LA Times reports:
“Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment,” the judge wrote. “Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”Vaughn added: “Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.“
Ultimately, the judge concluded that Proposition 8 “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. … Because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”
Judge Vaughn Walker’s full decision is available here.
Here’s a Twitter feed thingy about Utah’s reaction, and a reaction by the creator of 8: The Mormon Proposition.
This is incredibly good news. I’m especially pleased the Judge’s decision notes that marriage is a fundamental right. But it begins a (likely) long road to the 9th Circuit and then to the Supreme Court. Overall though, this is a wonderful moment for justice and equality, and is a big boost in confidence for other challenges and activism around the country.
I was actually slightly surprised by this ruling. From what a read when Prop 8 was first appealed, the opponents to Prop 8 had a shaky legal case. But I guess the Prop 8 defense team was just really weak and botched it–snatched defeat from the jaws of victory. It will be interesting to see how this unfolds throughout the appeals process.
I actually wasn’t too surprised. I’d been following some live-blogging of the court’s daily proceedings, and I got the feeling the defense presented a really sloppy case, while Prop 8′s opponents had a great set of expert witnesses and so forth.
There is one thing I’m not sure of: is this decision binding even though it is going to be appealed? In other words, can gay couples get married in California again while the 9th Circuit case is in progress?
Edit:This decision does NOT allow gay marriages to resume. The judge has issued a temporary stay pending appeal because both sides had made it clear that they would appeal. Apparently, one couple was able to get a marriage license before the stay was issued.
That meddling 14th Amendment strikes again!
Surprised? Have you been following this at all? It has been clear for some time that this is how he would decide. A lot of people thought the judge should recuse himself, not because he is (according to reports) gay but because he was pretty clearly not impartial. There have been serious questions about his management of the trial almost from the beginning. In fact, some of his actions and rulings were rebuked by both panels in the 9th and the Supreme Court. The SCOTUS ruling was actually pretty stinging, suggesting that a majority of the Justices have serious concerns about his impartiality. I’ve even read some gay marriage supporters who have been extremely critical of his rather obvious lack of impartiality and the show trial he put on (Eva Rodriguez of the Washington Post is one that comes to mind).
It is also true that the defense team did a horrible job. The Catholic Thing featured an article last month discussing their inept effort:
http://www.thecatholicthing.org/columns/2010/with-friends-like-these.html
I don’t think the appeals process will be all that interesting. Nothing is more predictable than the 9th upholding his ruling (they’ve never met a liberal decision they didn’t like). But that won’t necessarily mean much (it is most overturned court in the land). The SC will decide it. We’ll see.
Related story: In a video Dave Fleischer (gay marriage advocate) discusses a report he put together on the Prop 8 battle. He actually thinks the measure would have lost by even more had the yes/no issue not been so confusing. While some voted yes thinking they were saying yes to gay marriage (when they were not), his data suggests that many more voted ‘no’ thinking they were saying no to gay marriage when in fact they were saying yes to it.
http://prop8report.lgbtmentoring.org/
I didn’t really follow the case, no. I figured it’d this decision, no matter which way it went, would just be appealed to death so I didn’t really care to follow it too closely.
I heard a few days ago that it was expected to be overturned, so it wasn’t really a surprise. What I meant is that a year ago, when Prop 8 was first appealed, I would have been surprised by this decision because I read that Prop 8′s legal opponents had a shaky case. A Mormon lawyer friend of mine, though, has been reading this judge’s decision and he thinks it’s pretty sound and may stand.
We’ll see.
I suspect that if this makes it to the Supreme Court, gay rights proponents will lose. The Roberts court is very conservative. And should Prop 8 be upheld by the SC, I’d be disappointed, but terribly so. Like it or not, I’m confident that gay marriage will be a reality in most states within a decade or (at most) two.
I don’t know that the Roberts court is “very conservative”. Though moderate O’Connor was replaced by more conservative Alito, the Court is only as conservative as the Kennedy swing vote. As a social conservative, I am not exactly counting on Kennedy (a Catholic!) to vote with the conservatives on this issue.
The next presidential election will be huge for the Court, since the next President will probably get to replace Kennedy (and probably Scalia and Ginsburg). Kennedy has told friends that he plans to stay on through Obama’s first term. Whichever party wins, one can expect a dramatic shift in the Court (with something like a lasting majority) to either the left or right.
A New York Times study found that it’s the most conservative in recent history:
http://wonkroom.thinkprogress.org/2010/07/26/roberts-right-wing/
I have read that article. The article itself presents more modest claims than you would think from the title and the excerpt in your link.
No doubt the Court has inched right, but the Times piece says this “recent shift to the right is modest. And the court’s decisions have hardly been uniformly conservative.” The article notes that the Court’s decisions have been (according to a collection of studies) “closely aligned with or more liberal than public opinion”.
