Friday, August 06, 2010

Killing a Lie In Its Cradle

Conservatives who are up in arms about the overturning of Proposition 8 in California are trying to explain how non-homophobic they are by telling everyone that it has nothing to do with the icky, icky gays being allowed to marry just like normal folks. No, siree! It's just that they're deeply, deeply upset that one judge (one gay judge, who must be biased, because a gay judge ruling in favor of gay marriage is biased while a straight judge ruling against it is just applying common sense...) is allowed to overturn the will of the people. How is that fair, that one person can overrule a majority?

The answer is simple. That judge didn't overrule the majority. He just pointed out that Proposition 8, passed by a little over half the people in one state, conflicts with the 14th Amendment, which was passed in 1868 by 2/3rds of the US Congress, then ratified by 3/4ths of the country. In other words, Proposition 8 isn't the will of the majority. It's the will of a small, cranky minority that's trying to ignore all the people disagreeing with them. Which is working out about as well as you'd expect, really.

15 comments:

magidin said...

The eloquent words of Justice Robert Jackson come to mind whenever people argue about "overturning the will of the people" in issues of fundamental rights:

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

-- Justice Robert Jackson, Opinion for the Court in West Virginia Board of Education v. Barnette 319 U.S. 624 (1943)

Jim S said...

This is nothing new. The Founding Fathers, in the Federalist Papers, called this the danger of the tyrany of the majority.

Simply put, pure democracy could lead to tyrany if 50 percent plus one vote denying fundamental rights. Hence checks and balances.

To quote James Madison, "If men were angels, we would not need government." Since men aren't angels, the Founding Fathers created a government that pitted interests against each other, so to get anything done, people had to cooperate. I'm proud to be a citizen of a country founded on such a cynical notion.

John Adams predicted failure of the French Revolution because he noted that they were all about the glory of humanity and had no provisions to deal with our dark side.

Just because at one point in our histry a majority of the populatiojn may have had no problem with slavery didn't make slavery right. Fundamental rights aren't up for a vote. That's why they're rights, not priviledges.

Eric said...

I would just like to leave a general comment about this blog as a whole: I came for the comics, I stayed for the politics.

syon said...

1. This line of reasoning only works if you think that marriage is a fundamental right. As I do not see marriage as a fundamental right, I disagree with the decision.

2.Denial of rights to homosexuals: Since the law denies everyone the option of same sex marriage, homosexuals are not being singled out.

3.Slippery slope: If same sex marriage rights are granted, how can society deny other, non-traditional modes of marriage: polygamy, marriage to animals, marriage to first degree relatives (siblings, parents)?

John Seavey said...

1. Amazingly, the law doesn't actually give a shit what random people "see" when they look at the Constitution. That's why we wrote all this stuff down in such big, elaborate, long documents, so that there wouldn't be any room for one person to misinterpret it according to their own personal way of viewing the world. You don't see marriage as a fundamental right? Well, guess what. More people disagree with you than agree with you, they passed a constitutional amendment and a whole fuckton of laws to that effect, and you're expected to abide by that or get the fuck out of our country. Door's that way, don't let it hit you in the ass on the way out. You wanna live here, you follow all the rules, even the ones you disagree with.

2. That's patent bullshit and you know it. If I built a store that didn't have wheelchair access, saying, "Hey, I'm denying wheelchair access to people who can walk, too!" would mean exactly squat. If a law, equally applied to everyone, only creates a hardship for a certain class of people, then it's a discriminatory law on the face of it and no amount of obfuscation is going to change that. Your kung fu is weak, and I will not allow that shit in my dojo.

3. You know, when you start right off with the name of the fucking logical fallacy you're describing, you should probably not expect me to take this argument terribly seriously. It'd be like saying, "Ad hominem: Oh, yeah? Well, you're a communist," or "Post hoc ergo propter hoc: Legalizing gay marriage in Massachusetts caused the defeat of John Kerry in the 2004 elections!" Go off, read what the term "slippery slope" actually means, then come back and try to come up with an argument that doesn't just involve throwing random scary shit out at people and saying, "We have to stop gay marriage or this might happen!"

Or better yet, don't.

syon said...

1. Where is marriage enshrined as a fundamental right in the constitution?For a fundamental right, it certainly seemed to take a very long time for people to find it.

2. Slippery slope: If marriage is a fundamental right (as you insist), how can plural marriage, first degree relative marriage, marriage to animals, etc, be denied?

3. Denial of marriage rights: Your argument is that only homosexuals are hurt be anti-same sex marriage laws, since only they actually wish to marry people of the same sex. That being the case, only polyamorists are hurt by bigamy laws, since non polyamorists do not wish to engage in plural marriage. this being the case, how can a society that allows same sex marriage deprive polyamorists of a fundamental right?

John Seavey said...

1. That's why they call the Constitution a "living document". It doesn't mean that the Bill of Rights gets up at night to feast on the flesh of the innocent, it means that we apply it to society as it exists, not to society as it existed two hundred years ago. "Marriage" as we understand it today is a legal status that confers over a thousand recognized rights and protections onto those couples; denying them that full thousand rights because the Constitution doesn't say the word "marriage" in the 14th Amendment is what's technically known as "weasel-ass bullshit". If you want me to simplify that for you, I can use the layman's term, "lying your ass off in order to enshrine your petty bigotry in a shell of paper-thin justification."

2. I applaud your absolute inability to listen to a single word I said, and to repeat the most transparently obvious mistake of labeling your logical fallacy for ease of dismissal. The "slippery slope" is a patently bullshit argument because nobody ever does say, "Oh, well, we've legalized gay marriage, I think I should be allowed to marry my Schnauzer." And should they do so, people don't say, "Oh, I guess you're right," because people have common fucking sense. (And also, let me just applaud your utter asshattery in equating homosexuality with incest and bestiality. I'm sure the entire GLBT community joins in flipping you the bird.)

3. That would be a case for the courts to decide, not a couple of guys on an Internet blog. Which is kind of the entire point: We have a system of law, interpreted by judges. What you're pointing at as a "flaw" is, in fact, the only thing that keeps your sorry ass from being shanked in the street by someone who's bigger and tougher than you. It's called civilization. Get used to it.

syon said...

. That's why they call the Constitution a "living document". It doesn't mean that the Bill of Rights gets up at night to feast on the flesh of the innocent, it means that we apply it to society as it exists, not to society as it existed two hundred years ago. "Marriage" as we understand it today is a legal status that confers over a thousand recognized rights and protections onto those couples; denying them that full thousand rights because the Constitution doesn't say the word "marriage" in the 14th Amendment is what's technically known as "weasel-ass bullshit". If you want me to simplify that for you, I can use the layman's term, "lying your ass off in order to enshrine your petty bigotry in a shell of paper-thin justification."

A. "Living Document": That is why I favor the legal doctrine of original intent. Instead of reading non-existent rights into the constitution, people should legislate them into law.

2. I applaud your absolute inability to listen to a single word I said, and to repeat the most transparently obvious mistake of labeling your logical fallacy for ease of dismissal. The "slippery slope" is a patently bullshit argument because nobody ever does say, "Oh, well, we've legalized gay marriage, I think I should be allowed to marry my Schnauzer." And should they do so, people don't say, "Oh, I guess you're right," because people have common fucking sense. (And also, let me just applaud your utter asshattery in equating homosexuality with incest and bestiality. I'm sure the entire GLBT community joins in flipping you the bird.)

B. "common fucking sense": Really? Do you know that this argument was used in favor of the LOVING V. VIRGINIA case? When opponents of the Court's ruling said that it would lead to same sex marriage, they were told that they were being ridiculous, that no one with "common sense" would ever think that the ruling would lead to such an absurdity.

C. Incest and Zoophilia: You dislike these activities? Please explain why they should not be allowed.

3. That would be a case for the courts to decide, not a couple of guys on an Internet blog. Which is kind of the entire point: We have a system of law, interpreted by judges. What you're pointing at as a "flaw" is, in fact, the only thing that keeps your sorry ass from being shanked in the street by someone who's bigger and tougher than you. It's called civilization. Get used to it.

D. Couple of guys on an internet blog: A strange comment for you to make, seeing as how you chose to post on the topic of same sex marriage.

E. Interpreted by judges: Exactly. Judges are supposed to interpret law, not make it. The creation of law is a legislative function.

F. Shanked in the street: Judges are what is keeping me from being murdered? Strange, all this time I thought that it was the police; I hadn't realised that we are living, a la JUDGE DREDD, in the time of the JUDGES

John Seavey said...

1A. And this is why I'm glad people like you aren't allowed anywhere near a judicial post, because otherwise we'd be sitting there trying to explain that yes, the Founding Fathers intended the right to bear arms to apply to more than just flintlock pistols and muskets. :) The world of 1788 is very different from the world of 2010, a fact which no doubt pisses off conservatives because they never actually had to live there. The intent of the Constitution was always to subject it to review through the eyes and minds (and yes, hearts) of living judges who have experienced the world that the Constitution is actually applied to. If this bothers you, see above, re: door, ass, hitting you in the. But I strongly suspect that when you say, "I'm extremely bothered by the constitutional law being practiced here," you're being disingenuous, and what you really mean is, "Ick! Teh gays can be gay now right next door to me and I don't like it! But if I say that, everyone will know what an asshole I am! I know, I'll pretend I'm just a deeply concerned constitutional scholar who only happens to bring it up in cases involving social causes I disagree with! That'll fool 'em!"

