A bad day for gay rights.

[softwareNerd]

For example, if there are laws regarding employment that require no discrimination on the basis of sexual orientation and then it is added that everyone must "recognize" and deal with an employee in a gay "marriage" or "civil union," this forces an employer to not only hire a gay person against his bigoted judgment, but also to recognize and extend benefits against his judgment. This adds insult and injury to the employer's freedom of association.

The problem here stems from the original law preventing discrimination, not from the fact that gays should have the same rights under law. This is similar to the argument that says that we should not allow immigrants, because our laws let some of them take advantage of the welfare state.

[DavidOdden]

I do not think there is objective justice in arguing for the “rights” of a particular class of persons while being silent on the issue of individual rights. If one does so, he should recognize that what he is fighting for is not individual rights, but class privileges.

Maybe I need to explain my argument better. My point about justice was not that arguing one position or the other creates justice. My argument was that prohibiting same-sex marriage is injustice, and the question I raised in response to your position that there is no rights violation in forbidding sam-sex couples to marry is whether there is a right to justice under the law. I am not strongly committed to the position that justice under the law is a "right", and it's conceivable that the government could decide to no longer act to protect the rights of blacks without violating their rights (without initiating force). That wouldn't affect the fact that such a government is fundamentally immoral and that the laws allowing that injustice must be changed. I have not thought about "the link between the moral code of a man and the legal code of a society" sufficiently to conclude for certainty that justice under the law is indeed a right.

What surely make the philosophical issues difficult to tame is that legal marriage should not exist at all, separate from general concepts of legal partnership, and that legal marriage either confers benefits which should not be conferred at all (default inheritance in case of intestacy) or protects individuals from the government's broader violation of rights (violating the right to freedom of movement in the case of immigration, property rights in the case of taxes).

I'm not silent on the point that men should be free to move from country to country even to take a temporary job; I'm not silent on the point that there should be no taxation. I am not silent on the point that the government should not maintain roads, teach children, provide water and electricity, inspect food and so on. So I am not at all fighting for class privileges. I am fighting primarily for an end to all improper involvements of the government in private affairs -- all improper involvements. Since I also recognize that this is a long term goal, I am also fighting secondarily for justice and objectivity in the flawed legal system that we have.

I am not sure I understand your point regarding “justice” and inheritance, but I think the question is justice to whom?

Justice is treating the essentially same facts in the same way. For example, suppose there were a law requiring a person laying claim to unclaimed land to live on the land for a period of 2 years before full ownership of the land is recognized. Justice would demand that if a man with red hair satisfies these conditions then he should be entitled to ownership of the land, and if a man with black hair does so, he too would be entitled to ownership if his claimed parcel. Injustice would be distinguishing between the cases on a nonessential basis, granting ownership to the black-haired man and denying ownership to the red-haired man, when the facts of their cases are otherwise the same. This is simple measurement-omission applied to moral law.

The injustice would exist in such a case whether the decision was made ad hoc by a clerk or judge, or was systematically enshrined in the law itself.

The person should write a will to express his intentions.

I agree fully; yet the question arises what happens to the property of a man who dies intestate.

In the absence of a will, the law of inheritance can only be an approximation of how a typical person would be expected to want to dispose of his property under various circumstances.

Correct, but just just some random approximation, rather it should be a reasonable approximation. It is unreasonable to conclude that a man would have explicitly given his estate to a woman based on the intimacy of their relationship and yet deny that he would have done likewise to a man based on the same intimacy. Here is where justice comes in: the same essential fact is treated the same way. The government creates special entitlements -- it has default rules intended to deduce probable intent when there is no written will -- which it makes available under certain circumstances (primarily the acts of the deceased, viz legally formalizing a certain relationship in a particular way), and then without valid reason denies certain individuals access to that means of expressing a "general intent". If you want to argue that wives should get nothing in lieu of some explicit community property type agreement, then I might argue that that's a bit harsh but it is at least sensible in terms of the idea that the government shouldn't be trying too hard to divine intent. The part that I don't understand is how it is just, right or proper for the government to create a class of legal entitlements in some cases but not others, when the basis for that distinction is entirely orthogonal to the underlying purpose of the entitlements (providing default rules when the individual's actual intent is not sufficiently documented).

[RationalBiker]

For example, if there are laws regarding employment that require no discrimination on the basis of sexual orientation and then it is added that everyone must "recognize" and deal with an employee in a gay "marriage" or "civil union," this forces an employer to not only hire a gay person against his bigoted judgment, but also to recognize and extend benefits against his judgment. This adds insult and injury to the employer's freedom of association.

This has nothing to do with anything I said. If you think differently, please explain to me how you make the link.

[Jake_Ellison]

You won't hear me say this often, but Keith Olbermann has made a good point that may have already been expressed here: why do people care SO much? There were millions spent on banning gay marriage, but why? Why is this the number one issue? It seems rather malicious. Instead of fighting for individual rights, the conservatives of California, sponsored by religious institutions and others, felt it necessary to pour truck loads of money into an issue that shouldn't concern them at all.

It's near psychotic and is damn well pathetic.

I've found a not so complimentary commentary on Mr. Olbermann's little speech on the issue. WARNING: It's quite graphic (AIDS jokes and such), but the jokes aren't hateful, it's from the Opie and Anthony radio show.(they are pro-gay marriage)

I've found it very funny, and it confirms my take on Keith Olbermann:

[Ordr]

I've found a not so complimentary commentary on Mr. Olbermann's little speech on the issue. WARNING: It's quite graphic (AIDS jokes and such), but the jokes aren't hateful, it's from the Opie and Anthony radio show.(they are pro-gay marriage)

I've found it very funny, and it confirms my take on Keith Olbermann:

I listened to that when it aired and found it both profoundly hilarious and highly accurate. Good to see another O&A fan here.

