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Robert P. George’s amicus brief: The further misadventures of warmed-over natural law arguments

Right-wing Trial analysis

(Here is the latest analysis of an amicus brief submitted in support of the Appellants, written by P8TT guest-poster John Culhane. Culhane teaches at the Widener University School of Law and writes about a variety of subjects, including marriage equality, the role of politics in law, compensation of disaster victims, public health issues (including HIV/AIDS and gun violence), and tort law and theory. He also directs the Health Law Institute, and holds a lecturer position at the Yale School of Public Health. — Eden)

By John Culhane

I’ve spent some time going through the amicus appellate brief filed by Robert P. George et al. in the Prop 8 case. In a couple of pieces I posted a few months ago, I criticized George’s warmed-over natural law ideas, which amount to little more than convenient sophistry in defense of his preferred outcomes (including the exclusion of gay and lesbian couples from marriage.)

Nonetheless, this short and pointed amicus brief is clear and effective on its central point: We need a definition of marriage, and that definition has to be provided by the legislature (or, in the case of Prop 8, by the people). Without such a definition, everyone has a claim to be included, and there’s no legitimate basis for excluding other sorts of unions, including polygamous ones or relations between adult kin. And this definition inescapably takes in a moral dimension, as it inevitably must: What are we signaling with marriage? What is its normative, prescriptive content?

But it’s a long way from asking those vital questions to getting the answers that George et al. hope the appellate court to reach, and the argument simply doesn’t hold together. First, it’s too simple to state, as the authors do, that we have a clear definition of marriage to start (“logically prior,” as they say) and that we can then raise constitutional issues only in the context of that agreed-upon definition.

By that clinical way of considering the issue, we’d rarely be able to declare the exclusion of any group unconstitutional. So if marriage really is tied to procreation and the best interests of children (as the authors state, but in a more sophisticated way than usual), then it presumably would be constitutionally permissible to exclude women over a certain age (say, 65 for women; by the logic of this argument, we wouldn’t care about the sex discrimination involved). The authors attempt to avoid this conclusion by pointing to the natural-law-heavy assertion that men and women unite in a unique way, but why is that union important to marriage if it can’t produce children (since marriage is, again, mostly about children)? In the end, George’s natural law biases return to their moorings.

No, it’s more complicated than that: The meanings (not meaning, singular) of marriage are complex, and subject to constant reconstruction and challenge, especially at certain watershed moments. We’re in one now. And it’s fair to say, as the authors do, that the political process has a role to play in this on-going definitional process; to that extent, the marriage equality debate has been useful to a collective consideration of the broader questions about the purposes and meanings of marriage.

But that doesn’t mean that the courts have no role to play in ensuring that those definitions are not crafted in a way that ensures the unequal treatment of certain groups of people. And, as it turns, out, the supposed clarity that George et al. find in the purpose of marriage is really just a convenient way to fence out same-sex couples. It’s obvious from what they don’t say. For example, they overlook the inconvenient fact that adult friends can marry, as long as they’re of the opposite sex. But surely such non-procreative, non-sexual unions are inimical to the purposes of marriage, as they’ve defined them. Why don’t they “weaken the links between marriage and procreation,” which the authors fear that sanctioning same-sex marriages would do?

This brief is better than most on the anti-equality side, principally because it clinically eviscerates the argument that the state should stay out of morality in creating marriage laws. Doing so would be impossible, perhaps even incoherent. But its own positive arguments for morality stand revealed as just another way to define marriage to exclude same-sex couples only – not the old, the infertile, or the non-sexual.

I’m not done. The authors also simply assert that extending marriage to same-sex couples would “convey that marriage is fundamentally about adults’ emotional unions – not bodily union or children….”

Really? As for “bodily unions,” we can see the natural law argument peeking through – and this same argument would, by the way, exclude deliberately non-procreative sexual relations between opposite-sex, married people, as well as all sex between a “whole” and a seriously disabled person (who lacks not only procreative capacity but the “equipment” needed for the task); the latter, according to their theory, shouldn’t be allowed to marry, either. But don’t expect to hear them arguing against such unions – unless the couple also happens to be gay.

As for children, we have yet another case of the anti-equality forces completely overlooking the welfare of the children in families headed by same-sex couples. But these authors go further, and overlook the very existence of these children – after all, the union of their parents is about their “emotions,” not about their kids. It’s quite apparent that none of the authors has spent any time around our families.

In short, there’s no principled way of excluding only our unions from the right to marry. It’s precisely for that reason that courts have come to recognize that what really lies at the bottom of the opposition is a kind of natural law argument that, on the most basic level, reduces to: “Ick!”

Here is the brief, for those who haven’t read it:

[scribd id=38103530 key=key-1xk5ft67ir5c3dv4syuz mode=list]

45 Comments

  • 1. Ann S.  |  September 26, 2010 at 11:52 am

    First! Subscribing.

  • 2. Ann S.  |  September 26, 2010 at 11:53 am

    And thank you, John Culhane, for adding your insight on this brief.

