Wednesday, April 29, 2015

Sophistical Refutations and the Supreme Court

It's too early to predict the Court's ruling on gay marriage, of course, but it's tempting to look at what's been said so far. Perhaps it's impossible to resist it. 

Chief Justice John Roberts:

"You're not seeking to join the institution, you're seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship."

"If you prevail here, there will be no more debate. I mean, closing of debate can close minds, and it will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it's imposed on them by the courts."

"If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?"

(on the question of forcing states that ban same-sex marriage to recognize those unions formed in other states.)

 "It'd simply be a matter of time until they would in effect be recognizing that within the state, because we live in a very mobile society and people move all the time. In other words, one state would basically set the policy for the entire nation." 

Justice Samuel Alito:

"Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?"

Justice Elena Kagan:

"It's hard to see how permitting same-sex marriage discourages people from being bonded with their biological children."

Justice Anthony Kennedy:

"The word that keeps coming back to me in this case is millennia, plus time. ... This definition (of marriage) has been with us for millennia. And it's very difficult for the court to say 'Oh well, we know better.'"

"Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage. We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled."

We have to allow that some questions that seem to show a negative attitude may simply be of the Devil's Advocate variety, challenging the proponents to present their case differently, but we have to suspect that the preponderance of the Argument from Tradition, generally classed as a fallacious one is being used as a cause to restrict what many if not most see as part of an assumed right to liberty and the pursuit of happiness as well as equal protection under the law.  "It's always been done that way for a long time and who are we to question it?"  

It doesn't take a wit or a historian to suggest the traditional practices of slavery and segregation or debtor's prisons (or worse if we want to look at the Western World of past millennia) persisted mostly because of such arguments.  The difficulty of ruling against tradition is hardly an excuse and in my opinion explains the need for an independent court: a court independent of politics as well as of tradition and religious bias.  "you're seeking change" is hardly an argument for the status quo.  

What about two men and two women?  Well what about it?  Is this the time-worn slippery slope fallacy?   

Roberts argues that recognition of marriages made in other states is likely if not inevitable, which is equally an argument for a positive ruling as a negative one.  Is it like claiming that because murder is on the decrease we don't need to forbid it. That's a fallacious argument and once was used to argue against the emancipation of slaves.  Nobility and sacredness? Are these matters for the courts or for preachers?  What about the nobility and sacredness of the "Rights of Man" that we once defined ourselves as defending?  God is not a citizen, has no Human Rights or rights as a legislator or judge allowed under our laws. God has as many opinions as people put in his mouth and cannot be relied on in questions of law and government. 

People don't like court rulings, says Roberts as though that were an excuse for not making them.  Indeed a constitutional amendment would be one possibility, but it's very difficult and has at least once required bloody war to bring about. But the case is being made on existing law and it would seem to some that the ball is in the other court - the Supreme Court. The question is "why not?" and perhaps the answer has to be better than "Tradition."  All the great advances in liberty have required unpopular, bold and difficult decisions; have involved all sorts of legalistic and casuistic debate, but if the manifest destiny of us all is to advance the cause of personal liberty against the bulwarks of ecclesiastical tradition -- and I think it is -- it's time to just do it.

Read more here:

Read more here:

Read more here:

Read more here:

Read more here:

Read more here:

Read more here:

Read more here:

No comments: