July 21, 2015
So, the U.S. Supreme Court has declared gay marriage a constitutional right (something that would disturb the actual writers of the constitution, but I digress). Is there anything left to distinguish “marriage” and “sexual relationship with tax benefits and implicit (though entirely fictional) social approval”?
I do wonder what would happen if states revisited the concept of “covenant marriage“:
Once married, a husband and wife are expected to commit to a lifetime partnership. However,the law recognizes that some couples will want to separate or divorce. The covenant marriage provisions require a spouse to first obtain counseling and then prove one or more grounds for separation or divorce as listed in the statute. This is the key difference between the two types of marriage: in essence, a spouse has to prove fault by the other spouse. The grounds for legal separation are: Adultery by the other spouse; commission of a felony by the other spouse and a sentence of imprisonment at hard labor, or death; Abandonment by the other spouse for one year; physical or Sexual Abuse of the spouse or of a child of either spouse; the spouses have lived separate and apart for two years; or habitual intemperance (for example, alcohol or drug abuse), cruel treatment, or severe ill treatment by the other spouse. The reasons for divorce exclude this last ground but include the other four.
Keep in mind that absent a legal divorce, remarriage is impossible.
Imagine if a state abandoned its current marriage scheme and replaced it entirely with near-permanent covenant marriages. Imagine if it even treated foreign marriages (entered into in other states) with the same seriousness, meaning that divorces would not be permitted but for one of the causes above. Such a law would have a legitimate interest: social stability and the provision for children. Since gay people are permitted to adopt, the state has a legitimate interest in maintaining and enforcing the stability of any marriage relationship.
Granted, this would raise interesting questions of federalism. But let’s say some maverick state like Texas decided to completely abolish its current marriage scheme, replace it with covenant marriage, outlaw divorce except for certain causes (as described above), and yet make this available to all persons or potential unions (whether gay, straight, or even polyamorous). What would happen? Clearly, many would simply drive across the border to some other state to get a quick divorce. But what if other nearby states then followed suit (just as they did by enacting legislation defining marriage as between one man and one woman)? Spouses desiring quicker, no-fault divorces may have to travel to Nevada or California to get those divorces. But even then, imagine if Texas went a step further and disallowed remarriages in the absence of a showing of fault justifying the divorce of all prior marriages (this would raise constitutional “full faith and credit” objections, but set that aside for the sake of argument). Then some divorcees would have to travel to other states to get second marriage licenses. This could all be gender/orientation-neutral, of course, but a big hassle to those who desire “flexibility” to end their marriage.
If a state went this route, I wonder how many people (gay or straight) would decide to get married at all in such a state. Marriage rates would probably decline (even dramatically) in such states, except among religious communities and the most serious of secular relationships. But, wouldn’t those unions be stronger? And if so, would more potential spouses (particularly women) be inclined to demand covenant marriage from their partners to avail themselves of this stability for themselves and their children?
At the very least, this would be a way for a state to voice some form of dissent to the recent Supreme Court decision in Obergefell v. Hodges. The state would essentially be saying, “ok, Supreme Court, you’ve had your fun, but now we will create a form of marriage even stronger than before, so strong that it would be nearly disadvantageous to go through with it.” Overall, would this be a good thing or a bad thing?
Speaking for myself, a few weeks ago I would have told you that I’d consent to gay marriage if we could take away no-fault divorce (essentially making all marriages covenant marriages). I believe marriages across the nation would be far more strengthened by a sense of permanence than by a sense of “at least we’re a man and a woman.”
June 28, 2015
Ran across this little nugget doing legal research on a case. If only it were completely true:
The argument also assumes, quite wrongly, that lawyers make all the difference in outcomes, as if the merits of a case or the interests of justice didn’t count for much. (In reality it should be the other way around to the degree that it is true at all.) All judges regularly see cases where the better lawyer rightfully lost because he or she should have lost, regardless of skill. (And that is by whatever criteria you choose to measure relative legal skill, e.g., perceptivity, knowledge, organization, or ever plain diligence.) In any sane system of justice, the merits, rather than the skill of lawyers, should control the ultimate disposition.
Chen v. County of Orange, 96 Cal. App. 4th 926, 948 (2002).
It is absolutely true that the merits should control the ultimate disposition, but in my career I’ve seen a lot of improper results due to lawyers’ skills (or lack thereof).