  • 3. Jonathan H  |  September 26, 2010 at 11:54 am

    I love the title. "Misadventures" is one of those words that really should be used more often.

  • 4. Linda  |  September 26, 2010 at 12:02 pm

    "Ick!"–Yup; that pretty much sums up our opposition.

  • 5. AndrewPDX  |  September 26, 2010 at 12:05 pm

    Thank you, Prof. Culhane!

    I hate it when these anti-equality guys keep going on about 'the children'. By denying the benefits of marriage to same sex parents, it doesn't help their children, but rather harms them in numerous ways. If these guys really truly cared for the children, they would be in support of equality, not contrary.

    Liberty, Equality, Fraternity
    Andrew

  • 6. Rhie  |  September 26, 2010 at 12:10 pm

    Wonderful writing. Have more to say later. Subscribing for now.

  • 7. Kathleen  |  September 26, 2010 at 12:13 pm

    Also subscribing.

  • 8. Sagesse  |  September 26, 2010 at 12:17 pm

    Thanks you. Excellent analysis.

  • 9. Alan E.  |  September 26, 2010 at 12:22 pm

    Great job John!

  • 10. Alan E.  |  September 26, 2010 at 12:24 pm

    That damn button!

  • 11. Alan E.  |  September 26, 2010 at 12:45 pm

    First, it’s too simple to state, as the authors do, that we have a clear definition of marriage to start (“logically prior,” as they say) and that we can then raise constitutional issues only in the context of that agreed-upon definition.

    I 100% agree with this. There is so much more than just the simple Webster's or Oxford dictionary definition of marriage. There are the 1138 federal benefits that come with it, on top of whatever state benefits are awarded. The people against equality just want a simple answer they can give to their kids without feeling awkward. Well, how do you explain all the multiple marriages some people have to a kid when you start your definition with "a man and a woman who love each other"? My 5 year old cousin would tear that argument to shreds with a bajillion questions.

    There is so much more to just the definition, and the important factor is that it is a legal contract with dictated terms and restrictions. The state doesn't have as much of an interest in procreation than it does in the protection of children from day 1. Prop 8 does nothing to forward that protection because there is no proof of a connection between the law and the outcome. The only proffered explanation is that it would "deinstitutionalize" marriage, and that is only conjecture. Judge Walker demanded evidence of this for it to hold any footing, and they could provide none.

    Merely claiming a possible "doomsday" scenario doesn't make it true if you have no credible evidence. That's why most people ignore those guys shouting about the end of the world on street corners.

  • 12. Ronnie  |  September 26, 2010 at 1:15 pm

    yeah misadventures is a very under used & under valued word…. ; ) …Ronnie

  • 13. JonT  |  September 26, 2010 at 1:37 pm

    I absolutely must have more mail.

  • 14. Richard A. Walter (s  |  September 26, 2010 at 2:23 pm

    Wil try to catch up later this week.

  • 15. Elizabeth Oakes  |  September 26, 2010 at 2:50 pm

    Not to mention they'd fight to bring back severe penalties for adultery–encourages irresponsible procreation, dontcha know, and harms the children. Funny, don't see them clamoring to put adulterers in jail…hmmmmm, wonder why…..???

  • 16. Aaron  |  September 26, 2010 at 3:29 pm

    so, any chance Prof Culhane will be writing an Amicus brief to dismantle this one?

  • 17. Michael  |  September 26, 2010 at 6:27 pm

    Thank you for your clear, helpful summary. I agree on your comments about children of same-sex families. It's as if all this talk about marriage helping children somehow has nothing to do with the children in our families. Either it helps ALL children or it doesn't. They can't have it both ways.

  • 18. Alyson  |  September 26, 2010 at 11:56 pm

    Did anyone else see this article: http://www.sdgln.com/news/2010/09/25/equality-cal

    NOM is back with a bus tour in CA to support fiorina and trash gay people. Maybe we can stir it up for them again?

  • 19. mike  |  September 27, 2010 at 12:11 am

    Actually, this is a very STRATEGIC way of deflating our ball !!!

    They are given the Supreme Court a way out:

    1. Marriage needs to be defined; and only then can the People make their claims to the Right of Marriage.

    2. The Definition of Marriage needs to be define by the People – ie, let the majority decide that definition.

    By doing so….they are banking on the following:

    1. The Supreme Court will throw the question back to the Legislators and the Voters : "When you come back with a definition of Marriage, then we will be able to decide who has and who doesn't has a rightful claim to get married"

    2. The MAJORITY is easier to sway with their perverse campaigns….and thus, at both the Federal and State level – they are likely to win and define Marriage as the Union of a Man and a Woman, ONLY>

    3. Once that's done…..it will take the L&G Community decades to reverse that.

    4. And a number of rights will be denied to us….like Joint filing, Social Security, Immigration, ect….

    SAD

    VERY SAD, indeed for my family…..who is not living apart as I don't have the right to sponsor my husband to join me in the US, as he is a foreign national.

  • 20. Anonygrl  |  September 27, 2010 at 12:23 am

    But isn't that the very question at hand? The voters DID try to define marriage specifically, as one man and one woman, and then a judge reviewed that based on the US Constitution and found that it does not hold up.

