Duncan v. Koppelman debate

Tue Oct 19 18:47:46 PDT 1999

        The people on this list are not the activists who dominate debate.  Our
debate is not the public debate.  At most we can hope to sometimes slip a
little information or reasoned discourse in to the public debate.  I was
referring to lobbying organizations and direct mail fundraisers who deal
with these issues in Washington.  Selling even the slightest compromise to
either side ranges from extraordinarily difficult to impossible.

        I don't know enough about the situation in France to characterize it.
State registration of relationships and eligibility for social insurance
benefits does not make it a total win for one side.  If Rick Duncan buys a
chalet in the French Alps, and vacations there two weeks a year and rents
it out the rest of the time, and a registered gay couple wants to rent from
him, does he have a choice?  Any approximation of neutrality requires that
each side leave the other some space in which to live their own moral values.

At 05:30 PM 10/19/1999 -0400, you wrote:
>I would be curious to know how Laycock would characterize the situation in
>France.  Is this a case where activists on one side of the question
succeeded in
>gaining a "total win?"  Is there any other way to understand the dynamics
of this
>particular moral debate?  Consider, for example, the situation of the devout
>Catholic who also favors what I have characterized as live-and-let-live
when it
>comes to *civil* marriages.  I do not favor changing my Church's teaching
>regarding the sacrament of matrimony.  I do not see, however, how that
teaching
>necessarily ought to control the question of what stand the civil law
ought to
>take.  I guess that I do not feel that I am an activist seeking total
victory.
>
>One can look at the question another way.  The struggle may be not over moral
>vision, but, as I have suggested, moral control or even coercion
buttressed by the
>force of the positive law.  We need to be clear as to the terms of the debate
>before we can accurately characterize the participants.  Maybe Duncan
would call
>himself an activist out for total victory.  His language certainly invites an
>affirmative answer to the question.  But Duncan has expressed some
libertarian
>sentiments that would seem to belie the notion that he is monomaniacal on the
>question of the proper role of the law.  Of course he cannot abide the
idea that
>the law might define gay and straight marriages as some sort of legal, and
hence
>moral, equivalents.  But, again, the legal issues may be a bit more complex.
>
>Compromise, McConnell's word, is a difficult word, perhaps even an
unfortunate
>word.  But I think that the posts that have been issued on this question
suggest
>that civility has not broken down.  Harsh language, without more, does not
>necessarily mean that civility has gone out of the window.  The fact that
I can
>make a good case for the presence of civility in these posts suggests to
me that
>Laycock's characterization may be a bit too extreme, or perhaps a bit too
>pessimistic.  (I note that Koppelman has sounded a note of hopeful, albeit
>cautious, optimism through all of this.)
>
>But I am not naive enough to suppose that we are going to resolve the
question of
>the proper mix of legal and moral control and coercion when it comes to
the rights
>-- and duties, I might add, just to stir things up a bit -- as between
gays and
>straights.
>
>Michael deHaven Newsom
>Howard University School of Law
>
>
>Douglas Laycock wrote:
>
>>         Well, actually, a reasonable approximation of neutrality is an
option.
>> The problem is that both sides reject it; both sides want a total win.  And
>> as on so many issues in America, the debate is dominated by the activists
>> with the most extreme and non-negotiable views.
>>
>> At 12:39 PM 10/19/1999 PDT, you wrote:
>> >I almost always agree with my friend, Mike McConnell (and when I find
myself
>> >disagreeing with Mike, I get nervous because I know he is usually right).
>> >But I think Mike's attempt to find common ground in the gay
rights/same-sex
>> >marriage front of the culture wars is doomed from the get-go.
>> >
>> >The gay rights side will never be willing to allow private discrimination,
>> >because their cause is a moral crusade and they believe with all their
>> >hearts that "homophobia," like its cousin racism, is a moral evil that
must
>> >be eradicated from any decent society. This is not a "live and let live"
>> >attitude, but it is what they believe to the core.
>> >
>> >On the other hand, traditionalists can never accept a "partnership" law
that
>> >treats homosexual sex partners as though they were married. Mike says
there
>> >is an ambiguity here that traditionalists should embrace, because the law
>> >does not use the word "marriage" when it creates homosexual partnerships.
>> >But this is form over substance. The law provides homosexual partners (but
>> >not other unmarried partners such as brother-sister, mother-daughter, etc)
>> >with the same spousal benefits that married couples receive. This is
