Thursday, March 28, 2013
As the other Richard already noted, Indiana's Supreme Court (unanimously) rejected the attempt by school-choice opponents to overturn the Hoosier State's exciting new program. We should hope that the Indiana Court's analysis serves as a model, in the future, for other state courts dealing with state-constitutional-law challenges to school-funding reforms. This paragraph, for example, nicely responds to the objection that school-choice programs unconstitutionally direct public funds for the "benefit of [a] religious or theological institution":
We first find it inconceivable that the framers and
ratifiers intended to expansively prohibit any and all government expenditures from which a religious or theological institution derives a benefit -- for example, fire and police protection,municipal water and sewage service, sidewalks and streets, and the like. Certainly religious or theological institutions may derive relatively substantial benefits from such municipal services. But the primary beneficiary is the public, both the public affiliated with the religious or theological institution, and the general public. Any benefit to religious or
theological institutions in the above examples, though potentially substantial,
is ancillary and indirect. We hold today that the proper test for examining
whether a government expenditure violates Article 1, Section 6, is not whether
a religious or theological institution substantially benefits from the
expenditure, but whether the expenditure directly benefits such an institution.
To hold otherwise would put at constitutional risk every government expenditure
incidentally, albeit substantially, benefiting any religious or theological
institution. Such interpretation would be inconsistent with our obligation to
presume that legislative enactments are constitutional and, if possible, to
construe statutes in a manner that renders them constitutional. Section 6 prohibits government expenditures
that directly benefit any religious or theological institution. Ancillary
indirect benefits to such institutions do not render improper those government
expenditures that are otherwise permissible.
I am grateful to Michael P. for linking to and quoting from Andy Koppelman's Commonweal magazine review of What is Marriage? Man and Woman: A Defense and inviting readers to "read Andy's review and see whether you agree with his evaluation of the book." It was no doubt an oversight that he did not urge readers to read the book itself, too, so that they could responsibly evaluate the accuracy of Koppelman's exposition of the central claims of the book and the validity of the points he tries to score against those claims. (Or perhaps that was simply assumed.) For those who do in fact wish to read the book as well as the review, here is a link: http://www.barnesandnoble.com/w/what-is-marriage-sherif-girgis/1112358981. While readers are at it, perhaps they would like to have a look at the set of exchanges between Koppelman and the authors of *What is Marriage?* that appeared after publcation of the Harvard Journal of Law and Publc Policy article on which the book is based. See here: http://www.thepublicdiscourse.com/2010/12/2263/ and here: http://www.thepublicdiscourse.com/2010/12/2263/; and here: http://balkin.blogspot.com/2010/12/that-elusive-timeless-essence-of.html; and here: http://www.thepublicdiscourse.com/2011/01/2350/. Nothing would please me more than for people to read through these exchanges and decide for themselves who is offering the superior argument. As for the Commonweal review of What is Marriage? my co-authors and I will be publishing a formal response at Public Discourse, which will raise the question whether it is they or Professor Koppelman who is relying on conclusory and question-begging appeals.
I'm pleased to announce the publication by Oxford University Press of *Reason, Morality, and Law: The Philosophy of John Finnis* (edited by John Keown and Robert P. George). This volume of original essays on the thought of the great Oxford (and Nore Dame0 legal, political, and moral philosopher includes contributions by Joseph Raz, John Haldane, Jeremy Waldron, John Gardner, Joseph Boyle, Timothy Endicott, Germain Grisez, Christopher Tollefsen, Leslie Green, Gerard V. Bradley, Neil Gorsuch, Matthew Kramer, Anthony Kenny, Julie Dickson, Bishop Athony Fisher, Thomas Pink, Roger Crisp, and other luminaries. It also includes a long essay by Professor Finnis, responding to each of the contributors. Unfortunately, even at the dicounted price offered by Barnes and Noble, the book costs $102. So I will understand if folks want to wait for publication of the paperback edition! For those who cannot defer gratification, however, here is the link: http://www.barnesandnoble.com/w/reason-morality-and-law-john-keown/1114040906
Wednesday, March 27, 2013
Yesterday’s oral arguments on the California Proposition 8 case disclosed many interesting thoughts about the meaning of marriage not only in California but everywhere else. Today’s oral arguments which should be underway by now will likely do the same. The scope of my posting today is limited to the very first remarks made by Theodore Olson arguing on behalf of the Respondents (those seeking to legalize same-sex marriage in California, and elsewhere) and the Solicitor General Donald Verrilli, Jr. who argued in support of the Respondents’ position. Mr. Olson opened his argument with this:
[Proposition 8] walls-off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.
In his opening words, General Verrilli said this:
Proposition 8 denies gay and lesbian persons the equal protection of the laws.
Both of these opening remarks are important and expected claims; however, both of them are untrue. Proposition 8 does not deny equality to anyone. Rather, it levels the playing field so that any person is treated the same when it comes to marriage. No one is stigmatized. No one is second rate. No one is unequal. All persons—heterosexual, homosexual, bi-sexual, transgendered, questioning, etc.—are in the same boat under Proposition 8; therefore, all are treated equally. There is no denial of equality; there is no instantiation of inequality by Proposition 8’s operation.
Knowing that I am entering a topic that bears great sensitivity, I want to express clearly that it is not my intention to insult, demean, or marginalize anyone and the dignity that is inherent to everyone. I think that there must be equal access to the claim of dignity which does not imply or require the further conclusion that all persons are equal in all respects nor must their ideas and positions be judged equal in all respects. To disagree with someone with different views on any subject—including same-sex marriage—is precisely that, to disagree—a disagreement that is based on intelligence comprehending and intelligible world. The nature of disagreement is to enter a debate with reasoned analysis and objective commentary supported by factual analyses. To disagree is not to demean; to debate is not to insult; to contradict with objective reasoning is not to marginalize or unjustly discriminate.
By insisting through legislation or adjudication that one thing is equal to something else does not in fact make it so (our human intelligence and our understanding of the intelligible world lead us to this conclusion)—for there must be some foundation based on facts and reason that can justify the equality claim (once again, our human intelligence and our understanding of the intelligible world inexorably lead us to this second conclusion). If this factual-rational foundation is lacking, the equality claim must necessarily fail unless the legal mechanism considering the claim is a purely positivist one. This is patent when the physical differences of male and female and their biological complementarity essential to the continuation of the human race are taken into account. The promotion of “legal argument” that attempts to justify same-sex unions as being the equal of opposite-sex marriage is a contradiction of reason and fact which destabilizes the integrity of a legal system and the substantive law that undergirds it. Reliance on an “equality” argument to advance legal schemes to recognize same sex-marriage does not make relations between two men or two women the same as the complementary relation between a man and a women when reason and fact state that they are equal in certain ways but not in other ways that are crucial to the institution of marriage. While the sexual relations between same-sex couples and opposite-sex couples may both generate physical pleasures through sexual intimacy, these two kinds of sexual relations are substantively different in that the latter exemplifies the procreative capacity that is the foundation of the human race based on the ontological reality of the nuclear family (the fundamental unit of society) whereas the former is sterile from its beginning and cannot achieve this objective.
But let us assume for the moment that I am in error on other pertinent issues regarding same-sex unions and that the relationship between two persons of the same sex is the equal of the marriage between a man and a woman. What conclusions do we then reach as further considerations surrounding the marital context are pursued? These considerations include: equality claims made for other relationships in which proponents argue that these relationships can also be marriages if the relationship of same-sex couples can become a marriage; moreover, by denying the marital status to the partners of these other relationships is there also a violation of equality? A list of such affiliations might include these: a collective of men or women—or a mixture of both sexes—who claim the right to be equal and therefore married in a polygamous context; a sexual affiliation of someone in age-minority and someone in age-majority who claim the right to be equal and therefore married in spite of current prohibitions on age limitations; a sexual relationship of closely related persons who, in spite of legal prohibitions due to degrees of consanguinity, claim the equal right to marriage; or any combinations of human beings who wish to associate with other biological entities who (at least the humans) insist that their relation is or should be considered the equal of a marriage between a man and a woman.
The equality argument supporting same-sex marriage runs into difficulty when one considers that the heterosexual marriage partners, because of their biological nature, are typically capable of reproducing with one another but the homosexual partners are not. It is absolutely essential to take stock of the indisputable about the physical nature of the human being and its bearing on marriage. A homosexual man and a heterosexual man are presumed equally capable of inseminating any woman, and a lesbian and a heterosexual woman are presumed equally capable of being inseminated by any man. Why? Because intelligence and the intelligible world demonstrate this conclusion to be true. But no man, heterosexual or homosexual, can inseminate any other man. Nor can any woman, heterosexual or homosexual, inseminate another woman without the assistance of artificial means. Neither judicial nor legislative fiat can alter this biological reality of human nature. Any man can deposit his semen and sperm in another man, but this does not lead to fertilization of human eggs and procreation. No woman can produce sperm-bearing semen and inject it into another woman thereby leading to the fertilization of the second woman’s egg. The procreation argument against same-sex unions works not because of legal fiction or artifice but because of biological reality that is inextricably a part of human nature that has been a part of the traditional definition of marriage that the majority in Goodridge could not dispute. Again, human intelligence and the intelligible world are working in tandem when these conclusions are reached. Put simply, the Goodridge majority and others making similar claims ignore these crucial points about reality, and ignoring reality does not make for wise and sound law except for the steadfast positivist whose will typically overcomes the intellect. The only way to overcome this obstacle to the same-sex marriage campaign is to put aside the natural and historical definition of marriage and manufacture a new one that suits the needs of same-sex marriage advocates.
The final point I’ll offer today is this: heterosexual, homosexual, bi-sexual, transgendered, and sexually questioning persons share the same position under Proposition 8 which treats all alike. No heterosexual man can marry another man regardless of his orientation. No homosexual man can marry another man regardless of his orientation. No heterosexual woman can marry another woman regardless of her orientation. No homosexual woman can marry another woman regardless of her orientation.
This is not inequality; rather it is equality pure and simple. This is another reason why Mr. Olson’s and General Verrilli’s assertions are without merit.
Following up on Michael's post regarding Andy Koppelman's review of George et al.'s book (phew!) . . . here's a piece by Prof. Steven Smith, with whose work I imagine most of us are familiar, from Public Discourse, called "The Red Herring of 'Marriage Equality.'" As both the George et al. book and Andy's review of it remind us, it is not possible to avoid, in the argument / debate / conversation about same-sex marriage and whether its legal recognition is constitutionally or morally required, the question of what "marriage" is. And, I'm inclined to agree with Steve that, often, the appeal to "equality" (as in "marriage equality") in this context unhelpfully skips past this question, or assumes a contestable answer to it. (And, Andy would say, in response, that those who oppose legal recognition of same-sex marriage do the same thing.)
This sometimes happens, of course, in the abortion debate, too, when the question is framed as "why shouldn't a woman have the right to decide what to do with a part of her body?" when, after all, those who abortion would agree that (generally speaking) we all have a right to decide what to do with a "part of [our] bodies" -- the right question is, "is the unborn child, for purposes of answering a question about what we may do to him or her, a person?"
Tuesday, March 26, 2013
Northwestern law prof Andy Koppelman reviews, in the new issue of Commonweal, the book What Is Marriage? Man and Woman: A Defense, by Sherif Girgis, Ryan Anderson, and Robert P. George. The book is the basis of an amicus curiae brief that Robert George et al. have submitted to SCOTUS in the two "gay marriage" cases being argued before SCOTUS this week. Read Andy's review and see whether you agree with his evaluation of the book, which ends with this:
"That claim’s most fundamental difficulty is the short distance from premise to conclusion. The union of the married heterosexual couple is uniquely good because...well, because the union of the married heterosexual couple is uniquely good. This raw intuition comes decorated with a complex theoretical apparatus, but that apparatus does no work. It’s like one of those old trick math problems, which at first glance seems to require complex computations:
7 + 8,398.14 × B ÷ √55 - 8,398.14 × √55 ÷ B = ?
Look again, and it’s clear that all the complexity cancels itself out, and that you end up right back where you began.
The publication of What Is Marriage? is a public service. It advances understanding of a perspective that many (though fewer and fewer) Americans share, but it is unlikely to persuade anyone who doesn’t already agree with its claims. It is a lucid window into a disappearing worldview."
The entire review is here.
Here is a link to the welcome decision by the Indiana Supreme Court upholding the constitutionality of the state's voucher program. http://www.in.gov/judiciary/opinions/pdf/03261301bd.pdf
I've tried to dial back our society's emerging presumption that "discrimination" is always bad, as have others (including Rick). Re'em Segev has a new paper offering a working definition of "wrongful discrimination" that might shed more light than heat:
Discrimination is a central moral and legal concept. However, it is also a contested one. Particularly, accounts of the wrongness of discrimination often rely on controversial and particular assumptions. In this paper, I argue that a theory of discrimination that relies on premises that are general (rather than unique to the concept of discrimination) and widely accepted provides a plausible (exhaustive) account of the concept of wrongful discrimination. According to the combined theory, wrongful discrimination consists of allocating a benefit that is not supported by a morally significant fact (a valid reason), or in a way that involves distributive injustice, or both.