2B. Oddly enough, given that conservatives on the Internet just love to bring up historical facts that a) just happen to perfectly support their cause, and b) turn out to be made-up bullshit, I'm not leaping to believe you here. :)

2C. See above, re: not a judge, not qualified to argue constitutional law, proud to say that things like that should be decided in a court of law instead of having a tiny minority of bigoted assholes enforce their social mores on everyone else through a campaign of intimidation backed by occasional horrific violence.

3D. See above point. My opinion is that these things shouldn't be decided by something as simple as, "Hey, I don't like this! Let's stop it!" That's why we have a Constitution to begin with, so that bowing to the will of an angry, whiny mob of religious jackasses would be difficult. You telling me that you're not comfortable with that tells me a lot about what kind of a person you are.

3E. And he did interpret it. He interpreted it to violate the Constitution of the United States, according to precedent set in dozens if not hundreds of previous cases that were relevant to the situation. That's kind of his goddamned job, in case you never paid attention in civics class. If he'd interpreted it to not be violating the Constitution, he'd actually be setting an entirely new precedent in conflict with all previous established 14th Amendment-related law, and would be far more of a "judicial activist" than he is now. But he'd agree with you, so you wouldn't care, right?

3F. Police without judges aren't the law, they're a fucking street gang. What makes the police different from any other random group of heavily armed people in the streets at night isn't that they're basically altruistic; a lot of street gangs protect neighborhood residents (usually from other street gangs.) It's that they are held accountable for their actions by a written code of law, interpreted by a legal authority whose decisions they abide by even if they don't like it. A cop might arrest you, but it's the judge who decides whether you've broken the law.

And it depresses the living fuck out of me that I actually have to sit here and explain this to you. I swear, I sometimes think conservatives would be perfectly happy living in an oppressive police state, so long as the gays were kept in their place and they didn't have to pay for welfare.

Eric Teall said...

Oh, Syon. Go back under your bridge and leave the grown-ups alone.

The real thing that gets me about the slippery slope that you toss out is this: Ultimately, consenting adults should be allowed to make pretty much any personal contract together that they want unless there is a profoundly compelling reason why they shouldn't be so allowed. This immediately rules out child marriages, several variations on incest, and bestiality, because there can be no informed consent where there are not consenting adults.

And as far as polygamy and incest go: Let's cross that bridge when we come to it. We're not there yet. Sure, there's some polyamorous folks out there. Sure, there's some incestuous folks out there. Guess what? There's not a substantial number of them that are begging to get married. They certainly aren't even one percent of the population. The time for us to consider whether I can marry my sister is not upon us, because it really isn't an issue, and our courts are supposed to deal with real issues (this is why Prop 8 had to pass to be taken to court).

There is, however, a sizable section of the population who falls right in the sweet spot of "substantial enough to be noticed" but "not substantial enough to overcome a majority," and that group is GLBT's. They need the protection of our courts, and we need the courts to protect them so that we know we're still living in something other than a police state. The idea of one judge (at this stage) interpreting the law doesn't scare me; it thrills me to death! This is how it's supposed to work! Now that ruling will be challenged and appealed to another level, and they'll consider it, and so on.

And by the end of the whoooole process, we'll have clarification on something that DOES NOT WORK when voted on because of the tyranny of the majority, the same as race 60 or 70 years ago. And bigots will grumble... and fade into mere shades of what they are today... and the world will become a better place.

I'd argue all your other points, but John's already done that (although with more swearing than usual!) and very well, thank you.

Loyd Jenkins said...

What bothers me is that the judge said that marriage is strictly a secular, legal institution. Also, even in pro-homosexual cultures (Sparta is the one that comes to my mind), marriage was not a "right," but what a man and woman did to start a family. Where did the idea that it is a "right" come from?

magidin said...

As far as the *State* is concerned (and remember, Prop 8 is a law, not a particular doctrine of faith), marriage *is* strictly a legal, secular institution.

One of the things the country should really do is get out of the business of giving clerics (of any denomination) license to act as officers of the State in the performance of marriages. If you want to get married by a revered/priest/bishop/rabbi/imam/whatever, go ahead; they can impose whatever conditions they want. But make those ceremonies have exactly the same legal standing as bar-mitzvahs and first-communions (to wit, nil). And then have civil ceremonies (with judges and justices of the peace) which are the only ones the law will recognize.

