The Supreme Court and conflicted me

This was a hard, painful post to write.


I have a selfish interest in the Supreme Court cases on gay marriage.

I have a conflicting philosophical interest.


I don’t believe in natural rights (aka “fundamental human rights”). Natural rights are a matter of faith, not a matter of fact or logic. There’s nothing natural about natural rights.

I believe we have moral obligations to each other. Fear of damnation didn’t guide my conscience. I needed analytic moral philosophy to inform my moral compass. It’s the only thing besides Engineering that I studied systematically. (I have a half-drafted post on the topic.)

I also believe that our political organizations have moral obligations to us. As Machiavelli observed, political moral obligations – the obligation to do justice – are different from individual moral obligations.

Perhaps I’m just playing with words, making a semantic distinction. But I don’t think so. “Rights” are an invitation to argument by assertion, to sloppy thinking, to wishful thinking, to confirmation bias. Natural rights theory doesn’t tell me that Hitler, Stalin, Pol Pot, Mao were evil. Moral philosophy and philosophy of justice, does.

Rights (other than those granted in law) are just assertions. Thomas Jefferson was a hypocrite and a fool. But in the most famous statement of natural rights, he baldly admits that they are nothing but assertion: “We hold these truths to be self-evident …” Self-evident. The Mommy Defense (“Because I’m your mommy”) is fine for infants, but it’s not a coherent political philosophy.

Much as I want to believe that I have a fundamental natural right to marry someone of my sex, it’s only personal preference. It has no more intrinsic validity than a belief that I have a right to a pony.


Natural rights – natural law – is particularly abhorrent to me as a lesbian.

Natural law is one of the pillars of Roman Catholic theology. And Roman Catholic natural law results in this:

[T]radition has always declared that “homosexual acts are intrinsically disordered.” They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved.

Start with the self-evident sexual complementarity: A man has a penis, a woman has a vagina, a penis fits in a vagina and it makes babies. Natural law leads ineluctably to homosexual acts are intrinsically disordered.

Protestantism explicitly rejects natural law as an authoritative basis for theology. The quoted sentences, have no authority to a Protestant. But clearly many Protestants – as well as Moslems, Hindus, Jews and atheists – believe them anyway.

Of course, the argument is only valid if one accepts the premise of sexual complementarity and each of the intermediate premises.

There’s no point in disputing natural law, just as there’s no point in disputing religious faith. One either believes it – on faith – or one doesn’t. It’s not logical or empirical. It’s a belief system, not a moral or logical system. Any discussion is proselytizing, not persuasion.

Whether sexual complementarity is a valid premise for a natural law argument is beside the point. People believe it. As belief – not logic or empirical observation – it is impervious to logic and empiricism.

Similarly, arguing that we have a natural right to marry someone of the same sex – or even a natural right to love or make love to someone of the same sex – is just proselytizing. It has no more intrinsic truth than sexual complementarity or homosexual acts are intrinsically disordered.


Even if I believed in natural rights, I don’t believe that nine old lawyers in Washington have any special ability to recognize their self-evidence. At least, they have no better ability than my fellow citizens.

If a right is fundamental, why isn’t it universally recognized? If it’s self-evident, it should be self-evident to everyone, no? Adopted by acclamation, no?

It’s no argument to say that people are blinded by bigotry or religious belief. It’s either self-evident, or it’s not.


I believe very strongly in democracy, as strongly as I believe in God.

What heartens me most about the Irish gay marriage referendum? It was adopted by popular vote. My Irish brothers and sisters made their case to their fellow-citizens.

I don’t want to be ruled by philosopher kings.

I want to be ruled by representatives elected by we, the people. I want to be able to throw the bastards out.

I don’t care how wise, how benevolent, how tolerant philosopher kings are. I want to be able to throw the bastards out.

The history of philosopher kings does not inspire confidence. Lenin, Stalin, Hitler, Pol Pot, Mao – all philosopher kings. Each wanted to create a more perfect society.

I don’t want nine (five, really) old lawyers we can’t throw out dictating to bastards we can throw out.

Yes, some of our bastards are corrupt. Yes, some are stupid. Yes, they may sometimes  – often, perhaps – produce stupid, corrupt, bigoted results. Sometimes they are just bastards.

But they’re our bastards.


There are limits to my preference of bastards over lawyers.

We, the people, adopted a Constitution with rules guarantying that we, the people, can throw the bastards out – guarantying civil rights to African-Americans, guarantying the franchise to women and the poor; guarantying free speech and free conscience; guarantying due process before loss of liberty.

I’m happy with having the courts enforce those rules, where they are clear and have the purpose of guarantying a broad franchise and robust debate.

I’m also happy with having the courts enforce rules guarantying civil rights for African-Americans. Slavery, lynching, intimidation, serfdom, segregation, racism and discrimination are so frankly appalling that everyone must be charged to change it. And again, we, the people – our great-great-grandfathers – fought and died and changed the Constitution to keep the bastards in line.

Leaving aside the simple justice of those rights, the people of the United States explicitly and democratically enshrined them in the Constitution, and fought a Civil War to secure them.

The history of African-American civil rights since the Civil War should surely give pause to those who want to trust nine old lawyers in Washington. Within a few years of the Civil War, the Supreme Court turned the civil rights amendments and laws into a dead letter. A few years after that, the Court blessed comprehensive racial segregation. It was almost a century before the Court repented.


But I can’t applaud a court cutting off a democratic solution to other political issues, even for a cause that I love and personally want.

To be blunt, if we can’t convince enough of our fellow citizens to throw enough of the bastards out and establish a right, we don’t deserve to have five old lawyers do it for us.

Frankly, it’s infantile. We want agency, but we have to get our nanny to protect us from the meanies?

The history of abortion in this country should caution us that cutting off democracy perpetuates and entrenches division.


For 20 years, I’ve watched from deep inside a closet as the Jubilee approached.

We are moving rapidly toward acceptance not only of gay marriage but of a man loving a man or a woman loving a woman. I see it every day that I am at home, in a place where gays do not exist. In a state that voted by two to one, and in a county that voted three to one, to prohibit gay marriage.

This isn’t happening by some gay agenda, but by the shocking realization that we gays are, by and large, OK people. As a rule, we’re no better nor worse than straight people. Maybe what we do is icky, but that doesn’t make us icky – let alone evil.

The most important lesson of the Irish referendum is the power of an appeal to our common humanity. I staunchly believe that, while two-thirds of the citizens of my state may be ignorant about gays, no more than a handful hate gays.

I believe that unity can overcome estrangement. All I want is the ability to have the same hopes and fears and aspirations as a straight woman. I just want to marry the person I love, have children with her and see those children have a better life.

Is it irksome that I have to convince my fellow-citizens to let me have those hopes? Yes.

Not as irksome as having to convince five old lawyers in Washington.


Selfishly, I will celebrate if the Supreme Court finds a right to same-sex marriage.

But I will die, a little, inside.

The movement for acceptance and equality will die a little.

And democracy will die a little.

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11 thoughts on “The Supreme Court and conflicted me

      • Yes. I’m fine with it being state by state voted on as long as when you are married you are married everywhere. Thanks for the reminder that i need to get paperwork together before we take our son to michigan where his birth certificate could be ignored.

        Liked by 1 person

        • That is exactly why the Supreme Court needs to say that states and federal government must recognize other states’ marriages. It’s appalling that you should even need to think about that. It’s inconsistent with the ideal that we are one nation.

          Like

    • Something I would love:

      Giving the the Supreme Court a power short of declaring a law unconstitutional: The ability to tell a state or the federal Congress, “This is wrong. We’re throwing it out and suggest that you re-think it. If you really want to do this, we’ll let you do it. But we’re telling you, it’s wrong.”

      Liked by 1 person

  1. Pingback: The Supreme Court and not-so-conflicted me | Family Values Lesbian

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  4. Another solution to this problem, albeit far more complicated, would be removing the legalization of marriage altogether and treating an agreement between consenting adults (of any gender and quantity) as contract law. Of course, that would entail revisions of tax codes, health law, family law (including custody and support), and a variety of other fundamental changes. But, if we’re shooting for the moon…

    Liked by 1 person

  5. I see libertarians suggesting this, but I don’t get it. Those “revisions of tax codes, health law, family law…” are just a long-winded way of saying “marriage”.

    The law is full of simple terms that codify useful bundles of rights and obligations: sale, lease, contract, mortgage, partnership, employee, …. The rights you list are a useful bundle for people who want to commit to a long-term relationship, particularly one that contemplates children. One could make everyone write a 300 page contract to describe it, but it seems more practical to codify the terms that almost everyone would use and set up a special, expert court to enforce or dissolve it. You could call that whatever you like, but the traditional term is, “marriage”. If one wants different rights and obligations, write a contract.

    It also seems more practical to have a specialized, expert court (call it “divorce court”) to adjust or dissolve that relationship.

    Ask any gay couple that was together in the 70s who tried to encapsulate all the usual rights and obligations of marriage into a contract. Or any gay couple with children, natural or adopted, before gay marriage was the law. You can look at the description of the plaintiffs in the Supreme Court case to see why “marriage” is a useful bundle of rights.

    I’m very much a conservative and traditionalist. Engineering makes me extremely pragmatic and extremely suspicious of theoretical purity. (Engineers and mathematicians are at extreme opposite poles of theory and pragmatism; it’s a wonder my fiancee and I are even on speaking terms. We do enjoy teasing each other about it.)

    I would be hesitant to mess with a long-established and useful custom for theoretical purity, no matter how logical.

    Like

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