October 10, 2014
I ran across this fantastic article regarding classical liberalism (the notion that people should be “free”, embraced both by progressive liberals and conservatives in America today). The article provides a thoughtful analysis, including the following:
“An idea of liberty is an essential part of the answer to that crucial unasked question [whether humans are prepared to live free]. But it is not the libertarian freedom generally voiced by today’s left and right. Surely liberation from coercion alone does not prepare us for the practice of liberal freedom. To liberate us purely to pursue our wants and wishes is to liberate our appetites and passions. But a person in the grip of appetite or passion can’t be our model of the free human being. Such a person is not someone we would trust with the exercise of great political and economic freedom.
The liberty we can truly recognize as liberty is achieved by the emancipation of the individual not just from coercion by others but also from the tyranny of his unrestrained desire.
This liberty arises when we want to do more or less what we ought to do, so that the moral law, the civil law, and our own will are largely in alignment, and choice and obligation point in the same direction. To be capable of freedom, and capable of being liberal citizens, we need to be capable of that challenging combination. And to become capable of it, we need more than the liberation of the individual from coercion. We need a certain sort of moral formation.”
The author’s suggestion is not that the government begin preparation of souls for freedom; rather, it is that the citizens should on their own begin recognizing the soul-forming functions of family, work, and religious organizations, and “sustain the space for them, and put them within the reach of as many of our fellow citizens as possible.” Without attending to our souls through family, work, and spiritual relationships, democracy gets ugly. What is the use of an election when the electorate is a mass of radically self-interested individuals?
September 10, 2013
I would really enjoy discussing the definition of legal “rights” with these people. The Boulder Rights of Nature organization in Boulder, Colorado, seeks to establish rights belonging to nature itself as a means to protecting the environment. As a legal matter, it’s difficult to see how these “rights” could be enforced, given the lack of legal standing (one generally cannot sue to enforce someone else’s rights unless one has a special relationship with the other person, and since the rights here would be asserted against property owners to prevent them from “harming” the natural beings on their own property, it is difficult to conceive who besides the property owner could have that “special relationship”).
But leaving legal standing aside, this could get interesting if it gains any traction with the media. A few years ago, I wrote on this blog that the intentional killing of any human organism (including the pre-born) should be illegal, and a reader objected that I was imposing my religious beliefs on other people. He urged that one cannot grant “personhood” to an unborn human because other people do not believe that unborn humans are “persons.” I disagreed, of course, and argued that the granting of rights and “personhood” to a human being comports with justice and also is not religious. The Boulder Rights of Nature organization helps prove my point. That organization is not “religious” as far as I can tell. If a law granting “rights” to nature (the trees and flowers) is irreligious, a law granting rights to preborn humans is not religious, either.
In that vein, I especially love this quote from BRON’s proposed draft Sustainable Rights of Nature Ordinance:
While not eliminating property ownership, these new laws seek to eliminate the authority of a property owner to destroy, or cause substantial harm to, natural communities and ecosystems that exist and depend upon that property.
Could we not draft a similar law stating, “while not eliminating a woman’s dominion over her own body, this new law seeks to eliminate the authority of a person to destroy, or cause substantial harm to, natural human organisms that exist and depend upon her body”? Are preborn humans less deserving of protection than trees? If the Sustainable Rights of Nature Ordinance is not inherently unjust, could a law preventing the intentional killing of innocent preborn humans ever be unjust?
August 30, 2013
So, why do you care about the behavior of others? Where you are not concerned, why care about others having abortions, gay marriage, prayers in public school (or at high school football games in Texas), therapy for minors with unwanted same sex attraction, racial discrimination that does not harm you, laws in other states or countries, or anything else that would not affect your life specifically and personally?
Should any of us care about the plight of another so much that we would interfere with that person’s life (or the lives of those around them) through legal compulsion? The answer seems to be “yes,” if we love justice, but who is this “we”? Should “we” interfere with the behavior of others through our town’s local law, our state law, or our federal law, or leave law out of it and resort to other methods? (One could “interfere” with the behavior of others without using law, via boycott or shunning.) It seems more intuitively acceptable for us to interfere with or regulate the behavior in our own community based on our moral inclinations about the good of our community. One’s interest in the behavior of the people in far away places seems more attenuated.