[Old Toad]

The problem here stems from the original law preventing discrimination, not from the fact that gays should have the same rights under law. This is similar to the argument that says that we should not allow immigrants, because our laws let some of them take advantage of the welfare state.

Yes, “anti-discrimination laws” do violate the right of association, more particularly, the corollary right of an individual to not associate with others for any reason (good or bad).

Recognizing gay as legally equal to heterosexual marriage would presumably implicate welfare rights, too, resulting in higher taxes, etc. Government welfare should not exist, of course, because it violates property rights of others, of course.

The situation of defining gay marriage as legally equal to heterosexual marriage in all situations (including under various anti-discrimination laws, employment laws, etc.) also forces others to recognize the relationship and treat it the same against their right to not associate.

RB,

I apologize for not making the relevance of my prior response clear. I was attempting to respond to this:

… So what I'm referring to is the court deciding that two (or potentially more) otherwise rational individuals cannot engage in certain types of contracts simply because the majority finds it distasteful or immoral.

I think a court (or legislature) deciding that two people can engage in “certain types” of contracts under a certain definition ("marriage”) will have certain types of consequences to other people in our mixed economy. This topic includes not only the undisputed right of gays to associate in life partnerships (at least I do not dispute it), but includes the consequences of defining that type of relationship as "marriage," which implicates many other laws.

More generally – apart from the gay marriage issue in particular -- what I am challenging is your idea that the government has no role at all in defining “marriage” (or other partnerships, etc.).

Disputes arise between couples (of any sex) regarding whether or not they had entered even into a “marriage.” Similar issues arise in business partnerships, including whether or not the parties had even entered into a business partnership. One party may claim there is a “marriage” or other type of partnership and the other denies it existed at all. Many important consequences flow from whether or not there was such a relationship and the default terms of such a relationship. The government does have a role in defining what is sufficient indicia of a “marriage” or any other type of partnership and what is not – so that in cases where the parties have not expressly agreed on the nature of the relationship, it can apply the default terms.

These relationships also affect others in relationship with them, including expectations regarding joint liability (or lack of it), etc.

DavidOdden,

Thanks for the clarification regarding your current questions on whether justice is a right. I would be glad to discuss these issues with you in more detail – though I don’t necessarily know all the answers, either. I am running out of time this morning, however, so I cannot write more now.

Edited November 13, 2008 by Old Toad

[Jake_Ellison]

I listened to that when it aired and found it both profoundly hilarious and highly accurate. Good to see another O&A fan here.

I'm actually getting fed up with Jimmy's new found liberal opinions, but I still tune in from time to time. Hopefully with the election over they'll stop with the political nonsense, so that I can listen without having to fast forward every time politics comes up.

[Ordr]

I'm actually getting fed up with Jimmy's new found liberal opinions, but I still tune in from time to time. Hopefully with the election over they'll stop with the political nonsense, so that I can listen without having to fast forward every time politics comes up.

I would fast-forward as well if it wouldn't mean me missing Anthony's brilliant rants. Ah well.

[RationalBiker]

I think a court (or legislature) deciding that two people can engage in “certain types” of contracts under a certain definition ("marriage”) will have certain types of consequences to other people in our mixed economy.

Okay. First let me clarify, I'm primarily talking about what "should be", not what is. First, we shouldn't have a mixed economy but we do. My comments about 'benefits' pertains to whatever government oriented benefits people receive for being married, not whatever 'benefits' they receive through private entities. So I realize I was not clear in stating the government has no business telling people (businesses) that they cannot choose NOT to contract with other people based on whatever reason or whim they have. In other words, if a person does not want to have to contract with another person because they are gay they should not be forced to because of anti-discrimination laws. Let the market decide the success or failure of businesses with that practice.

However, unfortunately since we have a mixed economy, the marriage benefits obtained from the government (mostly tax related) and the benefits given by private entities are a package deal based on who the government decides can legally marry. That being the case, I still hold that if straight couples can be 'married', so should gay couples. The government is the 'bad guy' here, NOT the individuals seeking the same treatment under the government's hand. On either your side of the issue or mine, we each hold a position where the government is violating someone's right because of the mixed economy situation.

I still do not see anything compelling about your argument that the government should be in control of defining marriage. Again, I think the government does have a proper role in interpreting (distinct from defining) what marriage is within the scope of the contract engaged between two individuals with the given that it may have to fill in some necessary gaps as with any contract that cannot be entirely comprehensive. I think David explains well the idea of 'essentials' and 'non-essentials' which would apply as well with respect to filling in these gaps.

Now as to 'consequences to the people'; if you are referring to people having their rights violated (which I presume is your intent), I agree that the government should not be violating individual rights, anybody's rights. But in a broader sense (if I'm wrong about your intent), people do not necessarily have a right to not have 'consequences' based on the relationships of others. For instance, a person may suffer the consequence of getting physically ill if they saw two men kissing in public yet I do not see that as a basis for denying the two men to kiss in public.

Disputes arise between couples (of any sex) regarding whether or not they had entered even into a “marriage.”

I addressed this already. I don't think that comes to definitions so much as interpreting the terms of a contract. I'm willing to consider that our disagreement here may be largely semantic in nature.