Constitutionalizing Social Values

Sisk, Gregory C. GCSISK at
Wed Feb 25 19:17:03 PST 2004

I am reluctant to repeat the various reasons for opposing same-sex marriage
- which go well beyond (but certainly include) being troubled by the
resulting moral atmosphere - given the many pages of postings that I imposed
on list members when this issue arose earlier when the Goodridge decision
was handed down by the Massachusetts Supreme Court.  I am sure many members
of the list already believe I have overstayed my welcome on that point.


Thus, Bobby, forgive me the following very brief response instead (and leave
it to the archives of this and the ReligionLaw list for more of my thoughts
in earlier postings):  If I thought it were merely a matter of tolerating
behavior by others that I or others might find immoral, I'd be inclined to
support withdrawal of government prohibition on same-sex marriage, as I do
with respect to laws criminalizing sodomy or adultery, before Lawrence and
irrespective of my thoughts about whether such statutes are
unconstitutional.  But current marriage laws do not really *prohibit*
same-sex marriage any more than they prohibit marriage between people and
trees or people and animals.  Rather, current marriage laws define marriage
as the union of a man and a woman, thus elevating this particular
relationship - from among the multitude of other relationships in society,
many of which are valuable on their own terms - as having an established
value to society and as being foundational in the generation of future


In sum, as I noted, there is a world of difference between de-criminalizing
certain behavior, protecting the dignity of private conduct, or accepting
human flaws (such as by no-fault-divorce), as one category, and instead as
another category enshrining a particular relationship as superior to most
other relationships (i.e., other familial, affectional, fraternal, social,
etc.) and as equivalent in legal standing to the marriage relationship that
has been the bedrock of society.  The approval of same-sex marriage is
unavoidably a societal endorsement and commendation, not merely a matter of
tolerating and accepting diversity.


Moreover, there are many, many reasons to be wary of same-sex marriage that
are quite secular and a-moral/pragmatic in nature.  The column from Mary Ann
Glendon to which I included a link just a little while ago offers a summary
of some of those reasons in writing for a general audience:





-----Original Message-----
From: RJLipkin at [mailto:RJLipkin at] 
Sent: Wednesday, February 25, 2004 7:00 PM
Subject: Re: Constitutionalizing Social Values


In a message dated 2/25/2004 6:59:39 PM Eastern Standard Time,
GCSISK at writes:

the longstanding and universal (except in a few isolated places of the world
and only quite recently)

           I would welcome Greg's explanation of why this "longstanding and
universal" tradition should be a reason for law--statutory or
constitutional--in contradistinction to supplying a reason for those valuing
tradition not to enter same-sex marriage. Or to put the matter differently,
why isn't there a presumption for liberty-seeking and equality-seeking
citizens not to want to control the moral environment of others in this and
similar matters. Most of the common law of crimes doesn't depend on
tradition.  We don't embrace the law of murder because it is "longstanding
and universal."  Rather, we embrace it because of its effect now.  That is,
it is difficult to see how a society, especially one dedicated to liberty
and equality, could function or survive leaving the decision to kill one's
neighbor to the personal decision making of individauls. And "function" and
"survive" period, not as this or that kind fo soceity.  Of course, I suppose
we can imagine a society in which killing on whim was valued for
exhiliration and the need to carefully plan one's day in order to avoid
falling victim to one's neighbor's murderous intentions. But such a society
is so far from contemporary social reality as to render mysterious the
message to be inferred from its possibility. 


        Yes, we all want to control the moral enviornment of murderers (for
the above and other reasons). We don't want to (cannot) live in a society
that honors the moral environment of murderers. But shouldn't liberty and
equality commit us to disciplining ourselves to tolerate even abhorrent
moral environments of others just as long as these moral envornments do not
intrude too severely into our own. As I conceded last evening, permitting
same-sex marriages does intrude into the moral envoirnments of some--because
it permits choices that these citizens do not want permitted. But unless one
can democstrate that this intrusion is significant enough to render
opponents of same-sex marriage unable to live their lives, doesn't liberty
and equality require accepting the intrusion.  Given that each one of us
probably finds certain moral environments unacceptable (in my case I disdain
materialism), shouldn't the bar be placed fairly high before using tradition
and universality, not just as a reason for choosiing a certain morality
oneself, but also for intruding or eliminate the moral envorinemtns of


        Greg, I said much more than I intended to say in asking you for an
explanation as indicated in boldface above.  Thanks, for any explanation you
care to provide.




Robert Justin Lipkin
Professor of Law
Widener University School of Law

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