Saturday, June 14, 2008
In response to Tom (here):
My only point, Tom, was that it is no more "statist" for the state, acting against traditional cultural/social prejudices, to allow for same-sex marriage than it is for the state, acting against traditional social/cultural prejudices, to allow for interracial marriage. I do agree that if the state does allow for same-sex marriage, it should not go further and compromise anyone's religious liberty to live out an oppositional stance in relation to same-sex marriage.
I'm a little confused by aspects of the Vischer-Perry exchange. Rob, when you express concern about "state efforts to overcome ... obstacles to same-sex marriage," are you talking primarily about the state imposing nondiscrimination rules on those who (for religious or other reasons) conscientiously oppose SSM? Michael, in your response appealing to the parallel to Loving, are you generally equating sexual-orientation discrimination with racial discrimination? If the two are equated, then that is likely to do away with most religious liberty claims against the imposition of SSM or sexual-orientation discrimination laws, e.g. employment or employment-benefits decisions by religious schools or social services. See, e.g., Bob Jones (withdrawal of tax exemption because of policy against interracial dating). But I thought, Michael, that you viewed it as consistent to have both SSM and a strong religious liberty/exemptions scheme. Even if SSM is determined to be warranted on constitutional or policy grounds, I think that preserving religious liberty in that context will depend on seeing some differences between SSM and interracial marriage.
Tom
Here is a link to his commencement talk at Notre Dame, in 2002. A good man. God bless him.
Read this. And worry. Nutshell version: Evangelical dads who would rather their daughters not be sexually promiscuous are kinda -- just kinda, mind you -- like dads who imprison their daughters in dungeons and rape them for decades. Words fail.
Friday, June 13, 2008
In the immediately preceding post, Rob writes:
Same-sex marriage, because it largely lacks the social, cultural,
religious, and biological reinforcements, must rely more on legal
reinforcements. As I said, that is not, in my view, a compelling
reason to oppose same-sex marriage, but it does warrant caution when
evaluating state efforts to overcome social, cultural, religious, and
biological obstacles to same-sex marriage that are not as formidable in
the case of heterosexual marriage.
Consider the following, and imagine its being said circa 1967, when Loving v. Virginia was decided:
Interracial marriage, because it largely lacks the social, cultural, and religious reinforcements, must rely more on legal reinforcements. As I said, that is not, in my view, a compelling reason to oppose interracial marriage, but it does warrant caution when evaluating state efforts to overcome social, cultural, and religious obstacles to interracial marriage that are not as formidable in the case of same-race marriage.
My awkward phrasing alone is enough to justify Michael's skepticism about my assertion of the "more statist orientation" of same-sex marriage, but I'll try to briefly explain what I meant. I'm not sure that marriage as a legal category is fully distinct from marriage as a non-legal category. As Don Browning puts it, marriage "builds on natural inclinations but requires additional powerful social, legal, cultural, and religious reinforcements." Same-sex marriage, because it largely lacks the social, cultural, religious, and biological reinforcements, must rely more on legal reinforcements. As I said, that is not, in my view, a compelling reason to oppose same-sex marriage, but it does warrant caution when evaluating state efforts to overcome social, cultural, religious, and biological obstacles to same-sex marriage that are not as formidable in the case of heterosexual marriage.
Robert Miller responds to Michael Perry's critique of his testimony on SSM as follows:
I thank Michael Perry for his comments on my testimony before the Pennsylvania Senate re S.B. 1250, a proposed amendment to the state constitution that would limit marriages to unions of one man and one woman.
First, I agree with Professor Perry that, given my arguments in the testimony, the best solution would be an amendment that strips the courts of the power to decide the same-sex marriage issue and leaves the issue to the normal legislative process. I would happily vote for such an amendment. In fact, however, the political realities in Pennsylvania are such that if the legislature approves any amendment to the Pennsylvania constitution, it’s very likely to be in the form of S.B. 1250. Hence, for practical purposes, it’s S.B. 1250 or nothing. Since, as I argued in the testimony, the issue is very likely to be constitutionalized one way or another by the courts, if there is to be a genuine public debate on this issue and a democratic resolution, the only practical option is S.B. 1250.
Second, when I said that a decision by the Pennsylvania Supreme Court that the state constitution does not require same-sex marriages or civil unions would “for all practical purposes” have “roughly” the same effect as the passage of the proposed amendment, every word there counts. I was not speaking of *legal* purposes. Professor Perry is obviously right that S.B. 1250, but not a decision of the supreme court, would disable the legislature from creating same-sex marriages or civil unions in future. I said as much myself about S.B. 1250. But, as I expressly said, in the language Professor Perry quotes, I was speaking not about legal effects but “practical purposes.” I meant, that is, that given such a decision from the Pennsylvania supreme court and given too the political realities in Pennsylvania, there would be little chance in the foreseeable future of the state changing its laws from the status quo, i.e., no same-sex marriages and no civil unions. That statement, I still think, is correct.
Thanks Rob for posting Prof. Miller's testimony on SSM. I offer another excerpt, which I think frames the SSM debate clearly and fairly. In addition to its contribution to this particular debate, it serves as a model for civil dialogue over hotly contested issues.
On the one hand, people who believe that marriage ought to be reserved to unions of one man and one woman tend to think that the biological connection between heterosexual sexual activity and procreation is morally significant; that heterosexual relationships, because they tend naturally to produce children, are morally different from homosexual ones, which do not; that, everything else being equal, children are best raised in families with their biological mother and biological father; that the state, because it looks to the common good of society not just in the present but as an intergenerational project, has a vital interest in the procreation of children and their rearing and education; that the state thus has a moral obligation to provide legal status and regularity to heterosexual relationships of the kind that tend to produce children—that is to say, to marriages; and that other kinds of relationships, whether sexual or otherwise, are morally different and, although deserving of respect and many kinds of legal protection, are not in all relevant respects like marriages and so ought not legally be treated as marriages.
On the other hand, people who believe that the state should recognize same-sex marriages tend to believe that human sexuality functions primarily in the building of intimate personal relationships between the sexual partners and that its connection to procreation in the heterosexual case is not morally significant; that since gay men and lesbians undeniably fall in love, form relationships and have families, it follows that for all morally significant purposes, homosexual relationships are equivalent to heterosexual ones; that respect for the dignity of human persons demands that the state recognize this fact and not treat heterosexual relationships better than homosexual ones; that doing otherwise amounts to devaluing the intimate relationships of gay men and lesbians and brands them as second-class citizens; that the state has a legitimate interest in promoting stable, loving homosexual relationships just as it has a legitimate interest in promoting stable, loving heterosexual ones; and that the undeniable fact that gay men and lesbians have children, whether adopted or otherwise, means that such children deserve to have married parents just like the children of heterosexual couples.
In a recent post (here), Rob Vischer writes (quoting an article in the National Catholic Register):
"[H]ere's an insightful snippet about the the tendency of SSM to come with a more statist orientation than traditional marriage: 'Marriage between men and women is a pre-political, naturally emerging social institution. . . . . By contrast, same-sex 'marriage' is completely a creation of the state."
In what I am about to say, by "marriage" I mean heterosexual marriage.
When one refers to a "right", one may be referring to a legal category (i.e., a legal right) or to a non-legal category (e.g., a moral right). Similarly, when one refers to "marriage", one may be referring to a legal category or to a non-legal category. "Marriage" as a legal category is obviously not pre-political, any more than "a right to ..." as a legal category is pre-political. Whether the law should recognize and protect marriage, understood as a non-legal category--and thereby make marriage (also) a legal category--is a political decision. Whether the law should recognize and protect same-sex unions, understood as a non-legal category--and thereby make same-sex unions (also) a legal category--is no more (and no less) a political decision than the decision whether to recognize and protect marriage, understood as a non-legal category. So it isn't clear to me what Rob means when he says "the tendency of SSM to come with a more statist orientation than traditional marriage."
In any event, I take it that both Rob and I agree that one can simultaneously support the state's extending the benefit of law to same-sex unions and oppose the state's abridging one's religious liberty to take up an oppositional stance to same-sex unions. There are three choices, not just two:
1. No to the state's extending the benefit of law to same-sex unions.
2. Yes to the state's extending the benefit of law to same-sex unions, and no to the state's abridging one's religious liberty to take up an oppositional stance to same-sex unions.
3. Yes to the state's extending the benefit of law to same-sex unions, and yes to the state's abridging one's religious liberty to take up an oppositional stance to same-sex unions.
Thanks to Rob Vischer for linking us (here) to Robert Miller's statement (here), which I just read.
The fundamental problem with Professor Miller's statement is that it does not support the constitutional amendment it purports to support. The constitutional amendment the statement purports to support would prevent the Pennsylvania legislature from recognizing--by extending the benefit of law to--same-sex unions, should the legislature want to do so, whether now or ten years from now. Yet, Miller's statement is an argument in support of the proposition that a political majority, and not the courts, should decide whether to recognize same-sex unions. The constitutional amendment Miller's statement purports to support would prevent a political majority in Pennsylvania, should it want to do so, say, ten years from now, from recognizing same-sex unions. The constitutional amendment Miller's statement actually supports is different from the one it purports to support. The constitutional amendment the statement actually supports is one that prevents the courts from requiring Pennsylvania to recognize same-sex unions. Such an amendment would state simply that the Pennsylvania constitution shall not be construed by any court to require Pennsylvania to recognize same-sex unions.
Here is another problem with Miller's statement: In the course of his statement, Miller says that a decision by the Pennsylvania Supreme Court to the effect that the Pennsylvania Constitution does not require the Pennsylvania legislature to recognize same-sex unions "would for all practical purposes have roughly the same effect as . . . passing the amendment proposed in S.B. 1250." That claim is plainly false. The proposed amendment would prevent the Pennsylvania legislature from recognizing--should it want to do so, say, ten years from now--same-sex unions. By contrast, a decision by the Pennsylvania Supreme Court to the effect that the Pennsylvania Constitution does not require the Pennsylvania legislature to recognize same-sex unions would not prevent the Pennsylvania legislature, now or later, from recognizing same-sex unions should it want to do so.
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