To push this point even further, should “we” as a society (small or large scale) interfere with other societies? Can the people of Los Angeles decide they’ve had enough of the ridiculous laws in San Francisco and try to do something about it? Yes, the people of Los Angeles lack jurisdiction to do anything about what happens in San Francisco, but the United States has no more jurisdiction over anything in the Middle East, yet there “we” are, interfering…
It strikes me that this is absolutely not a conservative or liberal question. Conservatives will interfere with your ability to smoke pot. Liberals will interfere with your ability to smoke a cigarette in a public restaurant. Each will claim the high ground of “freedom” on one issue while claiming the high ground of “morality” on the other. “Freedom” is just another buzz word like “equality” and “democracy” that people only invoke for convenience and sound bites, not because they are actually committed to those ideals. It is the same with foreign policy. Conservatives and liberals will walk the line between “respecting the sovereignty of other nations” and “taking a stand for the cause of justice” depending on the values or interests at stake in a policy decision.
So, do you care about the behavior of other people so much that you want to interfere societally? Do you want to interfere with other societies (and do you want your own government to interfere in other societies for you)? No doubt, there are numerous moral tragedies happening around the world right now and we are doing nothing about them. Yet when discussing instances of interference in the past (like fighting the Nazis in WWII), people point to how evil the situation/government was to justify the U.S.’s behavior. Wouldn’t that be like the people of Los Angeles pointing to how bad the laws of San Francisco are as justification for interference? That doesn’t hold water unless we are going to distinguish between types of “bad” laws (whether a difference in kind or degree). Certainly some silly laws that drive away small businesses in San Francisco would not justify usurping the authority of the San Francisco local government through force.
What kind of laws (if any) should invite the scrutiny and interference from other governments that have no jurisdiction? What kind of behavior from other people in your community or neighboring communities invites your own scrutiny and legal interference? Is there a difference between attempting to interfere (through force of law in matters in which you have no direct interest) with the behavior of your neighbor, or someone in a neighboring town, or someone in another state, or someone in another country?
If government A can usurp government B’s authority through force based on the bad laws of government B, can government B do the same to government A? If government A is too strong for that, doesn’t that make government A a self-appointed “benevolent tyrant”? What happens when government A turns bad and ignores its own unjust laws? Would the citizens of the country of government A look kindly on the interference from the weaker government B?
America (and particularly the federal government in America) is government A.
August 13, 2013
Elysium is a thinly-veiled promotion of a rather liberal political agenda, especially with respect to immigration and healthcare reform. One can gather that quickly by watching the movie or reading the reviews of moviegoers on yahoo. But I would have enjoyed the movie anyway if it had been more complete.
Sorry to spoil the rather unoriginal and predictable plot, but here it is in all its simplicity: 150 years into the future, our planet Earth is ruined by overpopulation and poverty such that the entire earth looks like a third world country. Everyone in LA speaks Spanish and/or is Hispanic. The elite of the world (wealthy, intelligent, educated, etc.), build a huge space station called “Elysium” to, and I quote, “preserve their way of life” (though the film does little if anything to show what that “way of life” looks like; we are supposed to assume it’s ideal with whatever that might mean to us–kind of like Heaven, I suppose). Elysium has free (and perfect) healthcare in the form of body-scanning machines that can heal a person from essentially every malady short of complete death (it can even do reconstructive facial surgery and restore someone who had his face blown off by an explosive, looking good as new after the healthcare scan). To get the bodyscan, a person needs both to be on Elysium and be a citizen of Elysium. They refer to all non-citizens as “illegals,” and Jodie Foster’s character heads up a group called “Homeland Security” (yes, the metaphor is that obvious) to protect Elysium from intruders, but the dark-skinned “president” essentially undermines the Homeland Security efforts, leading Foster’s evil character to stage a coup to protect Elysium. Meanwhile, Matt Damon’s character lives on earth, gets sick, has 5 days to live, and needs to get to Elysium to get that body scan to heal himself as well as his friend’s daughter, who has leukemia.
There was potential for this movie but they didn’t explore the pertinent questions arising out of such a plotline nearly enough.
For instance, were the people on Elysium happy in their isolated (and supposedly trouble-free) world? What was life like for them? Did they at least have “first world problems“, or was this a symbolic utopia of sorts?
Was it immoral for the citizens of Elysium to build Elysium at the outset and/or to take the best and brightest from the world and stick them up in Elysium? (If so, it’s likewise immoral for America to allow the best and brightest of other nations to emmigrate to the U.S., contributing to brain-drain in third world countries, which could actually mean permitting unlimited immigration would sometimes be immoral, not benevolent).
Is the existence of Elysium itself (or the imbalance of wealth in any closed system) an instance of injustice? If it didn’t exist at all, apparently no one would have healthcare, unless the best and brightest of Elysium were somehow forced into providing healthcare to everyone everywhere (and how would we force them to do so without paying them–making them elite, the kind of elitists that we from the outset held were an example of injustice–or forcing slavery, which we also find disgusting?).
To put that last question another way, more broadly: is it unjust that Oprah owns eight homes while I only rent one (and some people are entirely homless, or living with multiple families in the same dwelling)? Is an imbalance of wealth itself an inherent injustice? Is it immoral anytime any of us earns more than the median world salary (a small number that will shock your conscience) and fails to donate the entire surplus to those below that line to even things up? Isn’t this movie saying that the general imbalance of resources and happiness between Earth and Elysium is in itself immoral (notwithstanding that everybody who helped make that movie likely lives an extravagant lifestyle, at least from a world-wide perspective)? If the movie is saying that, does it not also suggest by implication that we are a nation of hypocrites and psychopaths, but not much else?
Were there scarce health-care resources on Elysium, such that the masses on Earth would consume up the health-care “machines”, creating an underclass of the unhealthy anyway? If there was no such scarcity, why did the people on Elysium keep those machines from being delivered to earth rather than sending reproductions (or even just one or two) of these impersonal machines (which apparently did not even need maintenance or a personal expert to operate, or at least the movie did not indicate such a need)? Were the citizens of Elysium presumed to be psychopaths with nothing but contempt for all outsiders (and in fact a positive desire to harm or starve outsiders), rather than protectors of their limited goods? (Even in wealthy America, we participate in and fund global relief efforts, however effective or ineffective that may be.) If the citizens of Elysium were that evil, shouldn’t we just blow the whole edifice up rather than allow these Stalin-like creatures to continue profiting from building such machines? Or would we disapprove of forcing them to labor on our behalf here on “Earth” (the third world country)?
Additionally, as a somewhat irrelevant side note, imagine how long the wait lines would be on an overpopulated earth seeking to exploit the machines that were built only to serve an elite few rather than billions. Can the machines break from overuse? Will people harm each other to cut in line? Will the gate-keepers of the line allow their friends and family a place of privilege so that they get the best machines and spend the smallest amount of time in line? These machines are unlikely to turn the third world Earth cesspool into a utopia just through healthcare. At least, the problems of poverty and crime would still persist.
There are just way too many unanswered questions. This movie might have been an ambitious mini-series on TV, and I would love to have seen these issues explored (even if with a liberal or other agenda), but the movie fails to deliver in an intellectually-satisfying way. That’s unfortunate.
Update: It just occurred to me, this movie could be seen (ironically) as a pro-life metaphorical argument. The citizens of “earth” could be unborn humans, whereas the elites on Elysium could be people who have been born. The people on Elysium (metaphors for mothers) are entirely in control of whether the earthlings (metaphors for unborn babies) can have healthcare and live. However, the earthlings pose a threat to the comfortable way of living for those on Elysium, and the citizens of Elysium want to “preserve their way of life.” When someone from earth finally “gets through” against the will of those on Elysium (say, for example, a child of a failed abortion), that person fights with all his/her might to end the denial of life for the earthlings. In this interpretation, the movie metaphor wouldn’t even go far enough, because mothers and their unborn babies have a far more intimate (and morally obligatory) relationship than that between the citizens of Elysium and Earth.
July 21, 2013
Would you vote for a politician running in an election if he/she agreed with your political beliefs in all respects except one, and that one exception was that he/she was in favor of, say, race-based slavery?
I pose this question because some media types say that Republicans should get away from the “social issues” which concern religious voters. I’ve also heard Republicans refer to problematic “single issue voters” who would not vote for Republicans who were (for example) pro-choice. Now, if you believe that abortion is in fact the killing of an innocent human being, these Republicans and media types are treating your views as subordinate, urging you to compromise. But I’m going to ask again, with a different example:
If a politician espouses all of your views except one, the exception being his/her desire to initiate state-sponsored killing of the terminally ill and elderly (keep in mind, you will likely one day be elderly) because such people increase national healthcare costs, would you vote for that politician? If your answer is “no,” perhaps you don’t think it’s such a bad thing to be a “single issue voter”.
July 2, 2013
What a creepy and thought-provoking picture:
Yes, kids used to utter the Pledge of Allegiance with this Nazi-style salute. Another blogger posits that the pledge was originally drafted by a socialist and was designed to propagandize children into pledging that they will follow their government.
