into a legally recognized civil union -- survive rationality review? (I am asking this, I hope you know, not to be tendentious but out of a sincere desire to understand what's "doing the work" in rationality review, as you understand it.)
The "big question", as I see it, is this: May a (secular) political community like ours decide, rationally, that it is better for the (secular) common good of that community to prefer, in law and policy, some (a) family forms and (b) sexual relationships over others? I am not talking here about the If one's answer to this question is "no, period", then the civil-union (and also, probably, the expansion-of-marriage) debate is easy. But, isn't the answer to this question in fact "yes", or at least "sometimes"? And so, those for whom it is so clear that the denial of civil-union recognition could not even survive rationality review (which, in most of our constitutional law, is a toothless standard) need to say more, I think, about why it could not, when other policies reflecting the "sometimes" answer to the "big question" can. Certainly, it is not enough to shout "bigotry!" and declare victory. (Which is, to be clear, not what Bob is doing.)