Good thing you all keep fighting even while I’m moving

I really like it when my blog becomes a kind of backdoor pilot for spinoff conversations on other blogs.  A conversation in the civil same sex marriage thread spun into a dialogue Irenist and Jake over at the former’s blog (Marginalia).  There are three posts in the series so far.

In the first, Irenist responds to some of Jake’s comments and questions about how religiously motivated a law is allowed to be.

The U.S. was designed not to have an institution like the Church of England. That’s all. Since then, First Amendment jurisprudence has very recently moved toward a more secular public square in areas like school prayer in the last few decades. The U.S. was not designed to exclude religiously motivated arguments from the public square. The abolitionists, the civil rights movement, and the pro-life movement, have all made religiously motivated arguments in the public square, and all have been in the American mainstream in so doing…
The fact that you “would say” those [blue] laws are unconstitutional, and yet they have been on the books for decades despite the existence of wealthy liquor distribution firms that would happily pay large law firms to challenge them, may indicate that your hunches about what is and isn’t constitutional are untrustworthy. If your hunches lead you to think that longstanding laws are unconstitutional, then barring a groundbreaking SCOTUS decision (on SSM, e.g.), that just means your hunches are wrong, and you know less about the Constitution than you think.

In the second Jake expands a bit on his moral philosophy and Irenist reengages (Jake quoted below):

I am a descriptive moral relativist. To steal a line from the Wikipedia page, this simply means that I “admit that it is incorrect to assume that the same moral or ethical frameworks are always in play in all historical and cultural circumstances.”

…I go a step further than strict descriptive moral relativism, and say that the basis for morality is relative as well. I mean something very specific here- I mean that what it means to be “moral” is entirely contingent on what it means to be “human.” That is to say, if humans were different, by quirk of evolution or God, then morality itself would be different.

And in their most recent tete-a-tete, Jake pushes back on some of Irenist’s con-law arguments and gets a response:

IRC, you asserted somewhere that you thought Blue Laws were unconstitutional. If a compelling secular purpose has been found for them, then they are not. Justice Douglas is certainly correct that offending Christian sentiment is not a compelling secular purpose. However, as I note in my recent blog post on my opposition to continuing prohibition of narcotics, America’s patchwork of pesky liquor laws has made it harder for alcohol purveyors to “rationalize” the liquor market into an efficient delivery system for cheap, addictive liquor akin to the disaster of the more “rationalized” distribution system that has afflicted Britain with so many violent “lager louts.” Thus, as you agree, there is a compelling secular purpose for those laws. The only reason, I think, that the First Amendment really came into it is specifically because a lot of Blue Laws are specific to Sundays, and the choice of that day does indeed seem rather arbitrary in the absence of religious motivation. “No work on the Sabbath” laws, e.g., even if rephrased to “No work on Sundays,” raise real establishment of religion questions. Why shouldn’t agnostics, atheists, Jews, Muslims, and Seventh Day Adventists work on Sundays? You can make a secular argument about the need for a coordinated day off, but it’s quite shallow, and the matter starts to look a lot like I.D. The fact that Sunday-specific laws have nevertheless survived indicates to me, at least, that courts are not eager to apply First Amendment considerations willy-nilly, since Sunday-specific laws seem a lot closer to the core of establishment concerns than SSM laws. Thus, to me, the survival of Sunday-specific laws is symptomatic of courts preferring to decide these cases on other grounds. YMMV.

All in all, a very good-spirited and aggressive (not mutually exclusive!) discussion.

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  • Mike

    1. I have no idea what defining marriage as one man one women necessarily has to do with religion. Japan, Russia, all the former atheistic eastern european countries, CHINA! define it that way and there is no chance in hell that any of them are changing it anytime soon. Ok, maybe Latvia, Estonia, etc. and maybe Japan, but Russia and CHINA, the biggest most important atheistic kingdoms ever, not a chance.
    2. Ok, what if the law is changed but there are still different provisions for different “unions”. Some for man women and others for 2 same-sex people? Is the law equal then, or not? Yes, I am trying to get a response to this still :).

    • Brandon B

      Re: #2
      One step of the legal analysis is whether the same rights attach to a civil union as they do to a marriage. I’m only part way through my family law class, but things property rights during the relationship and upon dissolution, visitation rights in hospitals/prisons/wherever, insurance coverage, custody of children, attaining the legal status of ‘parent’, and more are all up in the air, and may or may not be different under a civil union than marriage. If the differences are substantial, then of course gay marriage advocates will still try to get gay marriage legalized.

      So, in a state that has civil unions for gay couples but not gay marriage, if the marriage statute were challenged on Equal Protection grounds, the government’s lawyer would be in the unusual position of arguing that “marriage” and “civil union” are different in name only, which is not what anyone else seems to be saying. Gay marriage advocates are not satisfied with “civil unions”, they want “marriage”, because the label “marriage” means legitimacy. [Besides, why would they give up now? They appear to be winning.] Conservative/religious folk will also fight over this distinction, because “marriage” is sacred, whereas a “civil union” is just a civil status involving a pseudo-contract between two people and the government under which they live. People who object to same-sex marriage because it may harm society by undermining the family will object just as loudly to civil unions as to gay marriage, but still. Names matter.

      • Mike

        Oh I am not talking about that. I am saying that right now the law in England has different provisions for different couples! I posted about this before and linked to an interview with a gay guy who points this out on sky news. I’ll try to post it again, the link. PS Don’t want to re-hash this debate just think it really really weird gay marriage advocates would accept this.

    • Re: #2
      Legally speaking (in America):
      My understanding is that Brown v. Board of Education essentially said that “separate but equal” is not, in fact, equal (overturning the previous precedant of Plessy v. Ferguson). However, upon review of the Wikipedia page, I can only find quotes indicating that “separate but equal” is inappropriate in an educational setting, nothing to say that it is blanket innappropriate in all cases (perhaps someone more educated than me can chime in). Regardless, I believe in the case of marriage, separate but equal is legally speaking just as inadequate as it was in education (I believe Irenist agrees with this sentiment, as he thinks anti-SSM laws will be overturned under the equal protection clause in the 14th amendment)

      Morally speaking:
      If there are substantively different provisions for different unions, then that is in no sense equal. Certainly we can make common sense differentiations in recognition of physical differences (e.g. “husband” and “wife” might not be the correct terms to use in the paperwork for SSM), but if a heterosexual union confers upon husband and wife different rights than a homosexual union, then they are not equal, full stop.

      • Brandon B

        One clear distinction between segregation in education and marriage/civil unions is that segregated schools involved a physical separation, and that physical separation enforced daily the idea that blacks and whites were not the same. If the only difference between marriage and civil unions is which paperwork you file, this is a nearly invisible difference, and it’s a one-time thing.

        • Using different labels for the two relationships is not a one-time thing, it’s a persistent thing, and it enforces daily the idea that homosexuals and heterosexuals are not the same (though I would phrase it as “not equal”, since homosexuals and heterosexuals are clearly not the same, much like blacks and whites are clearly not the same. There is some difference that allows us to categorize individuals into these (usually) mutually exclusive groups).

          As someone pointed out in some other comment thread that I’m too lazy to find and link back to, if the argument is that “well, marriage and civil unions aren’t really any different anyways”, then you’re left in the awkward position of defending the claim that marriage is so substantively different from civil unions so as to merit it’s own label, paperwork, etc. etc., but not so different as to constitute a violation of equal protection when certain people aren’t allowed to join one of the clubs. I’m not sure there’s a way around this- I think you have to pick a side and go for it. Either marriage and civil unions are and should be substantively different, or they are not substantively different and should not be treated differently in the eyes of the law. The middle ground is no man’s land.

          • Oregon Catholic

            I believe civil unions should not be understood in the limited way they are now, which is to say a union of a physically intimate couple. If they were defined, as I believe they should be, to include any two adults who want a civil union for purposes of establishing inheritance, next-of-kin status, insurance benefits, death benefits, etc. regardless of sexual union then we could truly say marriage and civil unions are different. And most importantly marriage would retain it’s traditional meaning.

            But as Brandon B says above, this doesn’t satisfy ssm proponents who want the social legitimacy that they believe marriage confers on their lifestyle. However, if more states would implement this wider definition of civil union I think ssm would lose momentum among the vast majority of citizens who support SSM primarily because they worry about being unfair to ss couples, not because they think ss unions = marriage.

          • Mike

            Question for the scholars: was no-fault divorce ruled unconstitutional or were the laws just changed legislatively?

          • @Oregon Catholic:

            Very interesting points. I suspect you’re correct, that so long as there is a legal institution that discriminates (in the technical sense of the word) between heterosexual and homosexual individuals and couples (even if it’s only the label of “married”), SSM proponents will not be satisfied (I think they would be right not to be, but I digress)

            It’s an interesting prediction, that if civil unions encompassed all the same legal rights and obligations as marriage, then the pro-SSM movement would lose momentum. I tend to disagree with you for two reasons: first that I think the majority of pro-SSM citizens would still see this system as being unfair to SS couples. Second, I think this might have worked 20 years ago, but the cultural zeitgeist has shifted- todays youth doesn’t see SS relationships as unnatural, wrong, disordered, etc. They see it as a normal, if alternative, lifestyle. I’m not sure you can put that genie back in the bottle.

            But my confidence in my counter-prediction isn’t very high. It would be an interesting experiment to run (or poll to take… I wonder if anyone has done it?)

  • grok87

    hmm…I can’t help but notice the political subtext in the rock-em sock-em robot picture. The blue (state) robot is beating up the red (state) robot! (I approve by the way!)

    Blessings for your move Leah. It sounds exciting but I’m sure it is a bit of a trial. From today’s evening prayer:

    “May the Lord answer in time of trial; may the name of Jacob’s God protect you.
    May he send you help from his shrine and give you support from Zion.
    May he remember all your offerings and receive your sacrifice with favor.

    May he give you your heart’s desire and fulfill every one of your plans.
    May we ring out our joy at your victory and rejoice in the name of our God.
    May the Lord grant all your prayers.”

    • Darren

      Speaking of Rock-em Sock-em Robots…

      You have to be a pretty big geek to find this funny, but I find it hilarious:

      Rock-em Sock-em Lab Rats

      Sage labs supplies Knockout Mice.

      From Wikipedia:

      ”A knockout mouse is a genetically engineered mouse in which researchers have inactivated, or “knocked out,” an existing gene by replacing it or disrupting it with an artificial piece of DNA. The loss of gene activity often causes changes in a mouse’s phenotype, which includes appearance, behavior and other observable physical and biochemical characteristics.

      Knockout mice are important animal models for studying the role of genes which have been sequenced but whose functions have not been determined. By causing a specific gene to be inactive in the mouse, and observing any differences from normal behaviour or physiology, researchers can infer its probable function.”

  • Thank you for your kind words, Leah! And thanks to Jake for so consistently being a very thoughtful and thought-provoking interlocutor. As it happens, my wife and I have just welcomed our firstborn (a daughter) into the world this month, so my blogging has been a bit light as well. With the added stimulus of this post, perhaps I shall find time in the nearer future to blog on something more pageview-drivingly incendiary (civil marriage? gun control? abortion?) than the commentaries on the daily Mass readings that have exhausted my present blogging capacity so we can all delight in civilly arguing with each other….

    • ACN

      Congratulations! Hope everyone is hale and hearty!

    • Darren

      New baby; congrats!

    • Mike

      Congrats! They grow up fast.

    • grok

      Congratulations! What a joy!

      from today’s evening prayer…

      “Let our sons then flourish like saplings grown tall and strong from their youth:
      OUR DAUGHTERS graceful as columns, adorned as though for a palace.

      Let our barns be filled to overflowing with crops of every kind;
      our sheep increasing by thousands, myriads of sheep in our fields, our cattle heavy with young,

      no ruined wall, no exile, no sound of weeping in our streets.
      Happy the people with such blessings; happy the people whose God is the Lord.”


    • Darren

      One word of advice, one dad to another: baby carriers (slings and such).

      They will give you hours and hours of your day back, and the babies _love_ them (and it is awfully cute to have a little one snuggled up – and if one can do it without the screaming arm and back pain, so much the better…)

      Baby Carrier forum

      My favorite, the Mei tai

      (no particular endorsement of the above company, but they look reasonable enough – give me an email if you like and I will put you in touch with my wife, who knows far more than I about all things baby carrier – darrennolen at gmail – avoid the Baby Bjorns and other Target / Babies-are-Us things, much better products on the market).

    • Kristin

      Congrats on the baby!

      I like your blog. You don’t seem to have an “about” page, though. Would be curious to learn more about your background, I like your writing.

    • leahlibresco

      Mazel tov!

    • Congrats Irenist!

      Ditto to you- I appreciate the opportunity to argue civilly with smart people who disagree with me. Any time I’m nervous to check a comment thread because my argument may have been torn apart in my absence, I generally consider it a good thing

      I look forward to your inevitable sleep deprived posts in the next few months 🙂