Miers

[J. Noble]

Ten years isn't a very long time in the scheme of things, and I 
imagine that from the perspective of social conservatives Lawrence 
was "the big one." The leap from striking down criminal laws that 
punish gay relationships to striking down civil laws that 
discriminate against them isn't all that dramatic. That end  might be 
approached, as Mark suggests, beginning with challenges to state laws 
that discriminate between gay and straight (non-marital) domestic 
partnerships, but I'm not sure there are such laws of any 
significance. The better approach, it seems to me, is to challenge 
the laws that exclude single individuals from the benefits available 
to married individuals (or vice-versa, as with the federal tax code 
which, as applied, produces a marital advantage for one-income 
households and a penalty for two-income households). Those laws, 
which also include the creditor protection afforded joint tenants by 
the entirety and the gift/estate tax marital deduction, are 
significant and pervasive. Social conservatives might be less 
troubled by the notion that straight individuals have a fundamental 
right to remain single than they are by the notion that gay 
individuals have a fundamental right to get married. If we eliminated 
the legal benefits of civil marriage, or extended them as might be 
appropriate to unmarried domestic partners (to protect their children 
for example), the hot button of gay marriage would go cold.

More fundamentally, I would like to know how Rick would react to the 
notion that the state has no more business in licensing the Holy 
Union of Matrimony, from which those legal advantages follow, than it 
has in licensing the procreation of life by that Holy Union. If the 
State should be allowed to license marriage, what conditions, beyond 
opposite gender and remote consanguinity, can the State impose upon 
the sacrament.

John Noble

At 12:43 PM -0400 10/29/05, Mark Tushnet 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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>blockquote, dl, ul, ol, li { padding-top: 0 ; padding-bottom: 0 }
>  --></style><title>Re: Miers</title></head><body>
><div>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.</div>
><div><br></div>
><div>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.</div>
><div><br></div>
><div>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?</div>
><div><br></div>
><div>John Noble</div>
><div><br></div>
><div>At 8:26 PM -0400 10/28/05, Hamilton02 at aol.com wrote:</div>
><blockquote type="cite" cite><font face="Arial" size="-1"
>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?&nbsp;
>Among all voters, a significant majority are opposed to reversing Roe,
>but what about within the Republican Party?&nbsp; I have been told
>that even within&nbsp;the Party, a majority&nbsp;is not&nbsp;opposed
>to Roe.&nbsp;That is something the President would know and that would
>affect his calculations for his next appointment.</font></blockquote>
><blockquote type="cite" cite><font face="Arial" size="-1"
>color="#000000">&nbsp;</font></blockquote>
><blockquote type="cite" cite><font face="Arial" size="-1"
>color="#000000">&nbsp;</font></blockquote>
><blockquote type="cite" cite><font face="Arial" size="-1"
>color="#000000">Marci</font></blockquote>
><blockquote type="cite" cite><font face="Arial" size="-1"
>color="#000000">&nbsp;</font></blockquote>
><blockquote type="cite" cite><font face="Arial" size="-1"
>color="#000000">&nbsp;</font></blockquote>
><blockquote type="cite" cite><font face="Arial" size="-1"
>color="#000000">&nbsp;</font></blockquote>
><blockquote type="cite" cite><font face="Arial" size="-1"
>color="#000000">&nbsp;</font></blockquote>
><blockquote type="cite" cite><font face="Arial" size="-1"
>color="#000000">In a message dated 10/28/2005 2:38:18 P.M. Eastern
>Standard Time, nebraskalawprof at yahoo.com writes:</font><br>
><blockquote><font face="Arial" size="-1" color="#000000">Frankly, I
>think social conservatives are more concerned with stopping&nbsp;the
>Court from imposing same-sex marriage and anti-religious
>hostility&nbsp;on the country than they are about getting<i> Roe</i>
>reversed.</font></blockquote>
><blockquote><font face="Arial" size="-1"
>color="#000000">&nbsp;</font></blockquote>
><blockquote><font face="Arial" size="-1" color="#000000"><i>Roe</i>
>will not be reversed for the foreseeable future. I think most
>conservatives understand that.</font></blockquote>
><blockquote><font face="Arial" size="-1"
>color="#000000">&nbsp;</font></blockquote>
><blockquote><font face="Arial" size="-1" color="#000000">But<i>
>Lawrence</i> could easily grow to include a right to homosexual
>marriage. And that would be the final &quot;end of democracy&quot; for
>social conservatives.</font></blockquote>
><blockquote><font face="Arial" size="-1"
>color="#000000">&nbsp;</font></blockquote>
><blockquote><font face="Arial" size="-1" 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).</font></blockquote>
><blockquote><font face="Arial" size="-1"
>color="#000000">&nbsp;</font></blockquote>
><blockquote><font face="Arial" size="-1" color="#000000">Frankly, it
>is the far left&nbsp;that is obsessed with Roe and which keeps
>shouting the &quot;sky will fall&quot; if&nbsp;a
>conservative&nbsp;nominee is confirmed.</font><br>
></blockquote>
></blockquote>
><blockquote type="cite" cite><font face="Arial" size="-1"
>color="#000000">&nbsp;</font></blockquote>
><blockquote type="cite" cite><br>
>_______________________________________________<br>
>To post, send message to Conlawprof at lists.ucla.edu<br>
>To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof<br>
><br>
>Please note that messages sent to this large list cannot be viewed as
>private.&nbsp; 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.</blockquote>
><div><br></div>
></body>
></html>
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>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
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>
>Please note that messages sent to this large list cannot be viewed 
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