29809_wlp_1-2 Sheet No. 8 Side A 06/10/2011 15:12:24 212 for their their for EX — -S SSUES I AME S ...... 239 and held at the School of of School the at held and † ...... 246 AND Brief and the , Decision ...... 250 Perry AND , in Section I.G, and as ever to David A.J. A.J. to David ever as and I.G, in Section ...... 252 ...... Perry ...... 214 ONSTITUTIONAL ONSTITUTIONAL ELIGION C 207 207 ...... 245 ,R ARRIAGE ...... 257 ...... 253 ,M AW ) 5/11/2011 ) 8:01 PM ARTICLES ITIGATION L L Brief AW ELETE URRENT ...... 234 D L , and in particular Editor-in-Chief,, and toBauer, James and Alicia NICHOLAS BAMFORTH NICHOLAS Wake PolicyForest Journalof Law & OT N :C ...... 229 O Journal Lawrence particularly Professor Shannon Gilreath and Dean Blake Morant ATURAL ATURAL ATURAL — N N i. of Religious Argument The Role George’s Amicus Brief George’s Concept Same-Sex Marriage Declaration Declaration ii. of Marriage The Definition iii. The Good of Marriage . iv. Between the Inconsistency EW ONSTITUTIONAL ARRIAGE E. A. Flesh Union Two-in-One B. Flesh Union the Two-in-One Critique of D. and the New Natural Law F. of Against Continuing Relevance Arguments EW C. Manhattan and the New Natural Law theand results symposium Sexuality, This on Patriarchalfrom Article Religion, † I. N C M N M K NTRODUCTION I the by organized Gender BAMFORTH FINAL-MG (D Law Law at Wake Forest University on 17, September extremely 2010. grateful I am to the Edi- torial the Board of Luchetti, Symposium Editor,Luchetti, Symposium their and for efficient highly organization, wise and the to fa- membersculty support. grateful to I am McCrudden my colleague Christopher challenging for to think me considered counterargument the about fully more Richards. Butler. of Roger is in memory Article This C Y 29809_wlp_1-2 Sheet No. 8 Side A 06/10/2011 15:12:24 06/10/2011 8 Side A Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 8 Side B 06/10/2011 15:12:24 , M K l- C Y even even ELIGION 1 R the most ” [Vol. 1:2 [Vol. Among the the Among . . . . . 264 . . . . 262 including, inincluding, 2 — ...... 269 ATRIARCHAL Finnis, for for exam- Finnis, 3 ,P 2 (2008) (identifying Finnis, Finnis, (identifying 2 (2008) AW L ICHARDS ARTNERSHIPS P ...... 275 ONCERNING THE C EX A.J. R new natural lawyers, ATURAL “ -S N legalized same-sex marriage, Croatia, while . the (observing 2108 (2008) 2106, 2103, L.J. 939, 952 n.63 (2007) (“The Netherlands, Be Netherlands, (“The (2007) n.63 939, 952 AVID EW Y EO ’ N AME Gods & Gays: Analyzing Gays: Same-Sex theGods & Marriage OL S ...... 274 &D Or forSame-Sex Poorer? How Marriage Threatens .P , 96 G RGUMENTS RGUMENTS UB ) 5/11/2011) 8:01 PM A RITIQUE OF RITIQUE OF ELETE AMFORTH D . J.L. P B OT :AC ...... 259 N ARV O ECOGNITION OF ENDER , Severino, Roger , Ben Schuman, Note, Schuman, , Ben ...... 279 ICHOLAS , 30 H G R WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & EACH OF EACH OF THE , N R Same-Sex Marriage: Differences Between New as a Publicly Reasonable Theory in Relation to Theory in Relation Reasonable as a Publicly Marriage AND , See, e.g. E.g. See, e.g. HE EGAL EGAL C.Applied as Approaches Criticisms of Universalist D.Law to New Natural An Intermediate Strategy Between Moral Relativism and Universalism? A. Jurisdictions to Oppose Applying Law from Other B. PositionsConservative Other Natural Law and and Relativism Implications of Universalism G. Natural Law New Counterargument: A Possible ebate about legalgranting recognition to same-sex marriage, or to same-sexlegal recognition partnerships under some other sex couples.”). sex L II. T ONCLUSION ONCLUSION EXUALITY well-known members of that group within the legal academy being academy of members within the legal thatwell-known group John Robert George, and Finnis, Gerard Bradley. Debate from a Religious Perspective Religious a Debate from name, continues with real ferocity within the United States, ferocity name, continues with real George, and Bradley as three of the “main thinkers about law in the group” of those who who those of group” in the law about thinkers “main of the three as Bradley and George, advocate the natural “new law”). ple, sought to use arguments based on the new natural law theory of C other many though constitutional democracies have now accepted same-sexto should be entitled that those in committed relationships of recognitionreceive some form oflegal that status marry. to the right inclusion within jurisdictions, many more vocal opponents ofany granting form of legal recognition to same-sex partners are the so-called 1. 1. debate, discussing the and contradictionsbetween federal regarding state laws homosexual homo- of legalization the to opposition widespread showing statistics citing and marriage, in States). thesexual United marriage 2. 208 BAMFORTH FINAL-MG (D gium, Spain,gium, Canada, andSouth have Africa Denmark, England, Finland, France, Germany, Hungary, Iceland, New Zealand, Norway, Norway, Zealand, Iceland, New Hungary, Germany, France, Finland, England, Denmark, Portugal, Scotland, Sweden, and provide Wales the functional equivalent to marriage of same- 3. S Religious Liberty D 29809_wlp_1-2 Sheet No. 8 Side B 06/10/2011 15:12:24 06/10/2011 8 Side B Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 9 Side A 06/10/2011 15:12:24 , 6 x- . IMES T Law- note 4, good of of good 209 209 Federal Federal — “ supra However, However, , N.Y. Heretic inHeretic the , 4 George & Bradley Bradley & George with Law, Morality, and “Se and Law, Morality, , J. I. Merritt, and thus objective thus and Lawrence v. Texas 65 (1994) [hereinafter Finnis, Finnis, [hereinafter 65 (1994) – the inevitable inference Sexual Orientation “ Finnis, Finnis, See generally See John M. Finnis, Finnis, M. John (Oct. 8, 2003), 8, 2003), (Oct. .1064 1056, 1049, Compare see also EV A Religious Against Push Gay Unions 13, Romer v. Evans, 517 U.S. 620 (1996) (No. 94- (No. (1996) 517 U.S. 620 Evans, v. Romer 13, – *13; *13; RINCETONIAN L. R – ) 5/11/2011) 8:01 PM P in the case of George and Bradley in in the case of George Bradley and designed to amend the U.S. Constitution so to amenddesigned so the U.S. Constitution to proposed the support Amendment 2 to the AME — ” ELETE ” D Similarly, George and Bradley triedto employ George Similarly, and Bradley D 5 ” OT N OTRE OTRE O , that it suggesting raised AILY ] (describing Colorado the and amendment positing that “intrinsic, the 69 N ” , Lawrence, 539 U.S. at 563 (striking down [a] down in statute part, stated, that a 563 (striking 539 U.S. at Lawrence, , David A. Kirkpatrick, Kirkpatrick, A. , David see note 6, at 29 that (arguing Texas did not violate constitutional impera- or moral supporting the retention of state-level criminalization of the retention criminalization of of state-level supporting 7 E.g. In light of light theIn prominent role played by the new natural law- — 8 , D SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW good of marriage good supra “ instrumental” good of marriage lies in the creation and education of children). of education and creation in the lies marriage of good instrumental” statute “a sodomy requirementwas the of great common— M K rence Sexual Orientation non- 5. (No. (2003) 558 539 U.S. v. Texas, Lawrence 10, at Respondent the of in Support Family 517 U.S. 620, 634 (1996). 6. Research Curiae the of Brief Council, Family Amicus on andthe Inc. Focus Texas the (stating Bradley Brief] & George [hereinafter at *10 470066 WL 2003 02-102), anti- marriage”); Person anoffense commits if he engages in sexual deviate intercourse another with individ- 2003))). (West §21.06(a) Ann. Code Penal Tex. (quoting sex” same the of ual 7. the United States Supreme Court ruled against the Amendment in in the Amendment Court ruled against States Supreme the United Romer v. Evans that the disadvantage imposed is born of animosity toward the of animosity imposed is born class that the disadvantage of persons affected. ual Orientation 1039), 1995 WL 17013889 at *12 at 17013889 WL 1995 1039), 4. at 12 in Opposition Brief yers in opposing the in opposing legalyers of same-sex recognition partnerships, op- men forms againstinvidious lesbians and gay for protections posing of discrimination, and 2011] the BAMFORTH FINAL-MG (D http://www.princeton.edu/paw/archive_new/PAW03-04/02-1008/features1 (arguing that that (arguing http://www.princeton.edu/paw/archive_new/PAW03-04/02-1008/features1 Apr. 24, 2006, at A12 (discussing the organization of religious leaders in support of the the of support in leaders religious of organization the (discussing A12 at 24, 2006, Apr. involvement). George’s noting and amendment be not should sex same the of adults between acts sex consensual and private ships, 8. such of prohibition criminal the defended have and Bradley George whereas criminalized, not should recognize that thebelieves same-sex Finnis while law In fact, partner- conduct. homosexual consensual private, George was coauthor also a George the proposed, but unadopted, of Marriage Amendment Marriage as to confine the definition to unions of marriage of one man one and woman. the good of marriage to of the marriage the good defend Texas anti-sodomy statute that struck downwas the by Court in Supreme at 1076 (arguing that outlawing “secret and truly consensual adult acts of vice” constitutes constitutes of vice” acts adult consensual truly and “secret outlawing that 1076 (arguing at an by the unjustifiable effort State to “direct people to virtue”) Brief, bytives outlawing private, consensual sodomy). Colorado State Constitution,Colorado would have which prohibited Colorado adopting from any form of anti-discrimination protection for lesbians menand asgay or for individuals, same-sex relationships. Temple C Y 29809_wlp_1-2 Sheet No. 9 Side A 06/10/2011 15:12:24 06/10/2011 9 Side A Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 9 Side B 06/10/2011 15:12:24 M K C Y state state motion to to motion , ruling that [Vol. 1:2 [Vol. (Nov. 20, 2009), 2009), 20, (Nov. was impermissible was Manhattan Declaration: A A Declaration: Manhattan ECLARATION mplication, pre-existing the D 2010 WL 3212786 (9th Cir. Aug. 16, Furthermore, the de- following 10 48, 76 (Cal. 2009) (holding that Proposition that 8 (holding 2009) 76 (Cal. 48, [o]nly marriageman and [o]nly between a ANHATTAN “ Perry v. Schwarzenegger an explicitly religious denunciationreligious an explicitly . 628 F.3d 1191 (9th Cir. 2011) (certifying state state (certifying 2011) (9th Cir. 1191 F.3d 628 . M Since the United the United Since continues to States ” note note 3. 9 HE supra ) 5/11/2011) 8:01 PM , , T and since political activity,and since political including state- — ELETE George (who is reported to have played a role D ]. ]. 11 OT ICHARDS N O a referendum-generated attempt to amend the Cali- attempt a referendum-generated &R . lid or recognized in California”lid or recognized — of same-sexof couples to enter into anrecognized officially and protected ”) — eave state laws eave prohibitingfornication, on adultery, the and sodomy WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & Marriage Cases, 183 P.3d 384, 401 (Cal. 2008) (concluding that strict scru- that (concluding 2008) (Cal. 401 384, P.3d Cases, 183 Marriage arguments formed central the focus of, and the subject of ECLARATION ’ perhaps by including same-sex by perhaps relationships within the D gnition that courts must employ strict scrutiny statutes that reviewing employ courtswhen treat that gnition must AMFORTH — Manhattan Declaration, “ certifying questionto Sup. Ct Cal. See re In ”). ANHATTAN ANHATTAN tiny is the appropriate level of review to be applied under the California Constitution be- Constitution under the to California be applied is the review appropriate of tiny level cause sexual orientation is a suspect class and because an individual’s choice of family California the by upheld initially 8 was Proposition right). fundamental is a relationships CourtSupreme in of the procedural face and constitutional challenges relating to the method P.3d Horton, Strauss v. 207 its enactment. of right constitutional “cannot properly be interpreted as having repealed, by i by repealed, having as interpreted be properly “cannot cision of a U.S. district court in cision of a U.S. Proposition 8 State Constitution to read fornia a woman is va under the Equal Protection and Due Process Clauses of the Four- Amendment, teenth law questionPropositionlaw appellant’s the of 8 California Supreme standing). followed Court’s reco people on differently the orientation, sexual basis of marriage legislation that confining and contained Consti-the in California the violated the marry of to opposite sex persons right to tution. family relationship pendingstay district granted order court appeal 11. 2010), (N.D. Cal. 991 921, 2d Supp. 704 F. Schwarzenegger, v. Perry 2010), “George wouldl books. 210 sexualconsensual between acts same of the adults sex, natu- the new lawyers ral criticism in,sustained David by a Richards and myself,monograph published in which was 2008. BAMFORTH FINAL-MG (D http://www.manhattandeclaration.org/pdfs/ManhattanDeclaration.pdf [hereinafter [hereinafter http://www.manhattandeclaration.org/pdfs/ManhattanDeclaration.pdf M Call of Christian Conscience 10. Colson, Chuck & George Timothy George, Robert debate whether legal recognition should be given to same-sexgiven should be part- recognition debate whether legal nerships definition of marriage 9. B 9. level referenda referenda theand litigation concerning level issue, still continues, ar- law concerning new natural remain ofguments today. importance new by the leadership role given true played This is particularly natural lawyers such in the as Robert George campaign same-against sex George, for coauthors example, marriage. of the was one of three 2009 of same-sex marriage and abortion. 29809_wlp_1-2 Sheet No. 9 Side B 06/10/2011 15:12:24 06/10/2011 9 Side B Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 10 Side A 06/10/2011 15:12:24 the AILY 211 211 , D ch questions for s sexual orienta- ’ ) has coauthored) has an amicus brief 12 and arguments for or against the right for or against the right and arguments — 13 whether it involves inclusionwhether within mar- ) 5/11/2011) 8:01 PM NOM Was the Top8 Donor to Proposition Fund — ELETE , continue to be ultimately dependent on norma- , continue be ultimately to D OT N -based National Organization for Marriage (NOM), founded in 2007 2007 (NOM), founded in Marriage for Organization -based National fornia.”). O s decision. ’ Perry (“Because these are substantive andmoral value questions unsettled by (Nov. 19, 2008), http://www.dailyprincetonian.com/2008/11/19/22161 (not- http://www.dailyprincetonian.com/2008/11/19/22161 (Nov. 2008), 19, Tasnim Shamma, Tasnim case. It will be suggested in Section will be suggested case. the arguments I that It See For as long as the United States remains sharply divided over as long as the United sharply For States remains SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW Perry M K RINCETONIAN ing that “[t]he Princetoning that “[t]he sup- monetary the largest was George, Robert professor politics and Gallagher Maggie by Propositionporter passage of whose 8, on[2008] 4 Nov. the same-sex eliminated of right in Calicouples marry to Supporting 13. Reversal and Curiae Sherif as Ryan P.Girgis, RobertT. Amici for Anderson Brief George, & Girgis George, [hereinafter 10-16696) (No. 921 (2010) 2d Supp. 704 F. and Schwarzenegger, the Brief] Anderson Intervening Defendants-Appellants at 28, Perry v. P 12. 12. 2011] 8 pro-Proposition in the campaign BAMFORTH FINAL-MG (D Constitution and logically prior to any determination that some marriage law violates the marriage law determination some that any priorto Constitution logically and unconstitu- ruled be 8 cannot Proposition protection, or equal to marry right fundamental su to resolve freedom people’s the usurping without grounds on such tional themselves.”). the issue of same-sex partnerships, new natural law arguments are new natural of same-sexthe issue law arguments partnerships, to be deployedlikely in support of conservative positions, continuing about the role of such essentiallyto raise questions argu- religious ments in the course and of debate constitutional litigation and about the attractivenessthese of on their merits. arguments Ar- The present ticle will therefore focus the role of new on natural law in light of as thedevelopments such Declaration, Manhattan Proposition 8, and the advanced by the new naturalin the constitutional lawyers context, as exemplified by to the U.S. Court of Appeals for the for CircuitNinth Court of Appeals to the U.S. opposition to in court the district riage or some other method tively unappealing doctrinaltively beliefs. religious Beneath the ofrhetoric the substantive that and others, it continues to be apparent George of marriage and concerning arguments lesbi- the constitutional rights men haveans and gay no force unless one accepts the underlying will consider a distinct doctrinal position. Section issue which is II of same- recognition the legal debate about visible in the becoming the extent sex and for which arguments to partnerships: namely, against such recognition the basis of one discrimination on to be free from tion, or to engage in consenting sexual activity sexualwith persons of activity in consenting tion, or to engage the rather than national to be international same sex, in their focus. ought This is a dispute with deep roots in political and constitutional the- but it hasory, produced a visible by-product in the formof argu- C Y 29809_wlp_1-2 Sheet No. 10 Side A 06/10/2011 15:12:24 A 06/10/2011 10 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 10 Side B 06/10/2011 15:12:24 M K n- C Y ERMAIN HRISTIAN :C ]; 2 G 2 ]; [Vol. 1:2 [Vol. ESUS (1983) [hereinaf- (1983) J IFE L RINCIPLES ORD P L ORAL AND HRISTIAN , M C ing that new natural interve law’s new ing that AY OF THE W to European Court of Human Court of Human to European IVING A HRISTIAN 9 (argu HE s case law. For example, the Su- – ARRIAGE :L ’ , C ,T ,M ESUS ITIGATION J RISEZ L RISEZ AW Lawrence G ORD ]. ]. L note 3, 6 at L 14 ) 5/11/2011) 8:01 PM IFE L supra ABRIEL ELETE , D G OT AY OF THE ATURAL N O HRISTIAN W N C ICHARDS HE (1983) [hereinafter G [hereinafter (1983) ERMAIN s references in s references EW ONSTITUTIONAL ’ &R ,T WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & C 1 G IVING A At a general level, new naturallawyers At a general believe that there is RISEZ ,L See This Section will exploreThis Section will how developmentsrecent continue The new natural has law theory been propounded in the legal 15 RINCIPLES G P AMFORTH RISEZ I. N ORAL ORAL ABRIEL ABRIEL to reflect the point that advancedto reflect arguments same-sexagainst mar- are new natural the of a religious riage by lawyers than a secu- rather lar character, unappealing as well as being on their merits. To understand law argumentsproperly the new natural mar- concerning men, it is ne- lesbians and gay for protections legal riage and against generally, the theory remarks about some summary to make cessary application in the area of sexuality.specific as well as examining its The use of newlaw natural in the Manhattan arguments Declaration resulting from Proposition and in the constitutional litigation 8 in the be can then course considered. California of this exploration, In character the religious arguments of new natural law concerning will become clearer, describing such marriage as will the basis for as unattractive.arguments my- and Richards David by monograph aforementioned in the addressed points major the of 14. argumentsThe regarding new natural law in this Sectionpart, are, in a summary B self. M G a fixed set of basic human goods, which are objective and univer- 212 from courts which jurisdictions to different the extent about ments accountshould take of one another preme Court BAMFORTH FINAL-MG (D ter G tions into constitutional issues highlight the negative aspects of the theory as sexist and tionsinto issues constitutional highlight negative the aspects of the as sexist and theory homophobic). 15. arena principally by John Finnis, Robert George, and Gerard John Robert George, and Gerard principally Finnis, by arena but is rooted writings of GermainBradley, theological in the Grisez. Rights caseRights law have generated considerable of it parts commentary, newhostile. Since law has natural at its heart the notion of universal, including theobjective goods, ofbe that it may marriage, good such a wide focus opens up adeparture point of from other conservative to see how argumentsapproaches. concerning is also interesting It to might apply law. inuniversalist approaches new natural general 29809_wlp_1-2 Sheet No. 10 Side B 06/10/2011 15:12:24 B 06/10/2011 10 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 11 Side A 06/10/2011 15:12:24 . ] Y ’ M OL .P 213 213 Natural John M. M. John , 42 , 42 A UB Unsur- Thus, a Thus, a 18 &P 17 IBERALISM AND AND IBERALISM ,L ] (concluding that that ] (concluding (Finnis’s argument (Finnis’s argument THICS THICS 92 (summarizing the the 92 (summarizing AW Natural Law Theory Law Natural – L even performed if J.L. E ” (1999) (arguing that natu- that (arguing (1999) The Goodof Marriage and AW AME ATURAL L D N note 3, at 57 note 3, at in marital, , note 15,568 at n.43. OTRE OTRE “ Good of Marriage of Good ATURAL reprinted with amendments in amendments with reprinted supra N 9 N Is Homosexual Conduct Wrong? A Philo- Wrong?Is Homosexual Conduct , ” supra , , om homosexual sodomy or masturbation and, and, or masturbation sodomy homosexual om note 3, at 96. IFE Marriage is defined as the union of as the union of is defined Marriage L and since deployed in the legal arena arena and since deployed in the legal note 4, 21 ICHARDS sexual acts violate the good of marriage); John John marriage); of good the violate acts sexual 20 J. 365 (1970). EFENSE OF ” supra , D Nussbaum, Nussbaum, supra &R N , Nov. 12, 1993, at 12 (arguing that the marital goods of of goods marital the that 12 at (arguing 12, 1993, , Nov. , ) 5/11/2011) 8:01 PM , I HRISTIAN sexual acts are immoral as they violateof the good mar- Sexuality-related issues enter the picture issuesSexuality-related enter the picture C ” EYTHROP EYTHROP 19 ICHARDS ELETE H D non-marital EPUBLIC EORGE & Martha & Martha “ AMFORTH OT R &R An intentional decision by any unmarried person person unmarried any by decision intentional An B , 11 N IVING A IVING A O P. G 22 EW , L non-marital 66. , N “ – 97, 99 (1997) [hereinafter Finnis, [hereinafter (1997) 97, 99 18 (Robert P. George ed., 1996) [hereinafter Finnis,[hereinafter ed., 1996) P. George 18 (Robert RISEZ OBERT AMFORTH – Sexual Orientation R G B at 83. at 66. at at 65 at 1, 1 See Id. Id. Id. See generally See See See Natural Law Theory and Limited Government Law and Theory Natural Law, Morality, and “Sexual Orientation and Morality, Law, SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW Morality enters Morality the through picture the called are what modes . . 16 16 21 URISPRUDENCE ORALITY M K 20. 20. 18. 18. 19. development and scope of the new natural law theory). naturaldevelopment and law theof new scope 17. (developing argument a natural law through an interpretation various of philosophical texts and that claiming with the person to whom they married, defies to re-are the necessity they with the person to whom to engage in sexualto engage activity, or by any married person to engage in sexual which activity does not count as prisingly, the new natural lawyers seek to argue that the new natural seek to argue prisingly, their scheme lawyers of to ought embodied be morality in and, far so as possible, defended system. via the legal ral law theory is theral law superior approach when confronting issues of and justice and morality asserting, inter alia, that Finnis, morally justifiable decision justifiable morally concerning basica human good is one in accordancethat is taken modes/requirements. with the J. J M 2011] sal. or requirementsof responsibility of practical which reasonableness, one how specify approach must employ and the goods. BAMFORTH FINAL-MG (D riage); Finnis,riage); 22. Finnis, Finnis, procreation and friendship cannot be derived fr cannot friendship and procreation in multi-party exchange). For a earliermuch discussion Finnis, by see generally Acts Unnatural Law and therefore, all sexual activities outsidebond marriage are theof immoral) 11 (1995) (arguing that natural law justifies discrimination against homosexuals since ho- since homosexuals against discrimination justifies law natural that (arguing 11 (1995) John Finnis, marriage); of good the violates activity mosexual and Observations Historical Philosophical Some Sexual the of Relations: Morality sophical Exchange sophical unmarried individuals who engage in masturbation or homosexual sodomy violate the goods the goods violate sodomy or homosexual in masturbation engage who individuals unmarried John Finnis marriage); of by Finnis, George, Finnis, others. and by one man oneand woman who become literally joined as one being which havemarital sexual acts of procreative po-during intercourse both were which would have such potential parties capable tential (or of reproduction). through thethrough so-called of marriage,good brought into the scheme of Grisez1987 by in basic goods C Y 29809_wlp_1-2 Sheet No. 11 Side A 06/10/2011 15:12:24 A 06/10/2011 11 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 11 Side B 06/10/2011 15:12:24 , , M K C Y see also [Vol. 1:2 [Vol. Good of of Marriage Good even though pre-even though — communion, originally communion,originally ” FinnisBoth and George are note 15, at 568. 568. at 15, note 24 . note 4, at 1063; Finnis, Finnis, 1063; at 4, note supra , IFE L supra supra , -in-one flesh “two ) 5/11/2011) 8:01 PM HRISTIAN is closely tied tois To this reliance. consider C and the claim by critics such critics and the claim by and as Richards ELETE — 25 D arguments, criticisms of those with together ar- ’ s first and most obvious criterion relates to an relates ar-s first and most obvious criterion OT ’ N IVING A IVING A The Place ofThe Place ReligiousFree and Argument in a Democratic Society O . 677, 677 (1993) (asserting that arguments may be religious in con- religious be may arguments that (asserting (1993) 677 . 677, Sexual Orientation 27 , L EV Audi WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & note 21, at 154 nn.8, 15 & 16, 158 nn.34, 36 & 40 (citing Grisez and his his and Grisez 40 & (citing 36 nn.34, 158 16, 15 & nn.8, 154 at 21, note The Way of theThe Lord Jesus Way RISEZ A. Flesh Union Two-in-One L. R 26 G Finnis, Finnis, at 99. at 679. 23 s content. See Id. Id. See IEGO [O]n this standard, an with [O]nargument this standard, essentially reli- quoted reli- merely opposed to, say, content (as gious statements) is religious. Paradigmatically, this gious is theistic content sucha as to a divinereference command. There are also other cases, such as appeals leader, as a guide in hu-to scripture, or to a religious man life. In theIn next seven subsections, various component of theparts At the heart of the law position concerning new natural mar- ’ supra , D note 21, at 99, 118 (relying on Grisez’s theory of the good of marriage); marriage); of good the of theory Grisez’s on (relying 118 99, at 21, note AN EORGE developed by developed by Germain secondGrisez in the volume of his theologi- cal treatise, 24. 24. gument keen to acknowledge the reliance of their arguments about marriage upon those of Grisez, 23. 23. a combination thereof). or history, motivation, tent, virtue, 27. 214 the basic thespect by imposed modes/requirementsgoods is thus and immoral. new natural lawyers will be considered. guments, riage lays the notion of BAMFORTH FINAL-MG (D 25. supra G 26. Robert Audi, Audi, Robert andconstruction marriage of family). 26. I that such arguments are of a religious character are that such arguments of a religious I sented in ostensibly secular terms, as they are required to be in are secular terms, as they sented in ostensibly the constitutional context it is first necessarythis point further, some to offer criteria whereby than a secu- of a religious rather can be identified as being arguments lar character. criteria Four advanced by Robert in Audi seem useful this regard. 30 S 29809_wlp_1-2 Sheet No. 11 Side B 06/10/2011 15:12:24 B 06/10/2011 11 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 12 Side A 06/10/2011 15:12:24 ” 215 215 as pre- “ element ” accidental “ The second cri- The second or ” 28 historical “ although it might bet- it might although 32 The third criterion is 29 ” non-committal on religious on religious for considerations, “ ) 5/11/2011) 8:01 PM 33 ELETE D s mind; it is enough, as a matter of logic, if a as a matter of logic, enough, s mind; it is ’ OT as when to a speakerendorsement, refers, without N or would be taken by a reasonable observer to be its conclusion, cannot be known, conclusion, cannot be justifi- its at least or O — s statement of a religious doctrine. s statement of a religious — 80. 80. 81 (emphasis added). added). (emphasis 81 According an to this criterion, argument ’ – – 30 the implicit argument. The derivationthe implicit argument. need not even go The fourth criterion is historical, is criterion The fourth at 679 at 683. 683. at at 682. 682. at 31 at 680 at — ” Id. Id. Id. Id. Id. Id. Audi stresses that stresses Audi relatesthe to this criterion substantive con- an argument, as used on a particular occasion, as used on a particular an argument, is reli- in the sense provided that, historical gious as used on that occasion, it traces,genetically explicitly or impli- such some mainly chain, by cognitive as a chaincitly, of beliefs, to one or more are that arguments religious in one of the . . . [first three] . . . senses, or to one or in content either religious more propositions that are re- dependent is or epistemically that on a proposition in content. ligious warranting SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW s motivation for presenting it is to accomplish a religious it is to accomplish a religious presenting s motivation for (a) its premises, or (b) its conclusion, or (c) both, or (d) its pre- both, or (d) its premises, or (b) or (c) its conclusion, (a) ’ “ M K 33. 33. purpose. sented in a context, is religious provided an essential of part the per- son ter be described as psychological that the given relates to the thought process of the person developingrelates to the thought argument. the that Audi suggests motivational. terion is epistemic, in theterion is sense that it relates to how an argument as religious on this basis an argument Audi defines must be justified. if: mises accepted,ably apart from reliance example or revelation. scripture 28. 28. 29. Importantly, Audi observesImportantly, that an argument can be implicit in the background presented of another if the openly argument argument is either based on 31. 32. based on the speaker through 2011] to as opposed argument, tent of an BAMFORTH FINAL-MG (D content religious person another 30. 30. C Y 29809_wlp_1-2 Sheet No. 12 Side A 06/10/2011 15:12:24 A 06/10/2011 12 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 12 Side B 06/10/2011 15:12:24 M K see C Y ra- ” accord 2:24); real [Vol. 1:2 [Vol. Grisez thus thus Grisez Genesis 37 36 ” one [shared] real- their “ 67. 67. – flesh”). during intercourse thatduring - they becomethey one “ with the two goods, two goods, with the experience note 15, at 570 (citing (citing 570 at note 15, 35 note 4, at 1066 pedigree . or . . associations ” “ note 4,1066 added); at (emphasis becoming “one personal realities. personal supra “ , supra , 70 the concept (examining theof two-in-one flesh IFE – supra supra L , ) 5/11/2011) 8:01 PM With this in mind, Audi observes that some some that observes Audi mind, in this With 47, 168 their marriage – 34 married couple married ELETE HRISTIAN — reality); reproduction is one function reality); D C OT evidential merits. N “ O literally one biological unit Sexual Orientation and allow them to IVING A 38 Sexual Orientation personal ” , L WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & note 21, at 146 at 21, note , Finnis, , Finnis, at 684. 684. at RISEZ E.g. Id. Id. common good and so, in respect of that function, the spouses are in- the spouses are function, of that and so, in respect deed one reality, and their sexual therefore union can actualize The union of the reproductive organs of husband reproductive The union of the and really wife their them unites (and biologically bio- is partlogical reality of, not merely an instrument of, their parenthood parenthood and friendship, which . . . are the parts of common as an intelligible good. its wholeness with respect to reproduction, each animal is incom- plete, for a male or a femalea po- is only individual which is the complete tential part of the mated pair, organism that is capable of reproducing sexually. This as mates who engage is true also of men and women: suitedin sexual to initiate intercourse new life, they complete each other and become an organic unit. In it is literally so, true that doing flesh. Returning toReturning the new naturallaw arguments about marriage, supra , at 618 at (discussing the as distinct from separate as distinct from ” EORGE is appropriate for procreation:is appropriate for hence the notion of ity union). union). G 37. 38. ther than by their by ther than states, citing Genesis, thatstates, citing 34. 34. Finnis, 35. 36. G Finnis and other new natural thus believeFinnis lawyers that a married couple becomes 216 can be established. link BAMFORTH FINAL-MG (D also id. Finnis defines defines Finnis two-in-one developed originally flesh communion, by terms: Grisez, in the following arguments convince only by their by convince only arguments 29809_wlp_1-2 Sheet No. 12 Side B 06/10/2011 15:12:24 B 06/10/2011 12 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 13 Side A 06/10/2011 15:12:24 – ” 217 217 at 339 at realiza- “ non-marital refers “ s actsof ’ See id. generally 39 40 note 15, at 568. supra , married, that is, their being married, that is, IFE L 41 communionof married life ” ) 5/11/2011) 8:01 PM being at 572. 572. at s ELETE HRISTIAN ’ D C OT note 21, at 168. 168. at 21, note N O would, if committed intentionally, go against the against go would, if committed intentionally, see also id. s common good is . . . the communion of mar- IVING A supra ’ — , ,L at 568; 568; at EORGE RISEZ Id. to the couple The new natural lawyersthen suggest that [M]arriage is a basic human good, and the married human is a basic [M]arriage good, couple ried life itself. The persons, so really bodily united as complementary, and so completely that they are two in one flesh. This of interpersonalform unity actualized is conjugal by love when that love takes in shape the couple and consummation, mutual marital consent, loving the parenthood in not least together, their whole life of couples whose marriages are Thus, fruitful. in con- as none marriage good, of its a basic human sidering traditional ends and is set aside; goods rather, all of them are life itself. communion of married included in the intrinsically good In reproductive reproductive In activity parts ofthe bodily the male parts sin- participate in a of the female bodily and the action, to reproduction which is oriented coitus, gle . . . . of reproductive) act not every coitus is (though action in which the male andCoitus is a unitary the one become literally organism. female whether heterosexual or homosexual (and including, a within SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW — M K 41. 41. 43 (discussing “common the good” marriage aspects of as related toindividual goods). 39. G 39. The basic good of marriage includes parenthood, which is a includes parenthood, of marriage The basic good Grisez expresses the point in slightly broader terms. broader Grisez expresses the point in slightly sex oral marriage, and anal sex their own committed for sake, as well as masturbation) moral principle never that one may intend to destroy, damage, im- or instan-pede, or violate any basic prefer human good, an illusory 2011] As Patrick it: put Robertand Lee George BAMFORTH FINAL-MG (D tion of the potentiality of one-flesh union rather than an intrinsic end to which it is instrumental. 40. G 40. C Y 29809_wlp_1-2 Sheet No. 13 Side A 06/10/2011 15:12:24 A 06/10/2011 13 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 13 Side B 06/10/2011 15:12:24 M K 43 C Y ” Good of of Good s ’ [Vol. 1:2 [Vol. Finnis, Finnis, 45 mar- to en- to s ’ s marriage see also ’ s marriage: ’ s bodily self.s bodily If ’ note 15, at 648 (emphasis in original original in (emphasis 648 at 15, note s bodily, sexuals bodily, power ’ 51. 51. note 4, at 1069; 1069; 4, at note – supra , supra note 21, at 125 (first emphasis added). added). emphasis (first 125 at 21, note , IFE Finnis stresses that stresses Finnis L 44 67. Grisez bluntly states that states bluntly Grisez the unmarried supra ” in one way or another . . . violate the good the good . violate or another . . in one way – , 42 “ ) 5/11/2011) 8:01 PM note 21, at at 147 note 21, Should Never Engage In Any SexualAct, Any Engage In Never Should “ HRISTIAN ELETE C 42, 162 42, D supra – , OT On this view, pleasure, including sexual pleasure, including sexual pleasure, view, pleasure, On this sexual acts and masturbation the involve using N ” s integrity mind, of body, as a unity and spirit, and s integrity Sexual Orientation 46 O ’ mutual marital commitmentand project. at 141 at ’ IVING A A IVING EORGE G Good of Marriage of Good ,L ; they are unhinged aspects the other ; they offrom the note 21, at 99 (explaining rationales for the proposition that intentional intentional that proposition the for rationales (explaining 99 at 21, note WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & s sex acts, understood from the inside . . . as the ’ , Finnis, sex would violate a moral principle of marriage). principle of moral sex would violate a Instead, its value Instead, depends on the moral of the quality acts (observing that additional goods possibly are thereby violated as well). ” RISEZ supra 47 Accord id. Accord E.g. Id. Accord [a]ny willingness (no matter how conditional) matter[a]ny (no how conditional) willingness gage in nonmarital sex undermines . . . one itself as a reality to beitself as a reality and initiated, fostered, pre- in andserved by clear-headed deliberation and the and well-formedwork of an alert conscience. it For of one the intelligibility disintegrates one of out carrying choices each madebodily in a certain state of mind (will), no longer truly actualize and make possible authentic experience of one riage spouses [A] choice to pursue pleasure apart from a real good also involve a denigrationmay of one George separatelyGeorge and emphasizeBradley may that the body one chooses to actualize one as an extrinsic to means producing an effect in one , non-marital “ non-marital cannot in itself provide a coherent moral basis for engaging in sexual activity. 47. 47. 42. 42. in which pleasure is sought. and George As putLee it: G 43. not be treated as a mere instrument or means to an end da-without a person maging that in this way. body Marriage “ 218 one. to a real of it tiation BAMFORTH FINAL-MG (D from sectionfrom heading). 44. 46. 45. Finnis, Finnis, 45. given that to do so would so would that to do given (both straight (both straight and gay) of marriage, that is, the good of fully personal one-fleshfully of communion good the that is, of marriage, acts. marital in true realized 29809_wlp_1-2 Sheet No. 13 Side B 06/10/2011 15:12:24 B 06/10/2011 13 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 14 Side A 06/10/2011 15:12:24 219 219 sex as an ” non-marital “ s sexual behavior ’ 51 note 15, at 646. note 15, at 646. 49 , supra IFE , Grisez had thus emphasized, Grisez had thus that inso- the use of body the for pleasure is mas- L — ) 5/11/2011) 8:01 PM if either husband or wife intentionally does “ ELETE HRISTIAN D C OT N O 48 IVING A , L or person, sexwhether not with another involving at 148. at 164. George suggests that suggests at 164. this George it is for reason that Finnis describes attempts at 653. 653. at 646. at ” In addition, In RISEZ Id. Id. Id. to obtain sexual satisfaction without reference to his to obtain sexual reference without satisfaction or her spouse, that act is to the contrary of gift self the which realizes of marriage,good and so violates be- infidelity, acts involve marital communion. Such themcause by married their bodies, persons treat had dedicatedwhich they to one-flesh as communion, if retaining authority over them. consciousness . . . one treatsas a mere the body ex- . . consciousness onetrinsic means: regards the body as something out- from the subject,side or apart and so as a mere object. inheressuch in the body contempt for A certain choices. a sexual involving act is not complete satisfaction it ismarital intercourse, wrong. violates the sixth It [not of themode of responsibility sacrificing reality . . enjoying a good the to appearance of doing so] . because, by diverting the couple and experience from in its integ- of the marriage good that it damages a merely and substitutes good rity, satisfac- some of the psychological apparent good: to maritaltions or sentient pleasures pertaining sex isolated from its wholeness. 50 SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW . Id. . 48 The Way of the Lord Jesus Lord the of The Way M K far as far 49. G “illusion.” 49. to promote the goods involved in marriage by any type of orgasmic orgasmic of type any by in marriage involved goods the to promote Furthermore, a mere emotional desire to share in intimacy achieves a mere Furthermore, inemotional desire to share intimacy experienceillusory an only hinderand may than helpturbatory rather between a true friendship couple. 2011] In BAMFORTH FINAL-MG (D 50. 50. 51. anything, C Y 29809_wlp_1-2 Sheet No. 14 Side A 06/10/2011 15:12:24 A 06/10/2011 14 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 14 Side B 06/10/2011 15:12:24 M K 53 C Y ” In 55 ” could con- s bodies to “ ’ [Vol. 1:2 [Vol. cannot cannot use their bodies in a use their “ Grisez is willing to concede to concede is willing Grisez 52 and so cannot contribute ” we are told, ” real common as com-good ’ ) 5/11/2011) 8:01 PM s experience of is private intimacy [l]ike everyone else . . . have sexual urges ’ “ ELETE Sodomites, 54 D “ OT nonetheless, N ” O WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & at 653. 653. at added). (emphasis 654. at Id. Id. Id. Id. Grisez provides further detailed concerning argument further provides Grisez lesbian the coupling of two bodies of the same sex of two the coupling form one complete organism to a bodily communion of persons. Hence, the experi- communion to a bodily of cannotence of intimacy the partners in sodomy be the experience of any real unity between them. Rather, each one and incommunicable, and is no more a common good good a common more and incommunicable, and is no mere experience of sexualthan is the arousal and or- Therefore, thegasm. choice to engage in sodomy for the sake of that experience intimacy of in no way con- tributes to the partners mitted friends. [S]odomites . . . choose to use their own and each other self-defeating attempt at intimacy. attempt self-defeating and a natural intimate, inclination toward one-flesh communion. consequence provide subjective satisfactions, choose self- and thus they can be masturbators while do. Of course, as masturbators disintegrity interested exclusively in theexperience of sexual arousal and or- of intimacy. in the illusion sodomites also are interested gasm, 52. 53. 54. 55. Furthermore, a gay couple cannot claim thatsodomy can appropri-cannot coupleclaim Furthermore, a gay good for to communicate be chosenaffection: will and as a way ately men do not choose togay have sex expressive just as a more to way thanbe possible via conversation. affection communicate might In- stead, Grisez suggests, the sexual act is chosen because it provides subjective satisfactions that are otherwise unavailable. “ 220 sexualand gay acts. BAMFORTH FINAL-MG (D However, the idea of one-flesh bar union acts as a further con-to any thatcession. Grisez states while partners of the same sex ceivably share in a affection and express their that feelings in ways would appropriate be committed relationship with friendship, in any sincere mutual that lesbians andthat lesbians gays 29809_wlp_1-2 Sheet No. 14 Side B 06/10/2011 15:12:24 B 06/10/2011 14 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 15 Side A 06/10/2011 15:12:24 ” In the “ 59 ” 221 221 It must involve involve must It that is, in gener- 58 s capacity ’ biologically becausebiologically “ type of act 56 note 4, at 1066. note 4, 1066. at good . . . it can do no more . . good the common good of friends who are not who are of friends the common good supra supra “ , for example, persons of the same sex, ) 5/11/2011) 8:01 PM marital .” ELETE D OT N O Sexual Orientation 57 at 1067. 1067. at at 1066 n.46. n.46. 1066 at Id. Id. Id. These points are echoedThese points are in an even tone more inflammatory to do with their having children by has nothing each other, and their reproductive organs cannot make . . . them a biological (and therefore personal) unit. their Because activation one or evenof each of their organs cannotreproductive be an actualizing and ex- periencing of the those who engage in sodomy can be can interestedin sodomy in engage who those ofsome aspects the includingsatis- of marriage, good of thefaction inclination sexual toward and, intimacy partnership ongoing How-perhaps, life. in a common sexualchoosing ever, in for its subjective intercourse sodomites violate the bodysatisfactions, for self-giving as masturbators self-giving do. At the same time, for to act for an in choosing experience know which they capacity,cannot fulfil that they act on their inclination toward one-flesh a self-defeating communion in way, and in this respect sodomy is similar to fornication, more unreasonable.though than provide each partner with an individual gratifica- tion. SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW M K 59. 59. and cannot be married . . 58. 58. at least the possibility of procreation, and therefore entails of procreation, and therefore the possibility at least organ with female genital organ; unionmale of inseminatory genital even if this does not result when it in conception on most occasions occurs, it nonetheless unites husband and wife it is the behavior which, as behavior, is suitable for generation. suitable for is the behavior which, as behavior, it is consequence, claimsFinnis that attempts to promote the goods in- 57. Finnis, Finnis, 56. 57. A properly unitive sexualA properly act must be the by that He suggests Finnis. by 2011] al, capable of generating children between spouses. BAMFORTH FINAL-MG (D C Y 29809_wlp_1-2 Sheet No. 15 Side A 06/10/2011 15:12:24 A 06/10/2011 15 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 15 Side B 06/10/2011 15:12:24 M K ee C Y 68; s – , sex are note 21, at ” in in [Vol. 1:2 [Vol. at 1066 at supra sexual act is, 61 , ” See id. EORGE non-marital “ common good 29; G 29; – non-marital “ any note 21, at 148. note 21, at 148. 62 by and in this bodily union note 21, at 126 at 21, note note 4, at 1067 (emphasis added). added). (emphasis 1067 4, at note supra , supra supra supra , , with some same-sex which part- ) 5/11/2011) 8:01 PM EORGE G For: ELETE D 60 giving ” OT N ee also O 67 (emphasis added). This condemnation of sex lacking in procreative in lacking procreative sex of condemnation This added). (emphasis 67 – , whatever the , whatever hopesgenerous dreams and and Sexual Orientation WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & illusion. “ The Good of Marriage at 1065; s 1065; at . at 1066 Id Id. that conduct involves the partners in treating their that conduct involves the partners in treating their bodies as instruments . . . their choice to such engage in conduct precisely as thus acting persons. dis-integrates each of them ners may surround their surround their sexual ners may cannot acts, those acts expressdo or more than is expressed or done if two strangers engage in such activity to give each other or pleasures a prostitute pleasure, a him- give client to self pleasure in or return for money, a man(say) mas- turbates to give himself . . . pleasure after a gruelling is no important . [T]here . . the on assembly line.day moral worthlessness between distinction in essential masturbation, sodomized being assolitary a prosti- tute, and being sodomized pleasure the of it. for The new natural lawyers thus are arguing that same-sex sex- can do no more than provide each partner with an in- of a For want dividual gratification. that could be experienced Reality is known in judgment, not in emotion, and and not in emotion, in judgment, is known Reality reality of thoughts 42. Finnis, Finnis, – also 62. 62. sterile. to be happen who couples to married apply not does potential 61. Finnis, Finnis, 61. 60. 60. ual acts violate the good or goods inherent in marital sexual or goods acts of aual acts violate the good procreative variety.potentially consequence, a decision to engage In in a responsibility/requirements same-sex of sexual wrongful. As notedmorally above, practical act reasonableness runs and counter is to the modes of Whatever commitment partners of commitment partners the sameWhatever feel sex may toward one another, their union 222 type of any by in marriage volved orgasmic BAMFORTH FINAL-MG (D an simply 140 29809_wlp_1-2 Sheet No. 15 Side B 06/10/2011 15:12:24 B 06/10/2011 15 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 16 Side A 06/10/2011 15:12:24 ” note note 223 223 supra , EORGE is inexplicable G — (faithfulness), permanent, exclusive see also “ . Apart from this this from . Apart is the coherent, fides the ” 65 the core of marriage is isthe core of marriage 62, 215. 215. 62, Marriage — – Finnis stresses Finnis that heterosexual note 4, note at 1067; the world ofsame-sex part- 64 note 21, at 131 (emphasis added). added). (emphasis 131 at 21, note — and is supra ” , supra in which bodily union in such acts is the union is the in such acts in which bodily , those two parents ) 5/11/2011) 8:01 PM and why — note 21, 161 note 21, at — ELETE commitment to permanence and exclusiveness and why D “ OT — 63 supra N , O sexual union ’ Sexual Orientation Good of Marriage of Good EORGE , the stringently exclusive commitment . . . we When ,G at 132. 132. at 66 same-sex partners in acts of the reproductive cannot engage E.g. Id. When it comes to marriage as an institution, the new natural new the as an institution, to marriage Whencomes it we realize that would make little or no sense. would make fundamentally shaped by towards, ap-its dynamism by shaped fundamentally the generation, in, and fulfilment for, propriateness nurture, and education each of children who can only have two parents the and whore- primary are fittingly . . . sponsibility of orientation towards children, the institution of mar- riage, characterized by marital fides realize that of stable category relationships, satisfac- activities, which tions, and responsibilities can be intelligibly chosen and reasonably togethera man with by a mutualwoman, and adopted as their demanding because its compo-commitment and common good, nerships . . . offers no genuine instantiations, equiva- and so very few lents or counterparts to marriage, whole-hearted imitations. “ SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW M K kind, i.e. in marital sexual intercourse, commitment of marriage biological actuation of the . . . marital relationship lawyers can see no parallellawyers an opposite-sex between and a marriage to same-sexcommitted the right seek to confine partnership, and to opposite-sexmarry partners. in the spouses 64. Finnis, Finnis, 64. 63. 63. Since Since 2011] according this view, to wrongful, whoeverthe partners be,happen to as is masturbation. BAMFORTH FINAL-MG (D for them. for 66. 66. 65. Finnis, Finnis, 161. 21, at 65. marriage involves a marriage C Y 29809_wlp_1-2 Sheet No. 16 Side A 06/10/2011 15:12:24 A 06/10/2011 16 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 16 Side B 06/10/2011 15:12:24 - M K at at C Y id. The and and , s 70 ’ Grisez Grisez ” assumes assumes 69 ” See, e.g. is theological, rea- [Vol. 1:2 [Vol. arguments based based arguments “ what what the Church are articulated non in “ note 15, at 567. References References 567. 15, at note of ” supra , note 15, at xxx. IFE L proofs but nonetheless these are in- but nonetheless these are supra The Way ofthe Lord Jesus “ ” , The Way of the Lord Jesus The Way HRISTIAN ority in support of three arguments. of in support ority C RINCIPLES to positions inconsistent with received with received to positions inconsistent at 654 n.194. n.194. 654 at P “ Id. ) 5/11/2011) 8:01 PM s teaching, IVING A A IVING ’ ORAL ORAL thin by contrast to the religious material. Finally, some some Finally, material. thin contrast religious the to by tain portions of Grisez’s account Grisez’s of tain portions , on the arguments of which, as noted above,noted as of which, arguments the , on , L ELETE M chief sources of this work are Scripture, the Scripture, this work are chief sources of D Finally, Grisez Finally, observes that “ apologetics aimed at nonbelievers nor is it an at- “ OT 71 rather than as than rather RISEZ N ” ” O G extremely —even if Grisez’s statements about the aims and methodology of the the of methodology and aims the about statements if Grisez’s —even 34 (emphasis added). added). (emphasis 34 HRISTIAN to see how the examples cited here can in any sense convincingly be dis- be convincingly sense any in can here cited examples the how see to – See , C 84 (asserting that has largely invariable marriage characteristics across cul- — helps 67 WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & . – “ at xxx. at xxv. at 133 at RISEZ and is not Id. Id. Id. sons nents respond and correspond and reasonably to that respond nents fully complex complementary of interlocking, good point starting examiningthe A useful which to when extent ” Grisez clearly states that Grisez clearly at 583 at 68 id. at 99 n.6. However, cer However, n.6. 99 at that the readeraccepts believes and everything Church the Catholic “ teaches tures, but seemingly tied totures, the but notion seemingly Christian that societies understand these best). it First, is extremely difficult are ignoredwork 555 (discussing supposedly anthropological references, but with very little or no supporting little or supporting no 555 anthropological references, (discussing but very supposedly with data); the theological clearly material, a pointtinguished from which holds in particular force the discussion as a two-in-one marriage of union. flesh Second,the to references nonreligious are spreadauthority references are slanted the towards social scientists of work are who conservative Christians. homosexuality that clear makes which work psychological are thus to We referred Christian G has a “pathological character.” . . . 69. on common human experience can help prepare the way for the ac- ceptance of the Church tended as 71. 71. also notes that the also notes that certain Fathers and the writings of Church, of the Catholic teachings and Doctors of the especially Church, St. Thomas Aquinas, these sources are referred to as authorities throughout. Furthermore, minimal attention is paid Catholic teaching. 67. 67. 224 new natural law secular arguments are or marriage concerning reli- of Grisez to consider the purposes and methodology is gious BAMFORTH FINAL-MG (D of the Lord Jesus Way and Finnis George acknowledge their to mar- reliance in relation riage. doubts.of those who have serious the faith tempt to rescue are sometimes made to non-religious auth 70. 70. philosophical careful argumentsrelevant can be distinguished Finnis’s by analysis, with 68. while that suggest to Finnis has tried discussionown being “restricted to philosophical and historical considerations and method.” Id. theological terms. theological terms. 29809_wlp_1-2 Sheet No. 16 Side B 06/10/2011 15:12:24 B 06/10/2011 16 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 17 Side A 06/10/2011 15:12:24 OLITICS OLITICS 225 225 recent recent P “ and in ” 73 rms: Natural Natural rms: AND , s arguments . ’ therefore ap- In fact, Grisez fact, In 75 ” flesh” account of passim s first andsecond to have a religious have a religious to ’ ETAPHYSICS when not been it had — one- ,M les and Moral No and Moral les “ note 15 15 note s criteria for identifying identifying for s criteria marriage is considered a s ’ ’ and George “ earlier writings: earlier THICS ’ ’s :E supra , As William E. May E. May suggests, As William note 15, at 568 n.43. n.43. 568 at 15, note IFE 74 L ” NQUIRY A particularly obvious A particularly example is I supra 76 , A further point which particularly is 77 IFE ORAL HRISTIAN L .” M C The Way of the Lord Jesus Lord the of The Way In terms of Audi terms of In ) 5/11/2011) 8:01 PM 3, 30 (Robert George ed., 1998). 1998). ed., George (Robert 30 3, on which Finnis 72 s account of marriagewhy was included as a ’ ” ELETE — HRISTIAN IVING A AW AND The Way of the Lord Jesus The Way RISEZ D if marriage is understood as Vatican and John II L C Germain Grisez on Moral Princip Moral on Grisez Germain equality more seems important than their com- “ , L G ’ OT N O RISEZ IVING A s explanation of reli- contains ofthe marriage good ATURAL ATURAL to acknowledge marriage as a distinct human good . . . ’ ERMAIN , G ), that “ , L N ” G in , is also, on examination, theological of a strongly character. at 619. 619. at RISEZ the spouses in terms of itsmethodology aims and See, e.g. Id. Id. Id. Grisez s claim that a husband and wife s claim that a husband and wife complete one another to be- — “ ORK OF ’ SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW — W M K so categorized in the new natural lawyers depend Grisez come biologically one flesh, and that one-flesh depends unity on an argument as religious, as religious, an argument pears of a re- authority on the rest prescriptions its the sense that content in hierarchy, to employand of the Church institution in the form ligious structure,considerations in its logic premises,religious or justifica- other tions. words, itIn corresponds with Audi bases for identifying an argument bases for identifying an as religiousargument rather than secular. contentgious and squarely onrests authority. This religious much is clear even from Grisez in Volume of 2 good 76. 76. makes reference to or relies upon religious authority throughout his his throughout authority to or relies upon religious reference makes account of of marriage. the good Church teaching, which teaching, the tensionsChurch resolves in tradition, pre- the viewsents an integrated marriage therefore, of marriage; is one real- havingity a basic good proper to it. 73. G 72. 73. 2011] proposes. and believes BAMFORTH FINAL-MG (D 74. 74. 75. E. May, William 77. 77. and Christian IN THE merely consensual relationship similar to other friendships understand it is seen to be a unique kind of communion it, Paul II . . . and form of cooperation which plementarity Grisez came inprecisely of the light development on of teaching magisterial mar- Pope John Pope Pius XI Paul through riage from II. crucial presentcrucial for purposes is that Grisez the argument, made in opposition to what are characterizedasfemi-are what to in opposition made the argument, to marriagenist approaches (under which the marital sexual act C Y 29809_wlp_1-2 Sheet No. 17 Side A 06/10/2011 15:12:24 A 06/10/2011 17 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 17 Side B 06/10/2011 15:12:24 M K d- 85 79 C Y the en- “ “ able to “ [Vol. 1:2 [Vol. Furthermore, a [t]he sacramental 84 a claim which re- “ without its earthly ” ] (advancing the idea that ” The nature theological passim. 82 marital union of the man and points which are supported by points which are supported by note 15 15 note “ 81 Every Marital Act Every Marital ” supra , IFE L ) 5/11/2011) 8:01 PM Germain Grisez, Joseph Boyle, Germain John Joseph Boyle, Grisez, E. Finnis & William Grisez also suggests that marriage signifies that Grisez also suggests marriage is thus tied to Genesis and to the teachings of of the teachings and to Genesis to tied is thus 80 ELETE HRISTIAN ” 78 D C ” OT will endure in the will endure resurrection see also consisting of the N “ ” O of marital sex to its being relate does not 86; 86; ” 05. 05. 83 IVING A – is tied to of the teachings Paul VI and John Paul II. – ” and will be perfected within theperfected greaterand will be one-flesh com- , L 365, 365 (1988) [hereinafter [hereinafter (1988) 365, 365 WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & “ at 602. 602. at at 603 at at 575 at 580. 580. at Paul II).Pope John of the teachings 608 (citing at 634. at RISEZ Id. Id. Id. Id. Id. Id. Id. [w]hen a man and a woman . . . consent to marriage . . [w]hena woman a man and enterand communion open into they to new life, form not only a bodily union with inescapable moral impli- cations but communion of will by mutual covenantal commit- a the by full generativeand of organism act they ment, communion of share in persons: a HOMIST “Every Marital Act Ought to be Open to New Life”: Toward A Clearer Understan A Clearer Toward to“Every Maritalto be Open Act Ought Life”: New , 52 T marital intercourse, marital 81. 81. 82. during sacrament the woman, by virtue of which they, as husband of virtue which they, by the woman, together and wife, are couple. a married discussion of marriage as an open-ended in which community appropriateness cause on its being theconception, but only pattern of behavior necessary which, in conjunction with other conditions, would result in conception of the argument is also clearof the argument if one together puts the that assertions 78. 78. and that marriage and that marriage 226 “ BAMFORTH FINAL-MG (D limitations, Jesus, and with the Lord munion of the blessed in lies on the teachings of Johnas Paul authority. II 80. 80. 83. 83. 84. 85. Grisez writes, by reference by Grisez writes, teachings to the of of Pius the VIII, 79. G contraception). of use occur the absent only canmarital intercourse 79. John Paul II, and and Jesus. is drawnan analogy to communion with Paul John II, and to scripture teaching. Church reference and develops the union of Jesus his Church: with character of Christian marriage the propertiesconfirms to that belong as such: unitymarriage (the necessity of monogamy) and indissolu- of impossibility (the divorce), bility May, May, ing 29809_wlp_1-2 Sheet No. 17 Side B 06/10/2011 15:12:24 B 06/10/2011 17 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 18 Side A 06/10/2011 15:12:24 87 ” 227 227 29 (1991). 29 (1991). 657 (noting the the (noting 657 – RUTH T 41, 644 – AND , at 637 EVISION ,R 89 see also id. RADITION , Trinity, andIncarnation, :T ” Son “ ) 5/11/2011) 8:01 PM BSOLUTES , ” A in wholly religious terms. religious in wholly [i]nsofar as these features of men and women ELETE ” “ D OT ORAL More directly the com- that More Grisez suggests still, N In other words, it is religious when assessed in assessed in other when it is religious words, In O Father 86 ,M 88 s first two criteria. The exact similarity between Thes first two criteria. exact between similarity “ 36 (quoting Pope Paul VI);36 (quoting ’ s account of the in Church good of marriage is rooted – ’ INNIS F at 635 n.163. n.163. 635 at 635 at at 636. 636. at OHN OHN Id. Id. Id. Unless God had created rela- sex, familial and thus not could tionships, we begin to understand the mean- of ing adoption as children of God. By its utmost intimacy its utmost intimacy God. By adoption as children of preserveswhich the individual identities and rolesyet of those who share it, marriage negative (defined by moral absolutes in the way Grisez recalled) discloses of divine-humanthe possibility communion, initiated a by covenant-relationship in which we trust God will unconditionally, a exceptionlessly, faithful by remain commitment which has of moral norms. absolute stability the moral necessity and Grisez s reasoning and that of andFinnis must also provide George ’ SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW good of marriage good “ M K pertain to human nature,pertain to human their source is God, the author of nature. plementary capacities plementary of the natural of inclination and females, males women to men and and those capacities, realize of the principle prac- them determine what between so, them to do directing tical reason is, and that marriage Furthermore, Furthermore, Finnis thoseespecially of St. Augustine and Pope John asPaul authority II, frequently invokes Catholic teachings, 86. 87. 2011] Meanwhile, discussiona the of maritalact being required to be to the Second is tied one-flesh which realizes unity something Council. Vatican BAMFORTH FINAL-MG (D additional doctrinal references within Pope Paul VI’s teachings). J 88. 89. teachings and biblical references, would thus and appear to be clearly in its content religious and in the justifications cited as support for its even if non-religioussubstantive conclusions, language is employed in certain parts. terms of Audi Grisez strong evidence that the assertions of the latter thetwo concerning law can be categorized using the two as religious criteria concerned. described the has personally by point that Finnis This is reinforced the C Y 29809_wlp_1-2 Sheet No. 18 Side A 06/10/2011 15:12:24 A 06/10/2011 18 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 18 Side B 06/10/2011 15:12:24 M K ’ – r- C Y — — Every Every 5.27 57 (dis-57 – and 90 reasonably reasonably Matthew [Vol. 1:2 [Vol. 94 (enlisting the 94 the (enlisting , that acts of – with desire at impermissible 69. – deliberately to entertaindeliberately at 290 note 15, at 641 at 15, note — id. looking always s teachings about sex- ’ supra of any kind that is , Is it really possible, it really con- Is IFE 93 L all of which are articulated acts of are im-masturbation note 15, at 644 (quoting at 644 15, note (quoting sexual acts); — ” all note 4, at 4, note 1063 1049, 51 (expounding upon arguments produced by by produced arguments upon 51 (expounding that vaginal intercourse between that vaginal a supra – HRISTIAN , C — supra IFE , L in the absence of in the absence authority? religious Is non-marital “ — IVING A ) 5/11/2011) 8:01 PM turns the partners into one being, that the into one turns the partners ,L s criteria are complied with, it is useful to go to go s are complied with, it is useful criteria ’ engage in sexual acts HRISTIAN ELETE in the absence of a set of religious convictions convictions a setin the absence of of religious D C cient to constitute thecient to act.”). constitute RISEZ OT — G N O , 147 note 21, at supra never literally Sexual Orientation is suffi IVING A IVING A — note 78,note at that (asserting the 414 intercourse marital theory notdoesin- One might add to this list the notion that a married that a married to this list add the notion might One ,L 91 WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & 92 EORGE G Finnis, Finnis, supra RISEZ , See See See generally generally See However, despite of this plethora evidenceto show on a wa- (“Jesus teaches that ‘to look at a woman lust’—with illicit sexual desire illicit sexual cussing the theory that marital sexual acts should be chaste and even sexualmarital acts are if are intended they bringimmoral to sexual satisfaction apart intercourse); from Marital Act after initially presenting his in non-sectarianarguments terms laterRobert George produced what appears to be same just the ar- as guments examples Church of the Catholic ual morality. vincingly, to justify such conclusions to justify vincingly, by the new natural lawyers by possible, in theit really of authority, religious to sustainabsence the a view that the sexual same-sex of committed, monogamous activity couple is not morally equivalent to that of a married opposite-sex couple if, as a matter of fact, both couples possess a deepcompa- nionship and mutual and exclusive commitment and love, these characteristics being reflected in and the point of their sexual acts? Or equally, why can the sexual acts of a committed, monogamous, 90. 90. 228 of place the concerning sexualwithin marriage, intercourse BAMFORTH FINAL-MG (D 28) 28) 91. 91. various authorson harm of moral the permissible. someone to whom they are not married. tertight basis that Audi tertight by further showing that contents of the the new natural lawyers foun- absence little or no sense in the of a religious make arguments it is far ask how might we mind, in this dation. With possible to believe conclusionswhich dictate such married couple oral or anal sex between a married couple are if done for their own sake, and that adultery person commits in the heart merely by clude masturbation by one partner or the other, oral or anal sex, or intercourse involving involving or intercourse oral analpartner or one or sex, other, clude the by masturbation G contraception). 93. Catholic Church’s reasoning on the morality of sexual acts to support the author’s own a own author’s of sexual to support the acts morality the on reasoning Church’s Catholic guments). 92. unmarried must 29809_wlp_1-2 Sheet No. 18 Side B 06/10/2011 15:12:24 B 06/10/2011 18 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 19 Side A 06/10/2011 15:12:24 s de- 229 229 ’ (a point (a inherently OMOSEXUALITY H fact religious foun- religious — –48. George and Bradley’s Bradley’s and George –48. at 147 at we are rapidly reduced to to reduced rapidly are we HRISTIANITY AND Id. — :C 94 RUTH T 47 (explaining the between analogy a sterile sex – including, crucially, the central notion crucially, the central notion including, sexual cannot acts be marital because as George and Bradley define it, and thus helps un- helps thus it, and define Bradley and George as ’ ” — , the idea of two-in-one flesh union is in two-in-one of the idea flesh union is in can only beperformed between married sexual are acts contrary to the ’ ) 5/11/2011) 8:01 PM s activities and the its organs of functioning — UESTION OF OF UESTION ’ sex. This is a position which simply looks which simply sex. is a position This -sex couple not be so compared with those of those of with -sex compared be so not couple fides ELETE D definition of the good of marriage. definition of the good ,AQ ’ OT s account note 21, at 146 N ’ When an animal walks, it acts, and we ascribe to it O OORE opposite 95 opposite M supra , B. Union Concept Flesh Critique of the Two-in-One at 568. 568. at ARETH EORGE Id. At this point, it is important to consider Gareth Gareth to consider Moore At this point, it is important G SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW See –57 (2003). Moore’s argument is not, David Richards and I believe, undermined by the the by undermined believe, I and Richards David not, is argument Moore’s (2003). –57 M K organ and an unloaded gun in that both fail to achieve their respective goals of procreation procreation of goals respective their achieve to fail both that in gun unloaded an and organ function is a biological because reproduction even this analogy and discrediting and killing, it when sexA organ,fails). like any other organ, is and functions as part of a person. the up with bound inextricably is it that proposition further the attacks argument Moore’s the“personal of human reality being dermine thedermine plausibility of that conception “reality.” of saying that those two couplessaying partners of the circular in the absence of of two-in-one the concept flesh union. It thus appears crucial to seek to understand whether marital acts involving 95. G 94. 95. 2011] but unmarried BAMFORTH FINAL-MG (D dations and nature aside the foundation for solid any plausible and capablefact of offering new natural lawyers vastating critiquevastating of the idea of two-in-one flesh union. The idea, the wrong suggests, even facts Moore gets as a description of animal given biology, that it must be seen reproductive to distin-as failing betweenguish an animal and other parts. 253 a and organ sex a between analogy of lack the concerning Bradley and George of assertions gun. assertions are in any event problematic. They claim that reproductive organs never cease to cease never organs reproductive that claim They problematic. event in any are assertions a married a married relevant couple? are such questions be obvious, As will the religiousboth to foundationsnew of the natural law arguments and to their substantive appeal, or lack thereof. theIn cases of all of companionship the same elements just mentioned, three couples as a matter appear and love would to be in play of to concede Grisez himself appears noted earlier, partly which, as was in the case of same-sex However, couples). to explainif we try why the two unmarried couples marital nature ofsex and contravene modes the in of responsibility to the of to the without reference religious good relation marriage material in Grisez of marriage as two-in-one union flesh C Y 29809_wlp_1-2 Sheet No. 19 Side A 06/10/2011 15:12:24 A 06/10/2011 19 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 19 Side B 06/10/2011 15:12:24 M K C Y The The 97 s heart, s heart, ’ [Vol. 1:2 [Vol. In doing so, doing so, In [t]he bio- real “ As Moore also As Moore also 100 Homosexuality and the the and Homosexuality 102 Homosexual Orientation Homosexual Orientation ” -giving, and these that im- while organs are parts “ This, Moore points out, out, points This, Moore 98 flesh union,” and arguing that what - The different parts of an an- 99 Stephen Macedo, Macedo, Stephen ccord . 60, 81 (1998) that couples engage (reasoning in But the beating But of an animal 96 TUD S ) 5/11/2011) 8:01 PM ELETE D . L.J. 261, (disputing280 the andof (1995) arguments rhetoric s entire argument. OT EO ’ note 95, note 257 at Bonsor, Jack A. (citing note 95, note at 256; a N HEOLOGICAL note 95, at 255. 255. at 95, note at 256 (comparing the connection between people who are members members are who people between connection the (comparing 256 at s argument have would, if correct, an extraordinary O s mating couple is not an organism, but two people is not an organism,s mating couple but two people ’ ’ 34. 34. id. – , 84 G supra supra supra , , 59 T , , , at 231 (arguing that to treat two persons engaged in a sexual procreative procreative sexual a in engaged persons two treat to that (arguing 231 at WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & at 231 OORE OORE OORE Grisez Id. See id. Id. See, e.g. 101 ” act as a completed single organism is to reduce the individual to partner the status organ; of or individual this desire). motivation, intent, the statusof devoid individual means is M 101. who engage in joint activitya for a certain purpose: logical unity that to find, whichGrisez wishes logical ofwould make the two together one is simply notcomplete organism, there. The couple sense that Grisez wants. just is not one flesh in the of a group, such as a military, coming together to act as one, and the different body parts body different the and one, as to act together coming a military, as such a group, of animal). living up a make that organs and 99. 100. 100. an important organ,an important is that the not something animal voluntarily heart functions,does; the it does not involve but of agency the the walkinganimal as does, is theand neither an heart itself agent. 97. 97. 98. and Anthropology Grisez gets his facts wrong. As Moore states, observes, Grisez observes, consequence. ability of an animal to act depends on the functioning of its parts, but of its parts, but of an animal to act functioning depends on the ability acts and functions are conceptually distinct. undermines Grisez of animals or organisms,animals are not parts ofor organ- animals isms. operate as reproductive organs, even when they are not actively performing reproductive reproductive performing actively not are they when even organs, reproductive as operate fa- reproductive a in performing be would penis a then correct, were this if But functions. M urinating.shion while 96. 230 act:an agent. it is a voluntary BAMFORTH FINAL-MG (D is being united, if anything, is sperm and egg instead and of egg is sperm persons). anything, if is being united, M 102. the naturalonideathe that new lawyers “one the of rest mating as a result of themating as a result of individuals’ love and impulses for self pulses another)).but for be acceptable one couple should not for sinful imal, each of which has imal, each of which are a function, combined to form the com- plete organism, capable of When talking the male of acting. and theform to that isfemale completecoming together organism capable of sexually, reproducing is Grisez thus treating two animals of some other animal or organism. as organs or parts Conservative Mind 29809_wlp_1-2 Sheet No. 19 Side B 06/10/2011 15:12:24 B 06/10/2011 19 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 20 Side A 06/10/2011 15:12:24 HE — T 231 231 in , However, as However, as 104 form of bodily communion of bodily form only ar & Rufus Black Black eds., 2000). ar & Rufus . 105 ) 5/11/2011) 8:01 PM ELETE other things being equal,other things in moral terms D 103 223, Bigg (Nigel 237 Natural Sex:Natural Germain Grisez, Sex, and Law Natural OT — , the simple bodily joining of, the simple joining two people bodily N note 95, at 257 at 95, note AW O L supra , ATURAL at 234 (asserting that the alleged immorality of non-reproductive sexual sexual non-reproductive of immorality alleged the that (asserting 234 at N OORE Id. The idea of one-flesh union, thus, appears to be distinctly In relation to same-sex sexual acts, Moore points out that relation to same-sex sexualIn out that acts, Moore points [I]t would be rather peculiar correct,[I]t be rather would were if Grisez if the it were case that male and femaleformed one or- it would then they be this mated. For when ganism single organism that reproduced.. . . But if a reproduces,organism call asexual this is what we re- single is characteristicproduction. of sexualIt reproduction, two animals contrast, out by in that carried by it is collaboration. Grisez would have a hard time showing this, for, prima facie in committed a bound together of mutual relationship both or a female affection, be they male, both mixed call a form would we couple, is just the sort of thing communion ofof bodily The experience persons. of not be the have they may in their intercourse intimacy experience no means of marital union,fol- by but it be- of lows that it is not the experience real unity any tween them. That only could be so if marital union unity people, which is between the only real were not the case. plainly SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW M K EVIVAL OF Moore suggests, Moore 104. 104. 103. M 103. Moore, activity has never been convincingly argued on non-secular grounds alone). Gareth 105. R problematic when subjected to critical assessment. problematic when Remove one-flesh theunion from analysis, however, and the boundaries which the new natural lawyers ascribe to the marriage losegood their rooting. the If couple having for sex one organism reproductive in fact pur-is not might poses, they even if the one-flesh union theory was true, Grisez unioneven if the one-flesh still need would theory the union was to show that one-flesh of persons involving sex if that was possible he is to successfully have sex. should not show that same-sex couples 2011] BAMFORTH FINAL-MG (D C Y 29809_wlp_1-2 Sheet No. 20 Side A 06/10/2011 15:12:24 A 06/10/2011 20 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 20 Side B 06/10/2011 15:12:24 M K C Y Be- 108 In all of of all In marriage (or , Grisez as- 106 [Vol. 1:2 [Vol. sexual acts, civil ” form s arguments were ’ Questions of Tolerance and 30 (H. N. Hirsch ed., 2005). 2005). ed., N. Hirsch (H. 30 – non-marital “ flesh union when discussing the law’s law’s the discussing when union flesh 15, 28 15, 107 properly adopt. This is particularly true given given true is particularly This adopt. properly David O. Erdos, O. Erdos, David text accompanying text notes 24 and 25. Further- MERICA A See See supra IGHTS IN ) 5/11/2011) 8:01 PM R arguments arguments about ’ AY s lacking self-giving.motives are in reciprocal ELETE ’ G D OT N note 105, at 230 (asserting that because reproduction is the result of of is the result reproduction that because (asserting 230 105,note at O UTURE OF UTURE OF supra supra F WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & HE at 228 (distinguishing the or form idea of marriage thefrom motivating factors T Id. Moore also points out that, even if GrisezMoore also points [T]he form of [T]he form an act implies whatever nothing about the motives of the couple . . . . Any sexual act, even be may an act of to procreation, not suited re-though and willinglyundertakenself-giving, an act ciprocal andlovingly, Grisez is not entitled to infer other- . if [an selfish, but undertaken in a act]is not . . wise is it surely feelings, mutual affectionate context of to strengthenlikely marital is hard communion. to It see how mutual affectionate can be uninte- feelings in , 108. successful organ functioning, and not a function on its own, Grisez is unable to adequately successful is unable organadequately to own, and Grisez not a function functioning, on its support that his some argument sexual functions other are legitimate while (homosexual) not). are functions sexual cause a particular sexual act has a non-procreative sumes that the couple Moore is clear that this is unacceptable. not defeated by the implausibility of his pseudo biology of one-flesh not defeated by ofthepseudo his implausibility of one-fleshbiology together of form involve a running and motive. union, they the new naturalthe new lawyers the existence of one-flesha married union between en- couple when intercourse, but its absence in vaginal asgaging between unmar- the ried (heterosexual or homosexual)partners or the married couple some other orgasmwhose acts produce route, by provides the foun- the sexual first couple must activities of the the claim that dation for different those terms from in fundamentally of be classified, morally, the fiction of one-fleshthe others. Remove union the picture from disappears. simply and the foundation the importance that Finnis and attach George to one- treatment lesbians of andmen. gay 106. has im- which something is should purposes law other the for which sex stance in the for plications engage might couples That about argument in role a plausible play cannot union one-flesh the more, secular law generally)secularmore law given allows divorce that civil marriage for the whereas one- does not. decisively account union flesh Fairness 232 for engagereasonably sexual in uncon- purposes wholly activity nected with reproduction or marriage (as an expression of sexual for intimacy, love and example, for pleasure). or purely BAMFORTH FINAL-MG (D 107. Moore, 107. that lead partners to get married). get partnersthat to lead 29809_wlp_1-2 Sheet No. 20 Side B 06/10/2011 15:12:24 B 06/10/2011 20 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 21 Side A 06/10/2011 15:12:24 233 233 More More ]f they they ]f 112 “[i ” s experience of ’ s motives for en- s motives for s actual feelings. feelings. s actual ’ ’ 109 The sharing of experiences of Furthermore, as Gareth Moore Moore Furthermore, as Gareth 111 110 ” and the enjoyment of sharing it [is] it [is] and the enjoyment of sharing “ extremely narrow view of valuable “ , at 281. Flaws in the new naturallawyers’ in new arguments the Flaws are at 281. , arguments, strongly reinforcing the point ) 5/11/2011) 8:01 PM note 105, at 238. at 238. 105, note ’ ELETE s assertion that same-sex partners experience a shared experience. A person ’ D supra supra OT note 101 note N O supra supra , Moore, just as taste is shared. therefore be a common good therefore the befor a common good partners: ” at 230. 230. at can by definition See, e.g. Id. Id. As a matter of logic, it is thus hard to see how one-flesh one-flesh hard to see how it is thus logic, As a matter of grated with conjugal love, and still harder to under- to still harder and love, conjugal with grated can be they stand how at it. odds with SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW 109. M K that the only real foundation for those arguments is religion. Fur- real that the only those argumentsfoundation is religion. for unappeal-decidedly of one-flesh union seems thermore, the notion impoverished view its thoroughly of what sexual least for not ing, is, or can be has suggested about.activity that the Macedo Stephen new natural lawyers have an sexual activity as only that which is open to procreation and within a as only that open to procreationsexual and within a which is activity permanent heterosexual marriage. are friendsare and enjoy sex together, their joint enjoyment and their de- sire to provide enjoyment other for each will contribute to the commitment. of their friendship mutual and their strength intimacy intimacy significantly still, however, Grisez seems to miss the point that inti- Grisez seems still, however, significantly is macy What seems clear is that Grisez is not employing definition of con-a Grisez is not employing is that clear What seems love, has which jugal peoplemuch to do with Rather, having as incompatible acts defined certain with the marital Grisezgood, people is assumptions about making gaging in them. union can produce anything approaching a plausible for foundation the new natural lawyers addressed here rather than Section in I.A. 111. 2011] BAMFORTH FINAL-MG (D 112. 112. demonstrates, Grisez only in private intimacy ways,and incommunicable rather than in a that is shared betweenfashion them, involves a understand-myopic of Asing intimacy. people a factual matter, can share experiences in enjoying example food and jointly for sharing by all sorts of ways, is understood common sense way in this practical, its taste. Sharing, the sex- whatever sexualeven more important in consensual activity, es of the partners. enjoying, are that they intimacy The partners can share with each other the also shared, 110. Macedo, 110. C Y 29809_wlp_1-2 Sheet No. 21 Side A 06/10/2011 15:12:24 A 06/10/2011 21 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 21 Side B 06/10/2011 15:12:24 M K C Y despite despite Perry v. ” [Vol. 1:2 [Vol. , surely, that it that it , surely, is A Call of Chris- “ 113 joined together, “ note 10, at 9.note 10, at supra , ) 5/11/2011) 8:01 PM The Declaration is subtitled The Declaration ELETE views concerning the of marriage.good is It D ’ 114 s account simply ignoresthis. s account simply OT ’ ECLARATION a comparison which highlights the religious na- a comparison the religious which highlights N and one of its significant aspects coau- is that the D O ” — WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & C. Manhattan Declaration and the New Natural Law ANHATTAN Id. Arguments considered so far in this Section have sought toSection have sought in this considered so far Arguments If I am in bed with you, I can have in bed with am an experience If you, I I of to believe if there is an intimacy that only I intimacy too experience, that are which implies believing you this think that for a similar experience.you having I If intimate communion, that will enable is a moment of andthe same way, me to think in the so to have experience of intimacy. on the otherIf, hand, think I . . . is irksomethat our joint sexual to activity you have, then, whatever orgasms sensations and other I I therefore and I that there is no intimacy, will realize cannot have an experience of intimacy. tian Conscience, 113. 113. M 114. demonstrate the religious character and unappealing content the of new natural lawyers A key part of the value of consensual sexualA key activity involves a unique level and type of personal interdependence, and variable the infinitely defined perceptions by of the that it is crucially participants. Grisez 234 dependsupon intimacy perceivingtheir the them in around world such a way to believeas things.certain As Moore puts it: BAMFORTH FINAL-MG (D thors proclaim themselves as having thors proclaim themselves as having Christian denominational differences (another coauthor, example, for and former Watergate defen-is prominent Protestant fundamentalist now time to consider the practical continuing role of debate about com-be neatly which can by new natural law, something illustrated paring the ofarguments the Manhattan Declaration with some of his colleagues in George and those advanced by Schwarzenegger George arguments. more recent ture and lack of appeal is of those one of the three coauthors Manhattan of the Declaration, released on 20, 2009. November 29809_wlp_1-2 Sheet No. 21 Side B 06/10/2011 15:12:24 B 06/10/2011 21 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 22 Side A 06/10/2011 15:12:24 , in in ” 235 235 the au- ” ECLARATION and of re- D ” of what are of what visited Feb. 13, Feb. 13, visited ” 120 right to life, of to life, right ” and, more importantly, importantly, more and, ANHATTAN M — inherent vement.aspx (last “ HE note 10,4. at a call of Christian Conscience . . . in . in . . a call of Christian Conscience , T “ the dignity of marriage as a union of supra “ to speak and act in defense and to speak , — ) 5/11/2011) 8:01 PM to affirm our right to affirm “ born out of an urgent concern about growing ) “ ELETE Accompanying publicity describes Decla- the D 115 117 OT It is thusis It ECLARATION ” N The Declaration thus describes itself as being D O 118 ” 116 andeclaration.org/the-movement/mo compelled by our Christian faith to speak and act Christian faith our to speak compelled by “ in light of the truth that is grounded in Holy Scripture, in Scripture, in Holy of the truth that is grounded in light “ at 2. at ANHATTAN 119 ” Id. Id. Id. About the Movement Id. The Declaration begins with a lengthy attack on the constitu-The Declaration with a lengthy begins prophetic will insistently Christian witness [a] truly with temporalcall on those who have been entrusted of govern- to fulfill the first responsibility power ment . . . . The Bible enjoins us to defend those who who those themselves, for cannot defend to speak cannot themselves speak. . . . What the Bible and the of reason make light clear.clear, we must make SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW embrace our obligation embrace M K marriage as marriage a conjugal woman,union of man and ordained by God described as the Christian truths of the truths of the as the Christian described “ non-historicallythecreation, and believers by understood and from society in be thebelievers alike, to most basic institution liberty. ligious articulated natural human reason (which itself, in our view, is of a be- the gift neficent God), nature and in the very of the human person, to thors being defense of matters such as ration as having been ration efforts to marginalize in the efforts to the Christian voice public sphere, re- define marriage, and to the biblical view of the move from away ofsanctity life. 115. 115. 116. 117. 118. 119. The Declaration is thus whatusing it understands be to a Christian as a basisargument for influencing and criticizingthe law. A similar more at- which gains marriage, of trend is evident in the discussion tionally protected right to abortion, in which the authors to abortion, in protected right assert that tionally 2011] Colson Charles dant BAMFORTH FINAL-MG (D http://www.manhatt 2011). M 120. defense of biblical truths with respect to the truthsthree issues it ad- of biblical respect with defense dresses. husband and wife. C Y 29809_wlp_1-2 Sheet No. 22 Side A 06/10/2011 15:12:24 A 06/10/2011 22 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 22 Side B 06/10/2011 15:12:24 M K s ’ an C Y “ defined — [Vol. 1:2 [Vol. [t]he us teaches Bible that “ s creation covenant. Indeed, the s covenant.creation Indeed, the ’ s criteria. Readers that are thus told and that and that ’ is 121 ” — ) 5/11/2011) 8:01 PM ELETE D OT N O effectively, a running togethereffectively, a of the running natural law new WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & — 124 Much of these underpinning the reasoning statements ap- at 6. at 4. at 7. 123 writings discussed Furthermore, above. marriage 122 ” ’ Id. Id. Id. Id. actualized by loving sexual loving which the in intercourse actualized by spouses become one flesh, not in some merely meta- together fulfilling the behav-phorical sense, but by in the That is why ioral conditions of procreation. in Western Christian tradition, and historically law, not dissoluble annul- consummated marriages are or even oflable on the infertility, thoughground the nature of the marital and struc- relationship is shaped sive, multi-level sharing of life that marriage is the is made possible by sexualmarriage complemen- of man and tarity woman, and that the comprehen- marriage that of life is sive, multi-level sharing of unites husband the sort that unity includes bodily as biologically the body one. This is because and wife is no mere extrinsic of the instrument human person, of part human be- of the personal the reality but truly ing. ” [i]nScripture, the creation of man and woman, and their one-flesh 124. 124. 123. 123. marriage is a central partmarriage of God union of husband and wife mirrors the bond betweenmirrors and his Christ husband and wife union of church. as one man and one woman 121. 121. 122. This argument is, of course, highly is, of course, highly reminiscent of the new This argument natural lawyers concept of heterosexual one-fleshmarriage as union of the type with Protestant of literalism characteristic fundamentalists.biblical Fur- thermore, 236 other be- The discussion in the Declaration. subject any than tention is that marriage and states Genesis, from with a quotation gins new naturalpears to be of a character, law the statements and clearly are terms of in religious Audi BAMFORTH FINAL-MG (D ordained by institution God “ union as husband and wife, is the crowning achievement of God creation 29809_wlp_1-2 Sheet No. 22 Side B 06/10/2011 15:12:24 B 06/10/2011 22 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 23 Side A 06/10/2011 15:12:24 128 A.J. 237 237 and in and in AVID Perry 126 HALLENGE TO ” C S a covenantal ’ 303 (assessing the – — BAMA 130 ). It should thus be should thus be ). It :O 129 AW L note 3, at 279 at 3, note false and belief destructive “ ge is more about emotional, rather than than rather is emotional, about ge more supra one’ flesh union of persons”). of union flesh one’ note 13, at 17 (arguing that marriage has has marriage that 17 (arguing at 13, note , s drafting, but perhaps rathers drafting,re- but perhaps -in- ELIGION AND ’ R supra s amicus brief in argument ’ note 6, at 17 (arguing that a legal redefinition of of redefinition legal a that (arguing 17 at 6, note As will be apparent straightaway, this As will be apparent straightaway, this ICHARDS is an objective reality (2010). (2010). “ Lawrence v. Texas 127 &R ” supra MERICAN MERICAN ) 5/11/2011) 8:01 PM A ELETE EMOCRACY EMOCRACY D D AMFORTH 125 OT s denunciation of the N ’ B O HREAT TO T S at 5. UNDAMENTALISM IN IN UNDAMENTALISM at 6. at ’ , F See generally See Id. Id. Id. tured by its intrinsic orientation to the great good of good the great to orientation intrinsic its by tured procreation. SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW M K ICHARDS ATRIARCHY physical union). union). physical 130. marriage would make clear that the idea of marria of idea that clear the make would marriage vealing insofar shows as it vealing the ease the with which new natural law on a process does of practically rea- as it officially scheme, resting as an intel- serve can in fact goods, sonable reflection about human bedfellowlectual for fundamentalist Protestantism. union of husband andunion of husband wife. 127. 127. 128. ‘two bodily, been understood as “a traditionally Brief, & Anderson Girgis George, 129. Brief, Bradley & George definition very much reflects the new natural much reflects definition very law view, discussed pleasureabove, that personal and emotional satisfaction lie at do not ofthe heart marriage. Rather, the essence of lies in one- any marriage or at least on acts which on procreation, focus flesh union, with its have procreative potential. shortly will becomeIt apparent that this view is also reflected in George moral absolutes as well as the possible fundamentalism of new natural law); law); natural D of new fundamentalism possible the as well as absolutes moral clear that clear the Declaration places absolutely central reliance on the one-flesh union definition of marriage developed the new natural by the occasional is attempt to to this The one modification lawyers. un- of biblical This is with pieces literalism. pair up this definition of Protestant fundamentalist the involvement surprising, given Charles Colson in the Declaration the assertion that marriage 125. 125. 126. P 2011] concerning parallels law writings natural exactly Again, this new union. This fixedone-flesh through also shows marriage definition of in the Declaration BAMFORTH FINAL-MG (D about is all other adultromance satisfactions,that marriage and and and the unique character intrinsic way,about procreation not, in any and value of acts relationshipsand whose meaning is shaped by their aptness for the generation, protection promotion and of life R (and, earlier, in the brief(and, for C Y 29809_wlp_1-2 Sheet No. 23 Side A 06/10/2011 15:12:24 A 06/10/2011 23 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 23 Side B 06/10/2011 15:12:24 M K C Y reli- “ [Vol. 1:2 [Vol. This discus- ” 9. 9. – characterized as attempts to 135 religious liberty. religious “ s. ’ note 10, at 6.note 10, at 7 note 10, at which might otherwise which might exclude re- ” supra supra , , ) 5/11/2011) 8:01 PM 133 ELETE D OT . amend. I. ECLARATION ECLARATION N D D O Each of assertions these First, is open to question. sex education programs will be used in schools to to sexin schools will be used education programs ONST the common good of civil society is damaged when the common civil society of good “ 7. 7. 132 The Declarationthus asserts that its signatories 131 – conscience clauses, ” WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & ” “ 134 U.S. C at 9. at at 6 at ANHATTAN ANHATTAN Id. Id. See The extent to which the Declaration is keen to emphasize the the is keen to emphasize Declaration The extent which the to will not comply with any with will not comply edict that purportsany to com- participate in abor- to institutions pel our [religious] other bendanti-life. or any act; nor will we to . . tions to forceany rule purporting us to bless immoral sex- ual partnerships, treat as marriages orthem the the truth,equivalent, or refrain from proclaiming as we know it . . . . [U]nder no circumstances to Caesarrender is God what will we The authors of the Declarationauthors The alsoargue a law has that the ligious organizations opposed to the right to abortion and the legal to abortion organizations and the legal opposed to the right ligious of same-sexrecognition partnerships anyfrom toobligation recog- nize on non- advocate such arrangements, to bluntly but goes organizations their faith religious where with the law by compliance so decrees. sion begins with an attack on what arewhat with an attack on sion begins undermine priority of the religious of the religious over the secularpriority is underlined by further still its later, more of discussion general the religious liberty argument appears in reality to be saying that the to argument liberty appears in reality saying be the religious in order not of marriage definition to a biblical effect law must give of those liberty that definition, who support a the religious to offend is a there to sustain where difficult argument separa- constitutional and state.tion of church 135. 135. 132. 132. Second, the sex education argument to be appears of a classic piece how, as an in- unsupported rhetoric, that it is just not explained given M 131. M 134. 238 to recognize definethey marriage as duty the it. Otherwise, BAMFORTH FINAL-MG (D gious gious liberty of those for whom jeopardized, this is a matter of conscience is teach definitions teach religious-minded with which of marriage parents and disagree, 133. 133. the law itself . . . becomes a tool for eroding a sound understanding understanding a sound eroding . becomes a tool for . . the law itself of marriage. 29809_wlp_1-2 Sheet No. 23 Side B 06/10/2011 15:12:24 B 06/10/2011 23 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 24 Side A 06/10/2011 15:12:24 239 239 s deci- ’ s judgment con- ’ 92 (N.D. Cal. 2010)92 (N.D. (ac- 29. 29. – – Decision . Robert George filed an Perry note 13, at 28 motion to stay court tomotion district stay order pending supra , given that Judge Walker, given ) 5/11/2011) 8:01 PM ELETE D Perry OT Perry v. SchwarzeneggerPerry v. N O , Judge Walker was marry to that the freedom noted This brief, as it does whatemploying purports to be s criteria: they are rooted in commitments of religious s criteria: rooted of religious in commitments are they ’ 136 At the heart of his judgment, in terms At the heart of of his judgment, the legal status D. the and Law New Natural Perry 137 In Clearly, theClearly, arguments of the Manhattan Declaration, includ- s reasoning in s reasoning SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW ’ M K amicus brief with two others on September 24, 2010 before the Court the Court on September 24, 2010 before amicus brief with two others the district court the Ninth Circuit, appealing for of Appeals sion was that Proposition unconstitutional 8 the under Fourteenth Amendment. recognized as a fundamental constitutional right protected by the by protected recognized as a fundamental constitutional right Clause, Process andDue that the plaintiffs were exerciseseeking to that right. tains important arguments same-sex concerning and the marriage Constitution. 136. Brief, Anderson & Girgis George, 137. 921,2d 991 704 F. Supp. Schwarzenegger, v. Perry faith, and indeed seek to give priority to them, ultimately to and indeed seek priorityclaiming to them, faith, give ultimately over the if necessary. law take priority must that such commitments thus providesThe Declaration an important backdrop to, and point of the purportedlycomparison with, secular the arguments concerning in subsequentdefinition of marriage advancedGeorge by constitu- in tional litigation Due the under right a fundamental as is recognized to marry freedom the that knowledging Amendment), Fourteenth the of Clause Process 2011] consequenceevitable of recognition the legal of same-sex partner- described of the type sex programs education mandatory ship rights, would inevitably appear in all schools. Third, the common good ar- only presentsgument a is first problem if one convinced of the offered of marriage of the definition soundness in the Declaration, and also if one believes the ill-defined, slippery-slope-type notion inevitably brings change with it ill-definedthat legal social change, be to feared.which is inevitably nature in are of a religious the good of marriage, the treatment of ing terms of Audi BAMFORTH FINAL-MG (D secular constitutional argument concerning the good of marriage, can with the openly religious of the arguments thus be compared directly Manhattan Declaration, a comparison which simi- strong will reveal larities between the two. engaging in Before such a comparison, however, it is first necessary to explain in further detail the district court C Y 29809_wlp_1-2 Sheet No. 24 Side A 06/10/2011 15:12:24 A 06/10/2011 24 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 24 Side B 06/10/2011 15:12:24 M K ” C Y a marriage a marriage “ [Vol. 1:2 [Vol. procreative ’ Connecticut, v. Griswold 40 (1974) (documenting the the (documenting (1974) 40 cf. – certifying question to Cal. Sup. Sup. Cal. to question certifying . . promot[ing] a way of life, not not life, of way a promot[ing] . . This reflected a shift in the This reflected a shift in the 139 ” Evidence for such a shift included Evidence for such a shift included 61 (reviewing the history and evolution of mar- theof and history evolution 61 (reviewing – Turner v. Safely, 482 U.S. 78, 95 (1987) (holding (holding (1987) 95 U.S. 78, 482 Safely, v. Turner 140 138 at 958 ) 5/11/2011) 8:01 PM see also s life. ’ ELETE D OT see also id. N O 93; – s choice to build a family with another and a family s choice to build ’ (“Freedom to marry has long been recognized as one of the vital personal personal vital the of one as recognized been long has to marry (“Freedom WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & , 704 F. Supp. 2d at 992. 992. at 2d Supp. F. , 704 2010 WL 3212786 (9th Cir. Aug. 16, 2010), Cir. Aug. (9th 3212786 WL 2010 at 992 Id. Id. Perry The state had never inquiredinto the parties [m]arriage has[m]arriage retainedcertain characteristics throughout the history of the United States . . . . two parties to requires their free consent to formgive [It] of a the foundation then forms which a relationship, household. . . . The spouses must . The stateregu- consent . to support . each other and any dependents. lates marriage because creates stablemarriage house- the basis of a stable, turn form holds, which in governable populace. . . . The state respects an indi- vidual protects the relationship because it is so central a part of an individual wholly wholly apart from procreation, choice and a piv- play privacy “ 630 F.3d 898 (9th Cir. 2011); 2011); Cir. (9th 898 F.3d 630 riage in States). theriage United 139. 139. 140. history of marriage law, from the earlier understanding of marriage of understanding of marriage marriage law, the earlier from history institution, toward an understandingas a gendered whichfrom state- and men and accordingwhich absent to roleswere mandated gender treated as women were equals. Ct. 434 Redhail, v. Zablocki right); constitutional is a fundamental marry to decision the that important to all is fundamentally marry to right the that (holding (1978) 384 U.S. 374, 639 632, U.S. 414 LaFleur, v. Educ. of Bd. Cleveland people); appeal granted appeal choicelong freedom of recognitionof Court’s regarding 388 Virginia, marriage); v. Loving (1967) U.S. 1, 12 causes.”). 138. capacity or intent before a marriage issuing licence, for men.”); by happiness of pursuit orderly the to essential rights . together coming a is (“Marriage (1965) 486 479, U.S. 381 240 of same-sex partnerships, his was ofassessment the character of mar- evidentiary findings, Judge Walker was to earlier riage. By reference clear that BAMFORTH FINAL-MG (D license is more than a license to have procreative sexual intercourse and otal role in the marital relationship. 29809_wlp_1-2 Sheet No. 24 Side B 06/10/2011 15:12:24 B 06/10/2011 24 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 25 Side A 06/10/2011 15:12:24 s ’ 149 re- ” “ . . . of of . . . as a 241 241 s Due ” ’ same-sex same-sex “ genders had genders ’ Significantly, Significantly, 142 did dif- not become “ making it easier for it easier for making 141 59. 59. – 10 (West 2006) (“Dissolution of the marriage marriage the of (“Dissolution 2006) (West 10 ) 5/11/2011) 8:01 PM The genders of the The genders parties aside, 143 ELETE Recognition of committed same-sex Recognition relation- D ” and that the right to marry to marry and right that the Domestic partnerships, as recognized in 145 OT ” , 704 F. Supp. 2d at at 958 2d , F. 704 Supp. As such, the evidence did not reveal any histori- did not reveal any As such, the evidence 93. N – 148 O 144 94. 94. s obligations under the Fourteenth Amendment Perry – ’ , Cal. Fam. Code § 23 § Code Fam. , Cal. , at 992 do not provide the same social meaning as marriage, “ at 993 at 993. 993. at at 993. 993. at 147 . at 994. 994. . at Rather, those opposed to Proposition 8 were merely seeking merely 8 were Rather, those opposed to Proposition Id. Id. Id. Id Id. See id. Id. See, e.g. See, e.g. Judge Walker was clear that the availability ofJudge Walker was clear a that the availability separate re- 146 SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW M K 146. 146. 147. 148. 149. ferent simply because the compatible of marriage became simply institution ferent equality. with gender 144. 144. 145. couples are situated identically to opposite-sexin terms of couples and obligations to perform the rights of marriage their ability excludingcal purpose for same-sex given couples from marriage, had tothat married couples never been required procreate. Instead, the exclusion merely reflected a time when the parties a position which was and marriage, society a distinct role in played the no longer case. consistent with tradition, and practice ofships was the history, mar- riage in the United States and did not involve the creation of a new right. legal institution. legal spouses to define their ownspouses a roles within marriage, and California given his eventualgiven conclusion of the unconstitutionality concerning Judge Walker 8, Proposition that such suggested developments flect[ed] of understanding an evolution in the gender rather than a in marriage change elimination of marital obligations based on based gender. of marital obligations elimination 143. 143. the parties may be based on either of the following grounds . . . irreconcilable differences, differences, irreconcilable . . . grounds following the of either on based be may parties the . . .”). the caused breakdown of the marriage. have irremediable which 142. 141. 141. gime of domestic partnerships of domestic gime for same-sex couples under California mark out thoselaw merely served as to symbolically relationships ofbeing a lesser status than opposite-sex partnerships and did not fulfill the state to have their partnerships recognized for what namely were, they marriage. Clause. Process 2011] emergencethe of no-fault laws, divorce BAMFORTH FINAL-MG (D an institution Judge Walker had earlier categorized in his evidentiary categorized in his evidentiary Judge Walker had earlier an institution California, California, C Y 29809_wlp_1-2 Sheet No. 25 Side A 06/10/2011 15:12:24 A 06/10/2011 25 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 25 Side B 06/10/2011 15:12:24 M K C Y — the force of the force [Vol. 1:2 [Vol. 16 (1997) (sum- 16 (1997) “ – He noted that noted that He and had been 156 sex couples”). — - 536 (West 2006)). – the latter standard the latter standard Judge Walker also also Walker Judge 155 152 Domestic partnerships 151 marriage statutes, §§ 300 while finding as an evidentiary matter while matter finding as an evidentiary 154 157 Such stigmas, Judge Walker reasoned, Judge Walker reasoned, Such stigmas, ) 5/11/2011) 8:01 PM 153 ” City of Boerne v. Flores, 521 U.S. 507, 515 507, U.S. 521 Flores, v. Boerne of City California’s California’s ELETE D OT N O ee also Those whoa person wished to marry of the same 158 . (reasoning that since the evidence showed that withholding “marriage” “marriage” withholding that showed evidence the since that . (reasoning WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & , 704 F. Supp. 2d at 996. 996. at 2d Supp. F. , 704 (comparing California statutes California (comparing domestic partnership,for Code §§ Fam. Cal. at 997. 997. at at 995; s 995; at . at 973. 973. . at 974. . at . at 978. 978. . at . The sole basis on which California determined whether a a whether determined California basis on which The sole Id Id Id. Id. Id See id Perry Id Id. Judge Walker concluded that Proposition 8 could withstand Judge Walker concluded Proposition 8 could that 150 sex couples to an “inferior same deniesthat institution marriage 299.6 (West 2006), with – from plaintiffssignificantly from disadvantaged them, and the record reflected that marriage is a superiorculturally statusProcess partnership, to not domestic that was Due offering by met same- 153. 154. 155. 156. 156. 158. 158. 152. 152. marizing the strict scrutiny standard of review). the standard of marizing strict scrutiny 157. being used under the Duebeing Process the produc- heading and requiring narrowly in question was to showtion of evidence measure that the a tailored to serving compelling interest. government found as evidentiaryan that Proposition 8 matter placed and law behind a broader against gays lesbians, includ- set of stigmas similar to intimate relationships have and lesbians do not gays ing: as hetero- not as good and lesbians are heterosexual couples; gays the deserve lesbian do not and full sexuals; relationships gay and of society. recognition explicitly withheld the status of marriage same-sex status of marriage withheld the from explicitly couples something which significantlysomething disadvantaged them created specifically to withhold that status. gays and lesbiansgays experienced discrimination based on unfounded prejudices,stereotypes and 297 150. 150. 151. 242 the definitive as expression social findings commit- and of love ment. BAMFORTH FINAL-MG (D couple was designated oras married as a domestic was partnership sexes of the partners. the respective helped to reserve the most the helped to reserve socially valued forform of relationship opposite-sexroles for couples and to entrench distinct and unique men and women in marriage. that Proposition 8 increased costs and decreasedthat Proposition 8 increased costs wealth for same-sex couples in terms of tax and health insurance burdens, while singling that suggesting treatment by for unfavorable out lesbians and gays incapablewere they of long-term forming relationships and were not parents. good neither rational review, basis nor strict scrutiny 29809_wlp_1-2 Sheet No. 25 Side B 06/10/2011 15:12:24 B 06/10/2011 25 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 26 Side A 06/10/2011 15:12:24 243 243 note 21, 21, note The evi- supra , 164 s developmental EORGE ’ Furthermore, tradi- 29; G 29; 161 – 162 97. 97. – note 21, at 126 at 21, note supra supra , The only possible basis advanced for dis- basis advanced possible The only In this case, Judge Walker concluded, the ) 5/11/2011) 8:01 PM 159 163 ELETE D OT , 704 F. Supp. 2d at at 996 2d , F. 704 Supp. N O genders irrelevant were to children Good of of Marriage Good ’ 99. 99. Perry – (And it is in worth noting, this regard, that the new , In addition, Proposition 8 did not make it more likely likely it more not make addition, Proposition 8 did In 160 , 704 F. Supp. 2d at 997. 997. at 2d Supp. F. , 704 Finnis, Finnis, 166 at 980. 980. at . at 997. 997. . at . at 998 (citing Williams v. Illinois, 399 U.S. 235, 239 (1970)). 239 235, U.S. 399 Illinois, v. Williams (citing 998 . at . at 998 (citing evidence showing that Proposition 8 the harmed state’s interest 998 . at In relation to procreation and parenting, Judge Walker was Walker was Judge and parenting, to procreation relation In See Id Perry Id Id Id Id. See, e.g. Under the more deferential basisUnder review standard of rational 42. 42. SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW 165 – M K 161. 161. that opposite-sex couples would marry and raise biologi- children marry would that opposite-sex couples that it didcally related not advance to both parents, any suggesting identified state interest. drafted,As it was Proposition had 8, in fact, of children,no direct connection to the upbringing instead simply tradition underpinning Proposition 8 was related to the now- related tradition underpinning 8 was Proposition roles in marriage. discredited notion of distinct gender natural lawyers have themselves gone to some lengths to defend the to defend have lengths to some themselves lawyers gone natural of infertile opposite-sexright couples to marry.) dence suggested that the of same-sexrecognition would relationships not effect a sweeping social change, could have a neutral or even on thepositive effect institution and of marriage, would benefit the state. (under the Equal(under Protection a heading), rational relationship must be the shown between classification adopted theand object government drawn in order to the classification must not be to be attained, and the law. by group burdened the disadvantage tion alone could not form a rational basis for a law; instead, the state which could not le- itself, tradition needed an interest than the other better than opposite-sex the claim that were gitimize relationships same-sex relationships. 159. 159. 160. clear that same-sex equal quality of opposite-sex were parents and and that parents outcomes. 2011] sex lesbians (i.e., hadmen) and theirhad gay to do right so elimi- 8. Proposition nated by BAMFORTH FINAL-MG (D 163. 163. 164. in by gender equality mandating that men and women be treated differently based on anti- gender). of notions discredited and quated 165. 166. at 140 162. tinguishing between same-sextinguishing opposite-sex and couples related to the but of biological sexual reproduction through intercourse, possibility sexual as a proxy be used could orientation how explain not this did fertility. for C Y 29809_wlp_1-2 Sheet No. 26 Side A 06/10/2011 15:12:24 A 06/10/2011 26 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 26 Side B 06/10/2011 15:12:24 M K C Y 171 ) ” [Vol. 1:2 [Vol. (raising the the evidence the evidence ” “ 174 168 (Judge Walker had (Judge 170 a private moral view that a private moral view that “ conclusively that moral and religious conclusively that moral and religious “ Additionally, and in direct contradiction of contradiction and in direct Additionally, of ) 5/11/2011) 8:01 PM 167 ELETE D OT [m]arriage in the United in the been[m]arriage States has always a N “ 173 O ” 1000. 1000. Section I.C. Section – WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & Indeed, it showed Indeed, For example, same-sex allowing would couples to marry at 999 at at 956. 956. at at 1001. 1001. at 1002. at 172 . at 999. 999. . at 169 Id. Id Id. Id. Id. Id. Id. See supra Judge Walker concluded as a matter of law that what re- same-sex couples simply are not as good as opposite- good not as same-sex are couples simply sex couples. Whetherthat belief is based on moral animus towards gays disapproval of homosexuality, a relationship a belief that be-and lesbians or simply tween a man and a woman is inherently better than a between tworelationship two women, this be- men or lief is not a proper basis to legislate, on which ” mained of the case for 8 was the notion that Proposition earlier noted that, civil matter. . . . Religious leaders whether to recognize a marriage or divorcecivil but that recognition may determine independently under state law. no effector lack thereof has on the relationship shows that the shows that rights of those to opposed or same-sex homosexuality will remaincouples unaffectedthe if state ceases to enforce Proposi- tion 8. 167. 167. given that the Constitution could not give effect give that the Constitution could not togiven private biases. enacted on the evidence, Proposition 8, 169. 170. 171. same-sex couples inferiorare to opposite-sex couples 172. 173. 174. 244 deny to serving same-sex stability, as- including the benefits, couples with marriage. sociated of freedom faith-basedany the religious not restrict organization to to recognize refuse a same-sex partnership. BAMFORTH FINAL-MG (D The evidence also suggested (again, as discussed suggestedThe evidence also (again, same- above) that legal the same forsex all relevant partnerships were and opposite-sex purposes. the claims made in thethe claims Manhattan Declaration, 168. 168. views form[ed] the only of Propo-part of the defenders basis [onviews form[ed] the the only sition 8] for a belief that same-sex couples are different from oppo- site-sex couples. 29809_wlp_1-2 Sheet No. 26 Side B 06/10/2011 15:12:24 B 06/10/2011 26 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 27 Side A 06/10/2011 15:12:24 in 177 — 245 245 plays a plays As in As in hetero- — 176 s judgment. ’ ” from 7. 7. – conversion “ by by contrast with the Manhattan note 13, at 5 note 13, at Third, and following from the Third, and following from the — s view of the institution 179 ’ As Judge Walker had noted when As Judge Walker had noted when supra gay or lesbian, entailing inaccurate or entailing lesbian, gay 175 ” of same-sex relationships. ” ) 5/11/2011) 8:01 PM become s Amicus Brief , disadvantagethat the imposed from arose ’ “ ELETE D OT , the could of voters majority of not use the power N inferiority O “ Romer dressed strictly in the vocabulary in the vocabulary dressed strictly of federal constitu- E. George — Second, the new of marriage natural law definition at 12. at at 1003. 1003. at 988. at (2003)). 582 571, 558, 539 U.S. Texas, v. Lawrence (citing 1002 at 178 Id. Id. Id. Id. As noted earlier, Georgecoauthor of is the lead an amicus s decision is the nature of marriage. George and other For new litigation, written litigation, in opposition to Judge Walker SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW ’ M K central part in their argument, albeit Declaration tional law rather than belief. religious However, in an interesting parallel with the Declaration, is used the definition in with alliance argumentsconservative distinct, non-new natural law against the of same-sexrecognition marriage. direct opposition to Judge Walker opposition to direct 179. 179. Lawrence v. Texas the law. theirthe state to enforce through moral convictions 175. 175. 176. 177. 178. Brief, Anderson & Girgis George, 2011] inference, from BAMFORTH FINAL-MG (D natural lawyers, marriage is the one-flesh union of husband and wife, Four points about theFour brief are significant for present purposes, and each will be considered in turn. First, George and his colleagues ac- 8, a role in Proposition played arguments knowledge that religious the use of such arguments in the constitutional and attempt to defend context. Proposition 8 thus could not survive rational basis review under basis could not survive Proposition 8 thus the review rational Clause.Equal Protection the the for Ninth Circuit in of Appeals brief submitted to the Court Perry second point, a critical battleground for opponents of the district opponentssecond point, a critical battleground for of the district court reviewing thereviewing evidence, in the campaign offavor 8 had Proposition on relied fears that children exposed to the conceptsame-sex of mar- somehow riage might insinuations about the possibility of the insinuations about possibility having a non- should dread that parents fears and implicit sexuality heterosexual child, propositions again reduced which to stereotypes concerning the animosity toward the group affected), a type of toward affected), which disapproval a type the group animosity prohibited. constitutionally was C Y 29809_wlp_1-2 Sheet No. 27 Side A 06/10/2011 15:12:24 A 06/10/2011 27 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 27 Side B 06/10/2011 15:12:24 M K ) C Y 182 181 . [Vol. 1:2 [Vol. and Perry albeit not inevita- marriages — honored Loving v. Virginia , having to do 8. 8. – 183 note 13, at 4 (citing Loving v. Virginia, supra note 6, at 3, 7 at 3, 6, note supra s arguments in his earlier in his s arguments brief in amicus ) 5/11/2011) 8:01 PM ’ and (by referenceand (by to — ELETE where the same one-flesh where of uniondefinition D 180 OT i. The Role of Religious Argument by state by recognition. , both inescapably normative N 10. 10. O – adherence which is . . . . adherence which is . — 5, 9 – WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & at 4 at at 11 (emphasis added). added). (emphasis 11 at Id. encouraged with morality or basic purposes or values: (1) the with morality ends the moral of marriage, and (2) wor-of the institution thiness of adherence the to norms of marriage so con- ceived However, it is worth emphasizing in response to this argu- in response However, it is worth emphasizing legal recognition of certain as relationships necessarily involves taking a position on at least two two on at least involves taking a position necessarily questions, Each point will now be considered in turn. considered be Each point will now In relation to the first point, concerning the role of religious the role of religious relation point, concerning to the first In . Id. . 182 to reconcile with George with to reconcile Lawrence v. Texas ment that it is unremarkable to state that ment that it is unremarkable rules concerning marriage, 180. Brief, Bradley & George 338 U.S. 1 (1967). 1 (1967). U.S. 338 246 only certainperforming sexual potential, with procreative acts for Judgewhereas Walker,a it is companionate of mu-relationship tual social, economic, and spiritual, emotional, physical support, the sexes of the spouses. the brief appearswhatever difficult Fourth, 181. Brief, Anderson & Girgis George, BAMFORTH FINAL-MG (D that laws concerning marriage involve the type the type involve marriage that laws concerning judgments of value about the common good can be found throughout the law andwhich authority. that can be ascertained without appeal to religious Hence, they argue, the marriage was prohibition of con- invoked in support of the criminal marriage sexual senting between activity men, a consequence to which George do notand his colleagues their offer support open in 183. 183. bly religious moralitybly argument, George and hisargument, suggest that colleagues it is in- logically concerning and legislation amendments evitable that constitutional the boundaries of marriage entail some moral view, that questions about justice are inescapably matters of morality 29809_wlp_1-2 Sheet No. 27 Side B 06/10/2011 15:12:24 B 06/10/2011 27 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 28 Side A 06/10/2011 15:12:24 ” — 420 í to be 247 247 level 412 ” 2010 WL WL 2010 note 3, 3, note at — This is a This is a . In other . In 27, 37 (1982) 27, 37 (1982) í 185 . supra REEDOM , F 628 F.3d 1191 (9th (9th 1191 628 F.3d 22, 26 particular “ ICHARDS 31 (N.D. Cal. 2010) (citing (citing 2010) Cal. (N.D. 31 whatsoever private moral or reli- when stipulating that when stipulating – holding that justifica-only the &R ORALITY OF EMOCRACY M D HE OCIAL OCIAL ,T However, George and his col- Lawrence AMFORTH S accompanying secular purpose AZ “ B 186 R It needs to be stressed that Mac- It 184 IGHT AND OSEPH OSEPH see also R certifying question to Ct. Sup. Cal. ) 5/11/2011) 8:01 PM EGAL ELETE ,L for example, concerning the role of law in rela- D (whetherconception broad or narrow) must be OT — N O ORMICK in relation to any C from assuming overriding priority. overriding As the use of assuming from the ” level outlined level above. AC motion to stay district court order pending appeal granted granted appeal pending order court district to stay motion — ” M particular EIL that is, conceptions which operate at the that is, conceptions which operate Id. without — “ SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW general “ 2011) (certifying state law question appellant’s state law of standing). (certifying 2011) 31. 16 (1947)), (1947)), 16 í í M K the state does not have an interest in enforcing interest the state does not have an gious beliefs without an accompanying secular purpose thus must be free to make their own choices of morality, and concluding that the best (discussing disestablishment, moral suggesting a theory that humans are autonomous and best the that concluding and morality, of choices their own to make free be must thus governing system would include limited establishmentmoral constrained to prevent exces- J freedom); human of repression sive proposition that is widely accepted in U.S. constitutional law and accepted in U.S. constitutional is widely proposition that to exclude conceptions and which serves specific various of right wrong 25 185. U.S. 1, 330 Educ., Bd. 930 921, of v. 2d Everson and Supp. (2003) F. 571 U.S. 558, 539 704 v. Texas, Lawrence Schwarzenegger, v. Perry 186. 186. 15 16, 2010), Cir. Aug. (9th 3212786 184. N 184. 2011] widelyor other acceptedmoral views institutions, social reflect in normative understood of conceptions broad and widely of the form As Neil and undesirable. or wrong and desirable right is what andMacCormick Joseph Raz have shown, without such an acknow- sense of wide to make if not impossible, it is difficult, ledgement law. of the substantive areas BAMFORTH FINAL-MG (D just outlined word makes clear, Judge Walker does not appear to have been saying that the state may not enforce any moral beliefs words, he seems to be acknowledging the of arguments possibility at the actually entails the enforcement of morality, and thus governments should promote the actually entails the enforcement and of morality, thus governments should the promote their of constituents);quality moral tion for coercively interfering tion a person coercively prevent for with is to others harming from him (1986) (suggesting that John Stewart Mill’s harm principle— Mill’s harm that(1986) Stewart John (suggesting Cormick, Raz, this view present their argument and others who share accept To reflect generality. at a level of some that laws generally to mandate is not inevitably of right and wrong broad conceptions that any theoriestion to contested rights and individual of the good advanced and convincingly defended in order to survive scrutiny. In Judge Walker invoked his judgment, adopted in any adopted in any situation. For, given matteras a the latter of logic, conclusion requires a further, much more openly normative level, or levels, of argument Cir. C Y 29809_wlp_1-2 Sheet No. 28 Side A 06/10/2011 15:12:24 A 06/10/2011 28 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 28 Side B 06/10/2011 15:12:24 M K C Y , 704 F. , 704 F. Perry have to do “ [Vol. 1:2 [Vol. el. doubtless ad- 35 (1996). Interest- 35 (1996). – — s conclusion in s more specific ’ ’ 6. 6. – s judgment to task at the to task at s judgment ’ note 13, at 20. note 13, at 5 note 13, at although the point is not answered head-on head-on answered not is point the although In the view of George and his and his the view of George In George and his colleagues also George and his also colleagues 187 188 supra supra sex couples” at the district court lev district sex couples” at the - ) 5/11/2011) 8:01 PM . Romer v. Evans, 517 U.S. 620, 632 620, U.S. 517 Evans, v. Romer . ELETE D that OT N — level. In reality, it is unremarkable that analysis of of that analysis it is unremarkable level. In reality, O that a constitutional amendment motivated by ani- motivated by that a constitutional amendment the goods at stake in such a public institution as mar- a legitimate basis for legislation, not being reducible not being legislation, basis for a legitimate “ ” 8. This is arguably contrary— is arguably This 8. lar” The brief concludes with the argument í u Romer v. Evans Romer v. WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & 189 to at 6 that ” — albeit with an to reference extremely of limited range Id. George his and colleagues then proceed to argue that while [s]upport for [Proposition 8] need not involve a desire 8] not involve a desire [s]upport [Proposition need for to harm or disadvantage, reliance on bare tradition or animus, or even moral of homosexual disapproval conduct. The irreducibly normative content of Propo- — defined as the union one man and one of woman, “partic — ” very likelyvery “ Supp. 2d 2d at 931. Supp. 189. Brief, Anderson & Girgis George, riage, with public morality and welfarewith public morality are themselves secular both, and purposes. the constitutionality ofthe constitutionality normative 8 entails Proposition debate about of constitutionality, in terms of marriage: of the institution the nature the views ad- of nature and for the basis is instead crucial what is words, the other the of vanced in favor In disputed amendment. argument advanced by George and his colleagues the about inevita- used in debate about normative claims being of fairly general bility not undermine JudgeProposition 8 does Walker particular stipulation concerning privatemoral beliefs or religious that lack an accompanying secular purpose. supporters many Proposition of have been 8 may reli- by motivated reasons, thegious fact that a moral supported by position is a reli- in is not sufficient tradition consideration it from to disqualify gious support of a legislative proposal. 188. 188. in brief the based arguments abandoned having as described also 8 are Proposition of supporters ingly, opposite of superiority theon “moral vanced in an effort to avoid the Supreme Court Supreme vanced in an effort to avoid the Romer v. Evans mus was unlawful assert sources 187. Brief, Anderson & Girgis George, 248 appearleagues taking to be Judge Walker BAMFORTH FINAL-MG (D more colleagues, the belief that between colleagues, a relationship a man and a woman is inherently better than a relationship between or two men between two women, or moral disapprovala view entailing of homosexuality, is to irrational emotional responses. 29809_wlp_1-2 Sheet No. 28 Side B 06/10/2011 15:12:24 B 06/10/2011 28 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 29 Side A 06/10/2011 15:12:24 191 ” very “ 249 249 Bowers v. Bowers v. s treatment ’ 190 the that the fact gov- “ Gill v. Office of Pers. Mgmt., Pers. of Mgmt., Office v. Gill s dissent in s dissent ’ e Supreme Court’s conclusion in in Court’s conclusion e Supreme to be invoked in support invoked in support to be s interests. ’ and that moral disapproval see also 226. 226. — – 78 (2003) (quoting Bowers v. Hardwick, v. (quoting (2003) 78 Bowers – argument the about that inevitability ” ) 5/11/2011) 8:01 PM and that it is acceptable contentious position ELETE general , citing Justice, citing Stevens ” D “ 90 (D. Mass. 2010) (citing th (citing Mass. 2010) (D. 90 í OT marriage law at all: a claim about the lawthe about at all: a claim marriage N O text accompanying text notes 221 any specific motivations which George and his colleagues claim to “ Lawrence — , made the point terms that , made in strong at 28. at and infra Id. sition 8 is the same as the same 8 is the sition irreducibly normative con- tent of and an endorsement or ends of marriage, purposes and encouragement adherence of to those as worth- state with the consistent while and be raisedTwo issues must about the argument at this stage. ), a legitimate basis for legislation are revealing extremely inso- legislation basis for a legitimate s passage, and how far it is seeking to avoid it is seeking confronting them.and how far s passage, ” ’ s rather loose statements support that Proposition for 8 need not SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW ’ arguments rooted in religious tradition rooted in arguments M K may not, or may not always, prove not, or sufficient not always, may on deepermay analysis. The the how far the question begs looseness of these statements rather with brief is concerned the actual, day-to-day realities of the cam- surrounding Propositionpaign 8 and the consequences of the Propo- sition Moreover, the arguments tradition and concerning moral disapproval have in any event been rebutted in earlier cases. CourtThe Supreme in majority Hardwick erning majority a State has traditionally in viewed a particular prac- a law. upholding for sufficient reason tice as immoral is not a 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)); dissenting)); J., (Stevens, (1986) 216 186, U.S. 478 699 F.Supp. 2d 374, 389 Lawrence 190. 190. 191. 577 558, U.S. 539 Texas, v. Lawrence 2011] George First, and his colleagues appear to have without real moved, explanation, from a moral views, broadly understood, a play role in the law BAMFORTH FINAL-MG (D of a widely institution accepted through to the as marriage, such much more for of measures such as Proposition 8. As explained one above, cannot a Instead, in this way. to the specific the slide from general simply further level, or levels, of argument needed. Second, is or are the brief is moral disapproval tradition or animus and that entail bare likely supporters many that very the allow for as they exactly far possibility driven in fact the illegitimate by of Proposition 8 were motivations concerned their own arguments be absent from Since George his and colleagues do not seem to be suggesting that C Y 29809_wlp_1-2 Sheet No. 29 Side A 06/10/2011 15:12:24 A 06/10/2011 29 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 29 Side B 06/10/2011 15:12:24 M K C Y — non- “ motion to [Vol. 1:2 [Vol. When coupled When coupled same-sex couples 192 “ ” that supporters of supporters that ends(i.e., its specific Perry note 13, at 12. actually is excluded in from consideration The brief then engages in what The brief then in what engages 2010 WL 3212786 (9th Cir. Aug. 16, 16, Aug. Cir. (9th 3212786 WL 2010 once their werearguments sub- ” 195 In consequence, In before one can supra — to the claim that to the claim that 193 630 F.3d 898 (9th Cir. 2011). Cir. (9th 898 F.3d 630 — s conclusion in s conclusion in ) 5/11/2011) 8:01 PM ’ ELETE D s various evidentiary thefindings concerning ’ OT ii. of Marriage The Definition N O majority moral belief “ WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & George and his colleagues argue that the fact that some (emphasis added).(emphasis were correct, the in fact this point reinforces If in play. at 13. at George and his use colleagues initially this argument, — forms of association. forms Id. Id. Moving to the point second Moving about the brief set out above ” 194 ” certifying question to Cal. Sup. Sup. Ct. to Cal. question certifying one must determine what marriage 195. 195. 194. 194. with Judge Walker conferred disadvantage on same-sexforms of symbolic by couples their exclusion marriage, underline the unreality from this point helps of the social distance that the briefseeks to maintain be possible may between the passage of attachment of socialProposition 8 and the same-sex to stigma and partnerships. partners 193. Brief, & Anderson Girgis George, 192. 2010), Cal. (N.D. 991 921, 2d Supp. F. 704 Schwarzenegger, v. Perry granted appeal pending order district court stay 2010), without more, as a basis for asserting that since the definition of mar- asserting without more, as a basis for riage is a substantive normativenot matter, it is for the something courts to determine, thus precluding any judicial assessment of of Proposition 8. constitutionality the 250 of 8 supportersProposition beliefs moral their the majority formed theconcerning on the amendment constitutional new basis of evi- that exactly conclusion the argument,dence or seems hard to resist it ofthe types BAMFORTH FINAL-MG (D forced back Proposition 8 were examination jected to critical simply are not as good as opposite-sex couples. opposite-sex as as good not are simply may be described as may relatinga somewhat rhetorical strategy to public and purposes) and why it should be recognized inlegally the first place. conclude that a violates policy particular a fundamental marriage or to equal protection, example, for marry to constitutional right, “ arrangements are left out of the definition of marriage is a feature of left of marriage is a feature arrangements are out of the definition legalany system in which marriages are distinguished from concerning the concerning aboutcentrality it of argument to the definition of marriage marital Lawrence power of Judge Walker 29809_wlp_1-2 Sheet No. 29 Side B 06/10/2011 15:12:24 B 06/10/2011 29 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 30 Side A 06/10/2011 15:12:24 251 251 UALISM IN -D ELF S s commitment can sometimes can sometimes ’ — ODY [i]t has also been [i]t has also been “ ,B EORGE to form and to form con- G — OBERT (frequently transient) emotional ’ &R 219 (2008)).219 – EE L 176 here, those of marriage those here, 196 ) 5/11/2011) 8:01 PM — of relationship intrinsically oriented intrinsically of relationship ATRICK ATRICK OLITICS OLITICS that ELETE P D kind — OT N and only such couples O — THICS AND AND THICS marriage would, in this view, suggest that the institu- that would, in this view, suggest marriage E ” this time, it is openly acknowledged, by George and other and George by acknowledged,openly is it time, this at 17 (citing P at 17 (citing Id. summate the and childrearing; and that (c) ifto procreation only its cor-and union bodily involves inherently marriage orientation toresponding can children one fully make sense of the other marital norms of permanence, ex- for non- annulability and monogamy, clusivity consummation, etc. By way ofBy comment, it should be noted that as it is presented, (a) opposite-sex couples are capable of real bodily bodily of real capableare opposite-sex couples (a) union (in mating, whether or not conception can or such possible for it does occur); this makes that (b) couples ”— s purposes or ends s purposes ’ SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW M K ONTEMPORARY Redefining 196. 196. C “ about crucially adults tion was unions rather than about children, weakening societyunions rather 2011] subtly a set of conserva- differing to present an attempt or as belief, um- within one of marriage to the definition relating tive positions brella heading. George his colleaguesand argue that as a general matter, the effects of obscuring the public understanding of insti-an tution BAMFORTH FINAL-MG (D to claims made even if the damage the common good, do significant that incorrect. They suggest thus in fact are about the institution some supporters of Proposition plausibly claim that obscuring 8 may the whatever good, marriage harms the common the purposes of (it is unclear conduct. Such supporters homosexual moral status of whether George and his concerned) fallcolleagues be- into the group lieve that heterosexual the pro- is marriage for the best environment of children. However, duction and upbringing argued of to the stability George marriage. and his thus suggest colleagues that same-sex partnerships cannot sinceever constitute marriages cannot fulfill the ends define them. of marriage as they they George by the argument concerning and his colleagues the definition of marriage is insufficient to explain their assertion about the limits new natural lawyers C Y 29809_wlp_1-2 Sheet No. 30 Side A 06/10/2011 15:12:24 A 06/10/2011 30 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 30 Side B 06/10/2011 15:12:24 M K s ’ C Y — Romer s terms ’ [Vol. 1:2 [Vol. 19, 28. 19, í brief. Furthermore, 5, 12 s argument the about í ’ Perry ’ note 13, at 4 13,note at characterizedAudi in of conservative to arguments find — ” supra is simply not enough on enough not its ownis simply to — s first two criteria, and despite the brief and despite the s first two criteria, ’ : not merely the: not merely new natural definition law ) 5/11/2011) 8:01 PM coalition “ ELETE for for example, the content that in issue turns on D Perry OT — N iii. The Good of Marriage As was noted earlier in Section I.A, this definition in Section this definition noted earlier I.A, As was O 197 . WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & Turning to theTurning third point about the brief set out above, it It is also important to focus on the brief is also important to focus It Lawrence of the good of marriage, of the good relat- arguments but also other conservative to morality constitutionaland ing law (as discussed above). character, the definition its that, excluding religious should be clear ofof the opens up the definition marriage, good to exactly the criti- Moore, and others) its sub- Macedo, by concerning cisms (developed This be felt earlier. stantive unattractiveness point might highlighted rather rather as with the Manhattan Declaration, George appears content on this occasion to allow a voice in the briefvoice in notion of two-in-one flesh of communion, the discussion of the good has no analyticalmarriage whether in the Manhattan foundation, lawyers or the new natural Declaration cannot be understood at a general level as being other thananything in terms of Audi religious attempt to rely on constitutional argument (albeit qualified by asser- (albeit qualified by on constitutional argument attempt to rely motivations in a con-of religious the permissibility tions concerning to warrant this is offered from departing stitutional context), nothing religious the conclusion. Without 197. Brief, Anderson & Girgis George, 252 properto the of role courts. concerning Argument the of content a right constitutional moral deliberation substantive competence or appropriate the limits of the determine of par- activity latter issue the that right. to Instead, in relation ticular institutions applicable, generally of more must entail consideration institution- rather thanrelated, exclusivelycontent-related, concern- arguments of such of powers. Consideration such as the separation matters ing not apparentissues is, however, in the brief. BAMFORTH FINAL-MG (D purposes of marriage. definitionThe substantive advanced is the religious explicitly in law definition, offered classic new natural Germain and pre- Grisezthe Manhattan Declaration terms by and in deployed writers by viously such as John George and Finnis as the constitutional the in cases arguments like in context basis for and 29809_wlp_1-2 Sheet No. 30 Side B 06/10/2011 15:12:24 B 06/10/2011 30 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 31 Side A 06/10/2011 15:12:24 s ’ 253 253 Brief and the Brief and the the alterna-given that the state may Perry 9. 9. – Perry Perry thereby expressingmoralthereby — [t]here is no logical contradic- note 13, at 8 note 13, at “ . This point focuses on George . This point focuses supra Brief ) 5/11/2011) 8:01 PM Lawrence s earlier arguments in his brief, coauthored arguments s earlier Proposition 8 does not stigmatize same-sex- ’ “ ELETE brief concerning the symbolic effect of Propo- Lawrence They thus seek to argue that Proposition 8 can 8 can that Proposition thus seek to argue They D OT 198 N iv. Between Inconsistency the O Perry without criminalizing it, a point they associate the with they it, a point without criminalizing — at 23. to contravene Clause of the Fourteenth the Due Process Proposition 8 does not prevent people from forming private private not prevent people from forming 8 does Proposition Id. The fourth point set out above focuses apparent on the The fourth incon- 199 brief and George SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW ” M K 199. 199. same-sex partnerships; rather, it merely precludes the state from rec- suchognizing arrangements. Indeed, 198. Brief, Anderson & Girgis George, tive understanding of to marriage, relating mutual social, emotional, and financial support, companionshipsexual and that activity, was Judge Walker.advanced by well, reasons might This definition for to above, bealluded felt to to be closer a normatively desirable un- derstanding of the purposes of marriage and other long-term sex- than theual/emotional partnerships new natural law definition, which is inflexibleand prescriptive. that tion in holding while the state introduce may legal structures to not . it may . norms or idealsencourage adherence to certain moral . 2011] particularto have resonance the context in of BAMFORTH FINAL-MG (D be clearly distinguished from the anti-sodomy statute held in statute held in distinguished the anti-sodomy from be clearly Lawrence argue,Amendment. Proposition 8, they leaves the criminal law un- touched. Furthermore, Californians, impugn theirattracted character, or blemish their permanent criminal record anymore than any marriage law so harms (whether because whom marriage of fail-in prospect those for is not ure to find a mate, workabsorbing responsibilities, or any other rea- son). with Gerard Bradley, in Bradley, with Gerard in theargument sistency between the arguments of George and his colleagues in their between and his the arguments in their colleagues of George sistency Perry sition 8. George and his colleagues argue in decline to sponsor or promote something disapproval broader moralassertion that a normative judgment about the value of is prior any to marriage ofmoral assessment the ofacceptability ho- mosexual conduct. C Y 29809_wlp_1-2 Sheet No. 31 Side A 06/10/2011 15:12:24 A 06/10/2011 31 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 31 Side B 06/10/2011 15:12:24 M K e- C Y 202 ” The The (citation 204 is heav- — [Vol. 1:2 [Vol. that the assertion that the that marriage, as a that marriage, — Perry does not stigmatize, “ is, to put the point mildly, is, to put mildly, the point 201 ” s practical consequences for ’ ). ). pass a written examination, noting statistics statistics noting examination, a written pass s analysis in ’ Lawrence ) 5/11/2011) 8:01 PM at 26 references a restrictive interpretation toof at (discussing ELETE D OT N Washington v. Davis, 426 U.S. 229 (1976) (examining a facially a facially (examining (1976) 426 U.S. 229 Davis, v. Washington O see also id. WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & brief may be to provide a further example brief may thought of the at 25; at 23. at to have an unfairly discriminatory effect in social life. A A discriminatory effect in social life. to have an unfairly Id. Id. Id. See generally See Before directly examining the inconsistency issue, it is worth worth issue, it is examiningthe inconsistency directly Before 200 203 ” Proposition 8 does Proposition not stigmatize Perry “ that valued social institution, is reserved for some couples for onlyis reserved valued social institution, that the measure suggesting symbolic. ily In apparent of apparent failure George toand his colleagues this point in grasp their ofunattractiveness their substantive argument. highly unrealistic in social terms. Law frequently social terms. frequently unrealistic in plays highly a symbolic Law role in society, debate and it is hard to see why about of the passage haveProposition 8 should been fought so hard on either side unless it clearly was assumed that some form in of was symbolic message the measure quite apart from play, same-sex couples if passed and enforced. This is fromquite apart the of findings byfact Judge Walker, noted above in con- Section I.D, somecerning of the political messages inflammatory concerning campaignerswerechildren which sent for 8, or Proposition out by 8 content of Proposition the very the point that more neutrally worded measure have also may such an effect, just as an apparently facially neutral measure government can be found in practice to have a disparate impact on a disadvantaged group. 200. 201. autonomy in the majority judgments in inautonomy the majority 202. 203. prohibit- 2, Amendment that (holding state of or executive level (1996) ing d judicial or “all legislative, government any local 624 action at 620, 517 U.S. Evans, v. Romer 254 in service. ofsame the . the heavyuse hand of. law criminal goals. of Judge Walker in light noting BAMFORTH FINAL-MG (D ostentatiously hostile terms as the disputed Amendment 2 in or perhaps thecolleagues and his are missing George even avoiding need of not Proposition 8. A measure social reality be drafted in such hostile terms as the disputed 2 in Amendment ostentatiously Romer signed to class, the protect a class named shall refer towe as homosexual persons or gays and strict scrutiny lesbians,” failed analysis and therefore was unconstitutional) omitted). 204. applicants force police that requirement neutral thatshowing African American applicants passed the than test less frequently appli- white Protec- Equal the under required was purpose discriminatory of proof that but holding cants, tion Clause to invalidate challenged the because impact). requirement its discriminatory of 29809_wlp_1-2 Sheet No. 31 Side B 06/10/2011 15:12:24 B 06/10/2011 31 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 32 Side A 06/10/2011 15:12:24 de- the ” ” 255 255 , they The essence of The essence of by criminalizing criminalizing by 206 208 George and Bradley George and Bradley ” Poe v. Ullman Central to George and and to George Central brief, the definition of 211 209 ” Perry is, and has been under-always “ [e]ndeavoring to prudently protect [e]ndeavoring protect to prudently s dissent in same-sex acts can never deviate oc- “ ’ “ note note 6. supra Texas constitutionally may choose to pro- ) 5/11/2011) 8:01 PM , where Bradley had acted as counsel to the “ confining sexuality to lawful marriage form a pattern so toconfining lawful sexuality a patternmarriage form so ELETE they claimed, they As such, D ” being that being OT ” 207 N ” O Lawrence brief and previ-Gerard he and the position Bradley 10 (citing Poe v. Ullman, 367 U.S. 497, 546 (1961) (Harlan, 546 (1961) 497, J., dissent- 367 U.S. Ullman, v. Poe (citing 10 – Marriage, That brief urged that the constitutional legitimacy of the of the urged That brief legitimacy that the constitutional “ Perry the union of a man and a woman. at 5. at 3. at 4. at 5. at 17. at at 9 s argument was, as in the later Citing Justice Harlan Citing 205 “ s ’ reasonable means and protecting marriageof promoting Id. Id. Id. Id. Id. Id. Be that seems there may, as it Be between an inconsistency to be ’ “ 210 SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW ” M K critical difference suggested that thesuggested state authorized was by the Constitution and re- thequired by new natural law notion of the common to pro- good bedroom and of the marital the privacy respecting by mote marriage discouraging sexual acts outside of marriage. marriage. marriage. stood by our law to be, two-in-one a bodily, stood by flesh union of per- sons. only sexualonly acts between persons of the same sex, just as they could adopt more permissive ormore restrictive regimes sexual for acts be- the statute As things stood, persons. tween opposite-sex, unmarried was a their argument their argument thatwas same-sex by intimacy marital prohibiting deviatetect acts, while tol- unmarried opposite-sex behavior similar erating by persons, “ fined as Bradley 205. Brief, Bradley & George 206. 207. 208. 209. 210. 211. ing) (reasoning that “laws . . . ing) (reasoning “laws that deeply presseddeeply into Constitutional ourdoctrine that of the any in social life substance this area buildmust upon that basis.”)). 2011] George Texasimpugned anti-sodomy statute be confirmed. BAMFORTH FINAL-MG (D Court to adopt urged the U.S. Supreme coauthoredin their ously in amicus brief and promote marriage by . . . reasonable means,Texas and promote marriageare by. legislators . liablescarcely to charges on mere prejudice of acting against a class to certain acts, or in servile re-of persons, unreasoned moral hostility of either liance upon mere popular disapproval cur within marriage, during an engagement to marry, during a court- an engagement during to marry, during cur within marriage, relationship ever that could or within any ship prior to engagement, to marriage. lead conservative groups Focus on the Family onconservative Research andFocus the groups the Family Family Council. C Y 29809_wlp_1-2 Sheet No. 32 Side A 06/10/2011 15:12:24 A 06/10/2011 32 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 32 Side B 06/10/2011 15:12:24 M K ” ” C Y Rever- Lawrence 216 [Vol. 1:2 [Vol. non-marital brief), they “ A value-free A value-free s brief, the cru- ’ 213 Perry all sexual acts out- — , George and Bradley , George and Bradley unmarried deviate sex unmarried “ accompanied by the claim that accompanied by defined, to that thereargue was a — s discouragement of ’ brief) there could be no restrictions recognition of same-sexLegal part- s traditional authority to promote mar- to promote s traditional authority 217 ’ Perry could not be arbitrary. could not be Eisenstadt Baird v. ” ) 5/11/2011) 8:01 PM Also citing an institutional competence ELETE D 215 even criminal sanctions by Leaving to one side the various logical jumps jumps to one side the various logical Leaving ” the State OT Any distinction between Any N “ — 218 O 212 19. – WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & Relying on Relying at 10. at 11. at 16. at 17. at 18 at at 13 (citing Eisenstadt v. Baird, 405 U.S. 438, 448 (1971) (reasoning that the the that (reasoning (1971) 448 438, U.S. 405 Baird, v. Eisenstadt (citing 13 at 214 Id. Id. Id. Id. Id. Id. Id. albeit without explaining it as a concept in the marital sexual acts — “ sought to invoke sought and sal of the Texas law to exclude the criminalization of consenting same-sex sexual acts in private would imply that marriage was not limited to the union of man one and one woman, or was not a key principle of sexual morality. marital regime was also impossible; without moral limits (another was also limits (another marital regime moral impossible; without usedargument in the later numbers including on the on who could marry, in a of the partners marriage. 212. 212. 213. 214. 215. purpose is, among such ofother of laws the against reasons, defend home to the sanctity andpremarital extramarital sexual intercourse)). 216. 217. 218. riage by deterring side of marriage. 256 state the stress that tried to also BAMFORTH FINAL-MG (D and questionable assumptions and in George Bradley argument (again, something later echoed in the (again, argument othernerships as something than the new natural law notion of bod- or two-in-oneily communion of persons, and its conversion merely into an association of individuals seeking from one another certain emotional, sexual, satisfactions, and psychological would be a fun- damental change. suggested that if thesuggested definition of marriage was to be changed, it judges. representativeselected rathershould be by than by presentcial point for purposes is that George and proceeded Bradley to use the new natural law two-in-one flesh union definition of mar- riage it was crucial to protect so marriage brief, least of sense brief, least all its religious and extra-marital a requirement sexual of acts was and the common naturalin new terms, rather defined law of marriage, good objective than arising from lesbiansa dislike of and men gay or a paternalistic punish. desire to 29809_wlp_1-2 Sheet No. 32 Side B 06/10/2011 15:12:24 B 06/10/2011 32 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 33 Side A 06/10/2011 15:12:24 220 257 257 Given Perry v. 219 Gill v. Office of s Due Process and s Due Process ’ , even George though and namely that namely of the United States that the two briefs are consistent on the ba- on the consistent are briefs two the that s role in the drafting ofs role in the drafting both. ’ — Lawrence striking observation is that the new new the observation is that striking may have equalmay potential. — ) 5/11/2011) 8:01 PM 221 ELETE . explanation of this apparent Without further absolutely D OT N O rief authors are merely arguing about legal regimes which, out of a a out of which, regimes legal about arguing are authors merely rief Perry , and alongside them new natural law arguments Sex Marriage 24. , the federal Defense of Marriage Act of 1996, which of 1996, which Act Defense of Marriage , the federal – F. Continuing Relevance of Against Same- Relevance Continuing Arguments F. Gill brief, one brief, one at 22 at Id. In It is important to observe that theIt in issues s reliance on the Fourteenth Amendment SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW ’ Perry M K sis that in both, the b the in both, sis that possiblerange of are possibly consistent regimes, as the authors withmarriage theof good to be are range the of limits the of definition exact the is, it. That defined have briefs the of elected representatives by taken However,or electors rather than judiciary. the the distinc- tion involved here an is of extremely technical character, and might be hard to reconcile thewith extremely detailed and substantive prescriptive content natural the of new lawyers’ marriage. of good 221. 2010). (D. Mass. 374 2d Supp. 699 F. Pers. Mgmt., of Office v. Gill 220. argue to possible be perhaps, It might, seeks to restrict the federal-level to a partner-seeks to restrict definition of marriage ship of one man and one woman and allows U.S. states not to recog- nize same-sex partnerships have they where been recognized by Judge Tauro declared unconstitutional ap-other U.S. states, was by the basis standard of review merely of deferential rational plying leg- his fellow briefhis fellow writers use the same reasoning to hadclaim that they no such aim in ofchange the arguments position, in theemployed two briefs appear despitehard to fit together, George the consistency ofthe consistency reasoning this with much of the used reasoning in the 219. 219. 2011] Texas anti-sodomy impugned the basis for statute. rational BAMFORTH FINAL-MG (D natural law two-in-one law natural flesh idea union of was marriage used to try the same-sexcontinuing criminalization of consenting to justify sex- in private in ual acts committed Schwarzenegger against the legal recognition of same-sex marriage, areunlikely to go while one thing, away. For the outcome of the attempted appeal to the district at the time of writing, the Ninth Circuit is unknown court be ultimately the way that Equal Protection Clauses suggests may open to argument before the Supreme Court. another,For an addi- tional recent district court decision District Court for the District Court for Massachusetts in District of Personnel Management C Y 29809_wlp_1-2 Sheet No. 33 Side A 06/10/2011 15:12:24 A 06/10/2011 33 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 33 Side B 06/10/2011 15:12:24 M K C Y fur- s cri- ’ argu- While While 227 ’ Perry v. Perry v. 226 may verymay ” s denial of s denial of [Vol. 1:2 [Vol. ’ — s Proposition 8. In 8. In s Proposition ’ Moreover, the court Moreover, the court only sexual only orientation 224 “ irrational prejudice. “ under the 1996 involving a Act, ” The court further dismissed argu- dismissed further The court if not 223 ” . In this the. newregard, In natural lawyers s reasoning and that of JudgeWalker in ’ ) 5/11/2011) 8:01 PM ELETE D OT N O including including at the federal appellate level litigation concerning California concerning litigation 97. 97. 97. 97. – – — WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & The district court district The drew Act to the attention at 387. 387. at 389. at 396 at at 397. 397. at 396 at 222 Id. Id. Id. Id. Id. As the issues havein Section considered shown, the new I Judge Tauro concluded that it was in relation to the unjustifiable role of sexualrole to the unjustifiable orientation in ex- in relation 225 The Way of the Lord Jesus the of The Way distinction without meaning distinction without well follow. This being so, it is interesting to note the apparent simi-the apparent to note interesting so, it is follow. This being well between Tauro Judge larity Perry same-sexcluding couples participation in the from established right of marriage. havenatural lawyers the legal continued against rec- campaigns their the of same-sex in particular through partnership rights, ognition of Robertpublic arguments George. The new natural law logic con- of marriage the cerning to one mangood relating and one woman certain only sexualperforming potentialacts with procreative con- continues also That logic such arguments. basis for the tinues to form to be used both in openly religious contexts such as the Manhattan more secular and the officially Declaration context of the Schwarzenegger are in terms of Audi religious ments about marriage ultimately reality, and whatever the context, the new natural lawyers and whatever the context, the new natural reality, of Germain Grisez the writings their roots in in particular given teria, in the execution pending appeal, decision has been stayed of the ther argument questioned whether it was constitutionally appropriate it was constitutionally questioned whether Congress for upon a definitionto seek to impose state-level of marriage authori- ties. 222. 222. 223. 224. 258 islation. BAMFORTH FINAL-MG (D marriage-based a marriedthat differentiates entitled to federal couple onebenefits from not so entitled “ benefits to same-sexbenefits couples. ments that there was any between rational relationship restriction the to opposite-sex rights of marriage of and the encouragement couples opposite-sexprocreation, more se-or making responsible marriages cure, or the allocation of scarce resources. 225. 225. 226. 227. F. 699 of Pers. Mgmt., Office v. Gill Appeal, Pending Judgment Staying 09-10309-JLT). Order (No. Mass. 2010) 3742d (D. Supp. 29809_wlp_1-2 Sheet No. 33 Side B 06/10/2011 15:12:24 B 06/10/2011 33 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 34 Side A 06/10/2011 15:12:24 . - EV For For ty.”). 259 259 230 .L.R ” HI the notion that the notion that , 64 U. C , 64 228 ” 242 (1995). (1995). 242 proper political rea- “ in due course. in due “ position concerning mar-concerning position IBERALISM L — On this view, reasonable com- view, On this public reason, “ 229 OLITICAL OLITICAL . The concerns that David Richards ,P are presented  AWLS R ) 6/10/2011) 12:47 AM The Idea of Public Reason Revisited Reason of Public The Idea 800. 800. OHN OHN ELETE that is, theories concerning is truewhat or – J D  OT OT N O see also Publicly Reasonable Theory in Relation to Marriage? to Marriage? Theory in Relation Publicly Reasonable , John Rawls, , John Rawls, s well-known idea of G. A Possible Counterargument:G. a as New Natural Law ’ JCI 6.05 (D at 771, 776, 799 776, 771, at at 784. 784. at 775; at Perry v. SchwarzeneggerPerry v. FOR FOR that is, reasons which are not given solely theby comprehen- and, on its merits,and, on unattractive See, e.g. Id. Id. Id. Before leavingBefore this part of the analysis, one counterargument is This counterargument seeking intoeffectively to bring play will be in competition and that reasons will be in competition and that reasons for political decisions, — SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW 231  ”— M K riage to be entrenched as non-religious in contexts their purposes to categorize attempts in U.S. constitutional such as law, despite their highlighted in our and earlier I of new naturalanalysis law therefore realcontinue to be of constitutional relevance. Rawls, religious views of may within the am- the common Rawls, religious fall good bit of public reason when expressed in terms of proper political rea- sons. in a well-ordered rival democracy, constitutional comprehensive doc- trines of the good right passage the including of beparticularlaws, must therefore capable of shared all citizens by being as free and equal citizens whatever their personal comprehensive doctrines. 228. 228. 2011] beas defined campaign to continue fora reli- ultimately what must gious BAMFORTH should be briefly considered: namely whether, notwithstanding the should natural lawyers be viewed as try- the new so far, points made in to participate ing a conscientious attempt to engage with reasoning accessible to all whendiscussing the definition of marriage in a pub- lic, constitutional context, if even the bedrock for their views might lie in their Catholic faith. John Rawls 765, 766 (1997) (arguing that “[c]entral to the idea of public reason is that it neither criti it neither that is reason public of idea to the “[c]entral that (arguing (1997) 766 765, as insofar except nonreligious, or religious doctrine, comprehensive any attacks nor cizes that doctrineincompatible the is essentials with public of reason and poli a democratic 229. 230. 231. prehensive doctrines, both secular and religious, may be introduced may prehensive doctrines, both and religious, secular into public political discussion provided that sons and which sive doctrine or doctrines to justifyare in play sufficient the position being advanced C Y 29809_wlp_1-2 Sheet No. 34 Side A 06/10/2011 15:12:24 A 06/10/2011 34 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 34 Side B 06/10/2011 15:12:24 M K i- 31 31 C Y [n]atural s formu- might be might book’s crit ’ “ available at available — [Vol. 1:2 [Vol. URISPRUDENCE Using these these Using Robert P. George P. George Robert including including its 234 .J.J — ” that all should be that all should be M  see also It will suffice for will suffice for It Finnis also defines as defines as Finnis also , 42 A , 42 235 11; – 232 ” note 3, at 6 (asserting that while 63, that (asserting note at while Finnis further accepts that further accepts that Finnis as expounded by St. Thomas 233 supra ” — , note 21, at 10 at 21, note 6 (Oxford Legal Studies 6 Legal Research Paper (Oxford No. s law-makers and other rulers (in- ’ ICHARDS supra supra , &R in determining in determining and enforcing the require- “ ) 6/10/2011) 12:47 AM Finnis has nonetheless statednonetheless has Finnis that ” ELETE D AMFORTH OT OT namely, the good of marriagenamely, the good N B On “Public Reason” “Public On O  Natural Law and Liberal Public Reason Public and Liberal Natural Law Natural Law Theory WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & JCI 6.05 (D the notion that religion). public reason, ” at 8 (categorizing Roman Catholicism after the Second Vatican Council as a a as Council Vatican the Second after Catholicism Roman 8 (categorizing at “ — FOR FOR eory of public reason). reason). public of eory Id. generally See Public reason and its relevance to the assessment natu- and its relevance of any Public reason While lawyers new natural the do not accept Rawls it is possible for a salvationist, and to it is possible for creedal, expansionist religion Salvationist que does not). not). que does ral law theory law theory areral complex subject matters. & Christopher Wolfe, & Christopher Wolfe, many criticisms new natural of law focus on the conceptreason, public that of able to be thought toaccept. correct, this might criticallyIf dilute, if not eliminate, the significanceof the points made in previous parts of nature of new this Section concerning natural lawthe religious ar- about marriage. guments Aquinas a feature of classical political thought consequence that same-sex marriage would be impossible unappealing, the definition must be seen itself as seeking to offer a forreason action statements, it might be suggested be that evenstatements, it might if the definition of mar- riage advanced by the new natural lawyers set of problemspresent purposes to outline a key with the counter- just presented.argument These problems stem from the fact that the define they of marriage, as lawyers categorizenew natural the good in their basic theory.it, as a foundational, objective, good other In people should that all reasonable action a reason for words, it offers 232. Finnis, Finnis, 232. 260 BAMFORTH lation of law theory law theory otheris nothing than the ofaccount all the reasons-for- be able to accept, to because people ought action which precisely these are and valid, good, as reasons. sound (1997) (postulating a stronger, though less measured, new natural law denunciation of of denunciation law natural new less measured, though stronger, a (postulating (1997) Finnis, Rawls’s th John 233. “ including liberty, of the liberty religions respect which, if [the first mentioned religion] is true, cannotbe true. also ments of public good, the good, ments of public state voters)cluding are those entitled to impose as requirements only practical principles which accessible are their to all people whatever beliefs practices. or cultural religious 1/2007; Notre Dame Legal Studies Paper No. 06-27, 2005), 06-27, 2005), Paper Studies No. Legal Dame 1/2007; Notre http://ssrn.com/abstract=955815. http://ssrn.com/abstract=955815. 234. “ 235. 29809_wlp_1-2 Sheet No. 34 Side B 06/10/2011 15:12:24 B 06/10/2011 34 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 35 Side A 06/10/2011 15:12:24 , o- URPHY 261 261 C. M as the new as the new 90 (1980) (iden- 90 (1980) – ARK are defined in are definedin M one might one might rea- 85 — appiness” and labeling labeling and appiness” — further new natural law natural law new further 237 IGHTS R being”); being”); ATURAL N . . well- note 6, at 1 (noting the importance of “pr of importance the 1 (noting 6, at note 96 (2001) (arguing for a classification of nine nine of classification a for (arguing 96 (2001) AW AND AW L supra , are the start just so specific,, are from very not take full account of the account of full take not ATURAL ) 6/10/2011) 12:47 AM ATIONALITY ,N R ELETE D INNIS OT OT The difficulty here, though, is that the properties properties that the is here, though, difficulty The F N O morally uncontentious human relationships and morally human uncontentious and relationships 236 RACTICAL RACTICAL OHN OHN P — , J for example, as a loving, mutually supportive, long-term it might be argued that reasonable people would tend to would tend to people that reasonable be argued it might JCI 6.05 (D George & Bradley George Brief, — — arriage”). AW AND for example, aesthetic experience or play s) this brings back this brings to center new the the question stage of why FOR FOR L See See, e.g. ’ However, of marriage, the properties of the good — — SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW a crucial aspect a crucial of the counterargument in the previous para- 238 — M K ATURAL of marriage as they define them utterlyare so specific and exclusive incrediblyof many common, unremarkable, and think sonably sexual (couples practices together in long-term living sup- mutually portive sexual and emotional consensual partnerships, sexualacts heterosexualwithin monogamous marriages which short fall of the union, two-in-one flesh not impos- that it is difficult, if and so forth), new naturalsible, to view the of law good marriage as for a reason new Many able to grasp. natural law basic should be action which all goods such general terms that it is not difficult to see how one might argue argue one might see how to difficult is not it terms that such general that reasonable people theirwould understand role as general-level reasons for action. Had beenmarriage defined in equivalently gen- termseral closer to Judge rather definition (a sexual and emotional partnership Walker its role as a grasp general for action even reason if disagreed they about whether, for example, same-sex partners couldmar- count as ried. N natural lawyers define them that be cannot presented marriage and so exclusionary, plausibly in or aesthetic as goods experience.play such as the same way Quite apart from preventing the from accessible marriage good to being all graph natural layers argue about do. as they marriage At this point, the ab- solute overlap between the as presented marriage good in constitu- 236. 236. tect[ing] the institutions marriage of and by family” “strengthen[ing] the definition legal of marriage as being a union onemanof and and one woman,” citingbenefits the “tangible of m traditional 237. 2011] to grasp. be able BAMFORTH each of them as a “fundamental reason for action”). reason for as a “fundamental them each of basic goods: “life, knowledge, aesthetic experience, excellence in play and work, excellence excellence work, and in play excellence experience, aesthetic knowledge, “life, goods: basic in inner agency, peace, friendship and religion, community, h and 238. does that this I appreciate stipulations concerning the practical of requirements reasonableness/modes of responsi- is not That bility. necessary present purposes,for however. tifying life, knowledge, play, aesthetic experience, sociability (friendship),practical reason- aesthetic play, knowledge, life, experience, sociability tifying ableness, and religion as the “basicaspects of . C Y 29809_wlp_1-2 Sheet No. 35 Side A 06/10/2011 15:12:24 A 06/10/2011 35 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 35 Side B 06/10/2011 15:12:24 M K C Y are AND , EASON R Political Political EGAL EGAL . 697, 699 Is Natural Is Natural . 531, 538 T L EV UBLIC UBLIC &S [Vol. 1:2 [Vol. P IBERALISM s perceptive ’ ,L .L.R ILL AW HURCH Patrick Neal, Neal, Patrick L AW AND AW L , 47 V , 39 J., 39 C ATURAL see also ATURAL ONCERNING THE THE ONCERNING N ARTNERSHIPS s criteria, discussed above, N ’ P C in in , , EX EX -S note 3, at 10; AME S RGUMENTS supra A , ) 5/11/2011) 8:01 PM Universalism, Legal Theory, and the of Problem Gay Mar- . 705, 711 (1998) (reasoning that it is ineffective for gay gay for ineffective it is that (reasoning (1998) . 711 705, ELETE Natural Law and Public Reasons and Natural Law EV D ICHARDS OT N EACH OF EACH [i]nwe of what believe, much rational understand- O “ &R R actionpeopleoughtbe which to able to accept.” John Finnis, .U.L.R , Robin West, West, , Robin T 11 (Robert George ed., 1996). 1996). ed., George 11 (Robert ECOGNITION OF HE WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & – -for- But to acknowledge this point does not a suffi- provide But R .S There are, of course, long-standing philosophical disputes are, of There course, long-standing philosophical disputes Religion Within the LimitsReligion the Within of Alone? Liberalism To say this is not to accuse the new natural lawyers of this is not To say to accuse the new natural lawyers of LA 240 AMFORTH 1, 10 241 See, e.g. An increasingly visible An increasingly in debates aboutdimension the legal 239 “reason ” , 25 F , 25 II. T ORALITY riage 240. B 240. Law Theory Compatible with Limited Government? with Limited Law Theory Compatible (2002). A broader problem that broader is also associated(2002). inpoint the A quoted the passage problem with made is whether it is ever possible to reach a meaningful level of consensus in an area where there rea- publicly rational, a as seen be may what about views substantive divergent, strongly are sonable these(1997) religious do that beliefs follow on (stating citizens not exclusion who the insist religiousof inclusionbut upon reasons secular the reasons insist of and motivations, and motivations). 241. rights of lesbians and gay men, whether including of lesbians and gay same-sexrights partner- is the extent as marriages, recognition legal to ships should be open to which the substantive advanced arguments on either side are or should be of charactera universal rather than being culture- specific. M 239. Kent Greenawalt, Greenawalt, Kent 239. cient basis makingfor the case that new natural law arguments 262 as and contexts religious in presented as the such argument tional DeclarationManhattan becomes telling. extremely light ofthe In their the new natural lawyers, by manifested faith deep religious Greenawalt Kent illustrate neatly may good marriage BAMFORTH FINAL-MG (D in arguments up religious dressing in bad deliberately faith, acting would besecular new natural unfair not to accept that the garb. It scholars as serious most faith, and people of deeplawyers, religious believe that their marriage and sexuality about arguments likely can be arrived by at practical rather than reason through doctrinal com- mitment. observation that observation however this is ing, intertwines conceived, other with assump- tions. Liberalism, Public Reason, and the Citizen of Faith of Citizen the and Reason, Public Liberalism, 171, 183 (Robert George & Christopher Wolfe eds., 2000) (stating that “citizens of faith” of faith” “citizens that (stating 2000) eds., Wolfe Christopher & George (Robert 183 171, can agree positionswith taken by liberals and Rawlsian also agree on secular issues); policy Patrick Neal, accessible to all. Employing Robert Audi Employing accessible to all. the arguments must still be identified as religious. must still the arguments 29809_wlp_1-2 Sheet No. 35 Side B 06/10/2011 15:12:24 B 06/10/2011 35 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 36 Side A 06/10/2011 15:12:24 – ” h- 53 indivi- 263 263 24 (2002) – .302 301, L. 244 IBERALISM L L ’ universalist “ NT .&I OMP “I . . . to call write separately J. C Naz Found. v. Gov’t. of Nat. of Nat. Gov’t. Naz v. Found. OUNDATIONS OF e fact that other countries have to justify the passage of to justify F UKE UKE ” At a practical level, such level, such At a practical 243 see also , 14 , 14 D r crimes committed retarded by mentally of- Comparative Constitutional Reasoning: The The Reasoning: Constitutional Comparative 277, 2, 93 (2009) (providing an example of a of example an (providing (2009) 2, 93 277, s constitutional right to marry should to marry s constitutional right ’ stance). IMES ” Atkins v. Virginia, 536 U.S. 304, 322 304, U.S. Virginia, 536 Atkins v. cf. ELATIVISM AND THE THE AND ELATIVISM L. T ) 5/11/2011) 8:01 PM , R ELHI ELHI ELETE D ONG relativist L “ OT N (something which might which be termed (something a O 14. 14. societies whose laws (about sexuality societies is- or other laws (about whose Section II.A; II.A; Section – 242 all RAHAM RAHAM , G at 1, 13 local cultural and religious values religious and cultural local E.g. Id. (footnotes omitted); Taavi Annus, Annus, Taavi omitted); (footnotes “ SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW . See infra 244 M K culture-specific focus by examining discrimination of sodomy within examining Indian sodomy culture-specificof focus by discrimination jurisprudence). 242. disputes find voice in questions regarding the appropriatenessquestions regarding of in disputes find voice condemning sues) fail up to the to match standards demandeda by theory ofgiven be only properly may such used to assess or whether theory a justice, societythe laws of the in evolved. Hence, which it if a in-country vokes legislation which explicitly discriminates legislation against lesbians and gay the country outside on whether people from focus men, debate might can legitimately condemn by the legislation to universally reference must be their arguments or whether of justice, applicable theories culture. Related examples on the values of the local might based only include whether those of recognition the legislative for arguing same-sex point to jurisdiction can marriages in a given legitimately examples elsewhere from as evidence support in of their substantive to con- seeking would be whether those A similar point argument. vince a court that a jurisdiction be interpreted to cover same-sex couples should be able to employ case law other jurisdictions up that argument. from to back (2004). (2004). 243. case, penalty death in a (stating dissenting) C.J., (Rehnquist, attention in to the defects decision the Court’s weight . . . In place on reac to laws. foreign to th . adverts Court . . the today, its conclusion ing Arguments Right the Selecting of Strategy Law and disapproved imposition the of death penalty fo fenders.”) Capital Terr. of Delhi, 160 of CapitalD Terr. dualistic, the of institution nature of marriage”); marriage advocates deny the to essentially “relentlessly communitarian, rather than 2011] whether about arguments in particular of law the use for ways or to particular may ends with equalbe employed validity across time and across cultures BAMFORTH FINAL-MG (D eign law andeign comparative law experiences abroad). should be It stressed that for support national courts on drawing case comparative law inwhen engaging national-level constitutionalin- terpretation imply needcommitment not automatically to of theory a “universalist” justice: bethere plausible, locally may related a court should reasons why use How- such law. case 03 (2004) (chronicling recent Court Supreme opinions citingsources foreign legal and not- ingdivergingfierce criticisms, the that opinions, reliance greet including on for- sometimes ever, the issues tend often to be tied together, and it seems unlikely that one could advocate stance), or whether those arguments must be locally focused, if not or whetherstance), focused,not if be locally must arguments those (a derived locally C Y 29809_wlp_1-2 Sheet No. 36 Side A 06/10/2011 15:12:24 A 06/10/2011 36 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 36 Side B 06/10/2011 15:12:24 M K C Y efers The ggests 245 [Vol. 1:2 [Vol. Finnis su The basic human basic human The 01 (noting an ambiguity ambiguity an 01 (noting – stating that a “good” r “good” a that stating 246 ” 64 ( – at 61, 63 note 3, at 100 the notion that othernations’ experiences that notion the supra with other arguments that have arisen arisen that have with other arguments , s discussion of them. of them. s discussion . Marriage, as a good, fits within the the within fits as a good, Marriage, . divide between the universal and the divide between ’ see also id. ICHARDS ) 5/11/2011) 8:01 PM &R ELETE D themselves OT N note 237, at 23; O Same-Sex Marriage: Differences Between New Same-Sex Marriage: Differences Between New Positions Conservative Natural Law and Other AMFORTH B a set of basic practical principles which indicate the ba- supra “ , WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & Lawrence v. Texas A. Applying Law from OtherApplying Law from Jurisdictions to Oppose A. values, opening Second, up point of contrast. an interesting INNIS But see These issues are relevant issues These because purposes present for new The first point can best be understood by contrasting the new contrasting by understood be can best The first point sic forms of human flourishing as goods to be pursued and realized, and realized, to be pursued as goods of human flourishing sic forms or and which are in one another usedway by everyone who considers unsound his conclusions. to do, however what that there is regarding whether marriage is considered a “basic” or “common” good). or “common” “basic” a is considered marriage whether regarding F 246. goods are describedgoods self-evident, as intrinsic, and objective obvious, values which need no demonstration and which are desirable for their properties of the goods are distinctly universalist, a point which is is a point which universalist, are distinctly of the goods properties Finnis John captured in neatly were and should be relevant to any nation’s understanding of its own constitution. own its of understanding nation’s any to relevant be should and were 245. the use comparative of authority on anything than more half-hearted a rather and sporadic opennessbasis some had unless least one to at 264 presentsnatural law the itselfuniversalist fashion, in a given role within it ofuniversal allegedly played and basic objective goods. the (Thus, when ofgood been has marriage deployed George by and in the his colleagues context always it has been of litigation, as of which existing in the light to be in- U.S. case law needs something terpreted.) Two relevant this. newpoints emerge from First, natural other many arguments treatment of marriage from law differs in its advanced by moral conservatives in the United States insofar as it does not rest on an appeal to what are understood to be specifically American and-or rights in favor of lesbian and gay arguments while liberal same-sex marriage BAMFORTH FINAL-MG (D to a general item orto that activity a general can item be participated and in assigned a value). relativist, criticisms which have been made have been of other universalist ap- criticisms which relativist, law po- to the new natural in relation proaches might come into play the of marriage.good sition concerning natural law approach to marriage natural law approach to marriage lawyers. the new natural by identified goods scheme of general concerning concerning 29809_wlp_1-2 Sheet No. 36 Side B 06/10/2011 15:12:24 B 06/10/2011 36 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 37 Side A 06/10/2011 15:12:24 [I]f [I]f (as Re- “ ” 265 265 247 connec- “ but with- 252 Finnis also ob- Finnis tendency and the tendency  251 On this view, the On this view, the 6; George 6; George & Bradley Brief, – 253 ” even though that good is is that good even though ” too, has its own value and that, that, and value own its too, has ” , 254 , inclination Expressed more fully,  note 4 13, at 249 ” s understanding needs no further ’ Perry drive 97 (describing what goods are included as ba- as included are goods what 97 (describing  supra – and s invocation of the good of marriage in s invocation of the good precisely because they are expressed in in expressedthey are becauseprecisely at 85 at ’ ” universality of a fewuniversality basic values “ ) 5/11/2011) 8:01 PM whatever his or her personalwhatever circumstances at 87 that (noting “play basic — at 82 (distinguishing between goods and urges). and goods between (distinguishing 82 at ELETE “ D see also id. Lawrence The practical principle that a particularis good underived nor . . . its [n]either . intelligibility its OT “ N 66; 248 O – It would thus that the seem It new natural law goods see also id. see alsoid. 84. 73. 9. 9. – – 250 – at 103. ” could deny their when making value decisions concern- . at 61. Id. at 84. Nonetheless, Finnis goes on Nonetheless, the at 84. Finnis to goes role reflection emphasize of stress- by at 83 at — at 73; at at 69; at 59, 65 59, at at 70 at Id. Id. Id. Id. See id Id. Id. SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW note 6, at 8 6,note at M K 253. 253. felt themselves make can which inclinations and urges to correspond they though that ing is what prior intelligenttoof worth pursuing, consideration any the basic aspects human of well-being are discernible only to one who thinks about his opportunities, andthus are rea- directs,lizable one by only intelligently who andfocuses, controls his urges, inclinations, impulses. and 254. Brief, Anderson & Girgis George, supra such terms that no one such terms that or beliefs or act. others should the wayin which they ing 252. 252. corresponding basic formcorresponding of human good. demonstrated, he argues the by work of anthropologists similar to knowledge and to truth, knowledge is furtherunderived principle).similar not does and rest on any 250. 249. 249. 251. are to be described to are as force on rests any further principle. tion between a basic human urge one attends carefully and to the honestly relevant human possibilities one can understand, without from reasoning any other judgment, that and desirableis, as such, good possibilities of those the realization . one . . thefor human person; and necessarily necessarily employed in the briefs in order to advocate the adoption of a particular interpretation of existing U.S. constitutional case law. goods are thus clearly universalapplication, a point are in their thus clearly goods basis and marriage Grisez, as of set out by which applies in full to the good George, and otherFinnis, new natural is lawyers. this universal no-It in George in play tion that is out citation to specific anthropological data) highlights the anthropological out citation to specific gardless of perspective, of perspective, gardless that theyone can realize beneficialare and requires fur- no human beings, and this understanding for desirable justification. ther that the empirical serves justification. his amicus briefs in 247. 247. sic forms of good). good). of forms sic 248. 2011] moral presuppose or not make do judgments. sake; they own BAMFORTH FINAL-MG (D worth pursuing is worth pursuing C Y 29809_wlp_1-2 Sheet No. 37 Side A 06/10/2011 15:12:24 A 06/10/2011 37 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 37 Side B 06/10/2011 15:12:24 . M K ” C Y to OLUM should should the first the first 68). 68). “ – Further- ,40 C ,40 Robert Leckey, Leckey, Robert 260 [Vol. 1:2 [Vol. Lawrence as although non- although relied on values relied on values But cf. cf. But and the Imperative of and the Imperative 256 However, Justice Justice However, ” 262 sweeping references sweeping In his majority opin- his majority In ” as a factor supporting a factor supporting as “ Lawrence ” sodomy statute was in- statute was sodomy 257 Bowers of contradictory authori- of contradictory ” Bowers v. Hardwick Lawrence v. Texas . L. 555,555 (2004). [o]ther . . . nations have taken ac- . As is well-known, comparative comparative well-known, . As is “ ause of the Fourteenth Amendment Amendment the Fourteenth of ause for Justice Kennedy and the major- for Justice Kennedy ited foreign case law in the process law in the process case ited foreign The Court of Human Rights fol- Rights Human of Court The ” (decided almost five years before before (decided almost five years ONST the history of western civilization and and of western civilization the history 261 “ [t]o the extent [t]o the extent ” 259 “ J. C L to ’ United States:United that the Texas anti- that the Texas NT ) 5/11/2011) 8:01 PM 168 (1982)). (1982)). 168 did not take account did not – “ , 2 I note 256,555. at ELETE , 45Eur., Ct. H.R.168). at D OT N supra O Lawrence v. Texas , Justice Kennedy noted that the noted Justice Kennedy , in later cases, and later cases, in William Eskridge categorizes categorizes Eskridge William 77. 77. Dudgeon , 539, U.S.572. at – . 425,.443 (2009) (criticizing Eskridge’s analysis on the grounds thatitdoes 255 WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & EV Eskridge, Eskridge, at 514. 514. at at 573 (citing Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. at 167 H.R. at Ct. 45 Eur. Kingdom, United v. Dudgeon (citing 573 at at 576 (citing (citing illiam N. Eskridge, Jr., Jr., Eskridge, N. illiam Bowers v. Hardwick Of even more importance, Id. Id. Id. Id. Id. Lawrence See Other conservative approaches to the legal rights of lesbians of lesbians rights legal to the approaches conservative Other .L.R ) that the criminal prohibition of private, consensual gay sex gay consensual of private, prohibition criminal that the ) “ Dudgeon Lawrence TS 258 .R UM 262. 262. 260. 260. 261. 259. 259. we share with a wider civilization . . . [its] reasoning and holding ...... and holding [its] reasoning . . . civilization we share with a wider elsewhere. have been rejected 258. 258. ity, was the decision of the European Court of Human Rights in in Human Rights of Court the European of was the decision ity, Dudgeon v. Kingdom United Comparative Constitutionalism Comparative of overruling an American constitutional precedent, constitutional an American of overruling time that the Supreme Court has c has Court the Supreme time that Thick Instrumentalism and Comparative Constitutionalism: The Case of Gay Rights of Gay TheThick Case and Constitutionalism: Instrumentalism Comparative not address the possibility that selecting foreign authorities carefully allows a skewed version of of version a skewed allows carefully authorities foreign that selecting possibility the address not law). the 257. ties. U.S. authority had been cited other contexts. in U.S. authority more, Justice Kennedy wrote, Justice Kennedy more, ion in 256. W 256. 255. King- United v. Dudgeon (citing (2003) 573 558, 539 U.S. Texas, v. Lawrence 167 149, Ct. H.R. Eur. 45dom, 266 been clearly contrast, have, by States in the United men and gay more if we evident strongly becomes a point which nature, in culture-specific further consider in the majority by was mentioned case law (i.e., non-U.S.) BAMFORTH FINAL-MG (D its conclusion help justify ClProcess Due the compatible with in decision contrasting the earlier, and that be overruled. H tion consistent with an affirmation of the protected right of homosexual of homosexual right the protected of an affirmation with tion consistent . [which] has been . . conduct consensual in intimate, to engage adults part of human freedom. accepted as an integral lowed Bowers Rights. on Human Convention European contravened the made in legislation anti-sodomy to Judaeo-Christian moral and ethical standards and ethical moral Judaeo-Christian to 29809_wlp_1-2 Sheet No. 37 Side B 06/10/2011 15:12:24 B 06/10/2011 37 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 38 Side A 06/10/2011 15:12:24 ” a “ , 45 this for for The The “ ma- ” “ 267 267 the fact “ that of America of America Bowers , 537 U.S. 990, 990, U.S. 537 , ” s his- ’ with Dudgeon . . . majority cert. denied 92 (1986)92 that pro- (reasoning the United States and the United States – essed in the essed , 539 U.S. at 576). 576). at U.S. 539 , Foster v. Florida Bowers e focal points, helping an helping focal points, e provided a neutral reason a provided “ Lawrence tain behavior. Much less less Much tain behavior. libertarian traditions libertarian use of comparative authority in in authority of comparative use “ Eskridge thus suggests that that suggests thus Eskridge had been treated differently elsewhere, differently had been treated the values expr 265 deeply rooted in this Nation rooted in this deeply . Eskridge notes, however, that Justice Justice that notes, however, Eskridge “ U.S. states U.S. states ” 263 ) 5/11/2011) 8:01 PM 266 s statement from from s statement ” to believe there was an emerging consensus consensus to believe there was an emerging ’ Bowers “ ELETE D held in common between in common held note 256, at 557 (citingnote 256, at 557 OT Dudgeon had misread the had N as an empirical difference. Indeed, he was measur- difference. as an empirical Indeed, ” O ” supra Bowers v. Hardwick, 478 U.S. 186, 191 186, 478 U.S. v. Hardwick, Bowers traditionalist majority majority “ 264 had received a hostile reaction among judges in Europe judges among a hostile reaction had received ” at 598 (Scalia, J., dissenting) (citations omitted). omitted). (citations dissenting) J., (Scalia, 598 at (citing Foster v. Florida, 810 So. 2d 910 (2002), (2002), 910 2d So. 810 Florida, v. Foster (citing Id. Id. Id. Compare tory and tradition. tory rejected the claimed right to sodomy on the ground that ground on the sodomy to right the claimed rejected not was such a right do they spring into existence . . . because foreign na- foreign . because . . into existence spring do they The conduct. decriminalize tions Constitutional entitlements do not spring into existence into existence do not spring entitlements Constitutional to lessen or elimi- choose [U.S.]States some because cer on sanctions nate criminal At first sight, Justice Kennedy might appear to have been treat- appear to have might Kennedy Justice sight, At first SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW Bowers Lawrence M K Court . . . should not impose foreign moods, fads, or fashions, on fashions, or on fads, moods, foreign not impose . should . Court . Americans. scriptions against consensual sodomy have roots in American tradition), have roots scriptions American against in consensual sodomy that lawsEur. unjustifiably criminal against interfere Ct. H.R. at 168 (holding sodomy with privatea right life). to respect for and Eskridge, 266. and fellow democracies. the and in some and in some that precedent that this 263. 263. 264. Justice Scalia also emphasized that it was dangerous to use such dicta. to use such it was dangerous dicta. that Justice Scalia also emphasized Thomas Justice He cited in certiorari J., concurring denial)). 991 (Thomas, (2002) 265. 2011] this challenged dissenting, Scalia, BAMFORTH FINAL-MG (D terms. hostile strongly most obviously in obviously most wider civilization provi- legislative analogous that showing and opinion prevailing ing in upheld to those sions jority and the values and the values jority ing the inconsistency between the inconsistency ing foreign precedents were both normativ both precedents were foreign laws with fun- of sodomy the consistency to evaluate American judge feedback, normative and principles, shared constitutional damental and well as the incorrect- as harmfulness the . about . . concerns deepening Kennedy must also have been engaged in a exercise. normative must also have been engaged Kennedy C Y 29809_wlp_1-2 Sheet No. 38 Side A 06/10/2011 15:12:24 A 06/10/2011 38 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 38 Side B 06/10/2011 15:12:24 M K i- C Y was , 537 that that ” , that , that from might might ” Foster 270 ” Lawrence Cass Sunstein, Sunstein, Cass signal other [Vol. 1:2 [Vol. “ and Lawrence foreign moods, moods, foreign ”), ”), “ hen ourhas precedent been in the light of non- the light in it leap is a long “ s reiteration that it was was it that s reiteration ’ implicitly recognized implicitly “ implies a normative commit-implies a normative history and tradition history s ’ to American values and should in in to American values and should a statement which might effec- might which a statement mative role. The normative dimen- normative The role. mative country after country has recognized recognized has country after country This, in turn, helped 271 , 539 U.S. at 576 (“W “ instructive for the United States...... States. United the for instructive “ 268 ” Importing Constitutional Norms from a Wider Civilization: Civilization: a Wider from Norms Constitutional Importing was . L.J. 1059, 1061 (2004) (arguing the Court in ) 5/11/2011) 8:01 PM this Nation by reinterpretation reinterpretation by the United States goes up and the arguments the arguments and up goes States the United . L.J. 1283, 1295 prac- (2004)and judgments the that (arguing Americans know best about American values values American about best Americans know T ” “ ” T “ S S , 539 U.S. at 573 (Scalia, J., dissenting) (quoting (quoting dissenting) J., (Scalia, 573 at , U.S. 539 Strong hints of a culture-specific, normative normative of a culture-specific, hints Strong or perhaps even that the U.S. Constitution Constitution U.S. the perhaps even that or , dissenting)) (Scalia, J., 573 at U.S. 539 added). (emphasis ELETE with Lawrence with ” D HIO 272 HIO OT Furthermore, Furthermore, N on Americans, the proposition that the United States Supreme Court Court Supreme States the United that the proposition O ” “ 267 , 65 O Lawrence degraded Lawrence ” . “ Joan L. Larsen, WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & to use non-U.S. dicta which imposed imposed which dicta to use non-U.S. ” (citing (citing an assessment which clearly clearly an assessment which (citing (citing Lawrence, 65 O at 559. at at 558. at so that Justice Kennedy may have have may Kennedy Justice that so and the Rehnquist Court’s Use of Foreign and International Law in Domestic Const Domestic in Law International and Foreign of Use Court’s Rehnquist the and Id. Compare Id. Id. Id. Id. Bowers ” s comment about about s comment 269 ’ ” political experience political “ dangerous Lawrence countries that the Court is attentive to their norms and is a cooperative is a cooperative their norms and to attentive is Court the that countries court, dimension are also apparent in the rather heated suggestion by Steven by suggestion the rather heated in are also apparent dimension of academic opponent a conservative G. Calabresi, and the Constitution, according only be interpreted should no sense be no sense that statement to while it may be relevant that the European Convention prohibits dis- prohibits European Convention be relevant that the may while it of sexual orientation, the basis on crimination “ fashions fads, or sion is made explicit through Justice Scalia Justice through made explicit is sion at first look like an observation of fact, but the context and subject mat- and subject the context but of fact, an observation like look at first a nor playing was it that ter suggest 267. 267. 268. 269. 269. 270. Interpretation tutional 268 of ness Justice Meanwhile, sort. of some position to a universalist ment Scalia BAMFORTH FINAL-MG (D concurring))). J., (Thomas, 991 at U.S. 272. balancing thelaws and traditionsof the UnitedStates rather than the tradition andlaws of for- precedents). eign ticesnations foreignof international and domestic agreementsdetermine theof the content what be), should rule constitutional . . . weakened . . . criticism from other sources is of greater significance.of greater other is from sources . criticism . . weakened . . . Liberty after Once other countries have accorded gay people . . . equal treatment treatment . equal . . people gay accorded have countries Once other gay of denying the price systems, pluralist their wrenching without in people the same rights shakier. grow equality against this this rights for gay people . . . without negative consequences for the body body for the consequences negative without . . . people for gay rights politic, American precedent. tively be paraphrased as tively 271. 271. 29809_wlp_1-2 Sheet No. 38 Side B 06/10/2011 15:12:24 B 06/10/2011 38 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 39 Side A 06/10/2011 15:12:24 . , T S coa- HIO “ 269 269 UCLEAR ICHARDS 276 , N &R , 65 O RISEZ G AMFORTH B 273 ERMAIN ” see also &G employs a culture-specific a culture-specific employs would appear to differ from — OYLE universalist and relativist ap- and relativist universalist B . 274 hardly a peripheralhardly figure within , however, that this question is only question this , however, that — Perry , the Fourteenthand Amendment, the Supreme Lawrence OSEPH dissent in evaluating the scope of con- 326, 328 (1987); (1987); 328 326, and and ,J However, since the conservative position the conservative However, since position Using Comparative Constitutional Law toUsing Law Resolve Do- Constitutional Comparative L.J. 193, 216 (stating that when addressing comparative comparative addressing when that (stating 193, 216 L.J. de of universalism might come into play in play come into might de of universalism ) 5/11/2011) 8:01 PM 275 EALISM UKE INNIS George’s arguments in the Manhattan Declaration and in his his in and Declaration Manhattan in the arguments George’s R F ELETE D Lawrence Lawrence OT , 53 D N OHN OHN O 92 (2008) (exploring92 possible the this of between overlaps posi- extent ,J – ORALITY AND E.g. 285 B. of Universalism and Relativism Implications Donald E. Childress, Donald E. Childress, ,M See As noted As noted above, the issue in terms of interesting naturalnew The second point to be considered in this Section concerns the concerns the Section in this to be considered The second point nature of the conservative in in play oppositionarguments to SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW ” note 3, at M K ETERRENCE mestic Federal Questionsmestic tion and the and tion religious authors’ faith). that of the new natural lawyers, that difference serves to further un- to further that difference serves natural lawyers, that of the new about the in the previous Section made derline the observation lition of legal for lesbians the recognition men. protections and gay methodology in his methodology Amendment, the new natural under the Fourteenth stitutional rights arelawyers by contrast universalistin the camp. not, This may for of enormousthe moment, be significance practical that the given new natural lawyers would claim that the good as theyof marriage, in- (if properly reflectedunderstand it, is law in U.S. constitutional terpreted) and in society. contemporary moral conservatism moral contemporary law is that while Justice Scalia Justice while law is that supra implications of the debate between the debate of implications new above, noted law. As natural evaluation of new proaches for any the begging approach, universalist to be a aims law clearly natural ma criticisms how question note to important is It it. to relation a as seen be may universalism that extent to the in reality significant Court’s Reliance on Foreign Constitutional An Law: Reappraisal Originalist D 273. Calabresi, Lawrence G. Steven 2011] over gay country in this the culture war looming in take sides should gays. against discrimination outlawing by rights BAMFORTH FINAL-MG (D L.J. 1097, 1122 (2004). 274. a strict textualist approachembraces Justice Scalia toconstitutional law, interpreta- judicial tionis evoked that through standards modern decency). of 275. coauthored in briefs in amicus seen be can This 276. sup- are lawyers natural new the that the portersfact unilateralby of nuclear disarmament, a position highlighted thatshared is not widely among moral further is point This conservatives. articulated by Justice Scalia in C Y 29809_wlp_1-2 Sheet No. 39 Side A 06/10/2011 15:12:24 A 06/10/2011 39 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 39 Side B 06/10/2011 15:12:24 M K C Y 280 ” QUALITY E traditional traditional reveals no reveals no “ “ [Vol. 1:2 [Vol. deprives us of deprives us of “ LURALISM AND l criticisms made of made of l criticisms and P be based upon some some based upon be ” Since social meanings meanings social Since — 279 ” EFENSE OF OF EFENSE Walzer suggests, Walzer suggests, w and rights. In matters of matters of In rights. w and isting social (or legal) order of order of (or legal) social isting ” will be argued that neither ap- neither that argued will be d from this perspective, the defi- perspective, this d from :AD ent openness to local flexibility local to flexibility ent openness s own] distinct understandings of of understandings s own] distinct interpretation of the interpretation ’ an externally determined standard. standard. determined an externally ” ings is (always) to act unjustly. act to is (always) ings with different societies having their their having societies with different ” Rather, rights and rights-claims are are rights-claims and rights Rather, USTICE History, extreme form, and that we should in- should we that and form, extreme J “ 277 their place in the sun 278 authentic ) 5/11/2011) 8:01 PM “ if it is to count as just as count to is it if gin by genera considering by gin PHERES OF OF PHERES ELETE — , S D OT N O ALZER W WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & at11. 314. at ICHAEL Id. Id. Id. As Ernest Gellner notes, however, pure relativism of this type of this type however, pure relativism notes, As Ernest Gellner Beginning with the general merits and deficiencies of univer- deficiencies and merits the general with Beginning of their society in order to defend themselves. themselves. defend in order to society their of allow illiberal values allow illiberal values ” “ local and particular in character, [j]ustice is rooted in [a community [a in rooted is [j]ustice values must claim that the society fails to meet fails to meet the society that claim Sexual minorities would therefore presumably need to base their argu- would therefore presumably Sexual minorities on a sufficiently ments own notions of what is just. of what is own notions single good and no naturally dominant good. dominant naturally no and good single “ are historical in character, what counts as a just or unjust distribution unjust distribution or just a as what counts character, in are historical for uni- to search it is a mistake view, this over time. On will change la about applicable arguments versally the common than an appeal to is no more an argument mean- morality, and which in conse- community political in a given which prevail ings Walzer, For in question. community to the according quence vary “ of a shared way constitute of all sorts that things jobs, places, honors, understand these life. To override 277. M 277. xv (1983). both universalism and relativism. It It relativism. and universalism both argu- developing when approach an intermediate to advance stead aim legal the concerning including human rights, and justice ments about men. Viewe and gay lesbians of rights is lawyers the new natural by advanced of marriage the good of nition open to criticism, although universalist statements made at a suitable suffici and with generality level of be. not might that argued has Walzer Michael relativist the relativism, and salism of a conception any from emerge do not rights human ideas about humanity. universal common, 270 is It rights. human and justice of matters to in regard approach deficient to be necessary therefore in least at appealing, proach is BAMFORTH FINAL-MG (D 278. 278. 279. 280. On this view, any struggle against the ex against struggle view, any On this cannot society a given 29809_wlp_1-2 Sheet No. 39 Side B 06/10/2011 15:12:24 B 06/10/2011 39 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 40 Side A 06/10/2011 15:12:24 J.L. & 271 271 (2001), (2001), Ifmar- at such such at [m]odern [m]odern ” “ 282 ILENCE 66 (illu- (1989) ANADIAN S – 65 when they are are when they , 8 C , 8 ” ULTURE ULTURE C , Nov.1995, at 59. that is, to the values of of the values to is, that ONSPIRACY OF — for the treatment received received treatment the for ,C they would appear to be in in would to be appear they AND Relativism might well be , — — ROSPECT ATE 286 H ” , P tive self-rule: it also includes the the includes it also tive self-rule: arguments which are intended to to intended are which arguments nsequence might apply to lesbians to lesbians apply might nsequence OMMUNITY [W]e ill- are unable to tell when to express deep revulsion deep express to deep-rooted moral code? moral deep-rooted A related argument has been devel- has been A related argument “ ,C RIMES OF OF RIMES — 287 , C own Moral relativism may also make it diffi- it also make may Moral relativism exclude 284 283 of a given community, it is worrying about about it is worrying community, of a given ) 5/11/2011) 8:01 PM IBERALISM oppressing them oppressing , L ELETE The Perils of Postmodernity for Gay Rights Gay for Postmodernity of Perils The D OT Saucefor the Liberal Goose NTERNATIONAL N note 281, at 61. 61. note 281, at I O already YMLICKA K 13. supra – indeed of the right the of indeed t simply being put in their proper place proper their put in being t simply ILL ’ MNESTY MNESTY 5, 12 (1995). W — at 12 A By what means, Gellner asks rhetorically, could a relativist a relativist could rhetorically, asks Gellner what means, By This point is echoed by Gellner, who suggests that that suggests Gellner, who by is echoed This point Id. Cf. Id. Cf. 281 local ideas of and right wrong aside 285 SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW ” — M K [w]ithout culturally-neutral values, we cannot know that certain certain we cannot know that values, culturally-neutral [w]ithout URISPRUDENCE URISPRUDENCE and gay men in many societies. many men in and gay by members of that group). This co This members of that group). by improve the lot of members of groups who are highly disempowered disempowered who are highly of groups of members the lot improve rea- is no good there that treated on a local basis (assuming and badly son 286. Gellner, Gellner, 286. treatment and ill-will is warranted and when they constitute oppres- constitute they when and warranted is ill-will and treatment sion. ginalized groups can only appeal to the values internal to their culture culture to their internal values appeal to the only can groups ginalized law the to change arguments build to in order the culture that is position. hopeless an almost http://www.amnesty.org/en/library/info/ACT40/016/2001 (anecdotally illustratinghttp://www.amnesty.org/en/library/info/ACT40/016/2001 the force relativist thoughtof cultures, stating that inmen by gay and are many lesbian women viewed as less than human). thought to serve in practice to practice in serve to thought strating the case of a Muslim woman in Egypt who states that sexual discrimination is is discrimination that sexual states who Egypt in woman Muslim a of case the strating Mohr, wouldwrong be appealing values external to to her demonstrating she ap- culture, if that D. heard). be not would pleas her culture, own her of to values pealed Richard 284. J 281. Ernest Gellner, Gellner, Ernest 281. liberty differs from its ancient predecessor not merely because it because it merely not ancient predecessor differs from its liberty over collec freedom individual stresses 2011] the means circumcision, female gulags, slavery, that condoned a society condemn its of part as chambers or gas en- not simply is truth, which or trans-political notion of trans-ethnic practices. its a culture and by gendered BAMFORTH FINAL-MG (D values. 285. 285. 287. 287. 282. 282. 283. harshly treated by treated by a society. harshly can be seen as a if anything that who notes Dworkin, Ronald oped by practice social traditional cult to assess whether a group can even properly be described as un- even properly can group whether a assess cult to that suggests Mohr Richard universalist oppressed. The fairly “ aren groups C Y 29809_wlp_1-2 Sheet No. 40 Side A 06/10/2011 15:12:24 A 06/10/2011 40 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 40 Side B 06/10/2011 15:12:24 M K C Y [Vol. 1:2 [Vol. general terms terms general all societies. On On all societies. unduly unduly fit with our intuitions 290 291 enthusiasm, universalist ap- universalist enthusiasm, 219 (1985). 219 (1985). claim to universal application application claim to universal ing the laws of the laws ing with real effect at the local level level local the at real effect with society and time period in ques- in period and time society umstances, offering clear lines of clear lines of offering umstances, ultural standards by which a society a society which by standards ultural RINCIPLE RINCIPLE P Ultimately, Dworkin claims Dworkin Ultimately, tions and discriminations are and discriminations tions 289 ) 5/11/2011) 8:01 PM ATTER OF s practices rather than its mirror, implying that that implying mirror, its than rather s practices We presume, in other words, that justice is a a is justice words, in other that presume, We ’ ELETE ,AM D 288 OT N O 20. 20. WORKIN – D WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & at 219 at at 216. 216. at ONALD Id. Id. Id. [p]olitical theory can make no contribution to how we to how can make no contribution theory [p]olitical the all against struggling, by ourselves except govern toward own culture, our into us back drag that impulses which for deciding basis reflective and some generality distinc of our traditional genuine and which spurious, which contribute to the the to contribute which spurious, and which genuine to after reflection, we want, of the ideals flourishing the to protect us from only serve embrace, and which process. We cannot of that demanding personal costs and anecdote. to convention leave justice At first sight, theories which lay which theories sight, At first 289. 289. 290. about justice as something standing above localized, day-to-day life. life. day-to-day above localized, standing as something about justice However, when with too much applied of their own. On normative and practical problems proaches generate in which human of ways sheer variety the given front, the normative to not seems facile across cultures, it vary and behavior understanding also to are likely assessments moral some least at that acknowledge the to according to some extent, vary, without assert, to arrogant or even presumptuous also seems It tion. re- apply automatically must of justice theory a particular more, that in assess of the circumstances gardless are theories concern is that universalist an important the practical front, the differences given For, rights. of human as defenses prone to fail in that are expressed arguments cultures, among run the risk of not making their point their point making not of risk run the where they need to be made most powerfully. This latter point has been has been This latter point need to be made most powerfully. where they 288. R 288. defense, for example, to badly treated sexual minorities in repressive repressive in treated sexual minorities badly to defense, for example, suggests, Dworkin as might, and jurisdictions, might therefore seem attractive, for they enable similar criteria to be be to criteria similar enable they for attractive, seem therefore might in all circ used for moral assessment 272 justicewhat is. really BAMFORTH FINAL-MG (D critic of the community of the critic transc general, of matter a is justice criticized. and can be evaluated 291. 291. 29809_wlp_1-2 Sheet No. 40 Side B 06/10/2011 15:12:24 B 06/10/2011 40 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 41 Side A 06/10/2011 15:12:24 – 293 294 UMAN ATURE ]he aim ]he aim H 273 273 Conclu- ORMS OF SSAYS ON ,N N F 325, 325 :E in O , in 295 , EMINISM domi- ATURE ” N :F Edward Stein, Edward ONTROVERSY C GAINST PEAKING Rorty argues that dec- argues Rorty S , A 292 EEKS See generally See W ndings of sexuality, something which is is which something sexuality, of ndings ONSTRUCTIONIST ONSTRUCTIONIST SSENTIALLY Blacks, males to females, females, to males Blacks, than their family, clan, or tribe. family, their than C , E s view is that arguments can only can only arguments s view is that EFFREY people we are trying to con- we are trying people planetary community planetary ’ “ USS OCIAL OCIAL F S (1991) (referencing a collection of essays “[t essays of collection a (referencing (1991) viii viii basis for better legal or social treatment for for treatment social or legal for better basis IANA IANA ) 5/11/2011) 8:01 PM , D ELETE D DENTITY DENTITY Human Rights, Rationality, and Sentimentality and Rationality, Human Rights, I OT effective N See, e.g. O 25. 25. 6 (1989) (examiningdebates the between pure essence and social con- – – RIENTATION AND THE THE AND RIENTATION 3 O Abstract, universal theories which say nothing about day- nothing say which theories Abstract, universal 296 at 112. 112. at 124 at at 125. 125. at EXUALITY AND Id. Id. Id. vince will rejoin that they of the notice nothing sort. that they vince rejoin will nated by a culture of human rights, it is a rights, of no use what- nated by culture of human have in what you Notice that with Kant: ever to say, than these important is more humanity, common, your the For differences. trivial The implication of Rorty of The implication [t]o get whites to be nicer to to be nicer whites get [t]o to help our to gays, or straights Muslims, Serbs to a . . . into up link species EXUAL ,S 111, 116 (Stephen Shute & Susan Hurley eds., 1993). eds., Hurley Susan & Shute (Stephen 116 111, :S SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW IFFERENCE D M K ISTORY ESIRE IGHTS struct, using a feminist poststructuraliststruct, a feminist perspective using to addressstrengths the andlimitations bothof essentialism and constructionism); J andsion: theEssentialism Essentials of The of Construction Constructionism larations of universally valid human rights are empty if they mean if they empty are human rights valid of universally larations to constrain. are supposed they behavior whose people to the nothing AND H D 292. Richard Rorty, Rorty, Richard 292. R hope to provide an provide hope to 2011] arguments that universalist suggests who Rorty, Richard by developed effective day- guaranteeing with concerned if we are be unhelpful may ill-treatment. unjust protection against to-day to local under- sense according make where they sexual minorities standings. BAMFORTH FINAL-MG (D [of which] is to show that sexual which] identities[of show nature, is to are both historical and essential in day- in through means crucial which . the but. . history, in a traceable . . . constructed life. to-day negotiatewe the hazards of our contemporary lives”). 293. 293. 294. Many people, Rorty suggests, live in a world in which their sense of sense of their in which world in a live suggests, people, Rorty Many no further extends moral community to owe moral commitments may they that have never conceived they If moral deserve respect, groups those or that other groups, members of nonsensical. to seem likely respect them are to demands then abstract Rorty, to According 295. 295. 296. understa local assumes, one Including, extremely important given the long-standingdebate between essentialist and constructionist theorists of sexuality. C Y 29809_wlp_1-2 Sheet No. 41 Side A 06/10/2011 15:12:24 A 06/10/2011 41 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 41 Side B 06/10/2011 15:12:24 M K ” i- c- d- C Y relation- s amicus s amicus ’ [Vol. 1:2 [Vol. non-marital “ one of the organiza- the of one 14 (arguing that dec that (arguing 14 — í ity to afford effective afford effective to ity However, it is nonethe- is it However, 297 , May 18, 2008, at A18 (noting the the (noting A18 at 18, 2008, , May California Ruling onSame-Sex Mar- IMES note 13, at 11, 9 T ply “putting gays and lesbians in the same thein same lesbians and gays “putting ply 27 (1996) (holding that a proposed amen proposed a that (holding 27 (1996) with procreative potential, regard- potential, procreative with í supra onsensual sexual/emotional relation- sexual/emotional onsensual , N.Y. in, for example, Robert George Robert in, for example, reaching decisions different on matter). the ) So specific are thethe requirements of 299 ) 5/11/2011) 8:01 PM . their legal systems. their legal resonance and little resonance abil little and or the or attempted amendment to the Colorado ELETE 298 D that is, as encompassing one man and one woman man and one woman one as encompassing is, that OT N tate Constitution violated the violatedtate Constitution Fourteenth EqualProte Amendment’s O — New Natural Law Natural New —who called homosexuality “harmful to the persons who engage in it engage who persons to the “harmful homosexuality called —who that different jurisdictions might respond to the good in in the good to respond might jurisdictions different that WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & C. to as Applied Approaches of Universalist Criticisms Jesse McKinley Jesse McKinley & Carolyn Marshall, Romer v. Evans Perry Romer v. Evans, 517 U.S. 620, 626 620, 517 U.S. Evans, v. Romer See As things stand, it seems clear that the criticisms of universalist universalist of the criticisms clear that seems it stand, As things s Proposition 8, s Proposition ’ sexual practices as strictly defined by the new natural lawyers. (For ex-new natural lawyers. the defined by as strictly sexual practices Cali- such as of measures the adoption through was done this ample, fornia ment to the Colorado S less clear that the detailed content of the good remains the same across same across the remains good the of content the detailed that less clear de- for the good respect proper as a general matter the board and that toward attitude unfavorable of an the adoption mands position as all other persons,”and reasoning thatthe amendment lacked a rational views ofviews Tony Perkins, the president of the Family Research Council tions the that coalition formed supporting the California be- Marriage Protectionwhich Act 8 Proposition came at large”). and society to 299. persons from homosexual to protect designed action state all prohibiting by tion Clause disa- undifferentiated and broad a imposed amendment the that grounds on discrimination, sim than rather group, named single on a bility state interests). ship legitimate to 53 (Edward Stein ed., 1992) (examining debate Stein531992) between ed., (Edward (examining core constructionalist and essential- ist arguments in a given as to society). sexuality each theof one’s understanding of role 297. Brief, Anderson & Girgis George, brief in brief in in different ways slightly Endingriage It a Rather Fuels Than Battle 274 little have life will to-day BAMFORTH FINAL-MG (D protection. to law in relation can be applied new natural here to approaches set out the new defined by as the good one thing, For of marriage. the good as be- variations local of account takes clearly real no lawyers natural is accepted It tween societies. State Constitution which was declared unconstitutional by the Supreme the Supreme by unconstitutional was declared which Constitution State Court in of c range much wider the less of good of marriage good acts marital sexual only performing sions such as what relationships constitute marriage are political questions, which may nec- are political may which questions, constitute marriage relationships as what sions such jurisdictions result in different essarily 298. 29809_wlp_1-2 Sheet No. 41 Side B 06/10/2011 15:12:24 B 06/10/2011 41 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 42 Side A 06/10/2011 15:12:24 .L. NITED UB U 275 275 9 (1995) 9 (1995) – HE HE 6 :T , 1995 P , 1995 HARTER IGHTS C R bringing into play into play bringing it seems sensible to to sensible seems it — UMAN UMAN — ANADIAN H legal rights of lesbians lesbians of rights legal C as noted inthe discussion — stable sexual/emotional rela- sexual/emotional stable real benefit to the participants the participants to benefit real possibility that an intermedi- possibility details by reference to norma- by details AND THE THE AND , rsity of human interrelationships interrelationships of human rsity l, leaving it to different societies societies different to it leaving l, to be at all plausible if one is con- if one to be at all plausible RIENTATION AND AND RIENTATION s treatment of same-sex partnerships, partnerships, of same-sex s treatment ’ O — ONVENTION C of the new natural law approach are ever law of the new natural as including opposite-sex as well as same-sex relation- ” salist and the relativist salist EXUAL EXUAL ) 5/11/2011) 8:01 PM , S ELETE UROPEAN UROPEAN D Human A Twenty-First Rights: Century Agenda E OT N O THE THE , INTEMUTE and Universalism? sexual/emotional W “ that it must indeed be seen as presumptuous to seekto ap- to presumptuous seen as indeed be must it that In summary, Sedley denies that there are universally valid valid denies that there are universally Sedley summary, In D. Between Moral Relativism Strategy Intermediate An — 301 OBERT that exist in the world and are of and are world the in exist that Given that liberal arguments the about Given that liberal arguments In this regard, comments offered by Sir Stephen Sedley, an Sedley, Sir Stephen by comments offered this regard, In ONSTITUTION C SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW 300 M K TATES ships, which are intended to operate flexibly so as to reflect the diverse highly of relation- range Sedley, practice).ships can exist in that Stephen 301. (defining the term term the (defining 386, 386. 386. 386, 300. R 300. S 2011] ships BAMFORTH FINAL-MG (D and others ply it the world over, whether through education, social pressure, or the the or pressure, social education, through whether over, it the world ply sheer dive the given addition, law. In that unlikely highly it seems sexuality, and sex regarding and attitudes specifications the restrictive social to whether due basis, social on a broad fulfillment to find likely arguments reality, In law. of the application the through pressure or if they of success some chance stand might marriage of the good about leve general very a were presented at specific to fill in the eras and different tively desirable overarching notions relating to emotional fulfillment fulfillment emotional to relating notions desirable overarching tively and an unchanging on contrast insist by But to autonomy. and personal seem does not inflexible definition wholly I.G Section reason in of public tionships as a general matter. matter. a general as tionships the outlining by Section conclude in this cerned with promoting the importance of cerned with promoting law the men, including and gay with each approach associated the deficiencies bene- the combining thereby be adopted, might strategy or ate position a Such pitfalls. its of the worst avoiding while of each approach fits relevant universal- of would aim to draw on aspects or strategy position that this provided appropriate and where approaches ist and relativist contradiction. logical involve not did which fashion in a be done could start-useful offer a to thought be might judge, of Appeal Court English point. ing also divide into the univer the into also divide C Y 29809_wlp_1-2 Sheet No. 42 Side A 06/10/2011 15:12:24 A 06/10/2011 42 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 42 Side B 06/10/2011 15:12:24 M K e- C Y Leckey, Leckey, rstood While See 302 [Vol. 1:2 [Vol. it remains ac- remains it properly rank rank properly can rly be unde rly to the bin of relativ- to “ of which the demo- of which apply to them) apply — 305 such arguments as those others such arguments ealistic, universalist assumption assumption universalist ealistic, issue is attainable, if at at if issue is attainable, the legitimacy of human legitimacy the human rights are rooted in a par- are rooted rights human do this is, to some extent, general general extent, some is, to do this ts can only prope only ts can or criticize other societies. or criticize other specifically, Sedley has argued that has argued that Sedley specifically, any list of currently accepted human accepted human list of currently any which can be powerfully repre- can be powerfully which consigning them consigning seemingly implies that each society has each society that implies seemingly ” — automatically ) 5/11/2011) 8:01 PM without ELETE D OT s views about the content of fundamental human human of fundamental content s views about the 38,469. 447, Sedley’s approach because analogies These exist and ’ N note 301, at 387. 387. 301, at note continuities This approach must imply that we imply must This approach í O “ 88. 88. 303 – supra WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & at 386 at at 390. 390. at A society Id. Id. There are analogies here to Leckey’s “thickhere instrumentalist” to Leckey’s There are analogies approach. cratic principle is one is cratic principle sented as fundamental values, at least within the the within least values, at sented as fundamental rela- This each society. of horizons social and temporal for modest foundation tively all reducing without that, virtue the perhaps has rights a it recognizes that subjectivity, to incoherent discourse to every outcome right single and temporarily. locally only all, While the comments quoted so far are largely relativist, relativist, so far are largely quoted the comments While moral and practical continuities practical moral and s idea of ’ 304 ” note 256, 432 at ism. might advance. might ceptable to press others to adopt our standards on their merits if, at the the at if, merits their on standards our adopt to others to press ceptable listen to to we are willing same time, certain values as superior on their merits, if only for our own benefit, for our own benefit, if only on their merits, as superior certain values to used idea of justice and that the and transcultural in nature. More More nature. in and transcultural we can accept about that statements time and culture ticular it may be wrong to work from the unr to work be wrong it may that our standards are the only valid ones (i.e., to prejudge situations on on situations to prejudge valid ones (i.e., only are the standards that our standards our that the basis 302. 302. Sedley rights will vary with the times and with the times vary will rights that and place, so time of a particular be a product itself will rights claims about universal human righ However, there backdrop. historical distinctive their when set against are 276 to is impermissible it that view the rejects but rights, human of notions measure to standards use our own BAMFORTH FINAL-MG (D 305. 305. supra discursive, and transculturalof m comparative, use approachboth the Leckey’s encourage contextually the acknowledging by rights human for standards improved pursuing of thods challenged be to values those for potential the recognizing while values present of nature rooted community. or culture that for standards new into morph or evolve thus and Sedley, 304. 303. 303. 29809_wlp_1-2 Sheet No. 42 Side B 06/10/2011 15:12:24 B 06/10/2011 42 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 43 Side A 06/10/2011 15:12:24 277 277 s consen- ’ rting that our theory that our theory rting Indeed, it could go be- go could it Indeed, the presumptuousness of of the presumptuousness 307 s view that presumptively uni- presumptively s view that ’ be regarded as universally ap- as universally be regarded all times) while preserving the the while preserving times) all at any time. The interpreta-given whose values are radically different radically are values whose that our own theory is better than any than any is better our own theory that should s argument clearly distinguishes it from from it distinguishes clearly s argument ’ ) 5/11/2011) 8:01 PM ir assumption that a theory of justice can can of justice theory a that ir assumption s ground rules that we should turn. To To turn. we should rules that s ground point rather than just asse rather than just point ’ ELETE D 306 OT N s own. It would therefore refuse to talk about auto- refuse to talk about would therefore It s own. O ’ s argument by accepting that people can properly believe believe can properly that people accepting by s argument ’ of fundamental values which can be interpreted and devel- interpreted can be which values of fundamental at 396. 396. at 387. at Id. Id. admit this is to admit . . . that different societies will will societies different . that . . admit to is this admit rules, and to accept accord- ground on different agree our to review and recast both a right that we have ingly the case for the to make and an obligation standards as- to others rather than continue of them by adoption ac- self-evident, that being sertthe loftily ours, only are ceptable ones. An intermediate position or strategy could thus refuse to opt for to opt for could thus refuse or strategy position An intermediate we are to escape the cold wind of history which blows which blows of history wind the cold we are to escape and laws higher-order [universal] on sooner or later our present epoch it is to truths, self-evident sus about society sus about s argument allows us to thus reject ’ SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW bedrock M K yond Sedley yond 306. 306. 307. oped to provide a satisfactory answer answer satisfactory a oped to provide Sedley (the theories universalist to all at apply societies automatically own our to according societies, other of values the to criticize ability ofWe can justice. believe theory 2011] a the but to the circumstances, according vary may the answer tion and Fur- lip service permanent. more pay is they which to values of outline Sedley of part later a thermore, to convince members necessary that it is acknowledge but alternative, of this of other societies them. to applies Rorty endorsing while moral relativism ineffective. be to likely are theories versal BAMFORTH FINAL-MG (D if that claims He relativism. pure moral that their theory or justification or justification theory that their plicable. But however framed, such a position or strategy would depart would depart or strategy position framed, such a however But plicable. of pre- the ability about skepticism in its outlook from the universalist of disempow- to enhance the position universal standards sumptively societies in minorities ered social from the theorist C Y 29809_wlp_1-2 Sheet No. 43 Side A 06/10/2011 15:12:24 A 06/10/2011 43 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 43 Side B 06/10/2011 15:12:24 M K a “ C Y , for , for ” [Vol. 1:2 [Vol. right “ wrong to con- wrong s acceptance of s acceptance Thislast point non-relative ’ 24 (1987). 24 (1987). of reference, there of reference, there 310 can be avoided, as as can be avoided, that operates on a a on operates that — always 308 RITICISM ” ll societies have prohibi- ll societies C far it is, in practice, ever pos- practice, in is, far it right for a given soci- given for a right OCIAL OCIAL “ S neral. Despite the relativism of of the relativism neral. Despite that of his critique of relativism, to a uni- relativism, of critique of his ” accept that in order for human beings accept that in order for human beings 20 (1993). 20 (1993). for example, the inability to condemn other condemn other to the inability for example, ) 5/11/2011) 8:01 PM nt of sexual minorities nt of sexual me sort of common frame frame of common me sort ORALITY — NTERPRETATION AND , M ELETE the sense that nearly a nearly sense that the , I D OT relativist. Analytically, this question arises when when arises question this Analytically, relativist. N r question, namely how how r namely question, O ILLIAMS ALZER W W WAKE FOREST JOURNAL OF LAW POLICY JOURNAL FOREST WAKE OF LAW & wholly 309 at 21. at ICHAEL ERNARD right for a given society; for a given right Id. ety is to be understood in a functionalist sense; and that that and sense; a functionalist in is to be understood ety to con- society for people in one (therefore) it is wrong values of another soci- the with, etc., demn, interfere ety. Such a strategy would also allow us to acknowledge the acknowledge also allow us to would Such a strategy [i]n its vulgar and unregenerate form . . . [relativ- . . . form unregenerate and vulgar [i]n its . ism] . . consists of three propositions: that means (can only be coherently understood as meaning) meaning) understood as be coherently means (can only “ might be taken still further if we further be taken still might of reference which are universal in nature, even points must be certain offer indeed, so terms and general extremely expressed are in if they is- particular of discussions further for baseline minimal a very only the world over to be able to discuss certain ideas, even at a very high even at a very ideas, certain to discuss the world over to be able with so generality level of transcultural basis basis in transcultural Bernard Equally, betrayal. and deception, cruelty, murder, on tions as part draws attention, Williams that versalist Williams suggests aspect. 309. B 309. moral relativists to be claiming appear that it is M 308. As Williams points out, the third proposition is clearly clearly is third proposition the out, points As Williams demn the moral values of another society from a claim the outside, of another society values demn the moral nature. transcultural universal, of a itself which is 278 avoid seek to would so doing and by standards, applicable matically the a strategy, such invoking By in practice. moral presumptuousness relativism of pure pitfalls BAMFORTH FINAL-MG (D treatme for their societies the given strategy of universalism arrogance can the in- will which a process with others, in dialogue the need to engage take. as well as volve give power of a furthe be to sible 310. 310. considering theories of justice in ge justice of theories considering of the existence Walzer acknowledges Michael work, much of his kind of minimal and universal moral code moral universal and minimal of kind 29809_wlp_1-2 Sheet No. 43 Side B 06/10/2011 15:12:24 B 06/10/2011 43 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 44 Side A 06/10/2011 15:12:24 279 279 relevant posi- relevant debate by the arguments of the of the the arguments debate by s, purport to be transcultural in in be transcultural to s, purport highlights the lack of reality as- lack of reality the highlights nt it remains an open question question an open remains nt it arity but also for practical reasons reasons for practical but also arity a context such as the Manhattan as the Manhattan such a context ticle, rather, has been to argue that that has been to argue rather, ticle, efully between the efully advanced in a theological context context theological advanced in a to distinguish between religious argu- religious between distinguish to ONCLUSION ediate position will come to be accepted to be accepted come will position ediate C ) 5/11/2011) 8:01 PM ular cultures, whereas others, including the the including whereas others, ular cultures, ers. For it seems clear that some regularly ad- regularly some it seems clear that ers. For ELETE D OT N O s treatment of partnership rights for lesbians and gay men men gay and lesbians for rights partnership s treatment of ’ It is not, of course, possible to conduct a full treatment of the of the treatment a full to conduct of course, possible is not, It some highlight been to Article has the of The second point SAME-SEX MARRIAGE RELIGION LAW, NATURAL & NEW M K in this regard, whether by liberals or conservatives. or conservatives. liberals whether by regard, in this tions will remain important on both liberal and conservative sides of sides and conservative on both liberal remain important will tions cl analytical of for reasons the debate, in the played role the prominent given the mome For lawyers. new natural interm whether an acceptable arguments concerning new natural law in an Article such as the pre- the such as Article in an new natural law concerning arguments present Ar of the point sent. The first with identified I and Richards that David difficulties key some of the the theory before the advanced arguments constitutional Declaration and secular, arguments those of the content courts, a belief. with such sociated partnership same-sex for and issues in arguments against emerging in the arguments of the debate, side opposition the on including, rights, of the new natural lawy domi- or historically prevailing the accounts of vanced views focus on of partic nant morality lawyer new natural of the arguments car Distinguishing their application. still continue. Most obviously, proponents of new natural law claim to to law claim natural new of proponents obviously, Most continue. still consti-course of the in courts the before secular arguments be offering are not explicable tutional those arguments litigation,in reality when the dependence on their underpinning acknowledging first without theory moral conservative Catholic advanced in marriage ments about by Germain Grisez. Even if we assume that individual new natural new natural individual that if we assume Germain Grisez. Even by able believe themselves lawyers 2011] universal purportedly any for then correct, is argument this If sues. have practical to and marriage partnerships, sexuality, ideas about need to be conducted would level of at a far higher they resonance, to counte- appear prepared lawyers natural the new than generality nance. BAMFORTH FINAL-MG (D C Y 29809_wlp_1-2 Sheet No. 44 Side A 06/10/2011 15:12:24 A 06/10/2011 44 Side Sheet No. 29809_wlp_1-2