Gay Marriage, Part 1
And so it happened, dear reader, that I was going to add my voice to the cacophony regarding the recent gay marriage decision in California. And yet discovered that Evan Kirchhoff, a sensible lad, had already posted two very interesting analyses on his blog. So check them out.
Evan buys the judge's equal protection rationale for overturning California's law against gay marriage. In his most recent, he adds some very interesting commentary on the possible motivations for government regulation of coupling behavior. Even more interestingly, he postulates widespread bad-faith on this matter.
Where I stand:
1) I'll admit to being a little leery of equal protection arguments generally, as I am not convinced that the dominant American judicial tradition understands equal protection clauses in the proper way. I plan on posting on this soon.
2) On the other hand, the judge's reasoning seems to conform with that tradition, so precendent-relativists about appropriate judicial review can rest easy. In light of this fact, I am willing to remain in suspense regarding the leeriness I advert to in (1).
3) I'd like to post on the teleology of sexual relationships and what consequences this might have for the law and morality. As it happens, I'll assert that sexuality is, in some sense, intrinsically reproductive and so, in some sense, essentially hetero-sexuality. Indeed, I take it that properly understood this claim blindingly obvious. But I'll go on to assert that hardly anything interesting follows from this. If you should happen to prefer having your nipples tickled with ostriche feathers to reproductively appropriate sex, then go nuts. Morally Permitted Pleasure Town has room for people just like you! Additionally, that heterosex constitutes a kind of norm doesn't support the contention that people who romantically bond homosexually should be forbidden to marry. Stay tuned, dear reader.
Evan buys the judge's equal protection rationale for overturning California's law against gay marriage. In his most recent, he adds some very interesting commentary on the possible motivations for government regulation of coupling behavior. Even more interestingly, he postulates widespread bad-faith on this matter.
Where I stand:
1) I'll admit to being a little leery of equal protection arguments generally, as I am not convinced that the dominant American judicial tradition understands equal protection clauses in the proper way. I plan on posting on this soon.
2) On the other hand, the judge's reasoning seems to conform with that tradition, so precendent-relativists about appropriate judicial review can rest easy. In light of this fact, I am willing to remain in suspense regarding the leeriness I advert to in (1).
3) I'd like to post on the teleology of sexual relationships and what consequences this might have for the law and morality. As it happens, I'll assert that sexuality is, in some sense, intrinsically reproductive and so, in some sense, essentially hetero-sexuality. Indeed, I take it that properly understood this claim blindingly obvious. But I'll go on to assert that hardly anything interesting follows from this. If you should happen to prefer having your nipples tickled with ostriche feathers to reproductively appropriate sex, then go nuts. Morally Permitted Pleasure Town has room for people just like you! Additionally, that heterosex constitutes a kind of norm doesn't support the contention that people who romantically bond homosexually should be forbidden to marry. Stay tuned, dear reader.
posted by Idris at 1:39 PM
4 Comments:
Still waiting to hear on equal protection clauses....
Ok, Ok...
I'll admit a certain amount of terror when a lawyer prompts me to produce my view on EPCs.
Shawn, are you sharpening your knife as I write?
There are three issues...
1) Getting the dominant tradition straight -- this will require some "research" (I'll probably read the California decision more carefully and check out Don Herzog's bits from Left2right);
2) Going on about judicial review + EPCs and democratic legitimacy...
and
3) I'll have to check out the background to the 5th and 14th ammendments... sigh.
so... that's the plan.
of course, it'll be at least a few more days, since my DISSERTATION is sulking in the corner from my gross neglect of it.
Fear not, I'm not looking to shank anyone. I'm not qualified to do that, particularly on this subject. But I am intrigued.
First, because I don't think one can say the EPC is misunderstood. The EPC is almost entirely a creature of judicial interpretation. Original intent is impossible to determine with any specificity. The draftsmen most certainly weren't imagining scrutiny tests and suspect classifications at the time it was passed. I don't think that's what you're getting at, but it got my attention, as if someone had said my made-up language was ungrammatical.
Second, the EPC itself is paradoxical: its end is purportedly to ensure equality, but mandating equality of treatment doesn't effectuate that. So dealing with this has, predictably, resulted in a monster of constitutional litigation and an enormously complex history of caselaw.
Having said that, I think it's worthwhile to consider how we should have dealt with this paradox (or deal with it currently). You don't have to be a lawyer to analyze that. But my suggestion is just to dive in with your thoughts on the matter, because getting a handle on the way the EPC has been interpreted is a big task, especially when you should be working on your dissertation (to use a phrase I'm getting really good at).
I meant to also note I won't be offended or aggrieved if you no longer have thoughts on the subject.
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