Passive objectors

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.

18 thoughts on “Passive objectors”

  1. If we talk about the degrees of democracy, then I agree with you “consent of the people” is the most democratic process. But what do you mean by the consent of the people here? Sure, in an indirect democracy, this decision made by legislature is democratic. However, I would add that the most democratic way would be to put it on a ballot. Out of 38 states that had it on the ballot, they all voted against it. In fact, Gallup shows that 40% of US population favors same-sex marriage and 56% are against it.  (

    So, yes, no doubt that the decision from Vermont’s legislature is a democratic one. The question is, however, why did they feel the need to make that decision, instead of putting on the ballot this November?  jcasey, don’t you think that would’ve been the appropriate way to handle this issue? Especially since this is such an important issue to some ( “the cornerstone of society and the foundation of government“).

  2. “The cornerstone of society and government” was a joke, of course, as that fellow’s views are too silly for serious commentary.  Anyway, I would disagree about the degrees of democracy intuition–and so would you, of course, if you thought about it.  We have a constitution, a court system, and so forth, to protect unpopular minorities from the sometime tyranny of majorities.  Courts–like the one in Iowa, etc.–are part of the democratic process, not some kind of abrogation of it.

  3. jcasey, that is a good political science question: when do we protect the minorities and when not?  when is the majority right? On stem-cell research or on same-sex marriage?
    Here’s the governor on the issue: “Vermont’s civil union law has afforded the same state rights, responsibilities and benefits of marriage to same-sex couples“.
    So I guess, I’m just totally confused about the reason of passing this law.  Why? It’s not about protecting the minority.

    But I agree with you, courts are definetly part of the democratic process.

  4. Simple answer to a very big question: I suppose we protect the rights of minorities when those rights are foundational ones or are obviously implied by other foundational ones (like the right to privacy).  In the case of gay marriage, I just can’t see it’s the business of anyone else what kind of marriage I have.   In this case there needs to be a very compelling reason to deny gay people the exact same kinds of rights other people enjoy.  The burden, in other words, ought to be on the denier of rights in this case.

  5. I find it a little peculiar to claim that this law was not about protecting the minority. Equal protection under the law includes marriage rights, which includes various forms of equal access (insurance, etc.) Civil union laws do not cross state boundaries, so the rights are purely local. Furthermore, if it really did carry the same identical weight, then there could be no possible objection to renaming the institution so as to make the supposedly actual identity actual in fact.

    The claim that civil unions were “the same” bears all the ear-marks of “separate but equal” legislation. In reality, it is scarcely imaginable how separate can ever be equal, even when equality is genuinely the intention. And the fact that there were such strenuous objections to making the equality explicit strikes me as compelling evidence that real equality was not part of the original motivation in the separation.

    If you’re looking for some relatively concrete criteria to judge when a law is moral or  not, I would suggest King’s Letter from a Birmingham Jail. King and his folks had some experience with the “separate but equal” approach.

  6. jcasey, since it’s a change of existing legislation, shouldn’t the burden of prove be with the people that try to change the law?

    Gary, IMO, the analogy with civil rights movement in US and same-sex movement is flawed on many levels.  I guess you’re challenging the governor’ statement. If you’re right than yes, there is a reason to pass the law. But if he’s right, then there is absolutely no reason to pass this law.

    In a separate issue, I feel that both sides overestimate the power of a law.  Passing this law will not make everybody accept homosexuality as an acceptable lifestyle or morally right. On the other hand, banning it, will not make it morally wrong or change people’s lifestyle.

  7. BN,

    I wouldn’t agree with that analysis of the burden here.  The burden falls on the right denier I think especially when the exercise of that right doesn’t involve subtracting anything from the denier.

    As far as the other claim is concerned, some people find straight marriage morally problematic (if not just plain wrong).  Yet we still have it.   People will continue to claim that homosexuality is wrong, etc..  I think they’re wrong.  I don’t think we should use the law to enshrine their (to my mind poorly justified) moral preferences.  They are not, after all, the issue here.  Besides, despite civil rights legislation, people continue to be racist.  This is not a reason not to have it.

  8. The problem with gay marriage is that it leads to the break down of the society. The traditional family is the center of society. When gay marriage is allowed, families fall apart. First, children are encouraged to be gay, which could lead to them getting gay married. Second, parents and other family members of gay or gay married children become emotionally distraught or alienated from the gays because being gay is wrong and they are forced by the law to accept the lifestyle of gays. This leads gays to turn their backs on their family, who are sad for the gays and wish they would stop being gay. Thus, families are destroyed because of gayness.

    A concerned graduate of Liberty Law School

  9. It is not altogether clear to me what non-circular argument could be offered that the analogy with the civil rights movement is severely flawed. For example, it is often asserted that homosexuals are “choosing” their orientation and this “choice” makes the analogy specious. But  people are no more at choice about their sexual orientation than they are about their ethnic background. (It strikes me that anyone who disagrees on this point should begin the process of disproving it by choosing a different orientation for themselves; do so now, please. After all, the only meaningful way one can argue that homosexuals exercise such choice is if heterosexuals are exercising the same choice.)

    One has here an institutionalized form of discrimination predicated upon non-chosen distinctions. These discriminations degrade the person-hood (King used the term “personality”, but that has taken on an exclusively psychological connotation that he did not intend) of a minority group by denying them full and equal rights, including full and equal protection under the law. So the analogy seems pretty robust to me.

  10. Clearly, the real problem is divorce.  Divorce rips apart families and destroys the cornerstone of our society.  If we don’t allow gay people to marry, they can’t get divorced.  Since they comprise 10% of the population, we’ve solved 1/10 of the divorce problem.

