Tag Archives: Gay Marriage

Begging the Question, Religion

Grounded in logic

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The other week the New York Times ran a fawningly long profile of a "big thinking" ultra-conservative Catholic intellectual.  It stressed his powerful Oxford credentials, his Big University Post (at a non-Catholic institution–take that elite liberal institutions!), his influence over Catholic leadership, his ties to Bush, Glenn Beck's admiriation of him, and, most importantly for our purposes, his frequent use of the word "reason" in place of an actual argument.  So powerful his intellect, you see, that Cardinal Rigali of Philadelphia, aped his words in a recent speech. 

Even marriage between a man and a woman, Rigali continued, was grounded not just in religion and tradition but in logic. “The true great goods of marriage — the unitive and the procreative goods — are inextricably bound together such that the complementarity of husband and wife is of the very essence of marital communion,” the cardinal continued, ascending into philosophical abstractions surely lost on most in the room. “Sexual relations outside the marital bond are contrary not only to the will of God but to the good of man. Indeed, they are contrary to the will of God precisely because they are against the good of man.”

Now I may not be a logician of this fellow's calibre, but I'm trying to think of which principle of logic grounds the union of a man and a woman in life-long monogamous non-divorcing holy Catholic and procreative matrimony.  I'm going to guess that it must be one of those Latin principles, an abstraction, in other words, few could understand.  Maybe it's ex falso quodlibet sequitur. 

I think, however, it's more likely the principle of petitio principii–begging the question. 

*edited for sense later in the day.

hollow man, Michael Kinsley

Opposite marriage

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Many are no doubt familiar with the saga of Miss California, an employee of serial net-worth exaggerator Donald Trump.  In case you're not, during a recent Miss America or Miss USA competition, she took a stand against gay marriage.  Here's what she said:

CARRIE: I think it's great that Americans are able to choose one or the other. We live in a land that you can choose same-sex marriage or opposite marriage and, you know what, in my country and my family I think that I believe that a marriage should be between a man and a woman. No offense to anyone out there but that's how I was raised and that's how I think it should be between a man and a woman.  

One interpretation suggests the first line there is disingenuous: she does not think it's great you can choose and doesn't think you ought to be able to choose.  Another interpretation suggests she personally favors opposite marriage for herself, but thinks it's great that others can choose.  Either way, she answered the question.

Not surprisingly, she seems to have drawn some fire by her remarks, especially from those who don't favor the sole choice of opposite marriage.  That's free speech, some of you liberals will say.  That's why we have it.

Enter professional contrarian Michael Kinsley.  He says:

SEATTLE — I want the next Supreme Court justice to share my views on the Constitution. I don't care how she looks in a bathing suit, or halfway out of one. Miss California is a different story. Her qualifications, as a general rule, should be up to the people of California. Here in the state of Washington, we expect our beauty-contest winners to be able to split a log and appreciate good coffee. But Miss California's views on gay marriage have nothing to do with her qualifications for the job and shouldn't disqualify her for it.

This is really Liberalism 101, and it's amazing that so many liberals don't get it. Yes, yes, the Bill of Rights protects individuals against oppression by the government, not by other private individuals or organizations. But the values and logic behind our constitutional rights don't disappear when the oppressor is in the private sector. They may not have the force of law in that situation, but they ought to have the force of understanding and of habit. The logic behind freedom of speech is that "bad" speech does not need to be suppressed as long as "good" speech is free to counter it. Or at least that letting the good and bad do battle is more likely to allow the good speech to triumph than giving anyone the power to choose between them. Congratulations to Donald Trump for making the right decision in this case. But we can't count on every employer to be as sensitive and understanding as The Donald.

The "disqualification" issue regards unrelated violations of the rules of the pageant.  As for the "liberals who do not get it," notice that Kinsley does not mention anyone by name.  Nor could he.  No one is arguing that Miss California's freedom of speech ought to be restricted.  The most extreme scenario suggests Miss California ought to have given a more coherent answer to a question.  But the Q&A, after all, is part of the contest, so the answer does in some sense matter (in what sense I don't know).  That the answer in some sense matters, or that Miss California has drawn criticism, doesn't amount to restricting her freedom of speech.

I think that's really just Critical Thinking 101.

Academics, Religion

Passive objectors

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Vermont's legislature–a kind of democratic body–has passed a law legalizing gay marriage.  Good for them I say.  Here is the puzzling reaction of Mathew D. Staver, the Dean of the Liberty University School of Law:

“It is a sad day in America when elected officials are clueless about the definition of marriage. If they cannot understand this basic human relationship between a man and a woman, then they are not competent for public office. Marriage laws regulate a social institution upon which society has been built and the future of society rests. By redefining marriage, the Vermont legislature removed the cornerstone of society and the foundation of government. “The consequences will rest on their shoulders and upon those passive objectors who know what to do but who lack the political courage to do what is right for the common good of the people.”

I thought the foundation of government was the consent of the people, but I've been wrong before.  I wonder then if Staver means to suggest that Vermont no longer has a legitimate government.

Begging the Question, George Will

Inalienable

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Whatever one's view of gay marriage, one has to admit that many arguments in favor of it rest on some notion of basic rights.  Whether that claim is true is not my concern now.  However, in the interest of full disclosure, I think that it is.  Whatever one's conception of basic rights, in a constitutional democracy such as our own, such rights are guaranteed by the constitution's bill of rights at the federal level, and by state's constitutions at the state level.  The structure our constitutions guarantees that constitutional rights do not depend in the first instance on the whim of the people.  We cannot vote that some minority group be stripped of its constitutional rights.  Constitutional rights are guarantees, aren't they?  

Let's set the stage.  Here's aspiring legal scholar, George Will:

In November, 13,402,566 California voters expressed themselves for or against Proposition 8, which said that their state's Constitution should be amended to define marriage as a relationship between a man and a woman. The voters, confident that they had a right to decide this question by referendum, endorsed Proposition 8 by a margin of 52.3 to 47.7 percent

Well, that's the question isn't it–whether the voters were acting constitutionally (thinking you are, by the way, does not mean you are).  Do the voters get to decide which rights people have according to the constitution by constitutional referendum?  On the one hand, the constitution is malleable by referendum.  And good thing too.  But Will argues that this right has no boundaries.  But this power of referendum certainly cannot be infinite.  I mean, for instance, you can't have explicitly contradictory provisions.  That would mean legal chaos.  You cannot, in other words, answer every constitutional question by referendum.  This way we cannot have an election stripping Mormons of the right to vote, or women of the right to be physicists.  So, in other words, which rights are of this type is the question.  Does civil marriage constitute one such right?  Here's Jerry Brown (in the words of George Will):

Now comes California's attorney general, Jerry Brown — always a fountain of novel arguments — with a 111-page brief asking the state Supreme Court to declare the constitutional amendment unconstitutional. He favors same-sex marriages and says the amendment violates Article 1, Section 1, of California's Constitution, which enumerates "inalienable rights" to, among other things, liberty, happiness and privacy. 

And that's an interesting argument, I think.  If certain rights are inalienable, then it's constitutionally prohibited that they be alienable by referendum, even if that referendum was believed to be constitutional by the voters.  The proper place to answer such questions–that is, about the constitutionality of the questions–is also provided in our constitutions–the courts, whose job it is to interpret the law.  One needs generally to interpret documents whose meaning and provisions are sometimes unclear.  And this seems like an instance of that.  But not to George Will:

Brown's audacious argument is a viscous soup of natural-law and natural-rights philosophizing, utterly untethered from case law. It is designed to effect a constitutional revolution by establishing an unchallengeable judicial hegemony. He argues that:

The not-really-sovereign people cannot use the constitutionally provided amendment process to define the scope of rights enumerated in the Constitution; California's judiciary, although established by the state's Constitution, has the extra-constitutional right to supplement that enumeration by brooding about natural law, natural justice and natural rights, all arising from some authority somewhere outside the Constitution; the judiciary has the unchallengeable right to say what social policies are entailed by or proscribed by the state Constitution's declaration of rights and other rights discovered by judges.

What is natural justice? Learned and honorable people disagree. Which is why such consensus as can be reached is codified in a constitution. But Brown's reasoning would make California's Constitution subordinate to judges' flights of fancy regarding natural justice. Judges could declare unconstitutional any act of Constitution-revising by the people.

That's the constitutional role of the judiciary (as established by case law).  Their having this role does not mean the people of California are not "sovereign."  That misses the point of Brown's objection.  And it misses the point of our constitutional structure.  It's the constitutional job of the judiciary to interpret the law.  How do they do that?  You can't ask the law you're interpreting, because you have to interpret it.  What to do?  Antonin Scalia, for instance, uses a dictionary.  Clarence Thomas, get this, natural law–whatever that is.

Ignoratio Elenchi, non causa pro causa, Slippery Slope, Things that are false

Queerly Beloved

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A reader (hurray for readers) wondered if I might have something to say about this column on same-sex marriage.  I might.  I'd say the author hasn't even really tried.  Luckily, however, he italicizes his points so even I can see where to look.  His points are three in number.  And three is the number of his points, not four, not two.  He writes:

It is not the business of judges to make public policy.

Reasonable men and women can disagree on whether same-sex unions should be granted legal recognition, or whether such recognition should rise to the level of marriage. The place to work out those disagreements is the democratic arena, not the courtroom.

Well, the court, which decides matters such as these, is an institution in our democracy–a fundamental one, some might not implausibly suggest.  Its decisions necessarily have to do with public policy.  This argument–judicial activism!–really ought to be retired: they're little question-begging argumentative stand-ins.  Make a legal argument against the legal argument.  

Point number two:

The radical transformation of marriage won't end with same-sex weddings.

Another well-worn anti gay marriage argument.  Where will it end?  Well, the slope begins with actual marriage, so one can only conclude that the existence of marriage between a "straight" couple will lead to all sorts of weird marriages.  Besides, the problem with this particular variation of the slippery slope argument, it tacitly admits there's nothing wrong with gay marriage–the problem is rather with all of the other crazy marriages that will follow in its wake.  Of course, if there's a problem with those marriages, you can just make arguments against them for what they are (marriage between three), rather than something else they're not (marriage between two consenting adults).

Point number three:

Society has a vested interest in promoting only traditional marriage.

Which is the argument of the gay marriage advocates–they want a traditional marriage too–its legitimacy and legal benefits.  Like the one Britney had–the first one or the second, take your pick.  What's really silly about this claim is that it supposes gay marriage would be some kind of competitor or threat for "traditional" marriage.  This doesn't seem to be the case at all.  If history is any guide, gay couples have existed (with diminished or nonexistent legal status of course) for a very long time.  Their existence hasn't done much to undermine traditional marriage.  Not as much as, say, divorce, infidelity, sports, weight loss or gain, age, youth, or failure to put the toilet seat down. 

E.J.Dionne, General discussion, Unclassifiable

La’ ci darem la mano

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E.J. Dionne seems conflicted about gay marriage.  He writes:

And, as a New York Court of Appeals judge cited by the California court majority noted, fundamental rights "cannot be denied to particular groups on the ground that these groups have historically been denied those rights." If history and tradition had constrained us, equal rights for African Americans would never have become law.

But to find a constitutional right to gay marriage, the California majority chose to argue that the state's very progressive law endorsing domestic partnerships for homosexuals — it grants all the rights of marriage except the name — was itself a form of discrimination.

This is odd and potentially destructive. As Justice Carol Corrigan argued in her dissent, "to make its case for a constitutional violation, the majority distorts and diminishes the historic achievements" of the state's Domestic Partnership Act.

The court found, correctly according to Dionne, that the domestic partnership law–however historically  "progressive"–amounted to discrimination.  Dionne ought to know that these two laws are different things (the progressive one about domestic partnership and the one about marriage).  "Progressive" legislation aimed at circumventing legal discrimination (the denial of marriage to homosexuals for whatever reason) may be nice, but it still endorses the discrimination as legal (so goes, at least, the argument of the California court).  So even if the legislation is, in its proper historical context quite "progressive", that fact hardly justifies maintaining it.  Imagine had equal rights been handled this way–let's not call them "rights" but "things due" or something like that.  Dionne's position, it seems to me, is just the obverse–the double negative as it were–of the argument he has just rejected.  That is to say, the "progressiveness" of the legislation is no more reason to maintain it than the fact that such discrimination has long been lawful.