For the record, I don’t think there’s any merit to the common objection to the phrase “under God” in the pledge, at least from a Constitutional standpoint. As far as that objection goes, no one is forced to say the pledge (if a school punished a child for not saying it, that would be a problem), and if a parent objects then he/she should consider a number of options: teaching one’s child to abstain from saying the pledge, visiting a school board meeting to raise the issue, and/or seeking another school or an alternate educational arrangement. If nobody else in your community cares about your complaint, your child is going to end up in an environment of such people and such worldviews regardless whether the pledge is spoken. The pledge (and the phrase “under God”) is not the problem, it’s a symptom of a problem that will never go away. Communities and schools always have unspoken worldviews and I see little in the Constitution that mandates that communities be prevented from expressing those worldviews through their public institutions (they are going to do so anyway, it’s unavoidable).
Anyway, back to my point: is pledging allegiance a good thing? Isn’t that like writing a blank check to the government, promising to follow regardless of whatever evil thing it might do? Sure, some of us would resist an evil governmental action, but for the regular duty-following folk, a lifetime of stating the pledge of allegiance may have fostered some problematic inner attitudes (such as intolerance for dissent against the government).
For you monotheists out there (Christians/Jews/Muslims), is the pledge a form of idolatry? Should Christians, as “strangers in a foreign land,” pledge allegiance to any government?
June 13, 2013
Just a thought experiment, roll with me…
What if, in the American Civil War era, it was the North that insisted upon permitting slavery whereas the South opposed slavery? So, in that vein, let’s say that the northern states began to seek to impose pro-slavery or slavery-compromising legislation upon the southern states through the federal government and supreme court, and then the southern states seceded from the United States on the grounds that they would not permit the northern states to impose their unjust pro-slavery national laws upon them. The southern states create a confederacy which will protect each state’s ability to outlaw slavery (or not) and no other state will be able to impose legalized slavery upon them.
First question: in this situation, would you prefer that the confederates (southerners) win the civil war rather than the union northerners? In other words, would you root for the pro-slavery north or the anti-slavery south?
Second question: if we took away the issue of slavery altogether, would you prefer confederacy or our current federal government? What’s better, each state left to decide its own fate, or a national government deciding once for all?
Now, in this hypothetical, keep in mind that if you said you prefer a strong federal government, someone listening might call you a “racist” for supporting a form of government that once supported slavery.
Just a thought…
September 5, 2012
Subsection (a): “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”
Subsection (b) provides an exception for abortion consented to by the mother.
1. Murder only applies to killing a human, not an animal or non-human.
2. If a man walks up to a woman and, say, cuts off her arm (or any other bodily “tissue”) but it does not result in her death, it is not murder.
3. A man who walks up to an unsuspecting pregnant woman and punches her in the stomach, intentionally killing her unborn child but not killing the mother, has committed murder under the statute, even if she had planned on getting an abortion. It is not merely a tort or the crime of assault and battery; it is murder.
4. If the man punches a woman who is not pregnant in the stomach, it is not murder, and if he punches a pregnant woman in the stomach but it does not kill the fetus, it is not murder.
5. If the pregnant woman punches herself in the stomach and kills her fetus, or if she asks a man to punch her in the stomach to intentionally cause the death of the fetus, it is not murder.
So, killing an animal or cutting off a human appendage is not murder, and killing a human being is murder. Killing a fetus is also murder, except when a pregnant woman decides for whatever reason that her fetus belongs with the categories of “animal” or “human appendage” rather than “human being”.
As written, subsection (b) of section 187 is logically consistent with subsection (a) because subsection (a) expressly does not apply if subsection (b) applies. However, can the exception philosophically be reconciled with the rule? On what basis may a fetus be deemed the equivalent of a human being based on the intent of another person? Can a person truly decide and declare, based on any reason or no reason at all (i.e. randomly), whether another person is in fact a person or the equivalent of a person worthy of legal protection? Does it make sense that it’s murder to kill someone else’s fetus, even if that person planned on getting an abortion anyway? When would that fetus transfer from “human being” back to discardable tissue? When mom makes up or changes her mind (unless someone else decides for her without her consent)?
It’s one thing to attempt to justify legal abortions on the ground that an unborn child is not a legal person or the equivalent thereof. But wouldn’t that mean section 187 is incoherent? Would one prefer, in the name of consistency, to rewrite section 187 to honor the argument that unborn persons are not in fact persons, thereby recasting and/or reducing the criminal sanction against a man who walks up to a random pregnant woman and punches her in the stomach, causing an abortion? Is a “wanted child” more worthy of personhood and legal protection against killing than an “unwanted child”? Why?