So, has anything been happening lately?
Well, the Supreme Court got a big one right. Marriage equality is now the law of the land, which is a very good thing. There will be pockets of resistance for a while to come, but mostly this news has been met with the yawn it deserves. Of course gay people should have their marriages recognized by the state. Most people have figured that out by now. You can find the text of the decision and the dissents here.
The legal argument seems pretty straightforward to me. Writing at The New Republic, Brian Beutler spells it out:
As both a moral and legal issue, arguing for marriage equality (or, equivalently, for government neutrality on marriage) should be fairly easy: States and the federal government recognize a contractual situation called marriage, and through that recognition flows vague public sanction, manifest through real, tangible, legal preferences. The best constitutional argument for same-sex marriage is that the state can’t deny those benefits—conceptual or concrete—to gays and lesbians on the basis of their sexual orientation, or only bequeath them to gays and lesbians who are willing to enter into marriage contracts with people of the opposite sex whom they don’t truly love.
Beutler is very critical of Justice Kennedy for not saying this more clearly in his decision, but I think this is unfair. I suspect Kennedy considered it too obvious to need explicit spelling out. Instead Kennedy spent a large part of his decision arguing, compellingly, that the various state interests promoted by recognizing marriages apply with equal strength to gay couples, and therefore there is no rational reason for this discrimination to exist. Even Justice Roberts, in his dissent, seemed to agree with the basic premise of the equal protection argument. He balked at changing the definition of marriage, but seemed to suggest that a “separate, but equal” framework would suffice to grant homosexual couples the legal benefits of marriage.
Scalia, for his part, went full crazy.
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision–such as “due process of law” or “equal protection of the laws” it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.
Such is the insanity of originalism, the legal philosophy which holds that the only thing that matters in legal reasoning is the intent of the people who ratified the statute in question. Apparently the job of a judge is to psychoanalyze people who lived in an entirely different era, pretending that they spoke with one voice and carefully considered all the different situations to which their statute might someday be applied. Original intent is very important, but so is the history that unfolded after the statute passed and the practical effects of different interpretations. There is no question that the ratifiers of the fourteenth amendment, along with most people for close to a century afterward, had no problem with the notion of segregated schools. On originalist grounds, Brown v. Board of Ed was wrongly decided. That is enough to show that originalism is inadequate as a legal philosophy. (Scalia has tied himself in knots trying to evade this simple point, but his various arguments are not successful).
Anyway, this sort of thing is mostly just for law school bull sessions. No one cares about the minutiae of legal argument. It has been wisely said that courts produce not justice but finality, and that is the case here. Marriage equality is now the law, like it or not.
I went browsing around some of the right-wing blogs to see how they would react. Most of them admitted defeat on this issue a long time ago, so it was anti-climactic when the Supremes finally weighed in. But if you’re in the mood for a bit of schadenfreude I invite you to consider Edward Feser’s take on this subject. Bizarrely, he seems to think the Court was adjudicating a question in metaphysics. According to him, believing that marriage rights should extend to homosexuals places you entirely outside the bounds of rational discourse. He argues that defending same-sex marriage is like defending the reality of the matrix:
So, the skeptic’s position is ultimately incoherent. But rhetorically he has an advantage. With every move you try to make, he can simply refuse to concede the assumptions you need in order to make it, leaving you constantly scrambling to find new footing. He will in the process be undermining his own position too, because his skepticism is so radical it takes down everything, including what he needs in order to make his position intelligible. But it will be harder to see this at first, because he is playing offense and you are playing defense. It falsely seems that you are the one making all the controversial assumptions whereas he is assuming nothing. Hence, while your position is in fact rationally superior, it is the skeptic’s position that will, perversely, appear to be rationally superior. People bizarrely give him the benefit of the doubt and put the burden of proof on you.
This, I submit, is the situation defenders of traditional sexual morality are in vis-à-vis the proponents of “same-sex marriage.” The liberal position is a kind of radical skepticism, a calling into question of something that has always been part of common sense, viz. that marriage is inherently heterosexual. Like belief in the reality of the external world — or in the reality of the past, or the reality of other minds, or the reality of change, or any other part of common sense that philosophical skeptics have challenged — what makes the claim in question hard to justify is not that it is unreasonable, but, on the contrary, that it has always been regarded as a paradigm of reasonableness. Belief in the external world (or the past, or other minds, or change, etc.) has always been regarded as partially constitutive of rationality. Hence, when some philosophical skeptic challenges it precisely in the name of rationality, the average person doesn’t know what to make of the challenge. Disoriented, he responds with arguments that seem superficial, question-begging, dogmatic, or otherwise unimpressive. Similarly, heterosexuality has always been regarded as constitutive of marriage. Hence, when someone proposes that there can be such a thing as same-sex marriage, the average person is, in this case too, disoriented, and responds with arguments that appear similarly unimpressive.
Really, go read the whole thing. I especially like the part where he claims that this issue is so subtle and complex that only traditional natural law theorists can think clearly about it. When you get to that part you’ll really see what I mean about schadenfreude.
I’m afraid I don’t see anything incoherent in the notion that homosexual couples should be granted the same rights as heterosexual couples. Nor do I see how I’m making grand, metaphysical assumptions in noting, following Kennedy, that the state interests promoted by marriage apply just as much to homosexual as to heterosexual couples. For that matter, I would think that you could accept all of Feser’s claims about natural law and sexual morality and still think that the law should recognize homosexual unions.
In short, while Feser’s doing metaphysics the rest of us are just happy that a great social injustice has been rectified. The case against gay marriage collapsed so quickly because there was never really any serious case in the first place. People needed to have their eyes opened to the harm that was done by denying marriage rights to homosexual couples, just as a previous era needed to have its eyes opened to the absurdity of “separate, but equal” in education. That took some time because it is, indeed, a major break from tradition. But once the shock wore off the moral and practical rightness of gay marriage quickly came to seem obvious to most people. This is very good news, and it is entirely acceptable to smile at the moans coming from the dinosaurs sinking in the tar pits.
from ScienceBlogs http://ift.tt/1Vo4XPZ
So, has anything been happening lately?
Well, the Supreme Court got a big one right. Marriage equality is now the law of the land, which is a very good thing. There will be pockets of resistance for a while to come, but mostly this news has been met with the yawn it deserves. Of course gay people should have their marriages recognized by the state. Most people have figured that out by now. You can find the text of the decision and the dissents here.
The legal argument seems pretty straightforward to me. Writing at The New Republic, Brian Beutler spells it out:
As both a moral and legal issue, arguing for marriage equality (or, equivalently, for government neutrality on marriage) should be fairly easy: States and the federal government recognize a contractual situation called marriage, and through that recognition flows vague public sanction, manifest through real, tangible, legal preferences. The best constitutional argument for same-sex marriage is that the state can’t deny those benefits—conceptual or concrete—to gays and lesbians on the basis of their sexual orientation, or only bequeath them to gays and lesbians who are willing to enter into marriage contracts with people of the opposite sex whom they don’t truly love.
Beutler is very critical of Justice Kennedy for not saying this more clearly in his decision, but I think this is unfair. I suspect Kennedy considered it too obvious to need explicit spelling out. Instead Kennedy spent a large part of his decision arguing, compellingly, that the various state interests promoted by recognizing marriages apply with equal strength to gay couples, and therefore there is no rational reason for this discrimination to exist. Even Justice Roberts, in his dissent, seemed to agree with the basic premise of the equal protection argument. He balked at changing the definition of marriage, but seemed to suggest that a “separate, but equal” framework would suffice to grant homosexual couples the legal benefits of marriage.
Scalia, for his part, went full crazy.
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision–such as “due process of law” or “equal protection of the laws” it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.
Such is the insanity of originalism, the legal philosophy which holds that the only thing that matters in legal reasoning is the intent of the people who ratified the statute in question. Apparently the job of a judge is to psychoanalyze people who lived in an entirely different era, pretending that they spoke with one voice and carefully considered all the different situations to which their statute might someday be applied. Original intent is very important, but so is the history that unfolded after the statute passed and the practical effects of different interpretations. There is no question that the ratifiers of the fourteenth amendment, along with most people for close to a century afterward, had no problem with the notion of segregated schools. On originalist grounds, Brown v. Board of Ed was wrongly decided. That is enough to show that originalism is inadequate as a legal philosophy. (Scalia has tied himself in knots trying to evade this simple point, but his various arguments are not successful).
Anyway, this sort of thing is mostly just for law school bull sessions. No one cares about the minutiae of legal argument. It has been wisely said that courts produce not justice but finality, and that is the case here. Marriage equality is now the law, like it or not.
I went browsing around some of the right-wing blogs to see how they would react. Most of them admitted defeat on this issue a long time ago, so it was anti-climactic when the Supremes finally weighed in. But if you’re in the mood for a bit of schadenfreude I invite you to consider Edward Feser’s take on this subject. Bizarrely, he seems to think the Court was adjudicating a question in metaphysics. According to him, believing that marriage rights should extend to homosexuals places you entirely outside the bounds of rational discourse. He argues that defending same-sex marriage is like defending the reality of the matrix:
So, the skeptic’s position is ultimately incoherent. But rhetorically he has an advantage. With every move you try to make, he can simply refuse to concede the assumptions you need in order to make it, leaving you constantly scrambling to find new footing. He will in the process be undermining his own position too, because his skepticism is so radical it takes down everything, including what he needs in order to make his position intelligible. But it will be harder to see this at first, because he is playing offense and you are playing defense. It falsely seems that you are the one making all the controversial assumptions whereas he is assuming nothing. Hence, while your position is in fact rationally superior, it is the skeptic’s position that will, perversely, appear to be rationally superior. People bizarrely give him the benefit of the doubt and put the burden of proof on you.
This, I submit, is the situation defenders of traditional sexual morality are in vis-à-vis the proponents of “same-sex marriage.” The liberal position is a kind of radical skepticism, a calling into question of something that has always been part of common sense, viz. that marriage is inherently heterosexual. Like belief in the reality of the external world — or in the reality of the past, or the reality of other minds, or the reality of change, or any other part of common sense that philosophical skeptics have challenged — what makes the claim in question hard to justify is not that it is unreasonable, but, on the contrary, that it has always been regarded as a paradigm of reasonableness. Belief in the external world (or the past, or other minds, or change, etc.) has always been regarded as partially constitutive of rationality. Hence, when some philosophical skeptic challenges it precisely in the name of rationality, the average person doesn’t know what to make of the challenge. Disoriented, he responds with arguments that seem superficial, question-begging, dogmatic, or otherwise unimpressive. Similarly, heterosexuality has always been regarded as constitutive of marriage. Hence, when someone proposes that there can be such a thing as same-sex marriage, the average person is, in this case too, disoriented, and responds with arguments that appear similarly unimpressive.
Really, go read the whole thing. I especially like the part where he claims that this issue is so subtle and complex that only traditional natural law theorists can think clearly about it. When you get to that part you’ll really see what I mean about schadenfreude.
I’m afraid I don’t see anything incoherent in the notion that homosexual couples should be granted the same rights as heterosexual couples. Nor do I see how I’m making grand, metaphysical assumptions in noting, following Kennedy, that the state interests promoted by marriage apply just as much to homosexual as to heterosexual couples. For that matter, I would think that you could accept all of Feser’s claims about natural law and sexual morality and still think that the law should recognize homosexual unions.
In short, while Feser’s doing metaphysics the rest of us are just happy that a great social injustice has been rectified. The case against gay marriage collapsed so quickly because there was never really any serious case in the first place. People needed to have their eyes opened to the harm that was done by denying marriage rights to homosexual couples, just as a previous era needed to have its eyes opened to the absurdity of “separate, but equal” in education. That took some time because it is, indeed, a major break from tradition. But once the shock wore off the moral and practical rightness of gay marriage quickly came to seem obvious to most people. This is very good news, and it is entirely acceptable to smile at the moans coming from the dinosaurs sinking in the tar pits.
from ScienceBlogs http://ift.tt/1Vo4XPZ
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