Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Laying to Rest Old Wrongs
|
Wednesday, October 07, 2020
Laying to Rest Old Wrongs
Guest Blogger
For the Balkinization symposium on William N. Eskridge, Jr., and Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020). For a
book threaded through with journey stories (e.g., 204, 212, 237, 247, 257, 440, 487,
666), we should not miss in these pages the
unspoken story of understanding and forgiveness between once bitter
adversaries. I first
met Bill Eskridge, with whom I would later do a book on the Prospects for Common Ground in our seemingly
unending culture war, when I was seated next to him and Maggie Gallagher on a
panel of academic luminaries that included Emory’s Martha Fineman and Notre
Dame’s Peg Brinig. It was January 2004. Maggie, who would become the “one-woman think tank for” the ultimately doomed Federal
Marriage Amendment and a founder of the National Organization for Marriage (262,
368, 369), was seated to my right. Bill was seated
to her right. Still a relatively new faculty member, I was nervous. Before
the panel began, I stepped out for water and, frankly, to compose myself. I
returned for the panel’s start to find an empty chair between Maggie and Bill.
Confused, I took the seat that was left for me. I should have worn a flak
jacket. The animosity rippling between Maggie and Bill was palpable. At that
point, the culture war over same-sex marriage had begun in earnest: Goodridge v.
Department of Public Health had
recognized the right of same-sex couples to marry only two months before. Marriage Equality chronicles the fever pitch at that moment. As one
barometer, although the “jurists in the [Goodridge] majority expected criticism for their big move, … the
reaction was worse than they imagined.” “One person wrote, ‘We pray every day
that you all get cancer and rought [sic] in hell.’” (225) The first gay couple
to marry in the US, Jack Baker and Michael McConnell (5), would tie the knot
four months later, on May 17, 2004 (224).
Little had changed when I encountered Bill and Maggie again in September
2010 at a “Consultation” convened by Brookings Senior Fellow for Governance
Studies Jonathan Rauch about Achieving Disagreement Over Same-Sex Marriage. By
now, the battle over same-sex marriage had reached a fever
pitch—“In September 2010, there were still only five marriage equality states”
(525) although some had voluntarily embraced same-sex marriage in legislation.
Two group of scholars, one led by me and one by
Professor Douglas Laycock, had worked with lawmakers to include step-offs for
churches and religious organizations (353), so I had a better sense of the
titanic clash being waged between proponents and opponents of same-sex
marriage. This time I was seated between Bill and Maggie at dinner. Dinner was an icy affair. So,
imagine my surprise when my review copy of Marriage
Equality arrived, and I found that Maggie Gallagher had contributed a
jacket blurb. Her gracious words echo the gracious treatment she receives in
its pages. Understanding the healing that this small gesture reflects is
important to finding a détente to in our endless culture war over LGBT rights. Like many social movements, the group that opposed same-sex marriage
included people who started from very different premises but coalesced around
the idea that marriage must be limited to heterosexual couples. Here, the authors do yeoman’s work untangling
those different voices and laying bare their priors. Social conservatives who
want to understand their own coalition should read this book—it is succinct,
insightful, illuminating. In the tent
opposing same-sex marriage were a number of conservative luminaries— “former
judge Robert Bork, …Gerry Bradley (Notre Dame), and Mary Ann Glendon (Harvard)”
(258)— but the principal intellectual powerhouses were Maggie Gallagher and
Robby George (Princeton), who proceeded from very different places. The book movingly
recounts Maggie’s experience as a single mother raising her first son, who
never grew up in the same household as his biological father. The authors
connect Maggie’s grief about this hole in her son’s life to her work on
fatherlessness and especially to her concern for the “fragile status” of
traditional marriage. (252) One quickly gets
the sense that marriage is choate, a thing in existence that deserves society’s
protection and solicitude, like a third person in the room. Among other things,
marriage confers: Relational Joy. Interpersonal commitment is necessary for human flourishing. Marital sexuality seals and deepens the connection between the spouses and, at the same time, deepens their connection with their children. (252) The
Marriage Movement: A Statement of Principles (2000), for which Maggie was a
key drafter, put it this way: “Marriage is a productive institution, not a
consumer good. Marriage does not simply certify existing loving relationships,
but rather transforms the ways in which couples act toward one another, toward
their children, and toward the future.” (253) And perhaps most important given
the number of families forming outside marriage (Fig. 1, 254; 271 n. 51),
marriage, in this account, channels sexuality in a prosocial way.
Quoting Maggie’s work at length: “Marriage is the way in which every society attempts to channel the erotic energies of men and women into a relatively narrow but highly fruitful channel—to give every child the father his or her heart desires. Above all— normal marriage is normative. Marriage is not primarily a way of expressing approval for an infinite variety of human affectional or sexual ties” such as friendship or a sexual relationship. “It consists, by definition, of isolating and preferring certain types of unions over others.” (254) Of course,
nothing about this vision of marriage need exclude gay couples. Whatever
message “Adam and Steve” marrying would send about marriage (261)—in Marriage Equality’s
shorthand, that “marriage is all about two people’s romantic relationship—not
about children, society, or the future of the human race” (261)— is upended
when gay and “lesbian couples raise children,” as the authors observe. More difficult for opponents,
same-gender marriages are tiny in scale compared to the social forces that
wrested sea changes in marriage and family formation: assisted conception, no-fault divorce (40,
45, 64, 134, 267, 262, 277, 288, 345, 582, 606, 622, 732, 732, ), nonmarital
child-bearing, cohabitation (44, 45, 252, 253, 311, 321, 422, 588, 606, 608,
611, 682, 712, 716, 717, 718, 719, 720, 732, 787), contraception (45, 598, 604,
655, 713). Gay couples were never going to account for more than a small sliver
of marriage or nonmarriage rates. It
was the least of marriage’s worries. The twin
commitments of social conservatives, that marriage is good for adults and good
for children, ultimately doomed the campaign against same-sex marriage. That
marriage shores up couples and insulates them from adversity—that it supports
the “lifetime commitment” between couples like April DeBoer and Jayne Rowse and
provides “a more stable environment for their children” (256) –is the very
basis for the Supreme Court’s decision to open marriage to loving couples in Obergefell v. Hodges. With hundreds of thousands of children being
raised by gay couples when Obergefell
was decided— with some children placed in these homes by the state (e.g.,177)—it is little wonder that
skilled litigators like Shannon Minter legal director at the National Center
for Lesbian Rights, among others, pierced “the
Maginot line” (248) that Maggie and others sought to draw around heterosexual
marriage. On the (traditional) marriage movement’s own terms, excluding loving
couples with children from marriage’s protections was a line that should never
have been drawn, much as “Bowers was
wrong the day it was decided.” (266) Still, Marriage Equality describes Maggie in
almost admiring terms. Although “she has irritated gay people with her blunt
rhetoric and take-no-prisoners debating style” (251), she “treated gay people
with respect and, in person, great affection.” (251) Maggie, the authors note,
was “anti-anti-gay.” (251) “A poised and confident public intellectual,” she
publicly distanced herself from “unashamed bigots—including racists who also
hated homosexuals.” (279) The authors urge readers to “evaluate [Maggie] based
upon her actual theories and arguments.” (251) Marriage Equality signals the way out of
ending our endless culture war over LGBT rights. They note that “For some of
the same reasons Maggie Gallagher wanted two parents for her son, April and
Jayne wanted two parents for [their son,] Nolan.” (281) President Abraham Lincoln
taught us more than a century and a half ago that if we are to heal the rifts
that divide us, we have to remember that we “read the same Bible, and pray to the same God; and each
invokes His aid against the other.” The generous treatment Maggie receives may be because Maggie has faded away
after Obergefell. The post-Obergefell culture wars over, as one
example, trans people and public accommodations
are not hers. They are in squarely in the mold of “get off my planet.” Not all opponents
of same-sex marriage have faded away, and not all come in for such generous
treatment. “Religion-based defenders of traditional marriage often demonized
homosexuals in abusive, stereotype-driven terms,” (251) the book notes. The
shocking examples cited in the book speak for themselves, including this from
1997: “Homosexual living arrangements under the guise of marriage are not only
sterile, incapable, and insufficient, they are destructive to the very fabric
of our society. The strategy to inculcate active homosexual practice into our
society as a favored institution is synonymous with injecting a cancer into a
healthy body.” (251) One would hope, nearly a quarter century later, that no
one still believes such things.
If we are to ever call a truce in our perennial
culture war, we would all do well to follow Bill and Maggie’s example, and lay
to rest old wrongs. Robin Fretwell Wilson is Mildred Van Voorhis Jones Chair in Law, University of Illinois College of Law, and Director, Institute of Government and Public Affairs, University of Illinois System. You can reach her by e-mail at wils@uillinois.edu
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |