Constitutionalizing Social Values

Wed Feb 25 10:43:06 PST 2004

I don't think the prior adultery hypothetical is a good one.  Because one 
key component of the Judeo-Christian ethic that animates these concerns is 
foregiveness.  And a shift from an adulterous relationship to one of 
marriage surely would be viewed as an improvement in the moral 
situation.  So there's no reason why it should be banned.

I think the much tougher issue for FMA defenders is divorce.  I think most 
would admit that divorce is the greater threat to the sanctity of marriage 
than gay unions.  And one could easily prohibit divorce.
Greg Sisk is still right that"the FMA is much less intrusive and a 
moderate" than the divorce ban.  But is less intrusive really the correct 
standard.  It is only less intrusive because the FMA discriminates against 
a small discrete minority, rather than the vast and diffuse group of 
divorced Americans.

To me, when conservatives favor a ban on gay marriages but don't favor a 
ban on divorce, that tells me that their main concern is not the sanctity 
of marriage, their main concern is being anti-gay.

At 10:25 AM 2/25/2004, Sisk, Gregory C. wrote:
>The permanent adultery preclusion hypothetical amendment offered by Trevor
>Morrison is not really comparable to the Federal Marriage Amendment that
>would protect the existing and longstanding legal understanding of marriage
>as a union between a man and a woman.  A crucial difference between the two
>is that one (the FMA) looks at the present situation, while Professor
>Morrison's proposal looks to the past and indeed would make what has
>happened in the past forever preclusive.
>
>In this respect, the FMA is much less intrusive and a moderate protection of
>current law.  The FMA protects the traditional and (until quite recently and
>still only in a few isolated areas of the world) universal understanding of
>marriage, without intruding into the past, personal lives of those seeking
>to marry.  Thus, under current law (which the FMA simply would preserve) no
>inquiry is made into whether a person has ever had either an adulterous or a
>homosexual relationship, but rather only applies the pertinent and
>non-intrusive criteria of whether the union sought to be sanctified by law
>is between a man and a woman. By contrast, Trevor Morrison's hypothetical
>amendment would bar a couple from being married if the relationship had ever
>been adulterous in the past, regardless of the current status of the
>relationship.
>
>Trevor Morrison's adultery hypothetical would be more parallel to current
>law and thus to the FMA if it instead precluded parties who are engaging in
>adultery at the very moment from now being married.  Of course, that is but
>an accurate description of existing law, because if the relationship is
>adulterous at the moment, then it means one of the parties remains married
>and a second marriage would be bigamous.  To be sure, acceptance of same-sex
>marriage is but a short step (on the slippery slope) from acceptance of
>bigamous, polygamous, polyamorous, etc. marriages.
>
>Greg Sisk
>
>
>-----Original Message-----
>From: Trevor Morrison [mailto:trevor-morrison at postoffice.law.cornell.edu]
>Sent: Tuesday, February 24, 2004 6:59 PM
>To: conlawprof at lists.ucla.edu
>Subject: RE: Constitutionalizing Social Values
>
>A question for those inclined to support the FMA.  Apologies if a
>hypothetical along these lines has already been posed.  Here goes:
>
>Suppose someone proposes a constitutional amendment providing that states
>may not grant marriage licenses to couples whose pre-marital relationship
>was adulterous (i.e., one or both of them was married to someone else when
>they started up together).  Hard to police, I grant you, but that's an
>application question.  Set it aside and consider just the substance of the
>amendment.  The idea would be to provide a big incentive to decrease
>adultery, which must surely count, for those inclined to count such things,
>as a corrosive effect on the institution of marriage.  And adultery carries
>Biblical condemnation, so the amendment can claim a good foothold in
>tradition.  Finally, and unlike the FMA, the amendment would have the added
>virtue of targeting conduct, not status, so that those wanting to avoid its
>burdens could presumably do so.
>
>Would supporters of the FMA support the adultery amendment?  If not, why
>not?
>
>
>---------- Original Message ----------------------------------
>From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
>Date:  Tue, 24 Feb 2004 15:20:27 -0800
>
> >Paul says no one is required to have an abortion. Well, no one was required
> >to own slaves, either, before the 13th Amendment*. But people were
>enslaved,
> >and unborn children are aborted.
> >
> >
> >
> >The two cases are not, of course, perfectly parallel. No one of good will
> >denies now that the slaves were human persons entitled to freedom. There
>are
> >well-meaning people who deny that a fetus, even a viable one, is a human
> >person entitled to life. But those of us who think the unborn child's right
> >to life should be taken seriously must also believe that Roe and its
>progeny
> >(what a curious phrase for a case that allows the killing of progeny) are
> >profoundly destructive of individual rights.
> >
> >
> >
> >Many opponents of same-sex marriage believe that a change in this most
> >fundamental of our social institutions will cause harm to children and
> >otherwise damage the common good. The harm to individuals is not as clear
>or
> >as immediate as in the case of abortion; but many of us nevertheless
>believe
> >harm is likely, and that it justifies a refusal to accept same-sex
>marriage.
> >
> >
> >
> >In Paul's other post, which begins with "Rebecca:", he stated that those
>who
> >oppose same-sex marriage will, if successful, "get to hurt others, which is
> >in the end their goal." Such statements are not conducive to a civil
> >discussion. Perhaps Paul did not mean that post to go to anyone other than
> >Rebecca.
> >
> >
> >
> >Mark S. Scarberry
> >
> >Pepperdine University School of Law
> >
> >
> >
> >* except perhaps by inheritance in states that prohibited manumission.
> >
> >
> >
> >-----Original Message-----
> >From: Paul Finkelman [mailto:paul-finkelman at utulsa.edu]
> >Sent: Tuesday, February 24, 2004 2:12 PM
> >To: Scaperlanda, Michael A.
> >Cc: Zietlow, Rebecca E.; Parry, John; conlawprof at lists.ucla.edu
> >Subject: Re: Constitutionalizing Social Values
> >
> >
> >
> >Dear Michael:
> >I am sure Rebecca has her own answer, but here is mine.
> >
> >Griswold did not force anyone to use birth control, no one is *required* to
> >have an abortion or have a same sex relationship; the difference is that
> >these cases expanded liberty for individuals at the expence of no one; the
> >proposed amendment seeks to limit freedom for some people with no gain ot
> >the proponents,
> >other than the psychological gain of knowing they have stopped people from
> >getting married to the ones they love.  To put it another way,  Griswold et
> >al did not constitutinalize social values, they rather let people choose
> >social values; just as Brandenburg did not "constitutionalize" the values
>of
> >the KKK, it only allowed people to say what they want.  Brandeis's
> >concurrance in Whitney is useful her, reminding us that the end of a
> >democrcy is liberty.  Those cases expanded the idea of  liberty but did not
> >force anyone to engage in that liberty.  The proposed amendment constricts
> >liberty so that one  group can force its values on another group.
> >
> >Since Lawrence I have not felt the need to engage in a same sex
> >relationship. So the content of Lawrence have not been forced on  me.
> >
> >If the decisions you mention "constitutionalize social valuess" it is the
> >value of individual liberty that they constitutionalize.  The proposed
> >Amendment goes against liberty.
> >
> >Paul Finkelman
> >
> >
> >
> >--
> >Paul Finkelman
> >Chapman Distinguished Professor of Law
> >University of Tulsa College of Law
> >3120 East 4th Place
> >Tulsa, OK   74104-3189
> >
> >918-631-3706 (office)
> >918-631-2194 (fax)
> >
> >paul-finkelman at utulsa.edu <mailto:paul-finkelman at utulsa.edu>
> >
> >
> >Scaperlanda, Michael A. wrote:
> >
> >
> >
> >Dear Rebecca:  Maybe I'm missing something, but don't Griswold, Eisenstadt,
> >Roe, and Lawrence constitutionalize social values in a way that Glucksburg
> >and Bowers did not because the latter decisions left the issue to the
>people
> >to work out subconstitutionally?  Are they miserable failures?
> >
> >
> >
> >Michael
> >
> >
> >
> >Michael Scaperlanda
> >
> >Associate Dean for Research
> >
> >Edwards Family Chair in Law
> >
> >University of Oklahoma College of Law
> >
> >300 W. Timberdell Rd.
> >
> >Norman, Oklahoma 73019
> >
> >Ph.    405.325.4833
> >
> >FAX   405.325.0389
> >
> >
> >
> >  _____
> >
> >From: conlawprof-bounces at lists.ucla.edu
> ><mailto:conlawprof-bounces at lists.ucla.edu>  on behalf of Zietlow, Rebecca
>E.
> >Sent: Tue 2/24/2004 3:07 PM
> >To: Parry, John; conlawprof at lists.ucla.edu
> ><mailto:conlawprof at lists.ucla.edu>
> >Subject: RE: FMA and Federalism
> >
> >I'd like to echo John's sentiments and add to his argument.  Other than the
> >original constitution's treatment of slaves (ie. the 3/5 provision, the
> >fugitive slave clause), I can't think of any constitutional provision that
> >expressly treats a group of people as second class citizens in the way that
> >the proposed FMA would.  Prior to the 19th Amendment, women were implicitly
> >treated as second class citizens by the lack of an affirmative right to
>vote
> >and the reference to "male" voters in Section 2 of the 14th Amendment, but
> >even then the states retained the power to grant women the right to vote
> >(and a number of states did so prior to the 19th Amendment), while states
> >would be deprived of the power to grant the right to gay marriage by the
> >FMA.
> >
> >A second concern of mine that I think I share with John is the frightening
> >precedent that would be set by constitutionalizing social values in the way
> >that the FMA would.  Our history of constitutionalizing social values, with
> >the 18th Amendment and prohibition, was a miserable failure - a fact that
> >should cause supporters of the FMA to take pause.
> >
> >Rebecca E. Zietlow
> >Charles W. Fornoff Professor of Law and Values
> >University of Toledo College of Law
> >(419) 530-2872
> >rzietlo at utoledo.edu <mailto:rzietlo at utoledo.edu>
> ><mailto:rzietlo at utoledo.edu <mailto:rzietlo at utoledo.edu> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >  _____
> >
> >
> >
> >
> >_______________________________________________
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> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
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Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712