My sense is this: the conservative block of the Court is occupied by more conservative conservatives (the Times piece mentions that 4 of the 6 most conservative judges of the last 70 years or so are on the Court now). But I think some of the liberals on the Court are more liberal too. This goes against what Stevens says in the article. But his claim that all 11 of the most recently appointed justices are more conservative than their predecessors does not really hold up. Ginsburg is not a “possible exception” to that “rule”, she is definitely more liberal than White was (he dissented on Roe!). It is not obvious that Kennedy is more conservative than Powell (and they were on opposite sides of homosexual sodomy rulings, with Powell voting with conservatives). And I don’t know that O’Connor was more conservative than Stewart either. And I don’t think anyone would say that Sotomayor is more conservative than Souter.
Anyway, I don’t think the Prop 8 vote is in the can when it goes to the SC for either side.
Here is the Times piece in full:
http://www.nytimes.com/2010/07/25/us/25roberts.html
Just note some of the presumptions in the finding (I have not read the whole finding):
1) He claims that gay marriage is “consistent with the core of the history, tradition and practice of marriage in the United States.”
This is, frankly, a laughable claim. Even if you support gay marriage, I have a hard time understanding how you could defend this assertion.
2) On calling the “right to marry” a “fundamental right”. First I hasten to point out that gay couples are already free to marry in private religious and non-religious ceremonies. The question is whether or not the State must recognize those private relationships. But the judge’s decision makes it sound like marriage is a state-created institution and so capable of having its meaning amended by the State. On this view gays only have this “right to marry” if they also have a right to govt recognition of those relationships. This line of thinking suggests that “fundamental rights” are issued by the State and are subject to State amendment. This is typical of the left’s view that our freedoms and rights are issued from the State rather than being “endowed by the Creator”. In my view, humanists (religious or not) should be disturbed by such a claim.
This is, of course, the core of one of the primary objections to gay marriage – that marriage is not an artifact of law but is a natural institution and so is not the sort of thing that can be amended and changed by fiat.
How is marriage a “natural institution”?
Until there is enforcement of rights they don’t exist, there are just ideas. I think this came up either here or on the usuphilosophy site a couple months ago. That’s my left-wing opinion and I agree that it generally holds true of the left. Then, what is the most powerful, secure, agency in which we can base enforced rights? The state, the government. This is of course heresy to the right, but ask yourself which view makes more real sense. Without the ability to enforce a right, you can’t have it in any way except as an ideal. Without the key element of enforcement, youre just playing a semantic game. Down deep I think the right understands this as much as the left. They pursue enforcement of their rights as much as does the left. The difference is simply what is and isn’t included on the list.
You can always tell when I am knee deep in grading (in this case for an online summer class) because my blog activity skyrockets!
In response to Jon — Maggie Gallagher is very good on this, see her writings at marriagedebate.com.
There are two competing claims here. One view (typically held by the left) is that marriage is an artifact of positive law and so is subject to change and revision by the State. This view often regards marriage as a mere vehicle for delivering various legal benefits and such things.
The competing view is that marriage is not an artifact of positive law but rather is a natural institution. The family is not, then, a mere product of the state but is instead an institution which naturally arises out of basic human needs – specifically the need to bridge the male-female divide and the need to provide stable social structures so that children can have committed mothers and fathers. On this view, the natural family is the bedrock of society and the reality of and need for marriage is deeply rooted in human nature (not custom or contract). (that is, I am making a natural law argument).
My view is that laws regarding marriage do not create nor define it, but rather recognize a pre-existing natural institution. I understand Hunt’s point about enforcement of rights, but the question here is not the enforcement of but the origin of rights (that is, what is included on the list of natural rights we want to insist get “enforced”). I agree that we should insist that states respect and recognize these rights and “enforce them” with the power of the state. That said, while I think marriage is a natural good, I have said here before that I do not think that anyone (straight or gay) has a “right” to state recognition of private relationships. Many govts (including ours) have decided that there is a compelling state interest in recognizing and encouraging this natural good.
Anyway, this is why I am totally unmoved by most arguments for gay marriage which presume marriage to be an artifact of positive law whose meaning can be revised by fiat. The only arguments that get any traction with me at all are the suggestions (as Vince recently alluded to on this blog) that a natural law or natural goods argument could be made for gay marriage (I remain unconvinced that it can). (Side note: even the Bible seems to make the natural family point – the reality of marriage and its connection to possible fruit in is there from the very beginning as a basic natural good for human beings, pre-fall, and precedes any uniquely religious, sacramental, or sectarian understanding of marriage).
In some of the commentary on the issue and decision, you will see people use the term “natural marriage” instead of “traditional marriage”. I do think this is a more precise term, since “traditional marriage” gives one the sense that the norms around marriage are mere custom. This background may help flesh out what Cardinal George meant in his official response to the ruling: “Marriage between a man and a woman is the bedrock of any society. The misuse of law to change the nature of marriage undermines the common good. … No court of civil law has the authority to reach into areas of human experience that nature itself has defined.”
What is interesting is that the place of the natural family is usually one of the first targets of Marxist and totalitarian movements. Marx and Engels demanded the complete destruction of the natural family as a first step in achieving his goals (again, the error arises out of his inadequate anthropology, having reduced “human nature” to materialism and economics). Engels was particularly aggressive on this. What is arguably a totalitarian state in Plato’s Republic includes the complete dissolution of the natural family (Aristotle takes Plato to task for this, arguing that the natural family has a necessary place in any social structure).
