Constitutionalizing Social Values

Wed Feb 25 17:55:41 PST 2004

I cannot read the linked editorial because the Wall St Journal requires me to register with them to reach it.  Since I find the current extension of copyright and other intellectual property claims abhorrent, I refuse to do so. Trying to get through the electronic control mechanisms would violate the Digital Millennium Copyright Act.

Now, this is a cognizable harm.  By limiting my access to information through a quasi-property right given by the government to the Wall St Journal, my access to information, my property right not to be exclude, has been narrowed.  This harm, therefore, makes my 'moral abhorrence" worth bothering the government. I, therefore, think discussions of legislative solutions to copyright expansion is a proper subject for government action. 

 I simply cannot see same sex marriage (or polygamy for that matter) the same way.  The current statutes on marriage do not "elevate" that relationship.  They control the property rights and child custody issues involved with  unions.  

As long as a form of "marriage" or "house sharing" does not 
    (i) involve physical or monetary harm to others, or
    (ii) involve physical or monetary burdens on unconsenting persons,
 I abhor "my" government legislating about it.  Nor is this issue anything like slavery. Regardless of why white abolitionists were against slavery or Jim Crow laws, such laws physically and monetarily harmed unconsenting persons (the slaves). 

Malla Pollack
Visiting, Univ. of Oregon, Law
541-346-1599
mpollack at law.uoregon.edu
  ----- Original Message ----- 
  From: Sisk, Gregory C. 
  To: 'RJLipkin at aol.com' ; Sisk, Gregory C. 
  Cc: 'CONLAWPROF at LISTS.UCLA.EDU' 
  Sent: Wednesday, February 25, 2004 5:17 PM
  Subject: RE: Constitutionalizing Social Values

  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 generations.

  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:

  http://www.opinionjournal.com/editorial/feature.html?id=110004735

  Greg

  -----Original Message-----
  From: RJLipkin at aol.com [mailto:RJLipkin at aol.com] 
  Sent: Wednesday, February 25, 2004 7:00 PM
  To: GCSISK at stthomas.edu
  Cc: CONLAWPROF at LISTS.UCLA.EDU
  Subject: Re: Constitutionalizing Social Values

  In a message dated 2/25/2004 6:59:39 PM Eastern Standard Time, GCSISK at stthomas.edu 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 others?

          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.

  Bobby

  Robert Justin Lipkin
  Professor of Law
  Widener University School of Law
  Delaware

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