Sunday, August 8, 2010

Judge Walker's Rape of Reason

Judge Walker's Prop 8 decision is illogical and an abuse of the law, according to critics

The libertarian in me says people are free to do what they want so long as it does no harm to others.  David Harsanyi sums up this point of view in his article, Time for a Divorce.
But isn't it about time we freed marriage from the state?

Imagine if government had no interest in the definition of marriage. Individuals could commit to each other, head to the local priest or rabbi or shaman -- or no one at all -- and enter into contractual agreements, call their blissful union whatever they felt it should be called and go about the business of their lives.

I certainly don't believe that gay marriage will trigger societal instability or undermine traditional marriage -- we already have that covered -- but mostly I believe your private relationships are none of my business.
For the tried and true culture warriors, this just won’t do. I too am opposed to cultural and definitional finagling. Marriage is a time-tested institution common to almost all cultures, and but for a few rare exceptions, it has always meant a union of opposite sexes.

An Illogical and Biased Ruling

Dan McLaughlin has written the definitive article on the subject, The Prop 8 Decision, Having it Both Ways. In it, he reveals the logical inconsistencies of Judge Walker’s central thesis:
Judge Walker’s decision is internally, logically inconsistent in its treatment of the worth of cultural values, arguing that morality and tradition are not a valid basis for supporting the legal status of marriage, but at the same time finding a Constitutional violation from the fact that the same-sex alternative (domestic partnerships) lacks the social and cultural status that marriage has…and which it derives from its grounding in longstanding moral, cultural and religious traditions.
McLaughlin also explains the different sections of a court ruling, and points out how the judge smuggled his biased assertions into the “Facts” section of this particular one. If you want to understand the legal aspects of the case, this is a must-read.

Moral Reasoning

Matthew J Franck’s “Assault on Moral Reasoning” shows how to argue this subject on its merits without resorting to biblical principles which have no standing in US Law. He also explains how despite this, the societal norms of a people, informed by their faith, do indeed figure into lawmaking.
Once it would have been thought to strengthen the case for a law, that it rested on the moral views of the lawmakers, if no countervailing right against being governed by such views could be adduced. And it would have been a matter of no legal suspicion whatsoever that the moral views informing a law found confirmation in widely held religious views as well.

For such moral principles are not articles of faith, in the sense of being specially revealed to the elect or the faithful. They are the conclusions of trains of reasoning about right and wrong, and about human ends and the fitness of the means to them.

In language we might borrow from Plato's Euthyphro, the moral norms that govern marriage are embraced by the pious not because they are mysterious commands of an inscrutable divine will, but because they are rationally knowable as good in themselves, and for this reason find support in the dictates of faith as well.
Just as important, Franck explains the logical fallacies in Judge Walker’s reasoning.
Perhaps the most surprising thing in the judge's opinion is his declaration that "gender no longer forms an essential part of marriage." This line, quoted everywhere within hours with evident astonishment, appears to be the sheerest ipse dixit-a judicial "because I said so"-and the phrase "no longer" conveys that palpable sense that one is being mugged by a progressive.
If you want to argue this issue and defend your point of view, I highly recommend these two articles. For extra credit, there’s more reading at the end of this post.

Further Reading:
Patrick McIlheran - Right On
USA Today - It’s Not About You
WSJ - Prop 8


Always On Watch said...

I fail to understand why gays are pushing for marriage. Don't civil unions afford them access to rights?

Christopher - Conservative Perspective said...

Besides the fact that marriage is the basis for the family unit which begins with PROCREATION achieved through the participation of OPPOSITE sexes, this ruling should it stand opens up pandoras box.

Who could say one could not marry thier dog, cat or parakeet? Or to go further as this is a slipery slope; brother, sister or cousin?
Maybe 10 wives or 10 husbands?

Where would it stop being marriage would no longer be defined but an open-end,,,well who knows now? What would you define it as?

Certainly not an institution but the judge in the Prop 8 ruling belongs in one.

Silverfiddle said...

That's the point, isn't it?

I am pro-gay rights, but why must we abuse a human institution in order to do it?

The revealing part here is that such supporters show a disdain for religious traditions, but at the same time want to invade them and force them to change.

For this reason, many gays like Elton John do not support ramming gay marriage down a society's throat.

Silverfiddle said...

Animal marriage doesn't fit because animals cannot give legal consent.

However, your incest examples are more likely outcomes.

Going further, how long will it be before muslim groups in this country clamor for the right to have multiple wives?

The Constitutional Insurgent said...

The media is rife with charges of the ruling being an assault upon traditional marriage....can somebody, anybody tell me how their traditional marriage is affected by gays being able to enter into this institution?

Christopher - Conservative Perspective said...


I threw in the animal part for the arguement you give against it.

We are throwing out legalities involving marriage as we speak and at this rate and attitude what will 'consent' have to do with anything?

Silverfiddle said...

Constitutional: The answer lies in your question. If they must be allowed to "enter in," that means they were not a part of traditional marriage to begin with. Their "entering in" thus breaks the tradition and changes it.

As I've stated, my only opposition is a definitional and traditional one.

Allow everyone to enjoy their God-given rights that our constitution protects, but leave the institution of marriage alone.

The Constitutional Insurgent said...

OK, I see the semantic illustration....however, human culture is literally littered with bygone norms that were 'traditional' yet not just, fair or Constitutional.

Silverfiddle said...

Constitutional: I agree with your statement about certain traditions. I am relying on the two articles I cite. The men who wrote them reasoned it our very well. A tradition may be found to be unconstitutional, but on its own merits, not because it comes to us from the mists of time.

I found the analysis of the Judge's logic, and alleged fallacies, particularly interesting.

This is one of those issues that has become so emotional that it is difficult to have a dispassionate debate about its merits.

The Constitutional Insurgent said...

I haven't found any fallacies in my reading of the Judges ruling, especially where he states:

- Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.

- Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.

- Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.

And I concur that this is a contentious and emotional matter...but I cannot really understand why. I'm not a homosexual...I'm in a committed 'traditional marriage' [sanctioned by a priest and all]...but I am not threatened, nor is my marriage redefined or harmed by gays being allowed to enter into a legal committed relationship as well.

Silverfiddle said...

The Ipse Dixit declarations, the assertions smuggled in as fact, and the discounting of tradition as a defense of the prop while then using it to justify why the prop is discriminatory. It is logically inconsistent.

Read the next two articles after Harsanyi's. They break it down quite well.

If the prop is knocked down, I want it done so using solid reasoning, unlike Roe v. Wade, which even intellectually honest pro-abortion people admit was a faulty decision.

The Constitutional Insurgent said...

I read all of the articles, but fail to be swayed that simply because something has been tradition, it equates to being just.

How about this; have all legally observed contracts between two consenting adults be civil unions. If the, the couple wishes the blessing of their chosen deity, they can be married.

Silverfiddle said...

I like your thinking. I concluded pretty much the same thing in my post, Gay Rights, States Rights

The Constitutional Insurgent said...

That posting looks interesting! I'll read it in depth when I get a few moments with the kids.

WomanHonorThyself said...

the left wont rest until we are a socialist immoral cesspool of Izlamsists !

Anonymous said...

@ Always on Watch: I know of plenty of instances when same-sex couples were married in a church, but were not recognized by the state. A civil-union is performed by the state, for example by a judge, and not by a recognized minister or priest or what have you. Recognition by the government entails acknowledgement of first of kin and family units with have all sorts of legal implications, something a heterosexual couple married under God can forgo by not getting a marriage license. So no, same-sex couples don't have rights. Thanks for joining the discussion finally.
@Christopher: If it is about procreation then what do we do with barren women and sterile men? Dissolve their marriages? Adoption? Same-sex couples can adopt too and the research shows that children in these circumstances are either the same or slightly better off than their opposite-sex household counterparts (sorry I am lazy and will only put one reference, but since it is the first reference so far, kudos to me). Also, your escalation argument only brings to mind, "If we let women vote, how long will it be before we let dogs and babies vote?" Don't think of the women, think of the theoretical dogs or the fact that women are no better! Your argument does nothing more than to equate gay marriage with bestiality, incest, and poligamy. Your argument's rhetorical power lies in the assumption that people in general actually do separate gay marriage morally from your handbag of possible marriage horrors, and then the argument finds a way to equate them again by asserting that gay marriage is some sort of societal gateway drug to complete chaos. "It might not be wrong in itself, but it will cause bad things to happen." An assumption that has no proof or even better, an assumption one can't even begin to prove. Those kind of assumptions make the best rhetorical arguments.
As for the logical contradiction. Yeah, the proof for two different arguments would most likely contradict each other. But in this instance, they don't even begin to. Argument one: Tradition is not a "basis" for legal status of marriage. Argument two: Traditions can be the basis for cultural status, and defining gay marriage as "domestic partners" would effect the cultural status of those marriages, in argument, set them apart as inferior, legally. In other words, legal status can effect cultural status. And I am just going from what the link says. I don't know what the actually judge wrote. Being that the link also argued that Judge Walker ignored that it was in a state's interest to promote childbearing (what?), and hetero couples have more kids than homo couples (yeah, if you're the Duggars, I guess, wah?). Someone so illogical is pointing out logical inconsistancies? I doubt it. Won't rule it out completley. But, what a douche.

Silverfiddle said...

Anon: good points all up until the name calling. Go to the USA today link and they have a link to the ruling.

The state most definitely does have a keen interest in childbearing. Without it, the state eventually dies

Trestin said...

I agree with your assessment that government should not be involved in marriage. However, I think you underestimate the impact this will have. The left is going to use this as tool to remove tax free status and fine churches that will not perform gay marriages.

The Constitutional Insurgent said...

If government weren't involved in marriage, there wouldn't be the justification for arbitrary taxation of churches who do not preform those marriages.

Now we can always debate the logic of churches being tax exempt in the first place.....

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