"Don't force your ideology on me"

[Paul Finkelman]

Eugene is right; I have no problems with regulating the public space in
many ways, in regulating the treatment of minors, and in regulating the
ways people interact when the actions are part of public economic
activity or not involved in purely private consenusal acts.  So, Eugene
and i agree the state can regulate or prohibit infanticide, even for
religious purposes.  Similarly, the state can prohibit carrying weapons
on planes, even for religious purposes (so I suppose Sikh's could have
their knives taken from them) and also no weapons in courtrooms, jails,
etc.  And I happily agree that the state can prohibit business in the
public sphere from disrciminating against people on the basis of race,
religion, gender, physical disabilities.

All of my discussions in the previous posts concerned the actions of
private consenting adults. So that my choice for greatest decisions
would surely include Loving and Griswold.



--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

918-631-3706
Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu




"Volokh, Eugene" wrote:

>
>
>         Prof. Finkelman of course is perfectly willing to "force [his]
> ideology on others" in many ways -- as are we all.
>
>         I take it that Prof. Finkelman would happily force people not
> to engage in infanticide, or to force them to associate (in
> employment, places of public accommodation, and other contexts) with
> people with whom they'd rather not associate, or to restrict their
> ability to own weapons that they wish to have for meaningful
> self-defense, or to do a variety of other things.  I don't know
> whether he would be willing to "force an ideology of not aborting 8
> 1/2-month-old fetuses on others" (at least absent threat to the
> pregnant woman's health) but many who agree with him on abortion of
> pre-viability fetuses would be willing to force their ideology on
> women when the fetus is post-viability.
>
>         Rick agrees with Prof. Finkelman that it's OK to "force our
> [anti-infanticide] ideology" on others, but he wouldn't go so far with
> some other ideologies, and he'd go further with his own brand of
> anti-infanticide ideology, which also includes a prohibition on the
> killing of fetuses as well as newborns.
>
>         Surely it's not a novel observation that the rhetoric of
> "don't force your ideology on me" gives us very few definitive answers
> to these tough questions, precisely because some ideologies *should*
> be forced on others.  The standard defense is to offer an amendment
> (which Prof. Finkelman doesn't actually offer) of "don't force your
> ideology on others unless they're harming someone else" -- but of
> course that begs the question of what constitutes "harm" and who
> qualifies as "someone else."
>
>         What else might Prof. Finkelman's argument rest on?  Possibly
> (I'm not sure from the text of the post) it might be on the
> distinction between religiously-motivated ideologies and
> secular-motivated ideologies -- but surely that distinction cannot be
> sound.  Secular moral beliefs (for instance, as to the impropriety of
> infanticide) are ultimately as axiomatic and unprovable as religious
> moral beliefs.  Rick is just as entitled (or not entitled, in certain
> areas) to enact his religiously based moral beliefs into law as Prof.
> Finkelman is as to his.
>
>         None of this shows that Roe was wrong, or that Bowers was
> right.  One can certainly argue that some restrictions on others'
> liberty are permissible and others are impermissible.
>
>         But slogans such as "don't force your ideology on others" do
> nothing to help us resolve these tough arguments, because so much of
> law -- including perfectly morally sound, even morally imperative, law
> -- is all about forcing one's ideology on others.
>
>         Eugene
>
>
>      -----Original Message-----
>      From:   Paul Finkelman [SMTP:Paul-Finkelman at UTULSA.EDU]
>      Sent:   Sunday, March 11, 2001 6:35 PM
>      To:     CONLAWPROF at listserv.ucla.edu
>      Subject:        Re: the last shall be first
>
>      Rick interprets my position as "liberal," I suppose to bash his
>      favorite
>      target.  But it is not.  It is a in fact a deeply conservative
>      view that the
>      state should not discriminate against the powerless and oppress
>      people in
>      their most private of acts.  But, labels are irrelevant.  The
>      fact is, Rick's
>      position, and those who are anti-gay and anti-choice, does just.
>      In terms of
>      antichoice, the most extreme exmple (no abortion) infringes on
>      the free
>      exercise rights of, among other, orthodox Jewish women, who are
>      *required* to
>      choose an abortion if the medical view is that the pregnancy will
>      kill them.
>      This is of course the exact opposite of the Catholic Church's
>      position.  Now,
>      I woud never dream of arguing that a women who is told "if you
>      have the baby
>      you will die," should be forced to terminat the pregnancy.  That
>      is, I would
>      never argue that the state should thrust my views on those who
>      think
>      differently.  Similarly, I would never argue that the state
>      should force
>      women to take birth control, but would argue that Griswold was
>      correct in
>      allowing women to choose that option (again, in the face of
>      strong religious
>      pressure in Conn. and Mass. to prevent precisely that).
>
>      I am hardly "shocked" that people disagree with me on this.  The
>      history of
>      the world is full of those who would force their ideology and
>      religious
>      values on others.  I think the difference between us on this
>      point is that I
>      do not believe we should force our ideology on others and I think
>      the
>      Constitution through numerous amendments, and yes, even
>      penumbras, gives the
>      Court a great deal of room to protect liberty, especially the
>      liberty of
>      those who are politically less powerful than others.  Rick's
>      point is, as
>      best I can tell, that 1) it is ok for the majority to thurst its
>      views --
>      religious, moral, and social -- down the throats of minorities
>      and the
>      powerless; and 2) that the court should not intervene when this
>      happens.
>
>      That, it strikes me, was the ideology of Plessy.   I cannot see
>      how one might
>      sustain Loving v. Virginia, for example, under Rick's theory.
>
>      The difference between Roe and Lochner is obvious to many of us.
>      Lochner is
>      about economic relations in the open society.  Roe, Bowers,
>      Griswold, Loving,
>      and also Buck v. Bell are about the state regulating the most
>      private acts
>      and decisions of people's lives.  Furthermore some of these cases
>      involve
>      laws that seem clear attempts to impose religious doctrine on all
>      people
>      through statutes.  Why is what Bowers did "illegal" -- only I
>      think because
>      of an application of religious morality by the state on certain
>      acts of
>      consenting adults that harm no one, affect no third parties, and
>      if done in
>      the privacy of the home (as in this case) certainly do not even
>      affect public
>      morality.
>
>      I am not surpised that Eugene and I or Rick and I disagree on
>      these issues.
>      I am surprised that they are unable to see the logic of the
>      positions they
>      take and the fundamental threat of their position to religious
>      liberty and
>      personal liberty.
>
>


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