A broader point that can be taken from all of this: The trouble for secular scientific humanism is that once you deconstruct any appeal to the transcendent and any appeal to the natural law, the State becomes virtually the only source for rights claims and public discernment of goods. This is a very dangerous attitude. This is why I mentioned recently in a post that atheism has a tendency toward facism. On my view, the State does not create my natural rights (right to life, etc) or determine natural goods, but instead some states happen to recognize those natural rights and goods (and we justifiably complain about states that refuse to recognize those natural rights. But these arguments about injustice only work if the ground of rights is vested somewhere other than in the state (like, say, in human nature). But if there is no natural law (ie no arguments from human nature) and no Creator who “endowed” us with rights, the state is free to become totalitarian.
This last paragraph goes some way in explaining why I think the only authentic humanism has to has some reference to the transcendent and why secular humanism finds itself ultimately groundless. But that is a discussion for another day, but a discussion that I have long promised to have with Jon, but never quite gotten around to. (Which reminds me, Jon, we should get together for that pint sometime soon).
“The family is not, then, a mere product of the state but is instead an institution which naturally arises out of basic human needs – specifically the need to bridge the male-female divide and the need to provide stable social structures so that children can have committed mothers and fathers.”
This type of argument could potentially be used to exclude certain couples from state recognition as well, no? Do you think that there are other kinds of unions that fail to accomplish either of these two goals? What is your criteria for determining what kinds of couples meet these ends and which ones don’t?
I don’t believe that rights are issued from the state, but merely a standard of living on which people attempt to agree on for societal function. (too few and the people will revolt. too much and there will be chaos) If societal rights are endowed by the Creator, who then, is going to define what the characteristics of this creator are? Who is going to decide what is natural? In the ruling, scientific studies were examined. Since we can’t all agree on a creator is, society relies on scientific findings in court rulings to decide what “nature” is, and what ought to be law for the good of the people.
Since marriage was primarily a religious rite (if I’m not mistaken), things became unnecessarily sticky when government decided to adopt it. But now that our hand is caught in the cookie jar, it is now time to fess up to our crime. (Of mixing church and state). From an Equal Protection standpoint, we must accept or eliminate all forms of marriage that benefit government and don’t discriminate, even polygamy if it is proven such.
I read a small bit from maggie’s website, I’m assuming you agree with the claim that man/woman relationship is naturally derived, and making a law to recognize gay marriage will bring society towards the idea that marriage is just 2 adults with “close relationships”. This idea is dangerous because… why? Could you clarify? I think that that stance runs into problems quickly for a few reasons. 1. Not all positive child rearing families are married. 2. People are not going to stop breeding positive families because of homosexual relations being state approved. If you can find scientific evidence for that claim, you can bring it up in court to change the law.
Even if this happens, say this gay marriage law unearths all societal demons and people breed less and less, and families become unstable, what then? Did a simple law just undo billions of years of evolution? If a natural law was subdued by simple bureaucracy, what does that say about the power of “natural law” and the human genome? Can a single relationships idea really uproot humanity? Stop me if I’m putting words in your mouth.
I am rather flustered and confused that you associate atheism with fascism. I don’t really see things in terms of government. I see things in terms of, “we have a ton of people on the planet, and we need some popular rules to keep us safe and happy: pick a system of gov’t that works for your people.”
And one last thought, just for fun. What if there was an alternative effective way of rearing up people in society? I’m talking about a society where families don’t live in separate houses and biological parents are less important than the community/elders as a whole? I’d bet that there are anthropological examples of this.
Kleiner writes:
“On my view, the State does not create my natural rights (right to life, etc) or determine natural goods, but instead some states happen to recognize those natural rights and goods (and we justifiably complain about states that refuse to recognize those natural rights. But these arguments about injustice only work if the ground of rights is vested somewhere other than in the state (like, say, in human nature). But if there is no natural law (ie no arguments from human nature) and no Creator who “endowed” us with rights, the state is free to become totalitarian.”
The fact that “might does not make right” is a pretty bulletproof truism, and it’s easy to go from state enforcement of rights to something like it. Things start to smell a little like “moral relativism,” which apparently nobody likes. There’s a danger from jumping from it to absolutism like “endowment by the Creator” because, as Kyle says, who interprets what the Creator endowed or didn’t endow, and how do we know the entire system isn’t a sham designed to control us? It seems that absolutism has its own pitfalls regarding who controls the message. At least with relativism we know that we are the authors of our ethics; there’s no one to blame but ourselves.
“But if there is no natural law (ie no arguments from human nature) and no Creator who “endowed” us with rights, the state is free to become totalitarian.”
The state IS free to become totalitarian, or that is to say, it is capable of becoming totalitarian, which is why the state must be controlled. This is the kind of sobering slap in the face that many de-converts experience, the “shit, it’s up to me” realization of atheism.
Kyle write:
“And one last thought, just for fun. What if there was an alternative effective way of rearing up people in society? I’m talking about a society where families don’t live in separate houses and biological parents are less important than the community/elders as a whole? I’d bet that there are anthropological examples of this.”
