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Judge Walker: A Modern Jeremy Bentham

August 11, 2010 23 comments
File:Vaughn Walker adj.jpg

In his decision overturning prop 8 in California, Judge Vaughn Walker went through every argument against allowing same-sex marriage and concluded that none had any merit. From The Economist:

During the trial in January, both sides brought witnesses to argue for and against same-sex marriage. The larger point of this exercise was to clarify and examine each individual argument against the practice.

Surgically and methodically, Judge Walker (who is himself gay) has now ruled that not a single one has any merit: the plaintiffs (ie, the gay and the lesbian couple) did not seek a “new” right, but merely the same right that heterosexuals have, and a right which in America is first and foremost a civil and not a religious matter. “Procreative capacity” has never been the basis of marriage, hence it is irrelevant, the judge found (infertile heterosexuals are allowed to marry, after all). Calling same-sex unions “domestic partnerships” unfairly disadvantages the couples. Allowing same-sex marriage “has at least a neutral, if not a positive, effect on the institution of marriage” and is good for any children involved. And so on, point by point until none was left.

This reminded me of the way Jeremy Bentham in the late 1700s went through the arguments against homosexuality and couldn’t find any utility in punishing or prohibiting it. 

To what class of offences shall we refer these irregularities of the venereal appetite which are stiled unnatural? When hidden from the public eye there could be no colour for placing them any where else: could they find a place any where it would be here. I have been tormenting myself for years to find if possible a sufficient ground for treating them with the severity with which they are treated at this time of day by all European nations: but upon the principle utility I can find none.

File:Jeremy Bentham by Henry William Pickersgill detail.jpgThe layout of Walker’s decision going through the “finding of facts” and lining up each argument to see if their is any rational basis for denying homosexuals the right to marry looks remarkably similar to Bentham’s Offenses Against One’s Self where he goes argument by argument concluding that each one offers not basis for punishing homosexual behavior. Bentham looks at the history of different sexual practices, Walker does as well. They both look at religious arguments concluding that they aren’t relevant to the state’s legislation. Bentham writes,

For these or other reasons it is an opinion that seems to spread more and more among divines of all persuasions, that the miraculous and occasional dispensations of an extraordinary providence afford no fit rule to govern the ordinary and settled institutions of human legislators. (my emphasis)

Similarly Walker finds that marriage is a civil institution and religious and personal moral objections don’t play into the state’s role in marriage. Walker writes,

To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying, as explained presently those individuals’ moral views are an insufficient basis upon which to enact a legislative classification. (my emphasis)

It’s just amazing that people can’t reason through the arguments and notice that gay marriage harms no one – rather it benefits many. Unfortunately, most people haven’t even caught up with the 18th century. Moral philosophy needs to be divorced from religious and emotional bigotry. The sooner people can base their morals on moral reasoning rather than dogma and disgust the easier it will be to improve human well-being. 


And just to add a great clip so that true conservatives can understand why they should stop denying marriage to other arbitrary classes of citizens, here’s Ted Olson.



(images from wikipedia)

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A Victory For Equal Rights

August 5, 2010 Leave a comment

I thrilled that Prop 8, which prohibited same-sex marriages in California, got overturned. Andrew Sullivan and The Daily Dish compile opinions from around the web on the decision.

It Should Have Been Televised

For opponents, how would you have answered those questions? 

(via: The Daily Dish)


[update: July 10]


Jacob Sullum over at Reason Magazine’s blog has had enough defending “the constitutional principles that social conservatives use to restrict liberty, because they so rarely return the favor by supporting those same principles when the effect is to expand liberty.” Sullum seems a bit late to the party on this, it’s long been obvious to me that more often than not, self-described “strict constructionists,” “federalists,” and even “small government conservatives” are just interested in advancing their right-wing agendas not upholding constitutional or small government principles. The Founding Father idolatry of the Tea Partyers is especially egregious in this respect. 


This is partly the reason I have trouble identifying with political labels, even my preferred “classical liberal.” In my more openly libertarian phase, this was even more so the case. When it comes down to it I don’t want to lock myself into any specific ideological response to every circumstance. I tend to favor more liberty over less and even less government over more; that guides me but ultimately I’m a consequentialist more than anything else. If my underlying principles lead to more suffering, I’ll abandon them for those circumstances – consistency be damned! I hope to expand on this in the future.  Anyway, here’s more Sullum:

Is this a constitutional rationalization for my pre-existing policy preferences? Yes, but I think it’s a pretty good one. I would much prefer that the government get out of the business of certifying marriage altogether. But as long as more than 1,000 provisions of federal law hinge on marital status, the government will have to decide which couples qualify, and basic fairness demands that sexual preference play no role in that determination. What legitimate government interest can possibly justify preventing the longtime spouse of a veteran from being buried alongside him, simply because both of them are men? This sort of thing really is shameful.

Sullivan on "The Politics of Homosexuality"

March 15, 2010 Leave a comment

Great Speech:










Can’t Find Video 4, Sorry.





It’s All About Tradition, Right?

February 12, 2010 Leave a comment


I can’t wait till we look back on this and wonder what all the fuss was about. Gay marriage has been legal here in Massachusetts for a while now and life seems to be going on just fine.

Categories: civil rights, Gay Marriage

Gay Marriage, in line with Conservative Values

January 13, 2010 Leave a comment

Ted Olson makes the conservative case for gay marriage in Newsweek. He’s the lawyer challenging the constitutionality of Prop 8 in the California Supreme Court.

Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.

His whole piece is worth reading. It’s particularly illuminating that his opposition in court couldn’t answer the question of why gay marriage harms heterosexual marriage, which is often charged by opponents.

Brilliant

September 14, 2009 2 comments

(H/T Pharyngula)

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