points of agreement
Mcconnellm at LAW.UTAH.EDU
Wed Dec 9 09:17:58 PST 1998
David Cruz asks two good questions:
> This is a powerful vision, and it immediately raises two questions for me.
> First, to what extent does our actual Constitutional regime embody what a
> liberal state must do? Second, is consensual adult sexual intimacy an
> aspect of life that is central to the human spirit?
I will take a stab at an answer:
(1) Our actual Constitutional regime is most liberal as regards
freedom of the mind (religion, speech, press, assembly and petition)
and least so as regards conduct. Family law is fairly liberal in
principle (Pierce, Meyer), as well as in practice, though recently
courts seem to be taking a more statist line (see cases like
Immediato and Hot, Safer & Sexy). Much of this is left by the
Constitution to democratic deliberation.
(2) Sexuality is an area where the implications of liberal theory are
undergoing change. Few people think that all forms of consensual
sexual intimacy are central to the human spirit; many , for example,
believe that promiscuity should be discouraged and longterm intimacy
encouraged (this being, in my opinion, the strongest argument for
giving some form of official recognition to monogamous same sex
relationships). Few think that such things should be coerced. Even
John Finnis, if I read him correctly, opposes the criminalization of
sodomy. My own nightmare is that our society seems to be moving from
one kind of orthodoxy regarding homosexuality (condemnation and
criminalization) to another kind of orthodoxy (condemnation and
penalties for moral opposition to homosexuality), without pausing to
consider a liberal alternative. I address these issues in more detail
in a recent essay, "What Would It Mean to Have a 'First Amendment'
for Sexual Orientation," in Olyan & Nussbaum, Sexual Orientation and
Human Rights in American Religious Discourse (Oxford Press 1998).
David Cruz already has seen this, but anyone else who wants a copy
can e-mail me privately.
-- Michael McConnell (U of Utah)
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