There are, unfortunately I can’t remember which off the top of my head, but I’ve read about societies where child rearing is essentially a communal responsibility, or at least more so than is the case in most western culture.
Out of curiosity, Kleiner, last I recall you were leaving USU. Were you renewed?
Mike raises a good objection, and it is a fairly standard objection to the natural law view I presented. I will provide a fairly standard response (there is more nuance here than I am reporting, and a distinction between “old” and “new” natural law replies to this objection). For those that want more detail, I would encourage them to google articles by Robert George of Princeton.
Mike is right that not all hetero marriages satisfy the ends I identified. But the issue here is an issue of kind. Marital acts are the kind of acts that are generative, even though marital intercourse obviously often does not produce babies. But the core meaning of marriage and its connection to generation is not questioned because not ever marital act is generative in effect (intentionally or unintentionally). Same sex marriage, however, completely dissolves any connection between marriage and procreation and alters the fundamental meaning of what would count as a marital act.
Of course I don’t think gay marriage is the only cultural movement that has undermined marriage and brought negative consequences. There are a slew of cultural attitudes that have broken down our understanding of sex and its generative purposes. The results of the “sexual revolution” are plain enough – 40% of children grow up without fathers, divorce rates have skyrocketed, etc etc. Worth noting that it is women and children who have suffered the most from these trends. So we are actually well down the road of the dissolution of the natural family (contraception, no fault divorce, etc etc). Gay marriage would just be another step down the path.
Anyway, I disagree with Kyle H when he characterizes marriage as “primarily a religious rite”. Natural marriage is the kind of relationship that is uniquely ordered and apt for childrearing. Baptisms and confirmations and bar mitzvahs are not a matter of public concern because they are merely religious rites. Marriage is not merely nor always a religious rite, it is a natural institution of considerable public concern.
Absent any connection to children, marriage is simply an emotional union that is entirely for the sake of adults and their emotional and sexual satisfactions. If this is so there is really no reason why these unions should be permanent, limited to two, monogamous, or legally regulated in any way at all. If this is all marriage is, then gay rights advocates should not be pining for legal recognition, but instead should be insisting that the govt stop recognizing hetero marriages since that recognition is a largely pointless state exercise (on this reduced view of marriage).
I am not moved by Kyle’s concerns about the natural law – “who is going to decide what is natural”. While there were certainly competing views on, say, the part of the founders, they managed to find common ground on various rights which all agreed were not conferred by the State. I don’t think ethics is a particularly esoteric mode of inquiry. My guess is that if I sat down with a SHAFTer, we’d agree in pretty short order on 90% of the basic human goods. Maybe I should not be so optimistic, I take the claim that it is preferable that children have mothers and fathers as pretty obvious. (some social science comparisons on this here: http://www.marriagedebate.com/pdf/MothersFathersMatter.pdf
And it is not just “shit it is up to me” (as Hunt says) political issue. I always try to remind students that the French existentialists who popularized that atheistic political activism (like Sartre) hardly ever met a dictator they did not love. The problem is that the materialist humanist has no philosophical grounds from which to make his case. Sartre’s ethics are incredibly weak. I am reminded of Huenemann’s talk, audio or video of which might be on this site somewhere (I think he called it “why atheists should not be so smug about morality”). And one might think of Plato’s account of the devolution of democracy into tyranny. Hunt says the state must be “controlled”. But Plato argues that it is the citizens themselves, obsessed with freedom and egalitarianism, who will in fact demand that the state take control. Absolute freedom invariably turns into utter slavishness.
I don’t have time to take up Kyle H’s essentially Utilitarian account of rights. Though I think the view is deficient, it is obviously a legitimate point of view so my not taking it up here should not be interpreted as brushing it off. Perhaps there are some students who recently took Sherlock’s natural law class that might be able to chime in on this.
And yes, my position had been eliminated with budget cuts but was renewed after all. So will be back at USU this year. Cheer or boo, whichever you prefer.
In a world where survival depended on every able family that could reproduce should reproduce in order to survive, your argument has more merit. In a day where population limits are being explored and tested, it has considerably less so. People are looking for quality of life. Humans are not merely robots who exist only to survive. If there is no joy involved, what is the point of reproducing?
Discrediting the intrinsic value of joy in a union (even to the state) is quite a disservice. If a couple has 3 kids, then all 3 die in an accident at age X, and the parents become sterile, there’s no reason for them to stay together? Should the state revoke their marriage? Or do they get a “in good faith” credit for trying? If you don’t shun that type of relationship, then you can’t shun a gay marriage either. [Because gay couples are trying really really hard to get pregnant. Maybe they'll get the hang of it soon!] If you recognize marriages, and recognize homosexuality as a natural phenomena, you can’t just tell gays to go sit in their little corner. They’ll resent it. It’s not a loving thing to do. If the state is not concerned for my happiness, why should I pay taxes when I control the gov’t?
The fact of the matter is homosexuality is a natural phenomena, pairing up for life is a beneficial choice, and we gotta find an option in today’s society for these people. Civil union ain’t gonna cut it when marriage is just 2 syllables away. Why? Read on.
In a different world, where gays were accepted as a normal part of society, there would hardly be this issue. In a world where every minority class you can think of has had to trudge through gallons of fear and hate, things are going to be much different and much more emotionally charged.
While the state isn’t the best place to look for recognition, it’s a somewhere to start when family or society or church won’t accept you for who you are. Which is where this problem started in the first place. The gays aren’t feeling so loved right now. So consider this a self-created problem by moral absolutism.
There are no ideal solutions since there is no Utopia.
On the point of natural law, I am unaware of what it means, and it isn’t patently obvious, so my guess is that it’s a local philosophy and can not be naturally derived as absolute truth by all societies. But I will investigate it when I can.
“On the point of natural law, I am unaware of what it means, and it isn’t patently obvious, so my guess is that it’s a local philosophy and can not be naturally derived as absolute truth by all societies. But I will investigate it when I can.”
Kleiner will no doubt correct me, but it”s essentially a teleological concept that the world works in certain ways and if you cross them, things will turn out badly. That’s it in a nutshell. It has Catholic origin, and of course Catholics equate the working of the world with the will of God. If you cross the natural order, as specified by God, things will not go well for you. It’s analogous to using a lawn tool outside its specification: you can do it, but chances are you’re going to either blow it up or lose a toe. Catholicism has long (as in thousands of years long) fancied itself in accord with nature, and that revelation in natural order will correspond to revelation in God’s design. This is why Catholics have contributed massively as scientists through the centuries and been lauded within the Church for it. That simply has to be admitted. It’s why Catholics have reconciled themselves to evolution (for the most part).
Catholics can accommodate homosexuality. It’s not outside the realm of possibility. They’ve made room for far more noxious imports. If tomorrow definitive scientific proof came that homosexuality played a significant role in historical human development, perhaps child rearing during Stone Age hunting season, the Church would eventually capitulate under the pressure of consensus.
Very briefly:
Hunt says my argument is guilty of “Discrediting the intrinsic value of joy in a union”.
Not at all, nor am I committed to the claim that generation is the sole end of sexual acts. I am simply saying the possibility of generation is an intrinsic part of the meaning of sexuality.
The natural law is precisely NOT a “local” philosophy. It claims that moral truths can be derived by natural reason through a reflection on human nature and human goods. It does have a connection with teleological accounts of human nature (that there are basic human goods that are desired by all people).
It is NOT a “Catholic philosophy”, though it is these days associated with Catholics. Its origins are older than Catholicism. Aristotle, for example, held a natural law view.
But Hunt pretty accurately describes why Catholics are not anti-science and why they see a synthesis between claims of faith and reason.
It will come, I suspect, as a great surprise that the many millions of Catholics and non-Catholics who hold the view I suggested above that they are experiencing “joyless” and robotic sex.
Since there is some correlative evidence that people that use NFP actually have more sex and report greater intimacy, this really does not add up. Monty Python knew this. Sure, they have it wrong when they claim the sperm is sacred, but this clip humorously makes the point. Poor Protestants, so “free” thanks to disassociating sexual acts from procreation, but yet the Catholics are having so much more sex!
http://www.youtube.com/watch?v=ifgHHhw_6g8
I am always surprised by how resistant to the natural law claims about sexuality people are. Is it really that crazy to suggest that sexuality inherently has something to do with procreation? This seems like a plainly obvious claim to me, hardly the product of zealous sexual absolutism. In fact, it seems downright silly to deny it.
I meant if there is no joy [in life], why bother reproducing when life isn’t joyful?
I was bringing up the point that species have population limits, and if we keep stretching ours in the age of excess waste and high energy use, the quality of life will go down. But that’s beside the point.
But now that you bring sex up, you have quite the double standard there. You say its great for heterosexual couples to have sex, but you think that it’s absurd someone could have sex without the thought of children in mind. It’s great that NFP works for some people. Really, but we can’t expect everyone to subscribe to a condom free lifestyle. Especially when everyone is not going to agree on ethics. If there were a natural law that was simple and easy to derive by each human, it would be quite obvious to the common joe. But since it’s not, we can’t assume everyone will subscribe to “natural law” ethics.
It’s not crazy that sex has a lot to do with procreation. For Heterosexuals!!! But I believe the thread was about homosexuality! We can’t just ignore ~2% of the population and pretend they can’t be in society. That’s the main issue here.
The issue here is not about the freedom of homosexuals to live as they wish. Immoral or not, homosexuals are free to be actively homosexual. I am not the least bit interested in interfering with their freedom to do so.
But the question here is whether or not the common good is served by revising the age old understanding of marriage in law and public policy. Homosexuals are free to live as they wish, but I do not think that everyone has a “right” to have their desire satisfactions enshrined in law. Natural marriage is recognized by the State because the State has a compelling interest in natural marriage (for the reasons I cite above). I remain unconvinced that there are any compelling state interests in recognizing gay marriage, and the equality argument hinges on an exaggerated legal positivism and a false notion of equality.
Something tells me you’ve never been turned down for housing because you were straight. Something tells me you’ve never been fired for being straight.