This is what is done in Mexico; most people have two wedding ceremonies: a civil ceremony and a religious ceremony (often the same day, sometimes within a week or longer of each other); the vast majority consider their religious ceremony their "real" wedding, but for all legal matters it's the civil one that counts and the one that matters. And everything that has to do with marriage, as far as the law and the government is concerned, is about the civil ceremony. The other one is just pageantry.

Anonymous said...

Syon: "Denial of rights to homosexuals: Since the law denies everyone the option of same sex marriage, homosexuals are not being singled out."

So if the government announced that from now on, everyone would be denied the option of opposite-sex marriage, you wouldn't consider that denied anyone their rights?

As for the general conservative objections to the decision overturning "the will of the people" keep in mind that when the first judicial decisions came down, homophobes insisted something this important should be done by the legislatures. When legislatures pass it, they insist it should be up to the will of the people. When the majority of the people are for it, they'll suddenly discover the importance of minority rights, something they're already bitching about (the gays will make us marry them in church! They'll oppress our right to free speech!).

As for the other options syon suggested, polygamy wouldn't cause me any loss of sleep. Marriage to animals makes no sense since one half of the marriage can't consent (legally it's as much gibberish as "well, I want to marry that wall there!"). Incest, from most of what I've read is 90 percent nonconsensual (particularly parent child)--I'd object to incestuous marriage because I'm not sure you can separate out the abuse factor.

And I don't think refusing gay marriage somehow prevents us from having polygamy down the road--lots of cultures have had multiple wives without sanctioning gay relationships.

-Fraser

j$ said...

As much as I love watching you deliver a smack down (I kept mentally inserting slapstick noises on each point and a gong noise at the end) it's ultimately a moot effort. No amount of rational logic or factual evidence can cause a person so ingrained in their misbeliefs to change their minds; in point of fact it has been shown to strengthen their resolve as you are not addressing their concerns but questioning their faith.

Aside from the easy softballs, like handing you up front the tool with which to mock them, this imbecile makes a logically incorrect statement with nearly every sentence. And please don't dismiss my insult as being flippant. I'm not just suggesting that they are dumb, but are, in fact, literally too dumb to understand how dumb they really are. For example, and there are many such examples:

"This line of reasoning only works if you think that marriage is a fundamental right."

There is no basis for fact in this statement. They are suggesting that your viewpoint is only valid if it falls under one arbitrary idea, which is meaningless without an external context. Since there is no such thing as a right that is somehow more right than another, it merely suggests a disparity where none exists and fails to provide any follow-up insight to clarify. Using this basic strategy you can link literally anything to any other arbitrary thing, regardless of whether there is any correlation or whether it even actually exists, and then make any third arbitrary claim as though it somehow supports your position. There is such a lack of reasoned logic in this statement that I'm not even sure there's a specific logical fallacy to ascribe to it.

"Your argument is that only homosexuals are hurt be (sic) anti-same sex marriage laws, since only they actually wish to marry people of the same sex... This being the case, how can a society that allows same sex marriage deprive polyamorists of a fundamental right?"

This is actually one of the only things they said that makes any logical sense. It clarifies an aspect of your position and builds upon it a fairly logical manner. I'm including a discussion of it here to help illustrate that this idiot does have the capability of recognizing and applying logic to argument, but only does so when they perceive it as supporting their position. Unfortunately, in this case it backfired on them. They attempted to use reductio ad absurdum by linking homosexual marriage to plural marriage, however, the concept of plural marriage is not a logical absurdity, but rather a logical extension of marriage. In effect, this argument only serves to strengthen the opposite position.

Interestingly, it touches on what I consider a very fascinating aspect of the government's basic involvement with marriage. There is a clear benefit for the state to promote stable, discrete family units, because of the overall stabilizing effect it has on society in general. The more stable the fabric of society becomes, the easier it becomes to predict and control its emergent behavior. The basic concept that married couples form inherently more stable family units logically applies to family units of greater number. It is therefore in the state's best interest to allow and reward marriage of any kind between consenting adults.

The Constitution, though, being a living document, is necessarily affected by the mood and sensibilities of American society at any given time. We are clearly on the precipice of admitting that our bigotry against homosexuals is unconstitutional, just as we were forty years ago with regards to interracial marriage, but unwilling to admit the same of our bias against polygamy. I'm not predicting that America will definitely recognize plural marriage at some point in the future, but there do not seem to be any compelling reasons for the state to reject it on any grounds but our collective sense of morality, which is subjective and continually changing.

Teebore said...

@John Seavey: Amen.

I swear, I sometimes think conservatives would be perfectly happy living in an oppressive police state, so long as the gays were kept in their place and they didn't have to pay for welfare.

I think that too, much too often. But don't forget: there would also be no taxes in this gay-free, welfare-less totalitarian state, yet magically everything from schools to roads to parks to firemen would be well-funded and well-maintained.