FMA and religion

Thu Feb 26 08:52:41 PST 2004

Interestingly enough, it was Justice Douglas in Griswold who called
marriage "sacred," and yet there the Court found traditional marriage
not only permissible, but constitutionally protected. - Dan Conkle

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Rahdert
Sent: Wednesday, February 25, 2004 3:58 PM
To: Volokh, Eugene; Zietlow, Rebecca E.; Paul Finkelman; Zietlow,
Rebecca E.
Cc: Parry, John; conlawprof at lists.ucla.edu
Subject: Re: FMA and religion

The 13th Amendment coincided with some individuals' religious beliefs,
but I don't think one can say it was adopted for religious reasons.
Unless I'm mistaken, the Marriage Amendment (at least as advocated by
the President) would be adopted for religious reasons (to protect the
"sanctity" of marriage -- a term which my dictionary defines as
religious) and to that extent would  limit the establishment clause
principle against laws with 
religious purposes.

Mark Rahdert

At 08:44 AM 2/25/04 -0800, Volokh, Eugene wrote:
>Hmm -- I wonder whether people would say the same about, say, the
Thirteenth
>Amendment, which imposed some people's religious values (the
antislavery
>movement, to my knowledge, was heavily religious) on others.  Many laws
>impose some people's religious values on others, in the sense of being
>justified by their backers' religious preferences.
>
>I also don't quite see what the Establishment Clause problem is with
>"preventing church officials from presiding over legally cognizable
>marriages even if their religion mandated the recognition of such
>marriages."  Church officials are perfectly free to conduct whatever
>religious rites they want -- it's true that these religious rites (or
any
>equivalent private secular ceremonies) will not have legal consequences
as
>to same-sex marriage, but I hadn't thought that the First Amendment
gave
>churches the right to have their religious rites have legal
consequence.
>
>Finally, I take it that the argument below would would indeed lead to
the
>conclusion that the state must recognize polygamous marriages, since
laws
>banning polygamy "prevent church officials from presiding over legally
>cognizable marriages even if their religion mandated the recognition of
such
>marriages" and thus presumably equally violate the First Amendment.  At
>least the FMA, as a constitutional matter, would trump the First
Amendment
>in that respect (assuming arguendo that the argument below is right);
mere
>laws limiting marriage to two people would be trumped by the First
Amendment
>claim given elow, no?
>
>Eugene
>
>-----Original Message-----
>From: Zietlow, Rebecca E. [mailto:RZietlo at utnet.utoledo.edu]
>Sent: Wed 2/25/2004 11:15 AM
>To: Paul Finkelman; Zietlow, Rebecca E.
>Cc: Parry, John; conlawprof at lists.ucla.edu
>Subject: RE: FMA and Federalism
>
>
>Paul:
>
>Also, there does appear to be some conflict between the FMA and the
>establishment clause (because it would impose some people's religious
values
>on others and apparently prevent church officials from presiding over
>legally cognizable marriages even if their religion mandated the
recognition
>of such relationships), just as there was an obvious conflict between
the
>flag burning amendment and the First Amendment's protection of freedom
of
>expression.  I guess the latter amendment trumps the former (as the
14th
>Amendment trumps the 11th)?
>
>Rebecca
>
>
>
>
>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>
>
>
>
>
>
>
>
>-----Original Message-----
>
>From: conlawprof-bounces at lists.ucla.edu
><mailto:conlawprof-bounces at lists.ucla.edu>
>
>[mailto:conlawprof-bounces at lists.ucla.edu
><mailto:conlawprof-bounces at lists.ucla.edu> ]On Behalf Of Parry, John
>
>Sent: Tuesday, February 24, 2004 2:24 PM
>
>To: conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu>
>
>Subject: RE: FMA and Federalism
>
>
>
>
>
>I apologize for making an obvious point, but there is a difference
>
>between protecting marriage and protecting speech.  We protect speech
by
>
>freeing people to talk.  Yet the DOMA proposes to protect a social
>
>institution -- not people -- by forbidding people from getting married.
>
>It's like protecting VMI by keeping women out.  Aside from prohibition,
>
>I'm not aware of another change to the Constitution that took the form
>
>of depriving people of equal liberty.  Regardless of what one thinks of
>
>the Massachusetts SJC's decision, it did not take away anyone's rights
>
>or liberties.  Nothing that is happening at the San Francisco City Hall
>
>takes away a single person's rights or liberties.  DOMA, on the other
>
>hand, has the purpose of repressing liberty in the service of
>
>sensibility.
>
>
>
>Perhaps even worse, DOMA forbids change.  Say what you will about
>
>Lawrence, but it is only a judicial decision.  Doctrine changes -- that
>
>its nature.  The doctrine announced in Roe v. Wade has changed over
>
>time, and it can change more.  But DOMA tells gays and lesbians that
>
>they can never be equal citizens because by definition they are
excluded
>
>from the full scope of liberty (and only them, no other groups would be
>
>so treated).  Whatever your moral, religious, or political views, that
>
>should strike you as a dramatic and troubling thing to do.
>
>
>
>Sandy Levinson has asked us whether we would sign the Constitution (and
>
>the new National Constitution Center does the same).  If DOMA is in the
>
>document, that decision takes on Garrisonian overtones.
>
>
>
>John T. Parry
>
>Associate Professor of Law
>
>University of Pittsburgh School of Law
>
>3900 Forbes Avenue
>
>Pittsburgh, PA 15260
>
>412-648-7006
>
>
>
>
>
>-----Original Message-----
>
>From: conlawprof-bounces at lists.ucla.edu
><mailto:conlawprof-bounces at lists.ucla.edu>
>
>[mailto:conlawprof-bounces at lists.ucla.edu
><mailto:conlawprof-bounces at lists.ucla.edu> ] On Behalf Of Rick Duncan
>
>Sent: Tuesday, February 24, 2004 1:51 PM
>
>To: Frank Cross; conlawprof at lists.ucla.edu
><mailto:conlawprof at lists.ucla.edu>
>
>Subject: FMA and Federalism
>
>
>
>Well, I don't know anyone who is a "true federalist"
>
>if this means that he or she is opposed to *any*
>
>national constitutional norms. Most people who claim
>
>to be federalists, for example, support national rules
>
>protecting freedom of speech, equal protection, and
>
>perhaps even a right to bear arms.
>
>
>
>I guess the protection of marriage, like protection of
>
>free speech, free exercise, and racial equality, is
>
>for me an issue that calls for a national response
>
>given the cultural crisis that we are living through.
>
>I would not want to live in a nation that failed to
>
>recognize that marriage is a relationship between one
>
>man and one woman, nor in one which refused to take a
>
>stand to protect marriage when it was under attack.
>
>
>
>If that disqualifies me from memebrship is the society
>
>of "true federalists," so be it.
>
>
>
>Rick Duncan
>
>
>
>--- Frank Cross  <mailto:crossf at mail.utexas.edu>
<crossf at mail.utexas.edu>
>wrote:
>
>
>
>I think the FMA is a perfectly fine hour for
>
>
>
>federalism. Most of those
>
>
>
>embracing the federalism argument against FMA
>
>
>
>themselves favor a
>
>
>
>judicially imposed national rule mandating same-sex
>
>
>
>marriage.
>
>
>
>This may be true but it's not much of an argument.
>
>Pointing out the
>
>hypocrisy of the opposition often only highlights
>
>the hypocrisy of one's
>
>own side.  Seems like a true federalism believer
>
>would oppose both national
>
>rules.
>
>
>
>
>
>We will have a national rule on this issue one way
>
>
>
>or the other.
>
>
>
>This seems to beg the question.  Why?  It is
>
>obviously possible to have gay
>
>marriage rights neither compelled nor prohibited.
>
>
>
>
>
>I am no fan of federalism.  But this seems like one
>
>of the better cases for
>
>federalism.  Different local mores can express
>
>themselves democratically,
>
>and the issue is one where democracy will probably
>
>make the decision.  And
>
>this is an issue where a number of people probably
>
>would choose to vote
>
>with their feet and embrace the state that had views
>
>consistent with their
>
>own.  The FF&C issue is a little complicating.  For
>
>a true federalist
>
>solution, though, you'd have no FF&C, and
>
>individuals could plan their
>
>residence accordingly.
>
>
>
>
>
>
>
>=====
>
>Rick Duncan
>
>Welpton Professor of Law
>
>University of Nebraska College of Law
>
>Lincoln, NE 68583-0902
>
>
>
>"When the Round Table is broken every man must follow Galahad or
>
>Mordred; middle things are gone." C.S.Lewis
>
>
>
>"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
>
>numbered."  --The Prisoner
>
>
>
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