On topic discussion regarding homosexuality

Newsom Michael mnewsom at law.howard.edu
Mon Apr 12 21:45:03 PDT 2004


Mindful of Eugene's admonitions, let me suggest that there is a fundamental jurisprudential problem lurking behind all of this passionate discourse on a difficult and contentious subject.

The problem has to do with, for want of a better term, "baseline" or perspective or point of view.  If we tell the schoolyard bully that he cannot continue to taunt other children, we could, if we wanted to, say that it might not be fair, for 1st A. or other "legal" reasons to restrict his speech and or behavior.  But this "baseline" is contestable because one could just as easily say that it is the role of the law to protect the other schoolchildren.  (And there is increasing evidence that society pays a high price for bullying.)

Church-state law, like all departments or branches of the law, suffers from the same problem.  It all depends on how we define or construct the baseline from which we build or start our legal discourse.  Restricting the proselytizing of evangelical Protestants, one of the central problems that this area of the law faces, can be seen either as an unwarranted abridgment of their free exercise right to proselytize (the Commissioning Narratives in the Gospels make it perfectly clear that proselytizing is a big deal in the Christian religion, particularly as evangelical Protestants have constructed it) or as a necessary step to protect the status and political rights of religious minorities to be free from the importuning of evangelical Protestants.

This baseline problem is, to my mind, most of the ballgame.  That is why I keep harping, incessantly, in the view of some no doubt, on context.

Be that as it may, there is no way that I can have a conversation with Ventola on the subject of same-sex marriage.  We do not operate from the same baseline.  I hear him, but I don't understand him.  For example, I don't understand how letting a same-sex partner have certain status-based, but economic, benefits, like social security survivor payments, for example, or any of the benefits discussed in the Vermont and Massachusetts cases forces Ventola to "accept" something he does not like.

But he does.

Again, keeping Eugene's admonition in mind, I close with a classic "legal" question (one that I have asked before):  why do we merge civil and religious marriage in the United States?  What would happen if we did not?  How does such a decoupling affect the baselines that we might construct?  Would Ventola and I be able to have a civil conversation then?

If there is any value to be had from the thread, it has to be something like this.  What happens if we change the baseline regarding the institutional meaning or nature of marriage? Put differently, what happens if we take a "separationist" view of the institution of marriage?



 

-----Original Message-----
From: Denversam samuelv [mailto:denversam at hotmail.com] 
Sent: Monday, April 12, 2004 12:03 PM
To: religionlaw at lists.ucla.edu
Subject: On topic discussion regarding homosexuality

I don't think Prof. Patterson needs to be spanked, because I'd like to 
respond to Prof. Patterson's previous question ('why do conservatives seem 
to object to homosexuality more strongly than other conduct they consider 
immoral?') in an on-topic way.

I can't speak for Prof. Duncan or anyone else, but my major problem with 
homosexuality is not the conduct itself (which I consider far less 
objectionable than many other things more rampant in society), but that I am 
being required by society in general and the law in particular to accept 
this conduct.  I am free to object to somebody being a serial adulterer or 
alchoholic or riddled with body piercings and tatoos - but if I object to 
homosexuality, it is considered outside the realm of civil society (hence 
the Comcast employment policy requiring me to affirm a contrary view) and, 
in some contexts, illegal.  I can refuse to hire or rent a room in my home 
to the adulterer, drinker, or body artist, but not to the homosexual.

I would speculate that *most* conservatives are not looking for the passage 
of anti-sodomy laws.  Instead, they would just like to have the law be 
pro-choice on the issue - you are free to engage in the conduct if you so 
choose, and you are free to withdraw yourself and your property from those 
who do if you object to it.  If acceptance of homosexuality were not being 
forced on me with the force of the state's power, rejection of homosexuality 
would be very low on my agenda.  The fact that this forced acceptance of 
homosexuality also conflicts with religion, and therefore First Amendment 
rights, makes it very high on my agenda.

Homosexual marriage raises a special point because here government is 
required to draw lines around what types of marriage it will sanction.  
Currently you cannot marry anyone who is of the same gender, too closely 
related, under a certain age, not human, already married, or anybody if you 
are already married.  Homosexual marriage proponents want to remove the 
first of these restrictions but (generally) not the others.  There is no 
clear reason why the lines should be redefined in this way, unless most 
people think such a realignment is more appropriate.  Of course, I (and I 
would expect most conservatives) have no objection to "unoffical" same-sex 
weddings.  Again, live and let live - just don't require me to "accept," 
"recognize," or "value" it.

The second special objection I have to homosexuality is more off topic, but 
it is the refusal of most of its proponents to recognize the possibility 
that it's wrong.  At some level, the adulterer, alchoholic, and maybe even 
the body piercer might be willing to re-evaluate their conduct.  This is 
generally not true of homosexuals.  This is particularly troubling to me 
when members of theoretically Christian religious denominations will go so 
far as to disregard scripture in order to justify this conduct.

Finally, somebody asked whether one's objections to homosexuality would 
change if they learned of concrete scientific evidence demonstrating that 
homsexuality is genetically predisposed.  In fact, I already think it is 
very likely that it is possible to inherit a genetic predisposition to 
homosexuality.  However, the same is also true of many other behaviors, such 
as tendency toward drug abuse, alchoholism, kleptomania, aggression, and 
irresposible sexuality.  In all these other cases, we note (correctly) that 
the actor remains able to determine whether or not he will act on his inborn 
predisposition, or resist it.  Yes, its easier for me to "resist" 
homosexuality if I have no tendency toward it, but that doesn't mean it's 
right.  We all have to struggle against our own temptations, but the fact 
that one type of conduct is easier for me to resist than another doesn't 
preclude me from disagreeing with it.

Sam Ventola
Denver, Colorado

>From: FRAP428 at aol.com
>Reply-To: Law & Religion issues for Law Academics 
><religionlaw at lists.ucla.edu>
>To: religionlaw at lists.ucla.edu
>Subject: Re: From the list custodian
>Date: Mon, 12 Apr 2004 09:39:32 EDT
>
>Considering my hand "spanked." I can only plead being deprived of
>conversations with law professors.
>
>"Broader moral or religious questions, such as whether homosexuality is
>morally proper, how religious people should react to it, and so on are 
>*not*
>on-topic.  Naturally they're related to the list topic, but if we are to 
>keep the
>list focused on its comparative advantage, and keep discussions manageably
>brief, we need to limit ourselves to *the law* of government and religion."
>
>One of the few people who upon finishing law school would have started all
>over again--in a heartbeat. This was an explicit thought the day I 
>graduated.
>
>Frances R. A. Paterson, J.D., Ed.D.
>Associate Professor
>Department of Educational Leadership
>Valdosta State University
>Valdosta, GA 31698
>_______________________________________________
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