{"id":26822,"date":"2016-05-20T09:05:38","date_gmt":"2016-05-20T13:05:38","guid":{"rendered":"http:\/\/www.bu.edu\/law\/?p=26822"},"modified":"2021-07-20T14:52:17","modified_gmt":"2021-07-20T18:52:17","slug":"james-e-fleming-delivers-paul-j-liacos-lecture","status":"publish","type":"bu-article","link":"https:\/\/www.bu.edu\/law\/record\/articles\/2016\/james-e-fleming-delivers-paul-j-liacos-lecture\/","title":{"rendered":"James E. Fleming Delivers Paul J. Liacos Lecture"},"content":{"rendered":"

In his first Liacos lecture, Professor Fleming examined conservative Constitutional analysis following landmark cases in the LGBT rights movement.<\/h2>\n
\"liacos-lecture-2016\"
Judge Liacos with Dean O’Rourke and Professor Fleming.<\/figcaption><\/figure>\n

On a Monday in April, Boston University School of Law’s Hon. Paul J. Liacos Professor of Law James Fleming<\/a> delivered the Paul J. Liacos Lecture<\/a>. The professorship was established to honor Chief Justice Paul J. Liacos, who taught at BU Law for more than twenty years and authored many scholarly works, including the Handbook of Massachusetts Evidence<\/em>. It is awarded to recognize faculty who make outstanding contributions to the School and the study of law.<\/p>\n

A professor of US Constitutional and tort law as well as the author of several books on Constitutional law, Fleming used his first Liacos lecture to turn a critical eye toward conservative Constitutional analysis following landmark cases in the LGBT rights movement.<\/p>\n

Fleming focused primarily on the discourse following the Supreme Court\u2019s decision in the landmark LGBT rights case, Lawrence v. Texas<\/em><\/a>. Specifically, he turned his attention to Justice Antonin Scalia\u2019s critique of the case\u2019s outcome, which he deemed \u201cthe end of all morals legislation.\u201d<\/p>\n

In US Constitutional law, some argue that recognizing LGBT rights puts the courts on a slippery slope to recognizing a number of morally dubious sexual practices. Fleming questioned whether \u201cJustice Scalia was right that there is no difference between legalizing same sex intimacy and legalizing adult incest, bigamy, prostitution, bestiality, polygamy, etc.?\u201d The answer, he asserted, is no. In addressing Scalia\u2019s reasoning, Fleming drew significant distinctions between same-sex intimate associations and other acts, and organized his lecture to make observations about slippery slope arguments in general while examining the dissenting opinions of Justice Antonin Scalia in Lawrence v. Texas<\/em> and Chief Justice John Roberts in Obergefell v. Hodges<\/em><\/a>.<\/p>\n

Justice Scalia\u2019s argument in Lawrence <\/em><\/h3>\n

Fleming argued against Justice Scalia\u2019s assertions that recognizing the right to same-sex intimate association would lead to the end of all moral legislation, noting that Justice Kennedy articulated clear limits in the Lawrence<\/em> opinion. The case does not concern minors, nor does it involve persons who might be injured or coerced, or issues of prostitution.<\/p>\n

Offering tools for gaining traction when beginning the slide down this slippery slope presented in Lawrence<\/em>, Fleming challenged the audience to consider whether Justice Kennedy was presupposing every person has a liberty to do whatever immoral things they wish, or if he was presupposing that the already existing right to privacy and intimate association extends to the LGBT community. Was the court arguing that individuals have the right to decide whom or what to marry without consideration of morals? Or was the court arguing that justifying the extension of this right supports the moral pursuit of intimacy, commitment, and loyalty?<\/p>\n

He pointed to the political and social context of the Lawrence<\/em> decision to complete his point. Courts generally do not lead, he noted, but follow. Social movements and democratic processes have led courts to consolidate new reasoning and analogies of new rights to previously recognized substantive rights. Here, he argued, the Lawrence<\/em> court made a decision in light of decades of political activism on the part of the LGBT rights movement. The same winds of social and political change were not present, however, in the context of bestiality or incest, for example.<\/p>\n

Chief Justice Roberts\u2019 argument in Obergefell <\/em><\/h3>\n

In his dissenting opinion to Obergefell v. Hodges<\/em>, Chief Justice Roberts asserted that the leap from opposite-sex marriage to same-sex marriage is much greater than the leap from one-partner unions to multiple-partner unions. Tradition, he argued, is the basis for the due process analysis, and whereas same-sex marriage is not deeply rooted in the traditions of the nation or global culture, polygamy is recognized in many cultures across the world. That reasoning falls flat, Fleming contended, given Roberts\u2019 judicial history of advocating that what truly matters for purposes of Constitutional analysis is this<\/em> nation\u2019s history and traditions, which do not include any legal recognition of plural unions.<\/p>\n

Constitutional change, Fleming stressed, proceeds through Constitutional common law interpretation alongside social movements involving contemporary consensus. Since none of the preconditions for Constitutional change are in place for recognizing the right to plural marriage, Roberts\u2019 suggestions regarding the slippery slope presented by Obergefell<\/em> are unsubstantiated.<\/p>\n

These types of arguments, Fleming noted, are a peculiarly American phenomenon, and much more prevalent and extreme in the United States than in other countries. He suggested general mistrust in the government, and the view of the government as a necessary evil rather than force for good are factors that make the US so susceptible to this type of reasoning. Moral flux and changes in modern day society, as well as diversity of thought and deep disagreements regarding moral and Constitutional issues, also contribute to an environment that welcomes slippery slope arguments. These factors make it easy to empower opposition to a proposed change \u201cby stirring up horribles as to where that change might take us,\u201d Fleming argued.<\/p>\n

Reported by Christian Saucedo (\u201818).<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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