E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Stanley Kurtz comes to Santorum's (partial) defense in this NRO online column:
when the pope says that sexual relations not directed toward reproduction within the context of marriage tend to threaten the structure of the traditional family, he is absolutely right. It is not necessary to be Catholic — or religious — to grant the acuity of the pope's sociological insight. In fact, it is not even necessary to agree with the pope about the need to limit non-marital sexual relations to see the validity of the connection he is making. The truth is, a whole series of non-marital or non-reproductive practices that have gained social approval over the last 30 years — from birth control, to abortion, to premarital sex, to homosexuality — have in fact helped to undermine the structure of the traditional family. That is true, whether or not you are religious, and whether or not you think that these developments have been positive or not.
So when Santorum says that "all these things" (homosexuality, polygamy, etc.) tend to undermine the traditional family, he is absolutely right. And I can agree with Santorum about this, even if I personally happen to believe that the tradeoff in family instability happens to be worth it in the case of sodomy laws, which I think should be abolished. We all need to decide — individually, and as a society — how to balance the complex tradeoff between family stability and personal freedom. But the tradeoff is real, and there is nothing wrong with any individual consulting his religious beliefs to help him decide how to balance these competing goods. In this case, moreover, I believe that Santorum's religiously derived wisdom contributes to the public debate by reminding naive secularists that there is in fact a tradeoff between sexual freedom and family stability.
The flaw in this logic is Kurtz's equation of the stability of the "traditional family" with "family stability" per se. Pre-marital sex and acceptance of homosexuality may have destabilized or undermined traditional notions of how families should be formed, including, for example, the subordinate role of women and the sexual division of labor. But it does not follow that other understandings of how families should be organized might not replace those traditional understandings. To a very significant degree, this has been the case. Men and women have somewhat different views about their responsibilities to each other in and out of marriage than they had in say, the mid 1950's, although it would be foolish to think there are not also strong continuities in expectations about gender roles. And homosexual families have formed, which can be, and are, just as stable and loving as heterosexual families.
We should not think that the choice is one between "traditional families" with all of their hierarchical elements and gendered expectations, or personal freedom. This is a false dichotomy. American society is in the process of producing new ways for families to be families. (Indeed, the nature of the family has been in continuous change throughout the country's history, and the notion that there was once a golden age when American families were simply "stable" is a myth that involves forgetting much of the coutnry's history, including the effects of, among other things, chattel slavery, immigration, industrialization, war, and so on.). Kurtz and I share, I think, a desire that family relations be relatively stable because both of us think that families are important units of social cohesion that help inculcate moral values and promote many of the goods of social life. What we appear to disagree about is whether there is more than one way to constitute a family.