« Because I've got *so* much free time on my hands | Main | What a piece of work is law! »

I'm never going to get any work done if I keep reading the prolific Volokh

I love the Volokh conspiracy, because even when I disagree with it, it's a funny read. Unfortunately, the article to which I linked shows a pretty common danger on blogs--arguing your opponent's point of view and then describing why the argument is so weak, having made a hash of their argument.

Volokh compares religious intolerance to intolerance of homosexuality, but in doing so I'm not sure he takes his opponent's arguments seriously. I was particularly thinking of his point regarding conduct and belief:

2. Conduct v. belief. Another reaction is that homosexuality is conduct, and therefore the proper subject of man's law, while belief is not properly governed by man's law. But Hinduism involves more than just disbelief in the Christian God, and belief in other gods; it also involves the conduct of creating graven images, and breaking the Sabbath. What's more, as I understand it, from a Protestant perspective, belief in God is at least as theologically important as conduct, and perhaps more so. The Ten Commandments, as we see, command belief as well as conduct. If the justification for outlawing homosexuality, or firing homosexual teachers, is simply that it violates God's law, then how does importing the conduct/belief distinction fit with such a justification?

But of course, this is a pretty limited statement of the difference between conduct and belief. First of all, most conservative Christians who make this distinction aren't outlawing homosexuality, but acts which practicing homosexuals would indulge in, and most, if not all, of those proponents of this belief would make such actions illegal between consenting adults of different sexes as well. Most of them would make the quite logical distinction between a practicing homosexual and someone who has such temptations but does not act upon them. ("Sinning in one's heart," however much one disliked Jimmy Carter, wasn't going to be made illegal by the religious right.)

His article doesn't explicitly state, but seems to rest upon the presumption that the branch of conservative Christians of whom he speaks (of which I am not one, by the way, having no big issue with homosexuality one way or the other, and not being particularly Christian) despise the idea of homosexuality but are perfectly willing to tolerate same-sex sodomy wheresoever they may find it. They're not--they have definite views on the importance and morality of certain sexual actions.

The distinction blurs simply because there are not that many heterosexuals who, in the normal course of their daily lives, announce loudly and in public that they engage in heterosexual sodomy, and for the most part, there's no way to prosecute a heterosexual who enjoys such acts but keeps the relationship private. On the other hand, two men who proudly declare themselves homosexual are not necessarily, but certainly suggestively, indicating that they engage in such acts. [1] But is anyone suggesting that the Jerry Falwells of this world wouldn't support prosecuting a man and a woman who explicitly stated they'd committed similar sexual actions? I can't imagine any of my old Christian Coalition friends from Washington objecting to a homosexual being allowed to be a teacher, but then simultaneously welcoming a female heterosexual teacher who admitted that she enjoyed any of the acts covered by Georgia's old sodomy statute.

In the end, sex isn't religion, and religion isn't sex, and I don't find it contentious that one can believe an act should be illegal because, from one's religious perspective, it's considered to be immoral.[2] I agree with him that many people are uncomfortable with the idea of discriminating against homosexuals partially because it goes against our ideas of religious toleration. But I'm also very wary about the simplistic charicatures of the religious right that tend to pop up in the blogosphere.

[1] I would think that most of Volokh's intended groups would have little problem with two men who lived together and never engaged in any sexual activity, at least legally, but the case is rare enough as to be difficult to tell.

[2] Volokh also slights the argument about toleration when he states that:

But I would hope that many people's attachment to religious freedom is deeper than just "Well, the Constitution requires it, so we have to reluctantly adhere to it." Religious freedom is often described as a broader ethical principle -- a principle that people should be tolerant of those of other religious groups, and should treat them equally (at least in allotting government jobs) even though they disagree with that religion.

Except, of course, that for many evangelicals this is explicitly not the case, whatever his 'hopes' for their attachments. Indeed, if you're an evangelical you pretty much by definition consider conversion a religious duty, and may not have a problem with that being enforced by law, per se. The principle behind the Establishment Clause can equally be seen as broadly pragmatic, instead of ethical--by not allowing the Federal government to establish a religion, every religious person is assured that their belief won't be outlawed, and that they may continue to evangelize. Volokh argument basically boils down to, "If you don't happen to be a strict evangelical, then the strict evangelical argument won't make sense to you." Which is true as far as it goes.

Update: There's been a lot of commentary on the original posting, including this at the Legal Theory Blog. Professor Solum quibbles (a bit more politely) with Volokh's view in similar ways to the above. I'll link to other comments as I find them.


TrackBack URL for this entry:


jsut made new blog.. sameold.blogspot.com

Post a comment

NOTICE TO SPAMMERS, COMMENT ROBOTS, TRACKBACK SPAMMERS AND OTHER NON-HUMAN VISITORS: No comment or trackback left via a robot is ever welcome at Three Years of Hell. Your interference imposes significant costs upon me and my legitimate users. The owner, user or affiliate who advertises using non-human visitors and leaves a comment or trackback on this site therefore agrees to the following: (a) they will pay fifty cents (US$0.50) to Anthony Rickey (hereinafter, the "Host") for every spam trackback or comment processed through any blogs hosted on threeyearsofhell.com, morgrave.com or housevirgo.com, irrespective of whether that comment or trackback is actually posted on the publicly-accessible site, such fees to cover Host's costs of hosting and bandwidth, time in tending to your comment or trackback and costs of enforcement; (b) if such comment or trackback is published on the publicly-accessible site, an additional fee of one dollar (US$1.00) per day per URL included in the comment or trackback for every day the comment or trackback remains publicly available, such fee to represent the value of publicity and search-engine placement advantages.

Giving The Devil His Due

Choose Stylesheet

What I'm Reading

D.C. Noir

My city. But darker.
A Clockwork Orange

About time I read this...


Projects I've Been Involved With

A Round-the-World Travel Blog: Devil May Care (A new round-the-world travel blog, co-written with my wife)
Parents for Inclusive Education (From my Clinic)

Syndicated from other sites

The Columbia Continuum
Other Blogs by CLS students

De Novo
Theory and Practice
Liberal Federalism?
Good News, No Foolin'

Nancy Pelosi covers her head and visits the head of John the Baptist.
Vlogging in from Austin.
Omikase/"American Idol"

Jeremy Blachman's Weblog: 2007
Happy Passover
Looking for Advice re: LA
Google Books

Stay of Execution
What I've Learned From This Blog, or My Yellow Underpants
The End
Mid Thirties

Legal Theory Blog
Program Announcement: Summer Programs on the Constitution at George Washington
Book Announement: Political Foundations of Judicial Supremacy by Whittington
Entry Level Hiring Report

The Volokh Conspiracy
Making the Daily Show:
Civil unions pass New Hampshire House:
Profile of Yale Law Dean Harold Koh:

Crescat Sententia
Hillary II
Politics and Principal/Agents

Law Dork
Election Approaches
Following Lewis
New Jersey High Court: 'Same Rights and Benefits'

Surveying the revival
Birds of paradise

Half the Sins of Mankind
Cheney Has Spoken Religious conservatives who may ...
Does Ahmadinejad Know Christianity Better Than MSN...
Borders as Genocide In discussions of climate chan...

For lovers of garden gnomes...and any China-freaks out there
We Interrupt Your Regularly Scheduled Programming

Does SOX explain the flight from NY?
More Litvak on SOX effect on cross-listed firms
What did the market learn from internal controls reporting?

The Yin Blog
Iowa City = Riyadh
Jeffrey Rosen's "The Supreme Court"
Geek alert -- who would win between Battlestar Galactica and the U.S.S. Enterprise?

Letters of Marque
And there we are

Signing Off

Dark Bilious Vapors
Jim (The Waco Kid): Where you headed, cowboy?
Bart: Nowhere special.
Jim: Nowhere special. I always wanted to go there.
Bart: Come on.
--"Blazing Saddles"

Technical Difficulties... please stand by....
The Onion should have gotten a patent first....

Legal Ethics Forum
Interesting new Expert DQ case
Decency, Due Care, and The Yoo-Delahunty Memorandum
Thinking About the Fired U.S. Attorneys

Ex Post
Student Symposium- Chicago!
More Hmong - Now at Law School
Good Samaritan Laws: Good For America?

Appellate Law & Practice
Those turned over documents
CA1: courts can’t help people acquitted of crimes purge the taint of acquitted conduct
CA1: restrictions on chain liquor stores in Rhode Island are STILL okay

the imbroglio
High schoolers turn in plagiarism screeners for copyright infringement
Paris to offer 20,600 bikes at 1,450 stations to rent by the end of the year

The Republic of T.
The Secret of the Snack Attack
links for 2007-04-04
Where You Link is What You Get

Distractions for stressed law students

The Other Side: Twisted AnimationsSomething Positive, a truly good webcomic

Syndicate This Site



Stop Spam Harvesters, Join Project Honey Pot