A Philosopher's Blog

Who Decides Who is Muslim?

Posted in Metaphysics, Philosophy, Religion by Michael LaBossiere on March 11, 2015
English: Faithful praying towards Makkah; Umay...

 (Photo credit: Wikipedia)

When discussing ISIS, President Obama refuses to label its members as “Islamic extremists” and has stressed that the United States is not at war with Islam. Not surprisingly, some of his critics and political opponents have taken issue with this and often insist on labeling the members of ISIS as Islamic extremists or Islamic terrorists.  Graeme Wood has, rather famously, argued that ISIS is an Islamic group and is, in fact, adhering very closely to its interpretations of the sacred text.

Laying aside the political machinations, there is a rather interesting philosophical and theological question here: who decides who is a Muslim? Since I am not a Muslim or a scholar of Islam, I will not be examining this question from a theological or religious perspective. I will certainly not be making any assertions about which specific religious authorities have the right to say who is and who is not a true Muslim. Rather, I am looking at the philosophical matter of the foundation of legitimate group identity. This is, of course, a variation on one aspect of the classic problem of universals: in virtue of what (if anything) is a particular (such as a person) of a type (such as being a Muslim)?

Since I am a metaphysician, I will begin with the rather obvious metaphysical starting point. As Pascal noted in his famous wager, God exists or God does not.

If God does not exist, then Islam (like all religions that are based on a belief in God) would have an incorrect metaphysics. In this case, being or not being a Muslim would be a social matter. It would be comparable to being or not being a member of Rotary, being a Republican, a member of Gulf Winds Track Club or a citizen of Canada. That is, it would be a matter of the conventions, traditions, rules and such that are made up by people. People do, of course, often take this made up stuff very seriously and sometimes are quite willing to kill over these social fictions.

If God does exist, then there is yet another dilemma: God is either the God claimed (in general) in Islamic metaphysics or God is not. One interesting problem with sorting out this dilemma is that in order to know if God is as Islam claims, one would need to know the true definition of Islam—and thus what it would be to be a true Muslim. Fortunately, the challenge here is metaphysical rather than epistemic. If God does exist and is not the God of Islam (whatever it is), then there would be no “true” Muslims, since Islam would have things wrong. In this case, being a Muslim would be a matter of social convention—belonging to a religion that was right about God existing, but wrong about the rest. There is, obviously, the epistemic challenge of knowing this—and everyone thinks he is right about his religion (or lack of religion).

Now, if God exists and is the God of Islam (whatever it is), then being a “true” member of a faith that accepts God, but has God wrong (that is, all the non-Islam monotheistic faiths), would be a matter of social convention. For example, being a Christian would thus be a matter of the social traditions, rules and such. There would, of course, be the consolation prize of getting something right (that God exists).

In this scenario, Islam (whatever it is) would be the true religion (that is, the one that got it right). From this it would follow that the Muslim who has it right (believes in the true Islam) is a true Muslim. There is, however, the obvious epistemic challenge: which version and interpretation of Islam is the right one? After all, there are many versions and even more interpretations—and even assuming that Islam is the one true religion, only the one true version can be right. Unless, of course, God is very flexible about this sort of thing. In this case, there could be many varieties of true Muslims, much like there can be many versions of “true” runners.

If God is not flexible, then most Muslims would be wrong—they are not true Muslims. This then leads to the obvious epistemic problem: even if it is assumed that Islam is the true religion, then how does one know which version has it right? Naturally, each person thinks he (or she) has it right. Obviously enough, intensity of belief and sincerity will not do. After all, the ancients had intense belief and sincerity in regard to what are now believed to be made up gods (like Thor and Athena). Going through books and writings will also not help—after all, the ancient pagans had plenty of books and writings about what we regard as their make-believe deities.

What is needed, then, is some sort of sure sign—clear and indisputable proof of the one true view. Naturally, each person thinks he has that—and everyone cannot be right. God, sadly, has not provided any means of sorting this out—no glowing divine auras around those who have it right. Because of this, it seems best to leave this to God. Would it not be truly awful to go around murdering people for being “wrong” when it turns out that one is also wrong?

 

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Charlie, Islam & Justification

Posted in Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on January 21, 2015

While the murders of twelve people at Charlie Hebdo are unjustifiable, one of the killers did attempt, in advance, to justify the attack. The main justification offered was that the attack was in accord with Islamic law. Since I am not a scholar of Islam, I will not address the issue of whether this is true or not. As an ethicist, I will address the matter of moral justification for the killings.

From the standpoint of the killers, the attack on Charlie Hebdo was presumably punishment for the actions of those they killed. In general, punishment is aimed at retaliation for wrongs done, redemption of the wrongdoer or deterrence (this is the RRD model). Presumably the killers were aiming at both retaliation and deterrence and not redemption. From a moral standpoint, both retaliation and deterrence are supposed to be limited by a principle of proportionality.

In the case of retaliation, the punishment should correspond to the alleged crime. The reason for this is that disproportionate retaliation would not “balance the books”, but instead create another wrong that would justify retaliation in response. This, of course, assumes that retaliation is justifiable in general, which can certainly be questioned.

In the case of deterrence, there is also a general presumption in favor of proportionality. The main reason is the same as in retaliation: excessive punishment would seem to, by definition, create another wrong. A standard counter to this is to argue that excessive punishment is acceptable on the grounds of its deterrence value—the greater the punishment, the greater the deterrence.

While this does have a certain appeal, it also runs counter to common moral intuitions. For example, blowing up a student’s car for parking in a faculty parking space at university would certainly deter students, but would be excessive. As another example, having the death penalty for traffic violations would tend to deter such violations, but this certainly seems unacceptable.

There is also the standard utilitarian argument that excessive punishment used for deterrence would create more harm than good. For example, allowing police to execute anyone who resisted arrest would deter resistance, but the harms to citizens and society would certainly seem to outweigh the benefits gained. As such, it seems reasonable to accept that punishment for the purpose of deterrence should be proportional to the offense. There is, of course, still the concern about the deterrence factor. A good guiding principle is that the punishment that aims at deterrence should be sufficient to deter, yet proportional to the offense. Roughly put, deterring the misdeed should not be worse than the misdeed.

In the case of the people at Charlie Hebdo, their alleged offense was their satire of Mohammad and Islam via cartoons. On the face of it, death certainly seems to be a disproportionate punishment. After all, killing someone is certainly vastly more harmful than insulting or offending someone.

A proportional response would have been something along the lines of creating a satirical cartoon of the staff, publishing an article critical of their cartoons or protesting these cartoons. That is, a proportional response to the non-violent expression of a view would be the non-violent expression of an opposing view. Murder would obviously be a vastly disproportionate response.

It could be replied that the punishment was proportional because of the severity of the offense. The challenge is, obviously enough, arguing that the offense was severe enough to warrant death. On the face of it, no cartoon would seem to merit death. After all, no matter how bad a cartoon might be, the worst it can do is offend a person and this would not seem to warrant death. However, it could be argued that the offense is not against just any person, but against God. That is, the crime is blasphemy or something similar. This would provide a potential avenue for justifying a penalty of death. It is to this that I now turn.

Religious thinkers who believe in Hell have long faced the challenge of justifying eternal damnation. After all, as David Hume noted, an infinite punishment for what must be finite offenses is contrary to our principles of justice. That is, even if a person sinned for every second of her life, she could not do enough evil to warrant an infinitely bad, infinitely long punishment. However, there is a clever reply to this claim.

In his classic sermon “Sinners in the Hands of an Angry God”, Jonathan Edwards says of sinners that “justice calls aloud for an infinite punishment of their sins.” Roughly put, he justifies the infinite punishment of sin on the grounds that since God is infinitely good, any sin against God is infinitely bad. As such, the punishment is proportional to the offense: infinite punishment for an infinitely bad crime.

It could be contended that creating cartoons mocking Mohammed and Islam are sins against an infinitely good God, thus warranting an infinite punishment and presumably justifying killing (which is less than infinite punishment). Interestingly, the infinite punishment for sins would seem to render the punishing of sinners here on earth pointless for two reasons. First, if the sinner will be punished infinitely, then punishing him here would not increase his punishment. So, there is no point to it. Second, if the sinner is going to be punished divinely, then punishment here would also be pointless. To use an analogy, imagine if someone proposed having a pre-legal system in which alleged criminals would be tried and, if found guilty, be given pointless and miniscule sentences (such as being mildly scolded for one second). The alleged criminals would then go on to the real legal system for their real punishment. This pre-legal system would obviously be a pointless waste of time and resources. Likewise, if there is divine justice for sins, then punishing them here would be a pointless waste of time.

This, obviously enough, assumes that God is real, that He punishes and that He would punish people for something as minor as a cartoon. It would certainly seem to be a rather petty and insecure God that would be overly concerned about snarky cartoons—people are usually most likely to react to mockery when they are strong enough to punish, but weak enough to be insecure. God, I would think, is far too big to be enraged by cartoons. But, I could be wrong. If I am, though, God will take care of matters and there is thus no reason to kill cartoonists.

If God does not exist, then the cartoons obviously cannot have offended God. In this case, the offense would be against people who believe in a make-believe faith. While such people might be very offended or angry at being mocked, killing the cartoonists would be like enraged Harry Potter fans killing a cartoonist for mocking Daniel Radcliffe with a snarky cartoon. While they might be devoted to the make believe world of Harry Potter and be very protective of Daniel Radcliffe, offensive cartoons mocking a real person and a make believe system would not warrant killing the cartoonist.

As such, if God is real, then He will deal with the offense against Him. As such, there would be no justification for people seeking revenge in His name. If He is not real, then the offense is against the make-believe and this does not warrant killing. Either way, the killings would be completely unjustified.

 

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Group Responsibility

Posted in Ethics, Philosophy, Politics, Religion by Michael LaBossiere on January 16, 2015

After the murders in France, people were once again discussing the matter of group responsibility. In the case of these murders, some contend that all Muslims are responsible for the actions of the few who committed murder. In most cases people do not claim that all Muslims support the killings, but there is a tendency to still put a special burden of responsibility upon Muslims as a group.

Some people do take the killings and other terrible events as evidence that Islam itself is radical and violent. This sort of “reasoning” is, obviously enough, the same sort used when certain critics of the Tea Party drew the conclusion that the movement was racist because some individuals in the Tea Party engaged in racist behavior. It is also the same “reasoning” used to condemn all Christians or Republicans based on the actions of a very few.

To infer that an entire group has a certain characteristic (such as being violent or prone to terrorism) based on the actions of a few would generally involve committing the fallacy of hasty generalization. It can also be seen as the fallacy of suppressed evidence in that evidence contrary to the claim is simply ignored. For example, to condemn Islam as violent based on the actions of terrorists would be to ignore the fact that the vast majority of Muslims are as peaceful as people of other faiths, such as Christians and Jews.

It might be objected that a group can be held accountable for the misdeeds of its members even when those misdeeds are committed by a few and even when these misdeeds are supposed to not be in accord with the real beliefs of the group. For example, if I were to engage in sexual harassment while on the job, Florida A&M University can be held accountable for my actions. Thus, it could be argued, all Muslims are accountable for the killings in France and these killings provide just more evidence that Islam itself is a violent and murderous religion.

In reply, Islam (like Christianity) is not a monolithic faith with a single hierarchy over all Muslims. After all, there are various sects of Islam and a multitude of diverse Muslim hierarchies. For example, the Moslems of Saudi Arabia do not fall under the hierarchy of the Moslems of Iran.

As such, treating all of Islam as an organization with a chain of command and a chain of responsibility that extends throughout the entire faith would be rather problematic. To use an analogy, sports fans sometimes go on violent rampages after events. While the actions of the violent fans should be condemned, the peaceful fans are not accountable for those actions. After all, while the fans are connected by their being fans of a specific team this is not enough to form a basis for accountability. So, if some fans of a team set fire to cars, this does not make all the fans of that team responsible. Also, if people unassociated with the fans decide to jump into action and destroy things, it would be even more absurd to claim that the peaceful fans are accountable for their actions. As such, to condemn all of Islam based on what happened in France would be both unfair and unreasonable. As such, the people who murdered in France are accountable but Islam cannot have these incidents laid at its collective doorstep.

This, of course, raises the question of the extent to which even an organized group is accountable for its members. One intuitive guide is that the accountability of the group is proportional to the authority the group has over the individuals. For example, while I am a philosopher and belong to the American Philosophical Association, other philosophers have no authority over me. As such, they have no accountability for my actions. In contrast, my university has considerable authority over my work life as a professional philosopher and hence can be held accountable should I, for example, sexually harass a student or co-worker.

The same principle should be applied to Islam (and any faith). Being a Moslem is analogous to being a philosopher in that there is a recognizable group. As with being a philosopher, merely being a Moslem does not make a person accountable for all other Moslems.

But, just as I belong to an organization with a hierarchy, a Moslem can belong to an analogous organization, such as a mosque or ISIS. To the degree that the group has authority over the individual, the group is accountable. So, if the killers in France were acting as members of ISIS or Al-Qaeda, then the group would be accountable. However, while groups like ISIS and Al-Qaeda might delude themselves into thinking they have legitimate authority over all Moslems, they obviously do not. After all, they are opposed by most Moslems.

So, with a religion as vast and varied as Islam, it cannot be reasonably be claimed that there is a central earthly authority over its members and this would serve to limit the collective responsibility of the faith. Naturally, the same would apply to other groups with a similar lack of overall authority, such as Christians, conservatives, liberals, Buddhists, Jews, philosophers, runners, and satirists.

 

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Facts & Sincerely Held Beliefs

Posted in Business, Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on August 1, 2014

The Hobby Lobby decision by the Supreme Court of the United States raised numerous issues including a rather interesting one regarding beliefs and facts. Oversimplifying things for the sake of brevity, the owners of Hobby Lobby claim to be opposed to abortion on religious grounds and they claim to believe that certain forms of birth control involve abortion. As such, they contended that providing insurance to their employees that covered what they regard as abortion would violate their religious beliefs and impose an unreasonable burden on them.

As I tell my students in my ethics class, a moral issue often involves three main components. The first consists of the relevant facts. Put very simply, a factual matter is such that the claim being made is true or false regardless of how we think or feel about its truth.  For example, the mass of an object is a factual matter. Factual matters can become rather complicated by the fact that one might need to sort out the key concepts before determining the truth of a factual claim. As such, it should be no surprise that the second consists of the relevant concepts. Sorting out this aspect of a moral dispute involves arguing in defense of the concepts—that is, presenting and defending definitions of the key terms. In the Hobby Lobby case, one of the key concepts is that of abortion. As noted above, the owners of Hobby Lobby claim that certain birth control methods are actually methods of abortion. This seems to be because the Hobby Lobby owners believe that life begins at conception and they seem to reject the notion that pregnancy begins at implantation.  This is, obviously enough, a rather important matter in regards to these methods being abortion or birth control.

If pregnancy begins at implantation (which is the scientific consensus), then the methods in question (specifically those which prevent implantation) do not involve abortion.  As such, the owners of Hobby Lobby would hold factual incorrect beliefs regarding these methods of birth control and this would undercut their moral position. After all, if those methods are not abortion and their moral opposition is based on a factual error, their moral opposition would thus be unfounded.

However, if pregnancy begins at conception (which is not the scientific consensus), then these methods do involve abortion. In this case, the owners of Hobby Lobby would be factually correct. This still leaves open the question of whether their moral claims are correct or not. After all, a person can be right about the facts but be wrong about the morality, which leads to the third component, that of morality.

Obviously enough, a moral issue has a moral component. In this case, the moral issue is whether or not abortion is morally wrong. The owners of Hobby Lobby claim to believe this—but belief does not entail that a claim is true. After all, people sincerely believe false claims quite often. Fortunately for the owners of Hobby Lobby, they did not have to even argue that their moral beliefs are correct or even plausible—all that was required was establishing that their religious beliefs are sincere—that is, they believe what they claim to believe. Given the context, this is not unreasonable—after all, the issue addressed by the court was not whether abortion is morally wrong or not.

The owners of Hobby Lobby did not even need to argue in defense of their factual claims and their concepts—that is, they did not need to make the case that pregnancy occurs at conception and that the methods in question cause abortions rather than serving as birth control (of the non-abortion sort).   Apparently, they merely needed to establish that they believe what they claim to believe. This raises an interesting general issue that goes beyond the specific Hobby Lobby case: should facts matter when considering cases involving value beliefs (such as religious or moral beliefs)?

On the one hand, it can be argued that the facts should not matter—at least in the sense of requiring that the beliefs in question be proven. This can be based on practicality: religious beliefs would be extremely difficult to prove and this would impose too great a burden on those bringing legal cases involving their values. Also, cases about belief are (as others have argued) not about the truth of the beliefs but about the right to hold said beliefs.

On the other hand, it can be argued that facts do matter—especially when the beliefs have an impact on other people. Returning to the case of Hobby Lobby, the idea is that the owners should not be required to follow the law because they are opposed to abortion and they believe that the birth control methods cause abortions. If it is claimed that it does not matter whether the owners are right or wrong about their factual claims, this establishes the general principle that the truth of the claims does not matter. This raises the question of how far this principle should extend.

In the Hobby Lobby case, to say that the facts are not relevant might not seem so serious. After all, the question of when life begins is one that is disputed and the Hobby Lobby owners could engage in a conceptual dispute over the definition of “abortion” in a plausible way. But, suppose that the principle that the facts do not matter, only the sincerity. This would entail that if the owners of Hobby Lobby claimed that paying women the same as men caused abortions, then all that would matter would be the sincerity of their beliefs. The fact that such a claim would be obviously false and absurd would not matter—after all, once the principle that truth is irrelevant is accepted, then truth is irrelevant. As long as the owners could show they sincerely believed that equal pay for women would cause abortions, then the actual facts would not matter. This certainly seems to set a problematic precedent.

 

 

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Hobby Lobby Repost

Posted in Business, Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on July 1, 2014
English: A typical contraceptive diaphragm

(Photo credit: Wikipedia)

The Supreme Court has continued along its “corporations are people that are more important than you” march with its recent ruling about the right of corporations to impose religious values on its employees. Beyond condemning the ruling, I have nothing new to say, but will re-post two posts I wrote earlier about the matter:

In the case of Hobby Lobby,  CEO David Green and his family claimed that their and Hobby Lobby’s freedom of religion is being “substantially burdened” by being compelled to provide insurance that would cover “morning-after pills” and IUDs for employees who wanted such them. The Greens claim that these specific types of contraception prevent implantation of fertilized eggs and are thus equivalent to abortion, which they regard as being against their religious beliefs. There are also those who oppose contraception regardless of the type on religious grounds.

The legal foundation for this challenge is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.

From a moral standpoint, this exemption does seem acceptable if it is assumed that freedom of religion is a moral right. After all, there should be a presumption in favor of freedom and the state would need to warrant such an intrusion. However, if it can do so properly, then the imposition would be morally acceptable. The stock example here is, of course, limitations on the right of free speech.

From both a moral and legal standpoint, there seem to be two main points of concern. The first is whether or not a for-profit corporation is an entity that can be justly ascribed a right to freedom of religion. The second is whether or not such the contraceptive coverage imposes a substantial burden on the free exercise of religion. Obviously, if a corporation cannot be justly ascribed this right, then the second concern becomes irrelevant in this context. However, since it is a simpler matter, I will address the second concern first and then move on to the main point of interest regarding corporations and religious freedom.

For the sake of the discussion, I will assume that those bringing the lawsuit are sincere in their claim that contraception is against their religion and that this is not merely cover for an attack on Obamacare. I will also assume that their religious belief is about the use of contraception.

On the face of it, being compelled to follow the law would seem to not impose any substantial burden in regards to such a belief. After all, those impacted by the law are not required to use contraception. This would, of course, be a clear imposition on their freedom (religious and otherwise). They are also not required to directly give their employees contraception. This could be seen as an imposition by giving them a somewhat direct role in the use of contraception.  However, they are merely required to provide a health plan that covers contraception for those who are exercising their freedom to choose to use said contraception. As such, the burden seems minimal—if it exists at all.

It might be objected that to be forced to have any connection to a means by which employees could get contraceptives would be a significant imposition on the corporation. The rather obvious reply to this is that the corporations pay employees with money that can be used to buy contraceptives. So, if an employee would use contraception, then she would most likely just purchase it if it were not covered by her insurance. In cases where the contraceptive medicine is being used for medical reasons (as opposed to being used as contraception) the employee would probably be even more likely to purchase it (which raises the question of whether such use counts as using contraception in a way that would violate these religious beliefs).

As such, if a corporation can insist that health care plans not cover contraception on the grounds that they would be forced to play a role in situation in which an employee might get contraception by means connected to the corporation, it would seem that they could make the same claim in regards to the paychecks they issue. After all, paychecks might be used to acquire all manner of things that are against the religious views of the corporation’s owner(s). This is, of course, absurd and would be a clear violation of the rights and freedoms of the employees.

As such, the second issue is easily settled: being compelled to offer insurance that covers contraception is not a substantial burden on the religious beliefs of corporations.

U.S Postage Stamp, 1957

(Photo credit: Wikipedi

As noted above, the corporations that are challenging Obamacare on the matter of contraception are doing so on the legal basis of the is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.

Since the act applies to person who hold religious beliefs, it is tempting to simply assert that corporations are not people and hence not covered by the act. However, in the United States corporations are taken to be people in regards to the law.

In fact, the status of corporations as people was critical in the Citizens United ruling that banned restrictions on corporate spending in politics. The general idea is that since a corporation is a person and a person has a right to free speech, then a corporation has the right to free speech.

Given this precedent (and argument), it would certainly seem to follow that a corporation has the right to freedom of religion: Since a corporation is a person and a person has a right to freedom of religion, then a corporation has the right to freedom of religion. This would thus seem to settle the legal matter.

There is an easy and obvious way to reduce this sort of “corporations are people” reasoning to absurdity:

Premise 1: A corporation is a person (assumed).
Premise 2: Slavery is the ownership of one person by another.
Premise 3: The 13th Amendment to the United States Constitution forbids slavery.
Conclusion: The ownership of a corporation is forbidden by the constitution.

This seems completely airtight. After all, if corporations get the right to free speech and the right to religious freedom because they are persons, then they also get the right not to be owned because they are persons. Naturally, this will seem silly or absurd to the very people who easily embrace the notion of corporation personhood in the case of unlimited campaign spending. However, this absurdity is exactly the point: it is okay to own corporations because they are not, in fact, people. They also do not get the right to free speech or religious freedom because they are not, in fact, people.

It could be countered that corporations are very special sorts of people that get certain rights but can be denied other rights in a principled way. Obviously enough, those who own corporations and their defenders might be inclined to hold that corporations get the rights that are useful to the owners (like the right to free speech) but do not get a right that would be a serious problem—like the right not to be owned. However, there is a serious challenge in regards to doing this in a principled manner (and the principle of what is good for me is not a principled principle). That is, the problem is to show that corporations are entities that can justly be ascribed freedom of speech and freedom of religion, but not freedom from ownership. Ironically, as I will endeavor to argue, claiming that corporations are such that they can be justly ascribed the qualities needed to ground a right to freedom of religion would also seem to involve claiming that they have the qualities that would forbid ownership.

In order to exercise religion and thus be entitled to freedom of religion, an entity would seem to require the capacity for religious belief. Belief is, of course, an intentional mental state—a belief is about something and it is mental in nature (although the mental might be grounded in the physical, such as in a nervous system). Being legal fictions, corporations have no mental states and no intentional states. That is, a corporation has no beliefs—religious or otherwise. As such, a corporation is not entitled to freedom of religion—since it has no capacity for religious belief.

This could be countered by claiming that the owner of the corporation provides the intentional states of the corporation. In the case of religion, the religious beliefs of the owner are the religious beliefs of the corporation. Thus, the personhood of the corporation rests on the personhood of the owner. However, if the corporation has the identical mental states as the owner, then it is the owner and vice-versa. While this would handle the freedom of religion matter, it would entail that the corporation is not a separate person in regards to freedom of speech and that ownership of the corporation would be ownership of the owner. If the owner is the sole owner, this would be fine (a person can self-own)—but if the corporation is owned by stockholders, then there would be a problem here since owning people is unconstitutional.

It could be replied that the above is mere philosophical cleverness (as opposed to the legal cleverness that makes a corporation a person) and that the beliefs of a corporation are simply those of the owner.

The obvious problem is that this would entail that the corporation does not have a religious belief that it can exercise. To use an analogy, if the Supreme Court ruled that my left running shoe is a person that I own like a corporation and that thus has my religious beliefs as its own, this would obviously be madness. My shoe, like a corporation, does not itself have any beliefs—religious or otherwise. The mere fact that I own it and it is legally a person does not grant it the capabilities needed to actually possess the foundation for the right to religious freedom. Or speech, for that matter—thus also showing that the idea that corporations have the capability to engage in free speech is absurd. What they do is, in effect, serve as legal puppet “people” manipulated by the hands of actual people. Obviously, if I put an actual puppet on my hand, it is not a person. Likewise, if I create a legal entity as my puppet, it is still not an actual person—its beliefs are just my beliefs and its words are just my words.

The actual person who owns a corporation has the rights of a person—because she is a person. Thus, the owner of a corporation can contend that her religious freedom has been violated. But it is absurd to claim that a for-profit, secular corporation can have its religious freedom violated—it is simply not an entity that can have its own religious beliefs. This distinction between the owner and the corporation certainly seems fair. First, the owner still has all her rights. Second, having a distinction between the owner and the corporation is exactly the point of many of the laws government corporations (such as finances).

If someone insists on claiming that the corporation is not a legal puppet and that it has the capabilities that provide a foundation for these freedoms, then they would run afoul of the argument regarding the ownership of persons. After all, an entity that can hold religious beliefs would thus seem to be a person in a meaningful sense that would forbid ownership.

Thus, the dilemma seems to be this: if a corporation is a person and thus gains the rights of being a person, then it is unconstitutional to own a corporation. If a corporation is not really a person, then it is legal to own it but it is not entitled to the rights of a person, such as freedom of speech and freedom of religion.

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Another Christmas, Another War on It

Posted in Religion by Michael LaBossiere on December 18, 2013
Christmas gifts.

Still not a crime. (Photo credit: Wikipedia)

Like many Americans, I grew up with many Christmas traditions: the tree, the Advent calender, decorations, and candy canes. While I am not particularly religious, these traditions still hold great meaning to me and I still think back fondly to Christmases past. However, there is a Christmas tradition I am not fond of. This is, not surprisingly, the yearly claim that there is a War on Christmas.

Listening to certain pundits, who are mainly denizens of Fox news, one would get the impression that those that celebrate Christmas have been forced to hide in ancient catacombs under the shopping malls to avoid being thrown into the arena where they would be cuddled by liberal, vegetarian lions of ambiguous gender.

On the face of it, to claim that there is a war on Christmas in America would seem to be prima facie evidence that a person is either joking, epistemically damaged or insane. After all, Christmas trees are displayed openly. People boldly wish others a merry Christmas and are not arrested. Christmas stockings are still hung from the chimney with care, rather than being hidden away in some secret corner. You can test this yourself: boldly go to a store that sells cards and ask for Christmas cards. Approach a police officer and ask her if you can report people for celebrating Christmas. Go to the mall and loudly proclaim that you are there to buy Christmas presents. Decorate your yard and your house for Christmas. Eat a candy cane in public. Then report in the comment section what happened.

The fact that Christianity does not get to be the official religion is not proof that there is a war on Christmas. The fact that non-Christians are not compelled to engage in Christmas activities is not proof there is a war on Christmas. The fact that religious tolerance and diversity is respected is not evidence there is a war on Christmas. The fact that some people do some ridiculous things regarding Christmas does not show that there is a war on Christmas.

As happens every year, the folks who (pretend to) believe in a war on Christmas point to problems involving Nativity scenes on state property. As I have written before, I rather like Nativity scenes: When I see one, however tacky it might be (one had flamingos lined up to adore the baby Jesus) I will pause and look at it, remembering days gone by. As such, I have nothing against Nativity scenes. However, I do agree that religious displays should not occur on state property.

Not having religious displays on state property (that is, the property of all the citizens) is not a war on Christmas. After all, not having the state actively endorse a specific faith is not an attack on that faith. If the state burned Nativity scenes as part of a public display, then that would be a war. Having a general ban on religious displays is not a war on religion but rather a refusal to exalt one faith above any others. That is an important part of allowing freedom of (and from) religion.

It is also important to note that manger scenes are not banned from anywhere else. If you want to turn your entire lawn into just such a scene, then you are free to do so. If your church wants to put up a massive manger extravaganza, they are free to do just that. And some do. If it is nearby, I will go see it. Even if it includes flamingos. Actually, especially if it includes flamingos.

Defenders in the imaginary war on Christmas also point to the use of “happy holidays” as a sign that Christmas is under attack. The obvious reply is that this is actually a holiday season. While Hanukkah is over, there are still holidays left such as Three King’s Day and New Year’s. The other obvious reply is that wishing people happy holidays when one does not know their faith (or lack thereof) is a sign of respect and inclusiveness.

I have no objection to someone wishing me a Merry Christmas or a Happy Hanukkah-I usually assume that the person is expressing good will towards me. I’m especially fine with it when the person is giving me a gift at the same time. But, honesty compels me to say that Christmas gifts generally put Hanukkah gifts to shame-not that I did not appreciate the dreidel and chocolate coins, Dave.

That said, I can see how people who are not Christians might find being relentlessly wished a Merry Christmas a bit off putting, especially if it is not done with the spirit of the season but issued as a challenge of faith. Fortunately, that does not happen all that often.

It has also been pointed out repeatedly that schools now have winter breaks rather than Christmas break. I do admit that even now it still sounds odd to be on winter break. I still use the term Christmas break because old habits die hard and, for me, I am on Christmas break. However, not everyone who attends state universities is a Christian and state universities are not supposed to endorse any specific faith (private religious schools are another matter). This is, however, not an attack on Christmas anymore than not calling it Kwanzaa break is an assault on Kwanzaa.

The self-styled protectors of Christmas also lament that Christ has been taken out of Christmas. However, it is not clear just how much Christ has been a part of Christmas. Much of the Christmas mythology and trappings are pagan in origin. Also, when you throw in the gross commercialization of the holiday, that would seem to have done a great deal to take the Christ out of Christmas.

While I would really like an Xbox One for Christmas,  I’d also like the pundits to stop making up this war on Christmas. While it no doubt appeals to the base and creates that warm feeling of righteous indignation in some, it is completely contrary to the spirit of Christmas, namely peace on earth and goodwill to all. Ironically, it is the pundits that are waging a campaign against Christmas. So, ironically, I suppose they are right after all.

As a final point, if there is a war on Christmas, this is a war Christmas wins every year. Merry Christmas.

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Corporations & Religious Freedom I: The Contraception Thing

Posted in Business, Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on November 6, 2013
English: A typical contraceptive diaphragm

(Photo credit: Wikipedia)

As this is being written, there are almost forty for-profit companies suing the United States government over the requirement in Obamacare that health plans include coverage of contraception. The basis for the lawsuit is that the requirement is a violation of religious freedom.  The company Hobby Lobby has attracted the media’s attention in this matter, serving as the “poster corporation” for this matter.

In the case of Hobby Lobby,  CEO David Green and his family claim that their and Hobby Lobby’s freedom of religion is being “substantially burdened” by being compelled to provide insurance that would cover “morning-after pills” and IUDs for employees who wanted such them. The Greens claim that these specific types of contraception prevent implantation of fertilized eggs and are thus equivalent to abortion, which they regard as being against their religious beliefs. There are also those who oppose contraception regardless of the type on religious grounds.

The legal foundation for this challenge is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.

From a moral standpoint, this exemption does seem acceptable if it is assumed that freedom of religion is a moral right. After all, there should be a presumption in favor of freedom and the state would need to warrant such an intrusion. However, if it can do so properly, then the imposition would be morally acceptable. The stock example here is, of course, limitations on the right of free speech.

From both a moral and legal standpoint, there seem to be two main points of concern. The first is whether or not a for-profit corporation is an entity that can be justly ascribed a right to freedom of religion. The second is whether or not such the contraceptive coverage imposes a substantial burden on the free exercise of religion. Obviously, if a corporation cannot be justly ascribed this right, then the second concern becomes irrelevant in this context. However, since it is a simpler matter, I will address the second concern first and then move on to the main point of interest regarding corporations and religious freedom.

For the sake of the discussion, I will assume that those bringing the lawsuit are sincere in their claim that contraception is against their religion and that this is not merely cover for an attack on Obamacare. I will also assume that their religious belief is about the use of contraception.

On the face of it, being compelled to follow the law would seem to not impose any substantial burden in regards to such a belief. After all, those impacted by the law are not required to use contraception. This would, of course, be a clear imposition on their freedom (religious and otherwise). They are also not required to directly give their employees contraception. This could be seen as an imposition by giving them a somewhat direct role in the use of contraception.  However, they are merely required to provide a health plan that covers contraception for those who are exercising their freedom to choose to use said contraception. As such, the burden seems minimal—if it exists at all.

It might be objected that to be forced to have any connection to a means by which employees could get contraceptives would be a significant imposition on the corporation. The rather obvious reply to this is that the corporations pay employees with money that can be used to buy contraceptives. So, if an employee would use contraception, then she would most likely just purchase it if it were not covered by her insurance. In cases where the contraceptive medicine is being used for medical reasons (as opposed to being used as contraception) the employee would probably be even more likely to purchase it (which raises the question of whether such use counts as using contraception in a way that would violate these religious beliefs).

As such, if a corporation can insist that health care plans not cover contraception on the grounds that they would be forced to play a role in situation in which an employee might get contraception by means connected to the corporation, it would seem that they could make the same claim in regards to the paychecks they issue. After all, paychecks might be used to acquire all manner of things that are against the religious views of the corporation’s owner(s). This is, of course, absurd and would be a clear violation of the rights and freedoms of the employees.

As such, the second issue is easily settled: being compelled to offer insurance that covers contraception is not a substantial burden on the religious beliefs of corporations. In my next essay I will turn to the more important issue, namely whether or not for-profit corporations are the sort of entities that can justly be ascribed religious beliefs (and thus be entitled to religious freedom).

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The End Time & Government

Posted in Metaphysics, Philosophy, Politics, Religion by Michael LaBossiere on October 11, 2013
Michele Bachmann

Michele Bachmann (Photo credit: Gage Skidmore)

Michelle Bachmann seems to have claimed that Obama’s support of the Syrian rebels is a sign of the End Times:

“[President Barack Obama’s support of Syrian rebels] happened and as of today the United States is willingly, knowingly, intentionally sending arms to terrorists, now what this says to me, I’m a believer in Jesus Christ, as I look at the End Times scripture, this says to me that the leaf is on the fig tree and we are to understand the signs of the times, which is your ministry, we are to understand where we are in God’s end times history. […] And so when we see up is down and right is called wrong, when this is happening, we were told this; that these days would be as the days of Noah. We are seeing that in our time. Yes it gives us fear in some respects because we want the retirement that our parents enjoyed. Well they will, if they know Jesus Christ.”

While Bachmann’s political star seems to be falling, she is apparently still an influential figure and popular with many Tea Party members. As such, it seems worthwhile to address her claims.

Her first claim is a factual matter about the mundane world: she asserts that Obama is “willingly, knowingly, intentionally sending arms to terrorists.” This claim is easy enough to disprove. Despite some pressure (including some from Republicans) to arm the rebels, the administration has taken a very limited approach: rebels that have been determined to not be terrorists will be supported with defensive aid rather than provided with offensive weaponry. Thus, Bachmann (who is occasionally has problems with facts) is wrong on two counts. First, Obama is not sending arms (taken as offensive weapons). Second, he is not sending anything to terrorists.

Now, it could be objected that means of defense are arms, under a broad definition of “arms.” Interestingly, as I learned in the 1980s when the debate topic for a year was arms sales, “arms” can be defined very broadly indeed. If Bachmann defines “arms” broadly enough to include defensive aid, then Obama would be sending arms. However, this is rather a different matter than if Obama were sending offensive weapons, such as the Stinger missiles we provided to the mujahedeen when they were fighting the Russians.

It could also be objected that Obama is sending arms to terrorists. This could be done by claiming that he knows that what he sends to Syria could end up being taken from the intended recipients by terrorists. This is a reasonable point of concern, but it seems clear from her words that she does not mean this.

It could also be done by claiming that Obama is lying and he is, in fact, sending the aid to actual terrorists. Alternatively, it could be claimed that he is sending the aid to non-terrorists, but intends for the terrorists to take it.  While this is possible (Presidents have lied about supplying arms in the past), actual proof would be needed to show that he is doing this with will, knowledge and intent. That is, it would have to be established that Obama knows the people who he is sending the aid to are terrorists and/or that he intends for terrorists to receive these arms. Given the seriousness of the claim, this would require equally serious report. Bachmann does not seem to provide any actual evidence for her accusation, hence there is little reason to place confidence in her claim.

While politicians tend to have a “special” relationship with the truth, Bachmann seems to have an extra-special relationship.

Her second claim is a factual matter about the supernatural world: she seems to be claiming that Obama’s alleged funding of terrorists is a sign of the End Times. While I am not a scholar of the end of the world (despite authoring a fictional version of the End Time), what she is claiming does not seem to be accurate. That is, there seems to be no reference to something adequately similar to Obama funding terrorists as a sign of the End Time. But perhaps Bachmann has access to some special information that has been denied to others.

While predictions that the End Time is near are common, it does seem to be bad theology to make such predictions in the context of Christianity. After all,  the official epistemic line seems to be that no one but God knows when this time will come: “But of that day and that hour knows no man, no, not the angels which are in heaven, neither the Son, but the Father.” As such, any speculation that something is or is not a sign of the End Time would be rather problematic. If the bible is correct about this, Bachmann should not make such a claim–she cannot possibly know that something is a sign of the End Times or not, since no one can know (other than God) when it will occur.

It could be replied that the bible is wrong about this matter and Bachman can know that she has seen a sign and that the End Times are thus approaching. The obvious reply is that if the bible is wrong about this, then it could be wrong about other things–such as there being an End Time at all.

Interestingly, her view of the coming End Time might help explain her positive view of the government shut down. When asked about the shutdown, she said “It’s exactly what we wanted, and we got it.” While Bachmann has not (as of this writing) claimed that this is also a sign of the End Times, her view that the End Times are approaching would certainly provide an explanation for her lack of concern. After all, if the End Time is fast approaching, then the time of government here on earth is fast approaching its end. Bachmann does seem to think it is on its way.

Weirdly, she also seems to think that Jesus will handle our retirement–which is presumably a reason we will not need the government. She says, “Yes it gives us fear in some respects because we want the retirement that our parents enjoyed. Well they will, if they know Jesus Christ.” This seems to be saying that people who believe the End Time is coming, such as herself, will worry that they will not be able to enjoy their retirement. This seems oddly reasonable: after all, the End Time would certainly clash with the sort of non-end-of-the-world retirement our parents enjoyed. But, oddly enough, she thinks that people who know Jesus will be able to have that retirement, apparently with Jesus providing the benefits rather than the state.

As might be imagined, the fact that Bachmann is an influential figure who apparently has some influence on politics is terrifying enough to itself be a sign of the End Time.

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Splitting Marriage: Theological Unions

Posted in Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on July 3, 2013
U.S Postage Stamp, 1957

(Photo credit: Wikipedia)

In my short book on same-sex marriage I make the suggestion that marriage be split up into different types. I thought it would be  worthwhile to write a bit more on this subject. While this suggestion might be regarded as satire (a rather inferior modest proposal) and I do tend to be a bit sarcastic, this is actually a serious proposal that I believe would solve some of the problems associated with the marriage issues.

While the acceptance of same-sex marriage has become mainstream in some Western countries, there are still those who strongly oppose it. While it is tempting to simply dismiss such people as mere bigots, it does seem worth considering that their values should be tolerated. Of course, even if a set of values should be tolerated on the grounds of the freedom of thought and belief it does not follow that those who have such values have the right to impose these values on others. In the case of those who oppose same-sex marriage, the fact that they consider it against their values does not entail that they have the right to make their values the law of the land.

Since nearly all (or all) of the resistance to same-sex marriage is based on religious beliefs, it is also worth considering the importance of the freedom of religion. While this is a sub-freedom of the more general freedom of thought and belief, it does seem worth considering religious freedom separately,  if only for historic reasons. Interestingly, some who oppose same-sex marriage contend that making same-sex marriage legal imposes on their religious freedoms. However, this is obviously not the case. Making same-sex marriage legal does not, by itself,  infringe on a person’s religious freedom. After all, the legality of same sex-marriage does not require that people get gay-married against their will (which would be a violation of  freedom).

It could be contended that the legality of same-sex marriage could violate a person’s religious freedom in that a person opposed to same-sex marriage who had some sort of official capacity involving marriage in some way might thus be required to recognize the legality of same-sex marriage. For example, a justice of the peace in a state where same-sex marriage is legal would be required to recognize the legality of same-sex marriage. As another example, the clerk who handles marriage licenses in a state where same sex-marriage is legal would also be required to recognize its legality. This is, of course, not unique to same-sex marriage. In the United States, officials refused (and sometimes still refuse) to accept marriage between people of different ethnic groups (typically a black person marrying a white person).

On the one hand, cases such as these can be seen as violation of a person’s religious freedom. Using the justice of the peace example, if Sally’s religious belief is that same-sex marriage is an abomination in the eyes of God, then compelling her to marry Jane and Denise would thus seem to violate her religious freedom. After all, she would be compelled to act contrary to her religious beliefs.

On the other hand, these cases can be seen as not violating a person’s religious freedom. After all, having religious freedom is rather distinct from having the right to impose one’s religious beliefs on other people. In the example, Sally would be imposing her religious view on Jane and Denise rather than exercising her freedom of religion. By not marrying another woman and by regarding such marriages as abominations, Sally would be exercising her freedom of religion.

This can be countered by insisting that Sally’s religious freedom is being violated. After all, as a justice of the peace she is required to act contrary to her faith and she should have the freedom to refuse to do so.

The obvious reply is that she does have the freedom to do so. She can quit her job as justice of the peace on the grounds of her faith. To use an analogy, suppose that Velma believes that eating pork is a abomination on religious grounds. If Velma works at Betty’s BBQ Pit, it is not a violation of her religious freedom for Betty to expect her to serve barbecued pork to the customers. Betty can exercise her freedom by quitting her job and getting one at Paul’s Porkless BBQ Pit.

A counter to this could be based on the argument that a person who regards something a seriously violating their religious views would be wrong to simply walk away. Rather, they should refuse to allow it to occur. Going back to the analogy, suppose that a law was passed allowing human slavery again. If Velma was working at Betty’s Slave Auction and she opposes slavery on religious grounds, it would seem rather problematic to claim that Velma should simply quit. Rather, she should surely try to get the law changed. To avoid any confusion, my point here is not to draw a moral comparison between same-sex marriage and slavery. Rather, the point of using slavery is to use something that should be seen as obviously wrong and that should not be tolerated. To those who oppose same-sex marriage, same-sex marriage is regarded as being something that is obviously wrong and that should not be tolerated.

The sensible reply here is to contend that same-sex marriage is not wrong. That is, that the religious people who oppose it on religious grounds are in error. Interestingly, the same reply has been given by the defenders of slavery, namely that it is not wrong.  Thus, a key part of the matter would involve sorting out the morality of same-sex marriage.

The easy and obvious way out is to note that legalizing same-sex marriage does not inflict any meaningful involuntary harm. In contrast, something like slavery obviously does inflict harm on people. As such, while a person would be right to prevent others from engaging in the practice of something like slavery, the same does not hold in the case of same-sex marriage. Even if same-sex marriage were wrong, the fact that it generates no harm to others would seem to entail that those who oppose same-sex marriage have no grounds on which to claim an obligation to prevent others from engaging in the activity. While saying “I have a moral right to stop you from practicing slavery because you are harming others” seems right, saying “I have a right to stop you from  marrying someone of the same-sex because it is against my religion” seems mistaken.

Thus, those who oppose same-sex marriage on religious grounds do not seem to have adequate justification to deny others legal marriage (that is, the legal relationship recognized by the state). However, the appeal to religious freedom might still be able to provide legitimate grounds for religious groups denying others a certain type of marriage. The key concerns are, of course, what sort of marriage this might be and what might warrant religious discrimination.

Obviously enough, a religious group does not have a legitimate right to deny other people the legal right to marry because the marriage is against their religion. However, voluntary religious groups (like other voluntary associations) do have the right to set certain rules for their members. For example, a tabletop gaming group can set rules about what expansion books are allowed in the game. As another example, a track club might define the rules for their grand prix. As a fourth example, a couple that is “going steady” might set rules about their relationship, such as it being monogamous. These rules are based on the beliefs of the members and typically have no legal status. For example, if Sam is “going steady” with Ted, Sam cannot have Ted arrested simply because he went on a date with Sally. Such rules are often used to help define the identity of the group and set what is regarded as acceptable and unacceptable behavior (such as playing a dragon as a character). Provided that such rules are voluntarily accepted and not harmful, there is certainly nothing wrong with groups having such rules.

Turning back to the main issue of marriage, it seems reasonable to allow voluntary religious associations to have their own rules for marriage, just as it is reasonable to allow gaming groups to determine whether they require their members to dress in character (as an elf wizard, for example). However, just as gaming groups do not have a right to impose their views on others (making everyone dress up as fantasy characters, for example) neither do religious groups. As such, the marriage rules of a religious group cannot have legal status. However, they can be voluntarily accepted by the members of the group.

This, as I have said before, could be called a “theological union.” It would be a religious marriage as defined by the religious group in question and could have all the rules and requirements that the group wishes to accept (subject to the law, of course). However, the marriage would have no legal status at all-that is, it would grant no legal rights nor impose any legal obligations.  So, for example, one church could forbid same sex theological unions while another could embrace them. People who do not agree with the theological unions of a group would be free to leave the group to join or create another that suits their values. Just as people can do so in other theological matters, such as whether or not women can be priests. Naturally, a couple that gets a theological union can also get a legal marriage (a civil union) that would give them all the legal rights and obligations as defined by the law.

Since these unions would have no legal status, there would be no discrimination in the legal sense and thus the specific rules of a religious group would not generally be a matter of concern for the state. This would respect religious freedom by allowing people to define their theological union rules as they see fit, without interference from the state. It would also respect the freedom from religion-that is, the right not to have other folks’ religion imposed on you. So, religious people who oppose same-sex marriage can say “if you are part of our religion that rejects same-sex unions, you cannot get same-sex theological unioned” but they cannot justly say “same-sex marriage is against my religion, so you can’t get a civil union that provides legally defined obligations and rights.”

This approach seems quite sensible, since it respects religious freedom while also protecting people from religious based impositions on freedom.

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DOMA Down

Posted in Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on June 28, 2013
Same Sex Marriage

Same Sex Marriage (Photo credit: Wikipedia)

The United States Supreme Court ruled 5-4 against an important part of DOMA (Defense of Marriage Act), specifically  the part of the law that denied benefits to same-sex married couples. The court also ruled 5-4 that the supporters of California’s Proposition 8 (that bans same-sex marriage) did not have the standing to appeal the existing ruling against the proposition. Thus, the court left intact a ruling by a lower court that the proposition is unconstitutional. The court did not, however, make any ruling about the proposition itself.

In the case of DOMA, the court ruled against Section 3, which is the section that defined marriage as being between a man and a woman. The legal basis for this ruling is that this definition is a violation of the the Constitutional right to equal protection under the law.  Justice Kennedy, who cast the decisive vote for the 5-4 ruling, noted that “the federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.” He also added that the law imposed  “a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states.”

While this ruling is being lauded by advocates of same-sex marriage, it is important to note that it obviously does not make same-sex marriage legal throughout the states. However, it does certainly provide a foundation for legal arguments in favor of same-sex marriage. After all, Kennedy makes it clear that the statute disparages and injures those it targets and the same principle can, obviously, be applied to other such laws.

That said, it is important to note another key aspect of Kennedy’s claims. While he clearly notes the pernicious nature of the statute, he does so in the context of how the statute is an attack on the authority of the states which legalized same-sex marriage. As such, he is putting forth a principle with two key components. The first is focused on the personhood and dignity of the people in same-sex married couples. The second is focused on states’ rights, specifically their authority to pass laws regarding marriage.

In the case of DOMA, the two principles are in harmony: DOMA violated the legal authority of the states that had passed laws permitting same-sex marriage and this law certainly seems to have been aimed at disparaging and injuring citizens. However, there is the question of which principle should be given priority when they are in conflict. That is, would the authority of a state override the equal protection clause in this case or would the equal protection clause hold?

The ruling on Proposition 8 sheds some light on this, given that the decision apparently allows each state to set its own marriage policy. This would seem to indicate that the states have the authority to pass laws that would ban same-sex marriage. However, these laws would certainly seem to run afoul of the equal protection clause and would seem to be inconsistent with Kennedy’s reasoning in the first principle attributed to him. One way to reconcile the two would be for states to have the right to pass laws that allow same-sex marriage but lack the right to pass laws that would deny same-sex couples equal protection and rights under the law. This, obviously enough, would seem to imply that same-sex marriage should be legal in all the states. However, this discussion is rather speculative and can, no doubt, be easily countered.

As might be imagined, these rulings were not met with joy by all Americans and there is still opposition to same sex marriage. For example, Austin Nimocks, who is a lawyer with the rather ironically named Alliance Defending Freedom, said that “marriage – the union of husband and wife – will remain timeless, universal and special, particularly because children need mothers and fathers.”

Nimocks seems to be wrong on almost all counts. Marriage is rather obviously neither timeless nor universal. It could be special, but that all depends on what is meant by the term “special.” While children certainly do need parents, there is no necessary connection between children having parents and the sort of “traditional” marriage being put forth by Nimocks.

While my own view of same-sex marriage is extensively developed in  in my book For Better or Worse Reasoning, I will say a bit about the matter here.

Not surprisingly, I agree with the striking down of DOMA and agree with Kennedy’s view that the law disparages and injures citizens. I also agree that the law was a violation the authority of the states. As such, I regarded DOMA as a violation of both individual and collective rights.

I will add, however, that I think that much of our trouble with marriage stems from the fact that we have clumped together various relationships under the term “marriage” and we fail to properly consider that these relationships are quite distinct. In my book, I argue that marriage should be split into at least three categories, namely the legal marriage, the theological union (religious marriage), and the loving marriage. The concern of the state and the laws would be limited to the legal marriage, which is defined by all the various legal and economic aspects of current marriage (such as divorce, insurance, inheritance and so on). The legal marriage is just that, a legal contract, and would be open to consenting adults.

Those who value the religious aspects of marriage and see it is a matter involving God (or whatever) can have their theological unions that are handled by the appropriate religious authorities. This union would have no legal status and, as such, would allow for as much discrimination as desired. This would allow people to protect what they regard as the sanctity of marriage while also preventing them from denying other people their rights.

Those who see marriage as a matter of love would have their love unions that would also have no legal status whatsoever. They could, of course, involve personal promises and all sorts of romance. Naturally, a person could engage in all three marriages (perhaps with the same person in each case).

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