Posted Friday, June 6, 2008, at 6:51 AM
Yesterday evening I had occasion to participate in what the Chicago lawyers' chapter of the Federalist Society calls a "tavern debate," which as best as I remember is a cross between the Yale or Oxford Union and some version of Chris Matthews' Hardball . It was raucous and fun. It was also a surprise unless I didn't read the e-mail invitation closely. I was under the impression that I had been invited to speak on the topic "Gays Have Every Right To Marry." Now, given my brief-writing, this would have been, as they say, "off-brief," but I thought that was the challenge, and I was prepared to defend the California Supreme Court, or at least four of the members thereof, with zeal. Instead, to my surprise I learned shortly before, though after some delightful merlot, that I was instead to defend the negative of the proposition against my friend and truly gifted constitutional law colleague Dale Carpenter, who holds the Julius Davis professorship at the University of Minnesota.
It is apparently in the tradition of the tavern debate to keep the tavern open throughout, which I admit does seem to give everyone's argument a greater power and salience than more, well, sober settings. And it is perhaps for that reason, when it came time to have the house divide to determine the prevailing position, a majority of those present and still able to walk came to my side. In short, I won-that is, the side in opposition to the resolve "gays have every right to marry."
Beyond the bottle and my bombast, there may be many reasons for my "triumph" (I am a native Chicagoan, Northwestern grad, and, of course, Cub fan), but as I see it, professor Carpenter had the better case and deserved the prize or the fern or whatever it was we had decided to carry away from the Tower Club in remembrance.
Seriously, Dale made his usual eloquent and poignant plea for-and here is where it hooks into the provocative Yoshino-Gerken - Tribe dialogue on liberty vs. equality-the acknowledgement of same-sex marriage. Anticipating his audience far better than I even grasped the format, he made what he called a Burkean case for same-sex marriage-the case that including persons of gay, lesbian, bisexual, and transgender orientations is preservative of the essence of culture, including those aspects of it that depend upon the channeling of sexual intimacy for purposes of civil order and the raising and upbringing of children. Dale's case is more powerful than the lengthy opinion of the California Supreme Court because he deliberately chose to eschew legalisms, and he speaks with the heartfelt and earnest poignancy of a gay man.
Bracketing the legal arguments also was a strategic debate move since it was an attempt (unsuccessful) to deprive me of the separation of powers argument which is of natural appeal to us Federalistas, which is what we were calling ourselves upon adjourning to the post-tavern debate tavern across North Wacker Drive (no pun intended).
My own tack was to argue strongly in favor of the recognition of LGBT as within the humanity created equal in the Declaration challenging the overly narrow conception of originalism most often associated with Justice Scalia, while insisting the true Burkean would preserve traditional marriage to maintain the linkage between marriage and procreation, avoid the uncertainties of single gender effects on child rearing, and taking respectful and realistic account of the innumerable, and undiscussed by the California Supremes, difficulties of accommodating religious freedom subsequent to the legal and cultural acceptance of same-sex marriage.
Dale made the appropriate reply challenging the connection between a recognition of same-sex marriage and either the national or global decline in fertility-which threatens the economies of Europe and even our own if it was not more directly threatened by the fiscally irresponsible and unjustifiable war-related expenditures of our incumbent president. Here, Dale drew upon Gerken's equality argument with a gift of words that succinctly came down to "what else would you do with us?" Professor Carpenter made, as I say, what should have been, as a matter of justice, the winning summation and argument.
Except that, I made reference to Eric Posner's earlier post responding to my lawyer daughter's earlier expressed suggestion that the U.S. subsidize child-having and -rearing more akin to that of France. Eric (perhaps merely for the sake of intellectual sparring) labeled our insistence that marriage and procreation stay linked and honored as "a stodgy bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and car pooling." Such talk, even with the benefit of spirit-based enhancement, does not sit well with a Midwestern crowd, and the reason I believe is because it attempts to transform the equality claim into a far more troubling and problematic liberty claim a la Kenji.
It dawns on the most inebriated assembly that while in absolute numbers acknowledging same-sex marriage does not account for the global population deficit, it does-if thought of in liberty terms-stand as precedent for the separation of marriage from natural procreation. Asexual procreation at present seems merely benign since it exists as an expensive and cumbersome (and far from uniformly successful) practice, but the literature on artificial wombs and the genetic manipulation of intelligence shoots right through academic debates on liberty vs. equality because it conjures up all manner of not unthinkable (unfortunately) scenarios of the wealthy acquisition of unnatural reproductive means to advance the interests of elites through a libertarian exercise that would destroy all hope of democratic equality.
One sure way for Dale's winning equality argument to lose its footing would be to take up the defense of a liberty to engage in the genetic engineering of children. That move would take him from his own created humanity worthy of the greatest respect to the crass eugenic observation of Oliver Wendell Holmes that "three generations of imbeciles are enough" in Buck v. Bell sustaining the forced sterilization of the mentally handicapped.
In a depopulating world, some predict that there will be an alliance of feminism and eugenics to resist any pressure to sustain an aging and dying culture. Stanley Kurtz makes note that "alarmed by the relative decline of the elites, Teddy Roosevelt urged upper-class women to have more children." Even progressives at that point started to question women's rights. The same, I suggest, is the fate of same-sex equality if it allies itself with the "genetic engineering and use of modified gametes," as John Howard commenting on the earlier liberty-equality colloquy put it in the Fray. Roosevelt's population concerns were blunted by birth-control pioneer Margaret Sanger who prescribed, like Holmes, not that the elite get pregnant, but the suppression of the births of the unfit, or as she described the mentally disabled, "the insane and the blemished."
My friend Larry Tribe writes that "the very things about the language of universalism that makes the 'liberty' strategy appealing to some (like [him]) no doubt makes it frightening to others." You bet, but that doesn't mean that some things aren't worth being frightened about-and a universal right to access to genetically engineered children is to me, and all lovers of created equality I would think, in that very category. I share with professor Tribe the audacious hope of President Obama pursuing greater claims of equality when the distinctions of the past have been shown to lack reason and to indulge the language of rights when such is universally appealing. I respectfully suggest that any thinking out there-which I know professor Tribe would separate himself from-that is conjuring up a new superman should universally repulse, rather than appeal.