  • 21. Anonygrl  |  September 27, 2010 at 12:32 am

    From the brief…

    Now any principle that would deny Proposition 8’s legitimacy because of its reliance on morality would count equally against laws that recognize same-sex partnerships…

    I don't believe that the argument against Prop 8's legitimacy was based on Prop 8's moral stance. I believe it was based on Prop 8's unconstitutionality, which is as it should be.

    Once again, as with the idea that people who support opposite sex marriage would be called bigots if same sex marriage passed, they are trying to put words in our mouths.

  • 22. John Culhane  |  September 27, 2010 at 12:37 am

    Very helpful comments. I think that the question is deeper than "marriage is a man and a woman." George et al. are saying that this "surface" definition in fact embodies certain deeper assumptions about the purposes of marriages — purposes that then — conveniently — exclude same-sex couples. Again, what they say is helpful in that it is important to think about what we mean by marriage and its purposes.
    But the problem is that their attempt to define the purposes so as to exclude us — and only us! — from a bilateral definition of marriage is that it reveals that it's really ABOUT excluding us, and NOT about protecting commonly understood purposes. Because the category they're trying to create doesn't withstand scrutiny.

  • 23. candide001  |  September 27, 2010 at 12:56 am

    Because of Robert "Robbie" George's presence on campus, I stopped contributing to Princeton's fundraising campaigns long ago. His Thomas Aquinas redux was crafted expressly to provide the Religious Right with the intellectual cover it was long seeking, allowing it to disingenuously promote its opposition to homosexuality as being based on reason rather than irrational religious faith. He is a very smart man with a very toxic idea.

  • 24. John Culhane  |  September 27, 2010 at 1:20 am

    No!

  • 25. Alan E  |  September 27, 2010 at 1:20 am

    We happen to have the benefit of a timeline for our side. It all started when the Hawaii State Supreme Court decided that there could be a right for marriage for same sex couples within the state's constitution (without explicitly saying that it is there). Shortly after that, the states began adding new laws that prevented these couples from marrying. That was only the beginning.

    In California, immediately after Prop 22 was ruled unconstitutional in the state, Prop 8 was introduced. This is clearer proof that it was not about "definig marriage," but instead stop those gays from getting married. Up until Nov. 4, gays were allowed to get married. After Nov. 4, the only people affected by Prop 8 were same sex couples.

    The clincher was the language and messages used during the Prop 8 campaign. Prop 8 was proported to protect children and marriage, but as expert witnesses testified, the implied message was to protect them from "the gays."

    This was the clear message that Prop 8 (and most of the laws in other states) singled out gay people as a class for their (proven in court) immutable trait, who have a history of discrimination (proven in court), and lack the political power to make changes in politics to counteract discrimination (again proven in court and the fact that every state that has added language to their constitution about marriage has succeeded [eventually in one case, twice in California]).

    This pretty much sums up the entire case.

  • 26. Lesbians Love Boies  |  September 27, 2010 at 3:59 am

    Subscribing

  • 27. John D  |  September 27, 2010 at 4:13 am

    Whenever I see the "bodily union" argument coming from a Catholic conservative, I think of a medieval saint's life I read during my college days in a Latin seminar.

    In this story, a woman pledged herself to eternal virginity, but her father married her off anyway. On her wedding night, her groom was ready to take her to bed. She told him of the pledge. When he said it was his right to consummate the marriage, she told him to look over the bed.

    Over their marriage bed was an angel with a flaming sword, who said the man would be killed if he tried to take his wife's virginity. The spent their lives in continued virginity and penitence.

    This is an example of married saints, and I think it shows that the Catholic Church has a tradition of considering a marriage to be real, even if the couple never has sex. They sainted these two.

    If Catholics want to say that only a heterosexual "bodily union" is a real marriage, they'll have to invalidate some of their canonizations. In other words, I don't think they believe this either, it's just a convenient excuse to deny marriage rights to same-sex couples.

  • 28. BK  |  September 27, 2010 at 4:24 am

    And a large part of the reason they hate us…

  • 29. BK  |  September 27, 2010 at 4:29 am

    Oooooh… Burn! :)

  • 30. Aaron  |  September 27, 2010 at 6:02 am

    why not? somebody should, right?

  • 31. Sydney  |  September 27, 2010 at 5:24 pm

    Great post and comments here. Thanks everyone!

  • 32. John Culhane  |  September 28, 2010 at 1:11 am

    As a practical matter, courts don't care very much about these kinds of abstract arguments: They'll look at the cost to gay couples in practical terms, and then weigh that against any concrete (as opposed to speculative) harms alleged to the institution of marriage that would be incurred through marriage equality.
    But I suspect that an equal blizzard of amicus briefs from the other side will address this issue, anyway. It won't go unchallenged.

  • 33. Aaron  |  September 28, 2010 at 4:54 am

    got it. thank you for the explanation. every time i visit this site i learn something new. appreciate you taking the time to provide us with your insight. and thank you for all the work you do in this area.

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