DOMA and Religion

[Jim Maule]

Rick's response to my reaction to one of his *secular* justifications
for limiting marriage to heterosexual couples suggests to me that
there is some underlying "theological" justification, though he puts
it in terms of common sense. (Note that I am not necessarily
rejecting all of Rick's arguments, just suggesting that this
particular point just isn't very strong and gets in the way of what I
thought was the strongest argument as described in my previous post).

Common sense is cultural and for most of humanity's existence and in
most instances, culture reflects/reflected theology. It made common
sense to Hebrew patriarchs to have multiple wives and children by
servants. It made common sense to powerful/wealthy residents
of the Seljuk and Ottoman empires (and their predecessors) to
have multiple wives, slaves, eunuchs, etc. However justified or
distinguished, these practices demonstrate that common sense can
lead to unexpected results. Common sense as Rick defines it reflects
centuries or millenia of Western philosophy and theology infused into
the socialization of children grown into adults (thus the reason for
the design of children's rhymes -- children get the message better
when in sing-song. Cf. Seuss material).

On this particular prong of his argument, Rick makes a good case for
requiring (though I would not go so far) marriage as a prerequisite
for children. How to deal with widows and widowers remains unclear
other than "oh well, that has to be an exception." How to deal with
absent parents, for whatever reason, is interesting: loads of kisd
grew up (at least for 4 or 5 years) in the 40s without seeing much of
their daddies. And I don't understand if the little kids at a wedding
of 74 year old widow(er)s would sing about baby carriages...

If it is ok that there are childless marriages, then children cannot
be the determinative discriminator of validity. It has to rest on
something else. The notion of increased burdens on the social fabric
(legal, medical, and other institutions, safety, financial integrity,
etc) appears more promising for the argument that Rick is making, at
least in terms of his position that there are *secular* grounds for
banning homosexual marriages. If, in fact, theological grounds must
be disregarded for First Amendment reasons, then it matters whether
there are strong secular grounds. There may be, but I think that some
of the prongs in Rick's argument just get in the way of the others.

Jim Maule
Professor of Law
Villanova University School of Law
Villanova, PA 19085
maule at law.vill.edu
http://www.cilp.org/~maule
(610) 519 - 7135