Miers

Sat Oct 29 10:52:49 PDT 2005

I agree with Mark that the Court is not likely to move quickly to create a new right to homosexual marriage. But the time to build the walls is before the enemy is at the gate.

I spend a lot of time with social conservatives, and I can tell you that for them (for us) the "next Roe," the next unthinkable Supreme Court act of tyranny, concerns the marriage issue. If you stop it before the Court forces states to recognize "domestic partnershipships," you won't have to worry about the Court radically redefining marriage.

I really believe that defending marriage is the number one issue for the social conservatives I spend time with. The pro-life principle is still at the center of their hearts, but the legal and political focus is on protecting marriage.

Rick Duncan

Mark Tushnet <tushnet at law.georgetown.edu> wrote:
I too am surprised at the prominence of tha gay marriage issue in 
Rick Duncan's post. I regard it as a fantasy to believe that the 
Supreme Court would move relatively quickly from Lawrence to 
gay marriage [I reserve judgment on what the time line is likely to 
be, but I'd say at least a decade and probably more]. My guess is 
that we'll see a few "domestic partnership" cases first -- for 
example, Romer-like challenges to state-law exclusions of gay 
partners from benefits available to straight (non-marital) partners). 
I don't follow the issues closely, but the history of litigation 
campaigns is one in which there are intermediate stages before 
"the big one." I would expect the same to be true as to gay 
marriage.
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For most pro-CHOICE Republicans, however many there are, the issue 
obviously doesn't drive their vote. For many pro-LIFE Republicans, on 
the other hand, it is why they are Republicans. There are almost 
certainly enough of the latter to have made the difference in the 
last two national elections. A cynic might suppose that some 
Republicans opposed to reversing Roe v. Wade realize that it would 
release the pro-life constituency to vote their pocketbook instead of 
their conscience in federal elections. A President more cynical (or 
astute) than George Bush might calculate that the party cannot afford 
either to abandon its nominal commitment to reversing Roe or to 
fulfill it.

I find myself surprised by the tone of resignation in Rick's 
assessment of the prospects for reversing Roe; and more surprised by 
the elevation of gay marriage, even if it does mean the end of 
democracy, to a level of importance that even approaches what 
pro-life advocates characterize as the violent slaughter of thousands 
of unborn children. There are seven Republican appointees on the 
Court. If they haven't reversed Roe, maybe it's because they're not 
serious. If social conservatives are re-drawing the battle-lines 
against the ramifications of Lawrence, maybe they should consider 
whether they're being used by the Republican establishment to advance 
a different agenda.

The author of Roe was a Nixon appointee. The author of Lawrence was a 
Reagan appointee. How come Republican appointees are so good at 
mobilizing social conservatives to vote Republican?

John Noble

At 8:26 PM -0400 10/28/05, Hamilton02 at aol.com wrote:
>On the points about the ability (or inability) for Republicans or 
>conservatives to get a constitutional amendment, and the comments 
>about Roe/Casey, does anyone have any hard data about the opposition 
>to Roe (or lack thereof), in the Republican Party? Among all 
>voters, a significant majority are opposed to reversing Roe, but 
>what about within the Republican Party? I have been told that even 
>within the Party, a majority is not opposed to Roe. That is 
>something the President would know and that would affect his 
>calculations for his next appointment.
>
>
>Marci
>
>
>
>
>In a message dated 10/28/2005 2:38:18 P.M. Eastern Standard Time, 
>nebraskalawprof at yahoo.com writes:
>
>Frankly, I think social conservatives are more concerned with 
>stopping the Court from imposing same-sex marriage and 
>anti-religious hostility on the country than they are about getting 
>Roe reversed.
>
>Roe will not be reversed for the foreseeable future. I think most 
>conservatives understand that.
>
>But Lawrence could easily grow to include a right to homosexual 
>marriage. And that would be the final "end of democracy" for social 
>conservatives.
>
>Social conservatives also want a Court that will respect religious 
>liberty (including the liberty to not have religion completely 
>banished from public schools and the public square). They want more 
>free exercise, strong free speech rights, and equal access to 
>government benefit programs (including school choice).
>
>Frankly, it is the far left that is obsessed with Roe and which 
>keeps shouting the "sky will fall" if a conservative nominee is 
>confirmed.
>
>
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed 
>as private. Anyone can subscribe to the list and read messages that 
>are posted; people can read the Web archives; and list members can 
>(rightly or wrongly) forward the messages to others.

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For most pro-CHOICE Republicans, however many there are, the
issue obviously doesn't drive their vote. For many pro-LIFE
Republicans, on the other hand, it is why they are Republicans. There
are almost certainly enough of the latter to have made the difference
in the last two national elections. A cynic might suppose that some
Republicans opposed to reversing Roe v. Wade realize that it would
release the pro-life constituency to vote their pocketbook instead of
their conscience in federal elections. A President more cynical (or
astute) than George Bush might calculate that the party cannot afford
either to abandon its nominal commitment to reversing Roe or to
fulfill it.

I find myself surprised by the tone of resignation in Rick's
assessment of the prospects for reversing Roe; and more surprised by
the elevation of gay marriage, even if it does mean the end of
democracy, to a level of importance that even approaches what pro-life
advocates characterize as the violent slaughter of thousands of unborn
children. There are seven Republican appointees on the Court. If they
haven't reversed Roe, maybe it's because they're not serious. If
social conservatives are re-drawing the battle-lines against the
ramifications of Lawrence, maybe they should consider whether they're
being used by the Republican establishment to advance a different
agenda.

The author of Roe was a Nixon appointee. The author of Lawrence
was a Reagan appointee. How come Republican appointees are so good at
mobilizing social conservatives to vote Republican?

John Noble

At 8:26 PM -0400 10/28/05, Hamilton02 at aol.com wrote:

color="#000000">On the points about the ability (or inability) for
Republicans or conservatives to get a constitutional amendment, and
the comments about Roe/Casey, does anyone have any hard data about the
opposition to Roe (or lack thereof), in the Republican Party? 
Among all voters, a significant majority are opposed to reversing Roe,
but what about within the Republican Party?  I have been told
that even within the Party, a majority is not opposed
to Roe. That is something the President would know and that would
affect his calculations for his next appointment.
color="#000000"> 
color="#000000"> 
color="#000000">Marci
color="#000000"> 
color="#000000"> 
color="#000000"> 
color="#000000"> 
color="#000000">In a message dated 10/28/2005 2:38:18 P.M. Eastern
Standard Time, nebraskalawprof at yahoo.com writes:

Frankly, I
think social conservatives are more concerned with stopping the
Court from imposing same-sex marriage and anti-religious
hostility on the country than they are about getting Roe
reversed.
color="#000000"> 
Roe
will not be reversed for the foreseeable future. I think most
conservatives understand that.
color="#000000"> 
But
Lawrence could easily grow to include a right to homosexual
marriage. And that would be the final "end of democracy" for
social conservatives.
color="#000000"> 
Social
conservatives also want a Court that will respect religious liberty
(including the liberty to not have religion completely banished from
public schools and the public square). They want more free exercise,
strong free speech rights, and equal access to government benefit
programs (including school choice).
color="#000000"> 
Frankly, it
is the far left that is obsessed with Roe and which keeps
shouting the "sky will fall" if a
conservative nominee is confirmed.

color="#000000"> 

_______________________________________________

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_______________________________________________
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begin:vcard
n:Tushnet;Mark
fn:Mark Tushnet,tushnet
tel;fax:202-662-9497
tel;work:202-662-1906
org:Georgetown University Law Center;
adr:;;600 New Jersey Ave. NW;Washington;DC;20001;
version:2.1
email;internet:tushnet at law.georgetown.edu
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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 either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  --The Prisoner

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