clearly
>> >a public declaration that homosexual relationships are preferred
>> >relationships, deserving of the same benefits married couples receive
and of
>> >more benefits than other committed relationships receive. And in the long
>> >run, the formal distinction will be swept aside and "partnerships" will
>> >inevitably become "marriages." If you treat it just like a duck, then it
>> >must be a duck.
>> >
>> >At the end of the day, Michael, you are going to have to choose sides,
>> >because, as you say, neutrality is not an option. So what is in your
heart?
>> >Do *you* believe that homosexual relationships are the moral equivalent of
>> >marriage between one man and one woman?  --Rick Duncan
>> >
>> >On         Tue, 19 Oct 1999 12:14:41 -700, Michael McConnell wrote:
>> >
>> >> Rick Duncan writes:
>> >> >
>> >> >  The gay rights agenda is
>> >> > largely a regulatory agenda designed to impose Andy's morality--i.e.
>> >that
>> >> > homosexuality and heterosexuality are morally identical--on everyone.
>> >Thus,
>> >> > the Boy Scouts must be punished if they organize around a different
>> >> > morality, Mrs. Smith must be punished if she attempts to manage her
>> >fourplex
>> >> > around a different theology, and more generally "homophobia" (i.e. the
>> >> > belief that homosexuality is a moral disorder or a sinful way of life)
>> >must
>> >> > be eradicated from society (or, at the very least, stigmatized and
>> >> > marginalized).
>> >>
>> >> He goes on to advocate a "live and let live" standard, based on
>> >> libertarian instincts.
>> >>
>> >> I think Rick is right on these questions. If Andy and Sandy and
>> >> others on their side think so too, then maybe there is some common
>> >> ground after all.  The question on the table (from my point of view)
>> >> is whether we can achieve a peaceful resolution of this problem by
>> >> reducing the governmental role. One way to do that is to recognize
>> >> some kind of same-sex partnership for purposes of various privileges
>> >> in the public sphere, while allowing private parties to decide for
>> >> themselves when and where to treat such partnerships as equivalent to
>> >> marriages for private law purposes. The Boy Scouts and Mrs. Smith can
>> >> make their own decisions, but Social Security treats same-sex
>> >> partners as eligible for the same treatment as married folk. There
>> >> is something for both "sides" in this arrangement.
>> >>
>> >> As to the symbolism of this kind of move, Rick worries that it would
>> >> imply moral equivalence.  He writes:
>> >> > The effect of this is a public declaration that gay
>> >> > attachments are *good* things, things worthy of support and
>> >> > encouragement. I do not desire a public declaration that homosexual
>> >> > attachments are evil or bad; but I will resist to my death a public
>> >> > declaration that they are good and worthy of public support and
>> >> > encouragement.
>> >> But it seems to me that there is a useful ambiguity, which could
>> >> serve as a working substitute for neutrality (which is impossible).
>> >> Note that same-sex partnerships under this proposal are *not* (as
>> >> they would have been in Hawaii) treated as "marriages." Supporters of
>> >> traditional values can point to the difference in terminology and say
>> >> "look, same-sex partnerships are not being treated as marriages; the
>> >> government is simply extended some objective benefits to them for
>> >> reasons of humanity and fairness." Advocates of gay rights can point
>> >> to the equality of treatment and celebrate that. There is something
>> >> to be said for policies where people of differing views can all say
>> >> that their concerns received some recognition.
>> >>
>> >> I would think that this arrangement might appeal to the libertarian
>> >> in Rick. Doesn't it reduce the government role more than both the
>> >> traditional approach and the new world order represented by Mrs.
>> >> Smith and the Boy Scouts? I wonder whether the arrangement appeals to
>> >> Andy and Sandy. Are they willing, in principle, to protect the rights
>> >> of private groups and private individuals to use their property and
>> >> their rights of association in ways that express disapproval of
>> >> homosexual conduct, if this is coupled with an end to governmental
>> >> discrimination in public law contexts?
>> >>
>> >>
>> >> -- Michael McConnell (U of Utah)
>> >
>> >Prof. Rick Duncan (keaggy at excite.com)
>> >
>> >"He was born with a gift of laughter and a sense that the world was mad."
>> >Rafael Sabatini (put this one on my tombstone!)
>> >
>> >
>> >
>> >
>> >________________________________________________________________
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>> >
>>
>> Douglas Laycock
>> University of Texas Law School
>> 727 E. Dean Keeton St.
>> Austin, TX  78705
>>         512-232-1341 (phone)
>>         512-471-6988 (fax)
>>         dlaycock at mail.law.utexas.edu
>


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-232-1341 (phone)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu