Thursday, August 5, 2010

Addressing a Few Red Herrings

So what would happen if a state were to have a referendum and, by a 52-48 majority, the people chose to ban all guns (except for those owned by the police)? What if a community held a referendum and a majority of the community chose to prevent African Americans from owning property in the community? What if a state legislature passed a law banning Islam? What if that state passed a law that required the Catholic church to ordain women or Jews to eat pork? What if a local community voted to require students in its public schools to pray to Jesus or observe Lent?

What would happen if a state held a referendum and a majority chose to punish drug users with a public flogging followed by cutting off a hand or decided that people who were arrested and wanted a lawyer weren’t entitled to have one appointed for them? What if a state decided that people arrested for a crime had to testify and couldn’t “take the Fifth”? What if a state decided to reinstitute slavery or decided that only property owners could vote? What if a state decided that people were not allowed to say or write anything critical of the government?

And what if a state decided that interracial or interreligious marriage was prohibited or that marriage by post-menapausal women was prohibited? What if a state required couples to sign a pledge to try to procreate before getting married? What if a state decided that only marriages performed by certain religious sects were permissible?

I doubt that anybody would think that any of the foregoing would be acceptable in America (though I worry that some of them might actually be capable of achieving majority support). Why? Because of the rights and protections granted by the United States Constitution. Yet, in the wake of yesterday’s federal district court ruling that the ban on gay marriage “enshrined” in California’s constitution violates the United States Constitution, many opponents of gay marriage are trumpeting the “but the people voted for it” argument. What these people seem to conveniently forget (or actually fail to understand) is that the very foundation of our system of government recognizes the will of the majority but protects the rights of the minority. In other words, minority groups in America, even those who many not be favored by the majority, are protected from the whims of the majority (sometimes called the “tyranny of the majority”).

Thus, the fact that California’s voters decided to add a ban on gay marriage to their state’s constitution is really a red herring; it is of no more import than if the state had decided to ban a particular religion or require those of a certain demographic group to wear stars on their clothing. In America, the majority cannot, by popular vote, take away rights guaranteed by the Constitution. The issue of whether same-sex marriage is a right guaranteed by the Constitution is a different question, one that Judge Walker addressed yesterday; but if same-sex marriage is a right protected by the Constitution, then the fact that Californians voted against it* is meaningless.

Also, promptly following Judge Walker’s decision yesterday, some on the right (hey there FOX News!) started talking about the Judge’s bias because he is gay. This suggestion is not just wrong; it is patently offensive.

First, I note that those alleging bias against Judge Walker were conspicuously silent when another federal judge with extensive stock holdings in the oil industry refused to recuse himself before considering the Obama administration’s ban on offshore drilling. Those same people were silent just a few days ago when another federal judge failed to recuse himself from hearing Virginia’s lawsuit against the new health care reform legislation even though he has financial ties to Virginia’s Attorney General, the lead plaintiff in the case. And those sorts of conflicts-of-interest are prohibited by canons of judicial ethics.

More importantly, ask yourself this: Why is it that when it comes to litigation involving social issues, straight, Anglo-Protestant white males are never seen as being biased, but a judge who is black or Jewish or female or gay is biased, often for no other reason that the fact that the judge is black or Jewish or female or gay?

Or think of it this way: Must every woman judge recuse herself from a rape case? Must every Jewish judge recuse himself from a case involving church-state issues? Must every Hispanic judge recuse himself from an immigration case? Must a black judge recuse himself from every lawsuit alleging racial discrimination? And with your answer to that last query in mind, must every white judge recuse himself from a case alleging racial discrimination if one of the parties is … um … white? And, by all of that reasoning, shouldn’t any straight judge have been forced to recuse himself precisely because he wasn’t gay?

Those who argue bias of this sort are either so blinded by their own bias and bigotry or simply cannot recognize that, in order for our system to work at all, we must all have faith in the impartiality of our judiciary. That a judge disagrees with us doesn’t mean bias; it means that judge judges a particular issue differently that you or I might. It doesn’t mean bias. But if we start seeing bias in every judge solely on the basis of that judge’s color or religion or DNA, then it won’t be long before our judicial system becomes a joke and the respect for the rule of law on which the foundations of our country are supported will rot away.

One final point on this issue of bias, specifically with regard to Judge Walker: Have you noted that those who claim that Judge Walker is biased because he is gay have not bothered to mention that Judge Walker was nominated by President Reagan and then again by President George H.W. Bush or that during Judge Walker’s nomination hearings, he was opposed by gay rights groups? Hmm. Does that weigh upon the question of any perceived bias?

Finally, if you hear someone say that they disagree with the Judge, ask them to explain why they think that gay marriage should be prohibited. If at any point they mention their particular religious views, ask them the following two questions: (1) Which of the Ten Commandments are or should be enshrined in our law and (2) whether your religious views should bear upon what that person is allowed to do (i.e., because Jews don’t eat pork, should my religious views be taken into account to determine if others can eat pork)? Also, if at any point in the discussion, the person says that gay marriage will “destroy traditional marriage” (or some other similar nonsense), ask them to be specific and explain how a marriage by a gay couple will impact that person’s marriage. You might also ask them if it is because of gay marriage that Rush Limbaugh and Karl Rove have each been married and divorced several times. And lastly, if the person says that Judge Walker’s reasoning or legal analysis was wrong, ask them if they’ve actually read the opinion. It’s find if someone disagrees with the outcome of the decision, but when people start to attack what the ruling actually does (or doesn’t) say, then it is worth noting whether that person has actually read the decision or is just talking on the basis of what they’ve been told by FOX News, Glenn Beck, Rush Limbaugh, or others. Then challenge the person to go find a copy of the opinion (hint, click the word opinion for a copy), read it, and then discuss what the judge said.

For my part, I plan to read the opinion over the next few days. I’m looking forward to it.

*Note that there is speculation that the vote on California’s Prop 8 was marred by massive voter confusion. People who were opposed to gay marriage had to vote yes while those who supported gay marriage had to vote no.

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16 Comments:

At Thursday, August 05, 2010 5:58:00 PM , Anonymous Anonymous said...

You may have a legal point, but when something is right or wrong and you choose wrong because it's "legal" you are immoral. Slavery used to be "legal." What say you to that "Sir Legal?" If we're going to legalize homosexuality, why not pedophilia or beastiality? It is, after all, the same level of logic. Would it be alright with you if a child in your family "consented" to a pedophile? The way you write makes me tend to believe so, as long as it was "legal." Homosexuality and etc. patently offends me and many others, but let's not chase that red herring. I'll be there when you stand mute before God. I wonder if you will please your Creator? He wrote an opinion many years ago. It's called "The Ten Commandments." I think immorality was a capital offence. ~Gale

 
At Thursday, August 05, 2010 10:17:00 PM , Anonymous Janette said...

Oh Gale, your views patently offend me. It is not only legal however, but right and just that you be able to have and express them, whether they make sense or not. How are bestiality and pedophilia along the same level of logic? Because you don't like the thought of them? The laws against them are to protect from harm innocents who cannot protect themselves. How is that like two mature adults wanting to get married? To equate them is truly bias and slanderous, used solely to mislead people and skew the true issue.

I try to respect other people's religious views, and I know many oppose gay marriage on those grounds, but to use them as the sole basis for opposing national policy is not sound justification and patently offensive to me. We are a nation of diverse yet equal individuals and our government should represent us as such.

 
At Friday, August 06, 2010 8:13:00 AM , Anonymous Anonymous said...

Gale- What part of all men are created equal do you not understand? I pay my taxes and extra taxes, and I live a productive life. So, I want my full equality to go with it! Do not compare GLBT people to pedophiles and to beastiality as that is just stupid. We are adults living our lives and to you it might be wrong but you are not the end all emperor so get over it! Full eqality we want it and we deserve it! RFD

 
At Friday, August 06, 2010 9:24:00 AM , Anonymous Anonymous said...

My rights are God given, not man allowed. Man can and has usurped them. Your failure to see the logical connection to pedophilia and etc., only attests to your willful ignorance. I can't cure your blindness, only make you aware of it. You have been warned. Remember it. Rant against me all you want, call me stupid call me anything, but like I said, you'll be singing another tune in front of God, if able to speak at all, and I'll be there. He who smiles last... ~Gale

 
At Friday, August 06, 2010 10:40:00 AM , Blogger MSWallack said...

Gale:

I'm curious to know which of G-d's commandments you actually follow. You are aware that there are 613 of the them in the Bible (the Old Testament, to you). Do you eat pork or shellfish? If so, I believe that you should be stoned. Do you have a picture of Jesus around? Because that would be a prohibited graven image. I find it interesting that many Christians have no idea that they actually changed the Ten Commandments to suit themselves. Oh, and with football season approaching, you should beware of that pigskin... And don't forget to take a ritual cleaning bath following menstruation. I think you can be stoned for failing to do that, too.

I also wonder if you realize that you are, in fact, an atheist. Of course you are. You don't believe in Odin or Zeus or Zoroaster or the Great Spirit. So you are an atheist with regard to all gods but the one that you choose to believe in. Let's home that you chose correctly...

I'm patently offended by people like you who think that their beliefs, based on documents created literally millennia ago, give them reason to hate others today. Yet you don't see me trying to take away your rights to be both offensive and wrong, do you?

As to the comparison to bestiality and pedophelia, let me make a few simple observations. I'm sure others have much more detailed, better explanations; plus, though I find your comparisons odious and offensive, I'm not going to go that route. Rather, I want to simply point out the simple fallacy of your comparison. First, the comparison with pedophilia is completely off base for a simple reason. Children do not have the right to make certain decisions precisely because they are children. A child can't sign a contract, drive a car, vote, drink, or die in the military because the child is ... well ... a child. And that is why pedophilia is different. A loving homosexual relationship involves two consenting adults. A child is not an adult and therefore is not capable of giving consent. As to bestiality, again the point is simply that an animal cannot give consent. We have laws to protect animals from mistreatment (in fact Jews have laws that determine how an animal must be slaughtered before it can be eaten). So again, a loving homosexual relationship has no comparison to a situation where a human chooses to mistreat an animal.

Now let's presume look to your "G-d given" rights. How, precisely, does a homosexual relationship impact your rights? If a gay couple marries, does that suddenly prevent you from marrying or speaking your mind to say that you object or praying for whatever it is you pray for? If a gay couple has sex, does that impact what you and your partner can do in the privacy of your bedroom? If a gay couple hold hands in public that does that impact your right to vote, or even to liberty? No. Gale, the only right that you're really trying to protect is the right to decide how others should live and that is one of the rights that you were not given.

 
At Friday, August 06, 2010 6:37:00 PM , Anonymous Anonymous said...

Gale, why are you even reading this blog as it is by a "sinner" as you so judge? Why not just ignore it? You who knows all should know better. And great true reply to her Michael!

 
At Friday, August 06, 2010 8:27:00 PM , Anonymous Anonymous said...

Gale- He who smiles last? You are so full of arrogance and judgement that you are blinded by it! May your God enlighten you somehow if it is possible. RFD

 
At Friday, August 06, 2010 10:19:00 PM , Anonymous Anonymous said...

You are still "thinking." You make assumptions concerning Truth that you know nothing about. I don't think - I know. See you later. ~ Gale

 
At Saturday, August 07, 2010 8:05:00 AM , Blogger MSWallack said...

Wow! That's some admission, Gale. You don't think, you known. I think that you've just identified the major difference between quite a lot of people in this world. I suspect that you're a lot more like the Taliban than you'd give yourself credit for; after all, I suspect that they know without thinking, too. And I suspect that many Nazis knew that Jews were "bad" without thinking about the repercussions of their actions.

But a few questions: How do you "know" which version of G-d's Ten Commandments to follow? How do you "know" that it's OK to eat pork or shrimp; after all, G-d told you not to. How do you "know" that polygamy is bad; after all, lots of G-d's prophets had mutliple wives. How do you "know" that it's OK to pray in public; after all, Jesus told you to pray privately. How do you "know" that it is permissible for you to ignore any of G-d's 613 commandments?

Oh, and how do we humans know how to treat illnesses? How do we know how to send men to the Moon and robots to Mars? How do we know how to build computers and cars and eyeglasses and heart stents? Could it possibly be that G-d (or some other creator or even nature itself) gave us humans the ability -- or even the obligation -- to think. Apparently not in your holier than thou, "know but don't think" world.

 
At Saturday, August 07, 2010 11:45:00 AM , Blogger erk said...

Gale: Just out of curiosity, have you read the words of your god in the original tongue in which they were transcribed? I always wonder why so few Christians bother - one would think the original word was important. And why would you trust centuries of politically-motivated decisions to render those words in a language you happened to learn?

After all - the Bible doesn't say it's infallible. On the contrary, Revelations expresses concern that the words would be altered.

Speaking of which, have you read any of the Apocrypha?

I'm just wondering how serious you are about knowing truth, as opposed to defending the habitual verbiage with which you grew up.

- Eric

 
At Saturday, August 07, 2010 10:40:00 PM , Blogger MSWallack said...

To follow up on what Eric said, Gale, did you know that there actually is not a commandmant "Thou Shalt Not Kill"? Actually, the commandment is "Thou Shalt Not Murder" which is clearly different (though subtly so). The problem comes about from translating the Bible (Old Testament) from ancient Hebrew to Greek to Latin to English instead of straight from Hebrew to English.

And while I'm on the subject, why is it that we're not supposed to murder (or kill) except for all of those times that G-d tells us to murder or kill, usually quite violently (like stoning), for such horrible offenses as touching the skin of a pig or wearing clothing made from more than one fabric?

 
At Sunday, August 08, 2010 12:38:00 PM , Anonymous Janette said...

Yikes, if the rule were actually "thou shalt not kill" I'd be in a heap of trouble every time I weeded the garden. No mercy for dandelions!!

Anyway, after reading Gale's second post, I realized it was not a rational thinking person who posted the first comment, but one of blind faith. You cannot argue with someone who is blinded by their own circular reasoning- "I believe in everything the bible says, because I know it's true. I know it's true because the bible says it is." It's not that they know things are true, it's that they've decided this is what they are going to believe, and to change their minds would be to admit the thing they've invested their entire life in is false, calling themselves a fool. Too much. There's no changing these people's minds, so going back and forth is a waste of time.

I can accept these kinds of Christians as long as they are not vindictive. It's the ones so full of fear and hate that they have to go around spewing in all over, and delight in the thought of those who disagree with them meeting the fiery depths of hell. If one is feeling anything but compassion for the ignorant misunderstandings in others, they will not qualify to pass into their own precious heaven either.

There is a lot of value in the ideas at the right of the political spectrum, but it also serves as a haven for nuts like these, which renders it weak and without credibility. Of course I can say something similar about the left. My point is I don't waste time arguing with nuts, but try to invest it in those who understand the value of that which applies to all people. In this case love for another and the right to join with them. That is universal and without prejudice.

 
At Monday, August 09, 2010 10:14:00 AM , Blogger MSWallack said...

At dinner last night, I was telling my wife about this post and Gale's comments. I mentioned Gale's claim that she doesn't need to think because she knows. My 10-year-old daughter overheard our discussion and, without prompting interjected the following: "That's stupid. Was it Sarah Palin?"

 
At Wednesday, August 11, 2010 10:12:00 PM , Anonymous Janette said...

@ MSWallack... what's with the "G-d"? That's kind of odd. Just curious :)

 
At Thursday, August 12, 2010 10:01:00 AM , Blogger MSWallack said...

Good question. Traditionally, Jews don't write the name of G-d. In Hebrew, there are words that are like anagrams or code for the name of G-d (which has led to some of the Jehovah confusion). Though the word "God" is not the name, a tradition arose (among some) not to spell that out, either. In all honesty, I'm not sure I know why and given that I'm not the most observant guy around, I'm not sure why I stick to that convention other than habit. It's what I was taught a long time ago, and I never bothered to change (though I occassionally forget...).

 
At Sunday, August 15, 2010 12:03:00 PM , Anonymous Janette said...

Interesting. Thanks for the explanation. My old writing teacher would have a cow though, as it's distracting. He was all about "not distracting your readers by causing them to think about your writing rather than your message." I enjoyed your message very much though, and I'm easily distracted. Well said.

 

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