Wednesday, August 31, 2011
Thanks to Rob for his posting yesterday on Professor Laurence Tribe’s recent SCOTUSblog contribution entitled “The Constitutional inevitability of same-sex marriage.” The Tribe post is a withering critique of a method of legal reasoning that has been and remains crucial to law making—be it law making by the legislature or by the judiciary: the natural law. Of course, Professor Tribe is no friend of the natural law [HERE Download Tribe on Natural Law] and scorns its use. Yet, without the natural law, we would not have the Declaration of Independence and the fundamental law of this country, the Constitution of the United States of America.
Professor Tribe also makes passionate arguments for the “constitutional inevitability of same-sex marriage,” and some of them are based on polls, evolving consensus, and the transformation of culture. In this context, he asserts that arguments contrary to his on these points necessitate “the Court to cut this baby in half.” I wonder if he would employ this phrase in the arguments he has made in defense of abortion (for there, the baby—millions of them—has been and is plainly cut in half)? He also derides the use arguments against same-sex marriage that rely on what he labels “pseudo-scientific claims.” He does not identify the reasoning underlying these claims, but I wonder how he would consider this argument: Let us assume that two planets which have not yet been inhabited by humans are to be colonized by them; on Planet Alpha, heterosexual couples only are assigned; on Planet Beta, only homosexual couples. In one hundred years, will both islands be populated assuming that reproductive technologies are not available to either group? I suggest that Planet Alpha will be; but Planet Beta will not. Why? The basic answer is to be found in the biological complementarity of the heterosexual couple necessary for procreation that is absent in same-sex couple. This is a scientific argument, but perhaps it is, in Tribe’s estimation, counterfeit.
Professor Tribe’s legal justification for same-sex marriage is established on liberty and equality arguments. I have addressed those in an essay that will be published soon [I hope] by our friends at St. John’s University. The text of the argument is HERE Download St. John's Essay November 2010.
Professor Tribe is a highly regarded advocate and professor of law, and he is a formidable challenger. But I say that on his Constitutional arguments of liberty and equality, he is mistaken.