tag:blogger.com,1999:blog-2145367389527980151.post5826892877531851798..comments2023-03-03T23:07:23.807-06:00Comments on Irenist's marginalia: Answer to JakeUnknownnoreply@blogger.comBlogger11125tag:blogger.com,1999:blog-2145367389527980151.post-8473868577314660862013-01-31T12:27:41.438-06:002013-01-31T12:27:41.438-06:00Ooh- many apologies Anonymous. A foolish assumpti...Ooh- many apologies Anonymous. A foolish assumption on my part. -10 debate points from me :/Jakehttps://www.blogger.com/profile/08783389718716811793noreply@blogger.comtag:blogger.com,1999:blog-2145367389527980151.post-41841661578347113482013-01-31T10:29:19.019-06:002013-01-31T10:29:19.019-06:00I don't have time for a full reply right now, ...I don't have time for a full reply right now, but I'd like to add a piece of data - I am <i>definitely not</i> a "very strong Catholic"... or even a Catholic at all.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2145367389527980151.post-13663933541530825632013-01-31T09:08:39.286-06:002013-01-31T09:08:39.286-06:00This is all superbly argued, Jake. I'll need ...This is all superbly argued, Jake. I'll need to come back to it later today, if not later this week, due to time constraints at work. So for now, let me just praise what you've done here, and issue a promissory note that I'll be returning to the discussion ASAP.Tomhttps://www.blogger.com/profile/16967233497214731240noreply@blogger.comtag:blogger.com,1999:blog-2145367389527980151.post-2135348017070955232013-01-31T04:58:05.708-06:002013-01-31T04:58:05.708-06:00Ahh, it looks like several of my links are broken ...Ahh, it looks like several of my links are broken (I suspect due to the smartquotes MS Word uses being incompatible with html). If you have the ability to edit commenter's html, feel free to do so. If not, most of my links go directly to wikipedia anywaysJakehttps://www.blogger.com/profile/08783389718716811793noreply@blogger.comtag:blogger.com,1999:blog-2145367389527980151.post-49400404456240219272013-01-31T04:54:35.996-06:002013-01-31T04:54:35.996-06:00I find it difficult to evaluate your claim that “p...I find it difficult to evaluate your claim that “people who know law know (with a few academic exceptions on the left, I presume and preemptively concede) that [this view of how the first amendment works is] wrong,” The evidence I have is that two very strong Catholics (you and the original anonymous commenter) who clearly know much more than me about constitutional law think I’m wrong, and say that the vast majority of law professionals agree with them. I am not a law professional, nor do I have experience with law professionals to draw from, but an attempt to find opinions that agree with me was trivially easy (<a href="http://journals.chapman.edu/ojs/index.php/e-Research/article/view/87/307" rel="nofollow"> This one</a> is a good example, though as far as I can tell written by an undergrad. <a href="http://www.firstamendmentstudies.org/wp/pdf/1st_religion_ch4.pdf" rel="nofollow">This one</a> is a bit more balanced, but certainly doesn’t give the impression that first amendment arguments against anti-SSM are a decided matter). Moreover, I think the precedent (and the discussion in legal circle reachable by a quick google query) is clear that this is at least a _discussion_, rather than an open-and-shut “you’re blatantly misinterpreting the first amendment” that you and anonymous seem to think it is.<br /><br />Similarly, I think your claim that the fact that Blue Laws are still on the books means they are somehow constitutional (and by extension, I ought to jettison my current understanding of constitutional law) miss the mark for several reasons. Firstly, <a href="http://en.wikipedia.org/wiki/Blue_law" rel="nofollow">most blue laws have been repealed</a>. Secondly, the specific blue laws that we’re talking about (alcohol sale) to the best of my knowledge have never been challenged. Thirdly, in the decisions that maintained some other Blue Laws, the ruling was that there was a compelling secular purpose for those laws, which is exactly the distinction we’re discussing in the overarching thread (a distinction you seem to claim is invalid). Fourthly, I am <a href="http://www.firstamendmentcenter.org/blue-laws" rel="nofollow">certainly not alone</a> in my view of the constitutionality of Blue Laws (as Justice William O. Douglas wrote in his dissenting opinion on McGowan v. Maryland, “I do not see how a State can make protesting citizens refrain from doing innocent acts on Sunday because the doing of those acts offends sentiments of their Christian neighbors.”) <br /><br />Finally, re: your rather apathetic view of the Constitution as law of the land, but not a good measure of morality. I actually agree with you. The constitution is the law of the land, and therefore a discussion of its implications is extremely important. However, my objects to anti-SSM legislation are fundamentally _not_ “it violates the rules laid out in this rather arbitrary document written several hundred years ago by people with whom I disagree on a number of moral issues.” My objections to it are moral, and I use the Constitution as an attack vector to try and take on what I think are immoral laws (which, if you think about it, is what a constitution is for*). It just so happens that I also think the constitution (as it is currently being interpreted) has it right. But the constitution isn’t magic. Things don’t suddenly become “right” if we pass an amendment- they just become legal.<br /><br />*That was a deliberate attempt to make a con law scholar mad at a lay person who thinks they read the constitution and are therefore an expert. Not very charitable of me, but I couldn’t resist.Jakehttps://www.blogger.com/profile/08783389718716811793noreply@blogger.comtag:blogger.com,1999:blog-2145367389527980151.post-6950502443770883352013-01-31T04:47:18.061-06:002013-01-31T04:47:18.061-06:00The Lemon test is, in my mind, the clincher of thi...The <a href="%E2%80%9D" rel="nofollow">Lemon test</a> is, in my mind, the clincher of this debate. The Lemon test, as established in Lemon v. Kurtzman, consists of three prongs:<br /><br />1. The government's action must have a secular legislative purpose;<br /><br />2. The government's action must not have the primary effect of either advancing or inhibiting religion;<br /><br />3. The government's action must not result in an "excessive government entanglement" with religion.<br /><br />If any of these 3 prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.<br /><br />On the strength of prong 1 alone, I consider my point to be valid. If anti-SSM legislation cannot be demonstrated to have a secular legislative purpose (as was the case with Intelligent Design), then it is unconstitutional. Further, I would argue that prong 3 applies to anti-SSM legislation as well.<br /><br />So I return to my original claim:<br /><br />“My lay understanding of the Constitution supports the notion that if a moral question is religious in nature, and cannot be adequately addressed secularly (or if the secular answer is clear and in opposition to the prevalent religious answer), then legislating that religious answer counts as limitting the free excercise of other people who would seek to make a religious decision counter to that made by the majority.”<br />Your response was that that is “a pretty common lay misunderstanding.” Based on the legal precedent I have cited, in particular prong 1 of the Lemon test, I contend that it is in fact a valid interpretation of the Constitution, and is applicable to the constitutionality of anti-SSM legislation.<br /><br />But wait, there’s more!<br /><br />You made the claim that “your distinction between questions that can be adequately answered with only secular reasons and those that are merely religious would be an impossible nightmare for courts to adjudicate.” I contend, again based on the precedent I’ve cited, that the courts do indeed make this distinction. I do not, however, contend that they are perfect at it. It does seem quite difficult. But as far as I can tell, it’s almost exclusively difficult decisions that end up in the courts in the first place. Isn’t it kind of their job to make difficult decisions based on necessarily vague law and reasonable precedent?<br />Jakehttps://www.blogger.com/profile/08783389718716811793noreply@blogger.comtag:blogger.com,1999:blog-2145367389527980151.post-48469084579478098222013-01-31T04:45:34.759-06:002013-01-31T04:45:34.759-06:00--------The constitutionality of anti-SSM legislat...--------The constitutionality of anti-SSM legislation--------<br />Three points to begin with:<br /><br />1) I’m going to be using the phrase “anti-SSM” as a label for the position that civil marriage should be exclusive to heterosexual couples. No offense or connotation is intended by this term, and if there is a preferred term, I would be happy to switch to it.<br /><br />2) I am not a constitutional law scholar, and many of the complaints you voiced (“I read the constitution once, ergo I can teach law students!”) are no doubt applicable to me. My primary qualification is adjudicating semi-weekly games of Magic The Gathering amongst my friends. Nevertheless, I shall do my best to mount a defense of my position, with a preemptive apology as to any insult this might cause.<br /><br />3) I source heavily from Wikipedia in the following comment. I tried to quote the parts that were quotes, but there’s probably some plagiarism in here somewhere.<br /><br />And now, onward and forward:<br /><br />I would like to draw a strong parallel between anti-SSM legislation (<a href="%E2%80%9D" rel="nofollow">Hollingsworth v. Perry</a>) and the teaching of Intelligent Design theory in classrooms(<a href="%E2%80%9D" rel="nofollow">Kitzmiller v. Dover Area School District</a>). Through referencing the decision in Kitzmiller, I will attempt to demonstrate that there is precedent for a law being deemed unconstitutional if it is a clear application of religious ideology <br />without a valid secular basis, even if the wording of the law itself is not explicitly religious. I largely leave the argument about whether or not anti-SSM falls into this category by the wayside, for two reasons- firstly time, space, and the late hour at which I write this, and secondly, because it does not seem to be the thing which raised so many hackles over in the original thread. The main objections came to my claims of how to treat such a category, rather than whether anti-SSM legislation fell into this category (whether or not it does is obviously a hugely important question, but one to be left for another time, I think.)<br /><br />For those who don’t want to click through, the Kitzmiller <a href="%E2%80%9D" rel="nofollow">decision</a> ruled that “the religious nature of ID [intelligent design] would be readily apparent to an objective observer,” and that “A significant aspect of the IDM [intelligent design movement] is that despite Defendants' protestations to the contrary, it describes ID as a religious argument.” They further said that “The overwhelming evidence at trial established that ID is a religious view.”<br /><br />In light of this, the judge ruled that “The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board's ID Policy violates the Establishment Clause.”<br /><br />Again for the click-weary, the <a href="%E2%80%9D" rel="nofollow">endorsement test</a> “asks whether a particular government action amounts to an endorsement of religion, thus violating the Establishment Clause of the First Amendment.” This renders a government action invalid “if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion.” Now an argument could be made here for anti-SSM laws failing the endorsement test by creating the perception in the mind of a reasonable observer that the government is endorsing Christianity. However, I think this argument is much weaker than the next, so I will leave it with just a mention and not pursue it further.<br />Jakehttps://www.blogger.com/profile/08783389718716811793noreply@blogger.comtag:blogger.com,1999:blog-2145367389527980151.post-18986424879266727512013-01-31T04:41:50.436-06:002013-01-31T04:41:50.436-06:00---- My First Principles----
I have three clear a...---- My First Principles----<br /><br />I have three clear axioms that I appeal to unapologetically. I accept them as brute facts about reality (this is an area of research for me, and it would be nice to someday prove the latter two from the first)<br /><br />1) Reason is valid<br /><br />2) The subjective experience of other humans matters<br /><br />3) When in doubt, pick freedom<br /><br />Even though you can put together some decent game-theory reasons for why we should accept First Principle 2 as true even if it’s not, in practice I really am just accepting it as a brute fact. If I’m being totally honest, the game-theory-evolutionary-psychology angle seems like a more robust description of the way the world _actually_ works, but it would lead me down a path of selfish objectivism, which is not a way I want to live my life (I am in the unfortunate position of thinking that knowing and acting on the truth will probably make my life worse. It is an uncomfortable one for a secular empiricist.)<br /><br />First Principle 3 is admittedly poorly worded, but I hope the idea comes across. It seems to me that I have a much stronger argument here than I did for First Principle 2, because as a human, I have some special revelation as to what it is that makes the human experience better. My empirical first person experience is that freedom is paramount to human flourishing.<br />All of my other beliefs (so far as I can tell) derive from these first principles and empiricism.<br /><br />---- My Utility Function----<br /><br />This is just a note to say that I acknowledge that my moral system runs into problems (as all moral systems do) when confronted with competing goods or competing evils. We all exercise some implicit utility function to resolve such issues. I haven’t formalized mine, but it ranks freedom and happiness very high, and tradition, authority, and homogeny very low.<br /><br />I hope I’ve demonstrated why I think I can make moral claims despite the fact that morality is, in practice, relative. Moral imperatives around public safety derive from principle 2. My “libertarian assumptions about morally acceptable spheres of state action” derive from principle 3. I can answer other objections you raised specifically if it remains unclear how I derive those positions from my first principles.<br />Jakehttps://www.blogger.com/profile/08783389718716811793noreply@blogger.comtag:blogger.com,1999:blog-2145367389527980151.post-80016916876693758702013-01-31T04:41:09.730-06:002013-01-31T04:41:09.730-06:00-------- Do moral relativists get to make claims?-...-------- Do moral relativists get to make claims?--------<br /><br />There seems to be a common thread of incredulity throughout your post every time I make a moral claim, so allow me to clarify both my position and what I believe to be the consequences of that position. Note that this seems like a bit of a side argument, but it’s a worthwhile experience for me to write it, and based on your comments it sounds like you’re arguing against a position I’m not actually taking. For any readers unfamiliar with Leah’s blog, see <a href="%E2%80%9D" rel="nofollow">this rough draft of a humanist manifesto</a> for a similar discussion.<br /><br />I am a <a href="%E2%80%9D" rel="nofollow">descriptive moral relativist</a>. To steal a line from the Wikipedia page, this simply means that I “admit that it is incorrect to assume that the same moral or ethical frameworks are always in play in all historical and cultural circumstances.” <br /><br />I go a step further than strict descriptive moral relativism, and say that the basis for morality is relative as well. I mean something very specific here- I mean that what it means to be “moral” is entirely contingent on what it means to be “human.” That is to say, if humans were different, by quirk of evolution or God, then morality itself would be different. This is a minor distinction, but quite important in practice, particularly when it comes to the debate we are currently engaged in. Whether or not homosexuality is morally acceptable is not a question of “do the parts fit?” or “is this relationship ordered towards an external goal?” Rather, it is a question of “does this maximize utility function X that I am trying to maximize?” (we shall get to my utility function later, but “human happiness” is a reasonable approximation.)<br /><br />I am not, however, a <a href="%E2%80%9D" rel="nofollow">meta-ethical moral relativist</a> or a <a href="%E2%80%9D" rel="nofollow">normative moral relativist</a>, in that I do think there are “right” and “wrong” answers to moral questions. However, I distinguish right and wrong answers in two ways that might or might not be objectionable to your sensibilities:<br /><br />Firstly, that whether something is right or wrong is a matter of reason, and derivable from whatever first principles you are using. Picking different first principles will (obviously) yield different results, but once you establish your first principles, there are indeed right and wrong answers (or more accurately, there is a hierarchical ranking of sub-optimal choices. Some things are “more wrong” than others.) I will revisit my first principles shortly.<br /><br />Secondly, I am not convinced (and indeed, I find it demonstrably untrue) that morality is the same for each person. What makes me happy is not necessarily the same as what makes someone else happy, and treating us in the exact same way may have very different moral implications. Case in point, I am not same-sex attracted. Telling me that I’m not allowed to marry another man is no burden to me- I wouldn't have wanted to do so anyways. But to someone who is exclusively SSA, this proscription is a much bigger deal. Clearly the moral _consequences_ are different, but I go a step further and say that the morality of such a proscription _changes_ based on the character of the two individuals being affected (me and the imaginary-SSA-person). This flows quite naturally from my earlier claim that the basis for morality is relative to the agents being affected.<br />Jakehttps://www.blogger.com/profile/08783389718716811793noreply@blogger.comtag:blogger.com,1999:blog-2145367389527980151.post-57483763813978052962013-01-31T04:39:59.395-06:002013-01-31T04:39:59.395-06:00Oh goodness... your comments have a character limi...Oh goodness... your comments have a character limit. This could get tricky.Jakehttps://www.blogger.com/profile/08783389718716811793noreply@blogger.comtag:blogger.com,1999:blog-2145367389527980151.post-70984864864590031582013-01-31T04:36:33.929-06:002013-01-31T04:36:33.929-06:00*Meta-comment*
I’m going to break this down into 2...*Meta-comment*<br />I’m going to break this down into 2 separate comments, because I see 2 major themes that I’d like to address, and doing it in one comment would be ridiculously long. The two themes are:<br />-Do moral relativists get to make claims?<br />-The constitutionality of anti-SSM legislation<br /><br />I wanted to include a section on the hypothetical-Sharia-law United States, but alas, it’s after 2 a.m. here, and I have work tomorrow.<br />Jakehttps://www.blogger.com/profile/08783389718716811793noreply@blogger.com