Sunday, August 8, 2010

Judge Walker's Rape of Reason

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

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

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

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

An Illogical and Biased Ruling

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

Moral Reasoning

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

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

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

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


  1. It's admirable to try and poke holes in a liberal's reasoning, or lack thereof.

    No need, however. A liberal judge, politician or operative believes only that the end justifies the means, and if it means lying, cheating, stealing, and even killing, then so be it. The current liberals in power these days consider conservatives as enemies, and as such evil; any and all means to thwart us and our evil ways is justified.

    This latest ruling is simply another leftist strike at what they consider evil (conservatives). Whether it holds up or not, that's the subject of another Rational Nation post, I would guess.

  2. SilverFiddle - I follow, and understand your line of reasoning. I however find myself at odds with it after many years of deep soul searching and what I like to believe is the process of growth and change.

    Rather than repeat my rationale I will refer to my earlier post on the matter... The link blow.

    I thank you for your post offering OUR readership at Rational Nation USA a different perspective that is well stated and WELL ARGUED.

    Ultimately it is our job to present alternatives and the reader decides for themselves.

    The "true", for the lack of a better word, independent conservatives and Libertarians, in all actuality encourage the open and free flowing exchange of ideas. Whereas the progressive (collectivist for the lack of a better word) actually want strict and unquestioned obedience to their mantra and agenda.

    Thanks again for your thought provoking post.It is great to have you on the RN USA team!

  3. My pleasure, Les. As I have written previously, I am conflicted as well. As a libertarian, I stand for the rights of all human beings. Gay people in no way should be discriminated against.

    So the question in my mind is, is denying their partnerships the name "marriage" denying them a fundamental right?

  4. Silverfiddle - It is precisely the conflict I have had. The term (concept) of marriage has always meant the "union of man and women."

    For me I have resolved the conflict as follows... Because the acceptance of gay and lesbian relationships have become more acceptable (with the exception of the hard core religious fanatics in all religions) does not justify the changing the classical definition of marriage.

    The recognition that all people, regardless of their sexual orientation are entitled to their own happiness as the highest purpose their life requires the fair and equal treatment under the law for their union. It also requires acceptance of their relationship by society in a non judgmental way.

    Therefor, in my view the term "the union of two committed loving individuals" sums it up.Rather it be a heterosexual or same sex relationships this definition recognizes the dynamics are essentially the same.

    Lets not pander to the political by changing the century old definitions. Lets simply give this small minority of our population the respect and dignity it deserves for being part of the human race.

    My lack of religious belief aside, I am sure Jesus Christ would whole heartedly ascribe to my argument.


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