  11. Gary, using King’s words for a cause that he did not support is fallacious. Sure, there are similarities between the 2 right struggles. Both, at the core want a change of law that will guarantee some of the same rights.
    However, King wasn’t neutral on this either. King’s foundation was one religious truth: all of us are created equal by God. On the other hand, same-sex marriage is based on a denial of another religious truth:  the Creator who made us equal made us male and female. 
    Also, Gary, I’ll even accept your premise (people are no more at choice about their sexual orientation than they are about their ethnic background) , even though there are plenty of well documented cases when people were able to “switch teams”. However, the fundamental difference is that you can choose to act on those sexual desires or you can choose not to, this is the real choice.

  12. I think you’re full of it BN, to put it bluntly, on your objection.  In the first place, Gary did not allege that King supported or would have explicitly supported gay marriage.  He probably didn’t.  But Gary was suggesting that the principles underlying King’s arguments would have.  That is entirely different.  Abraham Lincoln, after all, probably would have rejected Civil Rights legislation, and the founders certainly would have.  Yet the principles advanced by both are pillars of the civil rights movement.   That King also had a religious view which on some very selective variations seems to insist on the foundational nature of one man one woman marriage is beside the point.   Lastly, I think the act/orientation distinction you draw merely begs the question and presumes the wrongness of homosexuality.  Lastly lastly, the team switching point doesn’t really mean much.  There are bisexuals, after all.

  13. Yes, John! I do think homosexuality is morally wrong.
    But the question at hand is a more fundamental one. What’s the point of a marriage? Why does the government care about this institution? Why was it defined in a certain why until now? These questions need an answer before we can go ahead and answer other tough questions.

    You don’t remove a fence without finding out why it was there in the first place.

    We also disagree on the consequences of allowing gay marriages. You stated that ” the burden falls on the right denier I think especially when the exercise of that right doesn’t involve subtracting anything from the denier.” I, on the other hand consider that the stakes are higher for everyone.

  14. BN:

    The “creator” also made us gay and straight. But of course, appealing to the “creator” carries no logical weight except amongst those who’ve already decided that such exists. I would observe that King’s arguments, while they make obvious reference to his and his various interlocutor’s religious beliefs, rely in no way upon such religious references. One needs nothing more than the concept of “person” to carry forward the entire argument of, say, the Letter from a Birmingham Jail.

    People can “choose” to mask their ethnic backgrounds — Michael Jackson, anyone? Why should they be expected to do so? One need only note the pretty nearly universal failure of attempts to “fix” homosexuality to recognize the boundless speciousness bordering on overt hypocrisy of the people who would insist on this “choice” meme.

    As Casey noted, King’s arguments were about justice and personhood, and are not specific to the issue of segregation. King’s personal attitudes and the attitudes of his followers could scarcely be more manifestly irrelevant. The question is not about this or that person’s psychological inclinations but about a philosophical argument.

    As for the “definition” of marriage, quite aside from the fact that there is no such thing, it could not possibly be less relevant if there were.

    (1) The regularity with which the idea of marriage gets redefined according to the development of society makes it pretty obvious the claim that there is such a definition is bogus. The “definition” of marriage as a civil contract is a relatively late development in the history of law. What we call marriage in other societies was typically the coming together to make babies. It only took on its contemporary religious significance in the West with the reformation and counter-reformation. Prior to that, most people simply moved in together. There was a time when marriage was “defined” so as to preclude African-Americans from ever doing so — until it was no longer so “defined.” Then it was “defined” so as to preclude inter-racial marriages — until it was no longer so “defined.” Etc. Etc. Etc. The definition gets redefined as notions of justice get refined.

    (2) Suppose there just is “THE DEFINITION” of marriage: so what? You’re basically making a claim about how “it has always been this way.” This is a bald-faced genetic fallacy and argumentum ad populum. 20 million rats jumping off a cliff does not make jumping off a cliff a good idea, even if that’s what they’ve always done in the past.

  15. Gary, good points … but I wasn’t making an argument here.
    My argument is not: Don’t allow gay-marriage because it was never done or defined this way before.
    It is not: Don’t allow gay-marriage because in my opinion homosexuality is morally wrong.

    My whole point comes back to the burden of proof.  I think whenever we are changing our laws we need to understand why it was written the way it was and then make it better if possible. But this should be done after serious consideration.

    See, even John’s statement( “the burden falls on the right denier I think especially when the exercise of that right doesn’t involve subtracting anything from the denier”)  contains a “proof”: since gay-marriage does not impact or subtracts anything from anyone else, we should allow it. That is an argument.

    This is the same argument ACLU made for polygamous marriage (Dani Eyer, executive director of the ACLU of Utah, said the state will “have to step up to prove that a polygamous relationship is detrimental to society. … There’s no denying that thousands and thousands are doing that here and will maintain that it’s healthy. … The model of the nuclear family as we know it in the immediate past is unique, and may not be necessarily be the best model. Maybe it’s time to have this discussion.”)

    So, I still think that it’s the people that change the laws that should carry the burden of proof.

  16. The burden of proof–the legal kind at least–has already been met in that homosexuality is not illegal.  Since any two legally equal heterosexual people can be married without the requirement of sex or children, it’s not a stretch to say any two non-related straight people can as well (without any substantial change in the law).  Polygamy, practiced by King F—ing David in the Bible, is legally and logically completely different.  It’s not clear, in the first place, what obligations spouses would have to each other.  I can only think of one way binary marriage can go, but I can think of at least three legally distinct polygamous marriage.  It stands to reason, therefore, that the one does not imply the other.

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