The Supreme Court and us: A personal note

My Love was out of the country in meetings last fall.

I called her repeatedly over the course of half an hour, interspersed with texts, asking her to call me.

Finally, she returned my call.

My Love (extremely exasperated): This better be important. I’m in the middle of a critical meeting here.

Me: A federal court just threw out the same-sex marriage ban in [our state].

[silence]

Me: Did you hear me? We can get married at home.

Voice in the background: Is everything all right?

My Love: I’m just going to go over here in the corner and dance and cry for a few minutes, OK?


I’m just going to go over here in the corner and dance and cry for a few minutes, OK?

The Supreme Court and me: A response

Heather at Lez B Vegan Moms has some reflections on my post about the Supreme Court’s impending gay marriage decision.

Heather is (unlike me) an actual lawyer law school graduate.

I particularly agree with one of her thoughts: Marriage is three different things:

  • a collection of legal rights and obligations
  • a commitment between two people
  • a ceremony, religious or not

It is a category error to confuse the three things, as opponents of gay marriage often do. As Heather says, I don’t need a lawyer for the latter two. I don’t need God for the first.


PS: She called my post “very intellectual”! My dear, I’m just an engineer.

PPS: Heather’s post reminds me that my hero is Roy McDonald, a conservative Republican from a conservative, Republican upstate district, who committed political suicide by voting for the New York gay marriage law. Roy said,

[Y]ou try to do the right thing. You might not like that. You might be very cynical about that. Well, f*** it, I don’t care what you think. I’m trying to do the right thing. … They can take the job and shove it. I come from a blue-collar background. I’m trying to do the right thing, and that’s where I’m going with this.

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.

The Supreme Court and me

It’s a momentous time for a lesbian hoping to marry.

The citizens of Ireland have approved gay marriage.

More important, to me and millions of others, the United States Supreme Court is likely soon to decide two questions:

  • Can a state limit marriage to a straight couples?
  • If it can, must it nevertheless recognize gay marriages from another state?

From a purely selfish point of view, my Love and I want to be married.


Currently, we could marry here in New York, no matter what the Supreme Court says. New York law permits same-sex marriage. Famously, Roy McDonald, a Republican from a very conservative district upstate, voted for the bill:

[Y]ou try to do the right thing. You might not like that. You might be very cynical about that. Well, f*** it, I don’t care what you think. I’m trying to do the right thing. … They can take the job and shove it. I come from a blue-collar background. I’m trying to do the right thing, and that’s where I’m going with this.


It’s more complicated in our home state.

The state constitution was amended to restrict marriage to a man and a woman. A federal court has held that to be unconstitutional, so currently we could get married at home.

However, if the Supreme Court rules that states can restrict marriage to straight couples, the constitutional ban would likely be re-imposed. Worse, the Supreme Court might rule that our home state need not recognize a New York marriage.


Practically, getting married in New York would be a good idea. It would be easier to buy an apartment together. It would be easier to deal with medical crises. It would make it far, far easier to have children together. It would make thousands of smaller things easier.

But we want to marry in a real wedding at home, on my Love’s family ranch. We’re old enough and foolish enough to want to wear white dresses and have a minister and bridesmaids and flowers and Champagne and a big cake. Have dads give away the brides. Exchange rings. Have a reception with funny and syrupy toasts and dancing cheek to cheek. A drunken relative or two. Sneaking off on a honeymoon.

That won’t happen before next summer. But I would like it to happen, and to be meaningful. Not just a nice party with no legal effect.

I thank my Love’s lawyer for helping me understand the legal issues and their status in New York, my home state and the United States. Any errors are mine, of course, and, for goodness sake, don’t take legal advice from me!

Annals of anti-science

100 “Scholars of Marriage” have filed a brief with the Supreme Court supporting the states with bans on same-sex marriage. They may be scholars of marriage, but they certainly are not scholars of data, statistics or science.

This is the worst abuse of data I have ever seen. (I initially wrote “abuse of statistics”, but there is nothing resembling actual statistics in it.)

It’s not even pseudo-science. It’s anti-science.

Major multinationals pay my Love tens of millions of dollars a year to analyze data for major business decisions.  This is so bad it made her giggle. She does not giggle.

I don’t care what your views are on same-sex marriage, this is a mind-bogglingly embarrassing abuse of data. Did they not show it to one, single person who knows one, single thing about the most basic notions of statistics?

[hat tip: mikenelson91]