Duncan v. Koppelman debate

[Vance R Koven]

On Tue, 19 Oct 1999, Sandy Levinson wrote:

> I make this point in part because it should be obvious that
> "equality" arguments, canonically based on the notion that A and B are
> "similarly situated," often rest on just such highly debatable notions
> of sameness (or difference).  In a very real sense, Brad and Rick !
> "see" the world very differently from the way that, say, Andy and I do,
> just as they can properly respond that from their perspective, it is we
> who have defective eyesight.  I am not optimistic that ostensibly
> rational argument can overcome such chasms in perception.

If judges were as epistemologically acute as Sandy Levinson, they would
understand that the only resolution of issues like this is to permit
democratic functions to process them, rather than to have the judges
appoint themselves the philosopher kings. The results, incidentally, might
prove surprising both to the Koppelmans and the Duncans. We live in a
country in which some voters ejected Rep. Crane for having an affair with
an underage female, others enthusiastically re-elected Rep. Studds after
his dalliance with an underage male, and most were almost entirely
uninterested in the President's dalliances. Still, the voters got to have
the say, both in who stays and who goes and in what the rules are going to
be.

I think the people are a lot more discerning than judges and professors
give them credit for being. Either a new consensus will emerge, or a new
understanding of "live and let live" will emerge that, for better and
worse, will acknowledge the necessity of living with this kind of deep
division of cultural outlook by dispensing public benefits "neutrally" on
a most-favored-nations basis and permitting variant private arrangements
of the Mrs. Smith sort. Sort of a "live and let die" approach.

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