Something tells me you’ve never considered suicide because your “desire satisfactions” weren’t beneficial to society.
The world view that gays only have “desire satisfactions” is completely demeaning and partly responsible for the crimes stated above. You are completely overstating any possible effect on public view of heterosexual marriage. The public views on State and marriage? yes, but that has not much do with how straights will live their lives. Frankly, they shouldn’t care that gays can also get a piece of paper together.
“not everyone has a “right””
“false notion of equality”
I’m sorry your superior self is too good for the gays, but personally I think all people are equal and should get equal state rights.
It seems your core argument has boiled down to straights are better than gays.
I’m genuinely sorry that you feel that way.
Good luck with that belief.
I have made level-headed arguments and have absolute no ill feelings toward gay people. But when one actually dares question liberal orthodoxy on sexual ethics, it is not long before their personal character is smeared. I am genuinely sorry that the discussion almost always has to devolve in this way.
Kleiner, in what way were you smeared? What part of your position has been mis-characterized? Aren’t you in fact saying straights are better than gays? For childrearing, etc? I’m not sure this has to do with sexual ethics so much as love. I know too many loving, committed gay couples who are _way_ more fit to care for children than a number of natural-law-fulfilling rednecks I’ve run into. If the state has to make a judgment it should do it on those sorts of grounds, the very specifically relevant ones.
I probably over-reacted to Kyle H’s post, reading it in the context of my having been called a slew of nasty names on this blog (homophobe, murderer, etc) when issues of sexual ethics come up. So I was probably too trigger happy there, though I think it is understandable in light of how past discussions on this blog with me have gone (I think I am going to retire from this blog since I have about come to the conclusion that my time here is mostly wasted). Anyway, I read / over-read his post as accusing me of a lack of compassion (as if I am insensitive to the suicides and such things of gay people) and a general feeling of callous superiority over gay people. I don’t think gay people are “worse than” anyone else, they have every bit as much dignity as anyone else. I just don’t think their desire to have state recognition of their private relationships justifies upending 5000 years of human cultural understanding of marriage and society and I am entirely unconvinced that there is some kind of sweeping grave injustice being done by not having gay marriage.
Your anecdotal remark about gay couples you know aside, I believe children need mothers and fathers. There is some research that shows that gay couples do as well rearing children, but articles I have read suggest that much of that research is either flawed (sample sizes, limited outcome measures, etc) and most of these studies compare children of gay couples to children of single mothers instead of children with mothers and fathers. (One article that I have in mind I do not have the citation for, but my wife showed it to me in the journal Developmental Psychology). A good part of the research in this area can best be described as “advocacy research”.
A sociologist from UVA named Steven Nock reviewed hundreds of studies on this issue as an expert witness for the Attorney General of Canada and concluded: “Through this analysis I draw my conclusions that 1) all of the articles I reviewed contained at least one fatal flaw of design or execution; and 2) not a single one of those studies was conducted according to general accepted standards of scientific research.” Sociologist Robert Lerner did a major review of the available studies and concluded that “the methods used in these studies are so flawed that the studies prove nothing.”
I am not thereby saying that gay couples are always and everywhere incapable of raising healthy and well-adjusted children, nor am I suggesting that every natural marriage family is a success. But the only established research demonstrates that the ideal setting for children is stable families with biological mothers and fathers. About the only compelling state interest that I can think of for being involved in marriage at all is to encourage ideal and responsible procreative practices. Absent that, I suggest that the govt simply get out of the marriage business altogether. Maybe that is the best solution, and then we can get on to suffering reduction issues.
You’ve impressed us all with that pstiong!
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The state should spend its time worrying about real harms (child abuse and legitimately damaging situations) and get out of this nonsense. Kleiner’s verbose ramblings notwithstanding. There is no question unless you want the state wasting its time on unimportant things. Opportunity cost is relevant here.
Only ignorance says “homosexuals are free to live as they wish”. Was Todd Ransom free to live as he wished?
Mike – By “free to live as they wish” I was speaking from the point of view of law and public policy. I did not mean to imply that there is no job/rental/etc discrimination or violence against gays, and obviously I don’t support that.
I entirely disagree with your assessment that the question of the family is an unimportant question. Of course there are other issues that deserve more interest than they receive, but the meaning of the family is an integral societal question. Not only that, this legal fight is an episode in a larger battle over natural law and legal positivism, the place of the courts in a democracy, etc, none of which are trivial matters.
So I disagree that this is a waste of time. In fact, it seems a bellwether cultural moment to me. For my part, I expended very little mental energy on the question of homosexuality prior to the gay marriage issue and have only become more vocal about it when 5000+ years of human cultural understanding got tossed aside by a single judge.
We’d all probably be better off fighting against the “job/rental/etc discrimination or violence against gays”. “Of course there are other issues that deserve more interest than they receive”. Indeed.
I could care less about some sort of cleanliness related to “natural law and legal positivism”. Which side of this is likely to alleviate the most suffering?
The appeal to tradition isn’t very impressive either. Racial prejudice and slavery both have long long sordid histories as well, maybe they need to be re-introduced so our society can get back in line with more traditional human cultural understanding?
I just wanted to note that there are two Mikes on this thread. My only comment was the question to Dr. Kleiner about what kind of couples met the ends he ascribed for marriage. I’ll post as “Mike O” from now on.
“Marital acts are the kind of acts that are generative, even though marital intercourse obviously often does not produce babies.”
This could certainly be a necessary component, but is it sufficient? There are plenty of sexual acts that are procreative but don’t bridge the male-female divide or provide a mothers and/or fathers for the ensuing children. Do you believe that there other ingredients that must be present in order for a sexual act to be considered a marital one?
To answer Mike O’s very good question I am going to step outside of the question of govt recognition of marriage. I like how John Paul II frames this in his Theology of the Body. There he does not distinguish between “marital” and “pre-marital” sex but instead distinguishes between “marital” and “non-marital” acts. Just because you are married does not mean that every sexual act within that marriage is properly a “marital act”. The mutual self-giving between complementary sexes can be disfigured in any number of ways. For an obvious example, a man could rape his wife. I would not call that a “marital act”. Even some consensual sex might fall short – some women might “trade sex” for things (doing chores, hoping that husband will not leave them in a desperate situation, etc), and I would not call those “marital acts”. It is not as if being married then gives on license to lust (to treat the other as if they were an object).
Point is, as Mike O seemed to suspect, generative possibility is not by itself a sufficient condition for moral permissibility or sexual act. I think it is a necessary condition, but the act must also be an act of love, a free and reciprocated gift of self to self. I am not interested in reducing sex to mere procreation or to “luv”.
I really would encourage people to read John Paul II’s Theology of the Body. It is philosophically very sophisticated. People interested in Continental philosophy will see the fingerprints of hermeneutics, phenomenology, Levinas, Buber, etc all over it. And it would give some a much needed sense of just how positive the sexual morality of “conservative” Christians can be.
And it is one of the rare occasions where someone takes the reality of sexual difference in the human condition very seriously. Reading this will help people understand why folks like me have real issues with Judge Walker’s casual dismissal of the importance of sexual difference (or “gender” difference to use the trendier term). On Walker’s view, sexual difference is merely incidental to marriage rather than being one of its defining features. Again, I just think he is entirely wrong about this.
“Point is, as Mike O seemed to suspect, generative possibility is not by itself a sufficient condition for moral permissibility or sexual act. I think it is a necessary condition…”
Really? Are sterile couples just supposed to stop having sex when the fertility specialist says they have no chance of conceiving?
I am going to sound short here, nothing personal intended by it.
Mike L. – It may come as some surprise to you, but natural law theorists have actually thought of that incredibly predictable objection. If you don’t know how natural law theorists would respond, then you don’t know the natural law argument well enough to dismiss it. The wrongness of certain sexual actions is in their intentionally subverting the generative possibility of the sexual act. When you intentionally subvert the procreative sense of the sexual act you turn the act into a different sort of act altogether. (But sterile couples or even fertile couples haveing sex during natural infertile times are not intentionally subverting the generative sense of the act). I’ve explained that point on this blog before regarding contraception and NFP (the distinction between immediate and further intent). Search for it on the SHAFT blog, or read Elizabeth Anscombe’s “Contraception and Chastity”.
But I won’t engage in any more “verbose ramblings” on the topic. I’ve made more of an argument on this blog on this matter than about anyone else (most everyone else has simply engaged in bumper sticker sloganeering). But I am done. I’ve done my level best to challenge conventional opinion on this blog, but I’m done.
You’ve failed to explain why “intentionally subverting the generative possibility of the sexual act” is in any way harmful or wrong.
How does gay sex hurt anyone? Or masturbation? Or sex w/ a condom?
Also, is it permissible for women to masturbate since there’s no generative possibility from that act? What about lesbian sex?
Even if I accepted the premises behind natural law (which I don’t), it just doesn’t make sense to say that we evolved sex in order to procreate, so any non-procreative sex is therefore wrong. It’s like saying we evolved noses to smell with, so resting glasses on them is wrong.
Without resorting to “god said so”, I fail to see how that argument is ever persuasive. And as the “god said so” argument is also unpersuasive, I think it leave you in a quandary.
Also, I don’t find your explanation for infertile couples compelling. Why draw the arbitrary line between heterosexual infertile couples and homosexuals? Why shouldn’t the fertile person be forced to breed with another fertile person if procreation is so important? If you’re having sex with an infertile person, you’re certainly knowingly “intentionally subverting the generative possibility of the sexual act”, as you know that no matter how much you boff, procreation can never happen. Essentially, you’re having sex because it feels good, and/or you love the person you’re having sex with and want to be intimate with them. And how is that different from the reasons gays have sex again?
Dr. Kleiner, thanks for the answer. Your response makes more sense, but I hope you can at least understand my reaction since the paragraph of yours that I quoted seemed pretty categorical. I’ll check out the Anscombe article you referenced…
Just a minor quibble here:
” (But sterile couples or even fertile couples haveing sex during natural infertile times are not intentionally subverting the generative sense of the act).”
Fertile couples who understand and intentionally consider the fertile cycles of the woman are intentionally subverting the generative sense of the act , if that is in fact what they are intending. I mean, come on, fair is fair, and let’s call a spade a spade.
First off, I’m wondering if this:
“But I am done. I’ve done my level best to challenge conventional opinion on this blog, but I’m done.”
means we’ve slain the dragon. Seriously, it would be a shame if Kleiner left. I’ve gotten to like his counterpoint, and when he’s off Catholicism, he adds much needed philosophical sophistication to the discussion. Trouble is, his Catholic mumbo jumbo takes up at least 50% of his discussion. Okay, “mumbo jumbo” is a little mean, but Kleiner, if you read this, you really can’t expect other than an uphill battle on a forum like this, can you?
Craig says, “Even if I accepted the premises behind natural law (which I don’t), it just doesn’t make sense to say that we evolved sex in order to procreate, so any non-procreative sex is therefore wrong. It’s like saying we evolved noses to smell with, so resting glasses on them is wrong.”
Good point. Greta Christina, I think, is the one who pointed out the fact that the fundamental function of nutrition is to nourish our bodies, but you don’t see people condemning wild and crazy gourmet creations. Here’s one example I specifically remember trying on Kleiner in a previous incarnation of this exact discussion: Is saccharine evil? It has absolutely no nutritional value, it only stimulates the taste buds, subverting the natural function of our bodies. How terribly stifling it must be to feel you need to evaluate every aspect of our interaction with the world, to judge whether it fits with a preconceived “natural function.” Flying? Boating? Space exploration? How about even communicating with others over this ethereal thing called the Internet? All mighty unnatural, I would say.
“Slain the dragon”? Flattering to think of me as a dragon! Perhaps it could be more accurately said that this humble third class citizen of the philosophical world has grown a little exasperated. I’ve always seen my activity on this blog as an extension of my role as a teacher at Utah State, though a place where I could wear my religiousity a bit more on the sleeve. I’ve really enjoyed that. But I am finding myself too often agitated and have occasionally lost my cool and been sarcastic (not a productive mode of discourse to my way of thinking). This is my own error, a failure of patience of charity.
I do enjoy engaging atheists, and having been an atheist myself I feel well suited for it. And I think there is a place in the world for apologetics and usually I happily take up that task. Of course I expect and uphill battle here, and I really enjoy that and am dressed for battle. But at times I wonder if it is good for my soul to spend so much of my intellectual energy on these discussions. I don’t want to fall into the trap that many atheists fall into – spending far more time being against something rather than exploring and wondering at what I am for. I am really not an “anti” sort of a person. As a philosopher, I almost always see “both-ands” instead of an “either-ors”.
So I am thinking of taking a step back. I’m not giving up the task, forfeiting, or declaring the discussion not worthwhile. Just taking a breather. I hope readers felt occasionally enriched and informed even if often annoyed by my heavy participation here over the last year or so. I’ve learned a thing or two myself.
Perhaps I will resurrect my own blog. Just what the world needs, another freaking blog! I do worry that I’ll only be talking to myself there (SHAFT has such heavy readership that I get to engage many more people here). But I’ll give it a try, and give up if I find that I am only talking to myself. (Of course the one virtue of that is that I almost always find my own arguments clear headed and convincing!). I’ll probably be back after I feel more able to be a level head.
http://web.mac.com/harrisonkleiner/ProfKleiner/Blog/Blog.html
Know of course that you’re always welcome. I’m sure that even those who make you sometimes feel exasperated would regret your leaving. And don’t think your efforts have been totally fruitless. While I ultimately disagree with you on many points, your arguments do sit with me for a few days and make me more sympathetic to your perspective.
Regarding Kleiner’s comment that the judge in this case has made a mistake, I would like to make one point.
I think Kleiner is making the assumption that the judge ought to have been doing philosophy–or even more narrowly, natural law philosophy. That’s really not the point of a judge. The Proposition 8 case was/is a matter of law, and the judge interpreted it according to law. He found that Proposition 8 was not compatible with the federal Constitution, and should be struck down because it violates both Due Process and the Equal Protection clause of the 14th Amendment. Period. Whether or not denying gay people the legal recognition of marriage makes philosophical sense (and I’m not at all convinced it does) was not in discussion in the case. It was a matter of law only, and should be struck down on that basis alone.
Now maybe our laws ought to be more strongly grounded in philosophical arguments, but that’s an entirely separate matter.
Kleiner, I’m going to sound short here. Please take it personally. After reading your comments, my only thought is that you have got to be awful in bed.
This may be the only time when I don’t want Kleiner to rebut a claim (that is, defend his sexual prowess). Ha ha.
But seriously, there’s no place for ad hominem at this blog (unless it’s REALLY funny and done in obviously light-hearted jest).
Thanks, Molly, for driving home for mr my decision to step away from this blog.
I’ve tinkered with my website so the URL has changed. If any SHAFTers want to continue discussions with me or just want to remain exposed to intellectually serious theism, please bookmark it. People only capable of adolescent discourse need not.
http://web.mac.com/harrisonkleiner/Harrison_Kleiners_USU_Page/Blog/Blog.html
I’ve added your blog to the blogroll at the right.
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