On topic discussion regarding homosexuality

Newsom Michael mnewsom at law.howard.edu
Tue Apr 13 19:46:15 PDT 2004 

How would you explain the following cases: Engel v. Vitale, Abington Tp. V. Schempp, Epperson v. Arkansa, Stone v. Graham, Wallace v. Jaffree, Edwaards v. Aguillard, Santa Fe Independent School District v. Doe, Bd. of Ed. V. Mergens, and Good News Club v. Milford Central School?  Isn't there a common thread I those cases which makes my point precisely? 

Out of common decency, I won't respond to the effort to analogize same-sex marriage to polygamy and incest.    


-----Original Message-----
From: Denversam samuelv [mailto:denversam at hotmail.com] 
Sent: Monday, April 12, 2004 9:30 PM
To: religionlaw at lists.ucla.edu
Subject: RE: On topic discussion regarding homosexuality


I apologize if I was not sufficiently clear, but I do not consider advocacy 
for homosexual marriage to be anti-libertarian.  As I said (I'll leave my 
previous post set out below) homosexual marriage is a "special case" because 
it's just a matter of the government needing to draw a line somewhere as to 
what marriages it will recognize.  I don't believe that either choice 
outranks the other on the libertarian/communitarian scale.  However, I do 
think it is hubristic for homosexual marriage advocates to insist that the 
Constitution, or just plain decency, require that homosexual marriage be 
recognized, but not plural marraige or adult incestual marriage.

In my view, neither the Constitution, libertarianism, or common decency 
require any particular choice as to whether to redraw the lines to include 
homosexual marraige.  Rather, it's simply a choice that has to be made based 
on the preferences of the majority.  Given that the majority of Americans 
continue to at least pay lip service to monotheistic religious views that 
condemn homosexual marriage, it seems to me that the line should be drawn 
where it is.  However, given that those majorities change from place to 
place, the federalism issue raises other problems which I will not address 
here.

Anyway, I don't have any problem with anyone based on their position on 
homosexual marriage.  On the other hand, when people start talking about 
"[r]estricting the proselytizing of evangelical Protestants," then I start 
to get real agitaged (even though I'm Catholic).  So, I'll leave that 
paragraph alone.

Sam Ventola
Denver, Colorado


>From: "Newsom Michael" <mnewsom at law.howard.edu>
>Reply-To: Law & Religion issues for Law Academics 
><religionlaw at lists.ucla.edu>
>To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
>Subject: RE: On topic discussion regarding homosexuality
>Date: Mon, 12 Apr 2004 20:45:03 -0400
>
>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
> >_______________________________________________
> >To post, send message to Religionlaw at lists.ucla.edu
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>
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