Yesterday's Boston Globe had a lengthy article on the push by some legal academics to have the law recognize friendships. The reporter did a fair job, especially considering who she had to work with as the designated skeptic (me). The article does not focus on the SSM debate, but this issue does underscore, in my view, the cost of excluding an entire segment of the population from the institution of marriage. Gays and lesbians understandably will seek state support through non-marital relationships, which takes us closer to a world where individuals simply choose the category of relationship through which to receive state support, and the state is neutral as to the form of, and committments embodied in, those relationships. 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.
Monday, June 9, 2008
Friends with Benefits
Friday, June 6, 2008
Kmiec v. Carpenter on SSM
Doug Kmiec has an entertaining retelling of his debate last night on same-sex marriage against Dale Carpenter. Maybe someone else can enlighten me, because this brief narrative is tantalizingly ambiguous -- does Prof. Kmiec, in reality, favor same-sex marriage?
Institutional moral identity and the secular university
Cathy Kaveny poses a fascinating hypothetical about the legitimacy of a private secular university staking out a moral identity that would warrant an institutional refusal to support pro-life student groups. While I would disagree with the moral claims embodied in that identity, it’s well within a private university’s rights to do so. I have one potential objection, though. Assume that elite secular universities begin to adopt a moral identity celebrating individual autonomy, an identity that could be used to justify the exclusion of student groups that oppose abortion or same-sex marriage, or that limit their membership/leadership based on religion. Especially when implemented by the “ruling class” of American higher education, these policies seem geared less toward staking out a particular substantive moral worldview, and more toward the negation of disfavored alternative worldviews. Put more simply, I am more comfortable with a Catholic university excluding certain student groups or honorees not only because I tend to agree with the Catholic university’s moral claims, but also because the Catholic university is staking out a countercultural moral identity. Elite secular universities are not staking out countercultural moral identities; they are squashing countercultural moral identities. A Catholic university can be, at its best, a bulwark against the hegemony of intellectual orthodoxy; Yale is more likely to be a vehicle for that hegemony. To be sure, if we were still in Christendom and the Catholic Church was still the dominant intellectual and cultural force in society, I would probably feel less comfortable about Catholic universities refusing to affirmatively support dissenting voices within the university community. But we’re long past Christendom.
Thursday, June 5, 2008
Is solidarity utopian?
Thanks to Michael for forcing my paper on his captive audience. As for his student's suspicion that my espousal of solidarity is "utopian," I disagree to the extent that "utopian" refers to an unrealistic vision for an entire society. Solidarity is not premised on the likelihood of its universal adoption. The Catholic notion of reciprocity does not hold that I should resist living out the truth of the Gospel until those with whom I interact also agree to live by that truth. I am called to live out that truth regardless of consequences. That's where subsidiarity comes in -- solidarity is so radically opposed to prevailing social norms (and fallen human nature?) that the best we can hope for from the state is freedom to strive to act according to solidarity's call. (The state can and should act consistently with solidarity, but state action will never fully embody solidarity.) Reciprocity requires me to recognize that my invocation of rights only makes sense if it occurs against a backdrop of corresponding responsibilities. Of course I should encourage others to recognize, and act according to, this notion of reciprocity, but reciprocity does not function as some sort of trigger without which I'm relieved of observing other social principles that flow from human dignity.
So will the solidarity-observing human person lose out to the self-preferring person on a regular basis? I suppose it depends on how we understand what it means to "lose out," but there will undoubtedly be times when the other-focused person misses out on some of the trappings of "success" and "enjoyment" in this life. Some examples are easy -- who hasn't thought of really fun ways to spend the money that goes into the offering plate at church? More generally, though, I agree with the student that the cost of solidarity is clearly a buzzkill in many areas of life where preferring the self is seen as a ready vehicle for pleasure maximization. The legal academy is undoubtedly one of the more self-aggrandizing professions that I have encountered, and I think it makes the practice of solidarity significantly more difficult, at least for me. I tell myself that I'm just promoting my ideas, not myself, but I'm dubious.
In any event, you can download the paper in question here. In fact, please download it! Get your friends to download it! Repeatedly! Boost my SSRN numbers our society's understanding of solidarity!
Monday, June 2, 2008
Moyn on Maritain and Human Rights
Columbia history professor Samuel Moyn has posted his paper, Jacques Maritain, Christian New Order, and the Birth of Human Rights. (HT: Solum) Here's the abstract:
This paper traces some changes in Catholic political theory eventually taken up and extended during World War II by Jacques Maritain, who became the foremost philosophical exponent of the idea of "human rights" on the postwar scene. I show that the invention of the idea of the "dignity of the human person" as embedded in the Universal Declaration of Human Rights occurred not in biblical or other longstanding traditions, but instead in very recent and contingent history. In conclusion, I speculate on what the restoration of Maritain's route to human rights to its proper contexts might suggest about the cultural meaning the idea had in postwar Continental Europe, which became its homeland.
More on the pedagogical impact of marriage law
Here are two more reader responses to the hypothetical about the lessons children will absorb from a loving and committed same-sex couple who are unable to marry.
Thursday, May 29, 2008
North Coast Women's Care Center v. Benitez
News reports of yesterday's oral argument are suggesting that the California Supreme Court is likely to rule against the doctors who claim a constitutional right to refuse to perform artificial insemination for a lesbian patient. I do not believe that a doctor should be legally compelled to provide such a service when it violates his conscience, provided the patient has access to the service elsewhere (as the patient did in this case). The fault, though, lies with the California legislature, not the courts. Consider the wildly expansive language of the applicable state law, the Unruh Civil Rights Act:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
In a society that purports to care deeply about the vitality of conscience, that's a bad law. At this stage, though, I'm not sure what the California Supreme Court is supposed to do about it. Legislators can and should take account of context: 1) our society's conversation about sexual orientation is still in its early stages; 2) requiring a physician to help bring a child into a family setting that the physician believes is unhealthy and immoral is more intrusive than the application of anti-discrimination law in the run-of-the-mill "business" context; and 3) there are (apparently) plenty of physicians willing to provide their services to gays and lesbians even absent legal coercion.
When courts are asked to recognize a "right" to discriminate, it's much more difficult to bring such factors to bear on the analysis, particularly under the framework of Employment Division v. Smith. (Perhaps the California constitution gives the court more flexibility, but the justices sounded skeptical.) If the court recognizes the physician's constitutional right to refuse services to a lesbian, the resulting right would be more categorical than contextual, likely extending to the protection of discrimination against interracial couples looking to have a child, or against a lesbian requesting cosmetic surgery. Maybe the courts are the only hope for conscience at this point, but we should bear in mind that they are not operating on a blank slate -- they're constrained by a conscience-trumping (but constitutional) statute.
Wednesday, May 28, 2008
Hypo re the pedagogical function of marriage law
A blogger at Megan McArdle's site poses the following hypothetical to pro-marriage opponents of same-sex marriage:
An 8-year-old goes to play at the house of his friend, who is raised by two lesbian women. The environment is a loving one. So this playmate, whose straight parents are married, is going to absorb one of two possible norms.
1) My friend lives in a happy home. His parents are married. When people grow up and love each other, and want to have kids and a happy home, they get married. (I hope I get married one day.); or
2) My friend lives in a happy home. His parents aren't married. When people grow up and love each other, and want to have kids and a happy home, sometimes they get married like my parents. Other times they don't get married, like my friend's parents. (One day I may get married and have kids, but maybe I'll just have kids and live with the person I love.)
Shouldn't we prefer option #1 to #2? Some might try an option #3, arguing that good parents shouldn't be allowing their children to play at the home of children with two lesbian parents in the first place. That suggestion makes no moral or practical sense to me. Other options -- some more thoughtful than others -- are discussed in the comments to Eugene Volokh's post of the hypo.
Friday, May 23, 2008
CST and entitlement reform
John Heitkamp brings to my attention a Wall Street Journal op-ed by a Catholic GOP Congressman, Paul Ryan, on how to tackle the looming entitlement crisis. John suggests that Rep. Ryan is serious about reflecting CST principles in his policymaking, though this plan's emphasis on lowering the corporate tax rate and individualized accounts for social security and health insurance are not normally associated with the more socialist (?) economic themes of traditional CST. I'm not an expert on entitlement reform, though, so I invite others' comments.
Sex and the married man
I've been reading a lot of academic articles and books about competing visions of marriage and family law's rapid move from status to contract. I just read a depressing pop culture example of the contractual premises on which modern marriage seems to be based. The gist of the New York magazine article is that virtually all married men fulfill their sexual needs outside the marital relationship, whether through affairs or pornography. It's a reality that we can't really talk about because we're not enlightened enough to dispel the myth of relationships. Here's the concluding quote:
A relationship is a myth you create with each other. It isn’t necessarily true, but it’s meaningful. The key to that myth is that the other person is enough for you. You know in your head that another person isn’t enough for you. But if you don’t honor the myth, then it crumbles.
If I view marriage as a contract I enter in order to fulfill my needs, that quote is probably pretty accurate. If I view marriage as a mutual self-giving that is part of a broader covenant (including God, children, and my spouse), the quote is outlandish.
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