A Philosopher's Blog

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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Strip Searches

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on April 13, 2012
The United States Supreme Court, the highest c...

They are, in fact, the judge of you. And me, too. (Photo credit: Wikipedia)

While the media and public were briefly focused on the Supreme Court’s consideration of the constitutionality of the Affordable Care Act, the court made a rather troubling ruling on a case involving Albert Florence.F

Florence, a finance director for a care dealership, was stopped on the way to a family event. He was then arrested when the trooper determined that there was a warrant for his arrest. While the warrant was in error (he had paid the fine in question) and he had a document to that effect, he was still jailed. While in jail he was strip searched. Six days later he was transferred and strip searched once again. Florence took issue with this treatment and his case made it to the supreme court.

By a predictable 5-4 vote, the Court ruled that anyone who is arrested (even for minor offenses, such as traffic violations) can be stripped searched. The ruling allows this even when there is no reasonable suspicion the person is concealing anything that would require a strip search to locate.

In the majority opinion Justice Kennedy noted that it would be “unworkable” to require jail officials to strip search only in cases in which they had reasonable grounds to suspect that a strip search would be needed. As might be imagined, this seems like an absurd thing to say. After all, it seems to be saying that it would not work to limit strip searches to cases in which a strip search would be reasonably justified. I certainly hope that this same logic is not extended to arrests. After all, the police are currently limited to arresting people when they have reasonable cause to suspect that a person needs to be arrested. I do hope that this is not also “unworkable.”

Kennedy did attempt to back up his point with an example, specifically that of the infamous Timothy McVeigh.  McVeigh had been arrested for driving without a license plate which caused Kennedy to note that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”

One rather obvious response to this is that his example is irrelevant to the matter of strip searching. After all, nothing about the McVeigh case involved finding something dangerous or important by strip searching him. Now, if McVeigh had been arrested on a traffic stop and the police had found a bomb taped to his genitals and had thus prevented the horrific bombing, then Kennedy’s example would have had at least some relevance. It would, of course, still be just one example and thus an incredibly weak argument by example.

It might be countered that Kennedy did not mean for this to be an example directly showing the importance of strip searching people but rather as evidence that very bad people can be arrested for minor offenses. Presumably his reasoning is that such people would be more likely to hide things in places that only a strip search would reveal. Of course, this logic would also seem to apply to having the police check anyone, such as folks who eat fast food. After all, “people who eat at McDonald’s can turn out to be the most devious and dangerous criminals.”

It might be replied that people who are arrested for minor offenses have been arrested and hence are legitimately subject to searches in ways that people who are just out and about are not subject to arrest. This can, of course, be countered by the reply that it seems to be unwarranted to treat all prisoners the same, regardless of the offense and other factors. After all, if the police can distinguish between who should and should not be arrested, they should be able to distinguish between who needs to be strip searched and who does not.

This can be countered by arguing that the strip searching is done for the safety of the prisoners and the guards. After all, if everyone is strip searched, then the chances of dangerous items getting into prisons is somewhat lower. However, there is the fact that the overwhelming majority of people who are arrested for minor offenses are not concealing anything and to strip search people on the minute chance that they have something would be overreacting. To use an analogy, putting all prisoners in straight jackets and masks would provide greater protection, but that seems needlessly excessive for the vast majority of prisoners.  There is also the rather important fact that people are not supposed to be subject to cruel and unusual punishment.

While searching prisoners is a legitimate practice, strip searching certainly seems to go beyond what is needed in the case of minor offenses. After all, even Alito notes that strip searches are humiliating. As such, to subject a minor offender to such unnecessary humiliation  would be to punish them in cruel and unusual ways-even before they are found guilty.

Naturally, the ruling does not require that everyone who is arrested be strip searched-it just allows it to occur.  Alito even noted that for most people arrested for minor offenses, “admission to the general jail population, with the concomitant humiliation of a strip-search, may not be reasonable.” As such, jails could elect to house those arrested for minor offenses apart from the general jail population and not strip search them. However, the fact that this could be done does not mean it will be done and there is the rather obvious concern that this ruling will be exploited to allow the humiliation of people who are arrested on minor offenses. This would add nothing to public safety and would merely serve to impose on liberty, privacy and dignity.

Given that the court accepted that the police have a right to strip search even without probable cause, it would seem sensible to think that they will rule in favor of the Affordable Care Act. After all, if the state has the right to strip you naked and check out your junk when you are arrested for anything at all, then surely the state has the power to require you to buy health care insurance. In fact, given that an increased number of Americans will be exposed to the chilliness and psychological stress of being strip searched, they will need health insurance more than ever.

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It is Time to Say “Goodbye” to the 1960s

Posted in Ethics, Philosophy, Politics by Michael LaBossiere on February 1, 2008

The 1960s were important years in American history and they did much to define the shape of country. It was a time of conflict, war, dissent, racism, sexism, hate, love, and hope. But, it is also a time that is long over and it is about time people accepted that it is groovy to say “goodbye 60s.”

The need to say goodbye was brought to my attention by two of my close friends. One is a neo-conservative who makes Rush Limbaugh look like a liberal. The other is a classic liberal-what my neo-con buddy would call a “moonbat.” Oddly enough, they both agreed that is was high time to put the 1960s behind us.

My moonbat friend, in an act of moonbattery, made an excellent case that the politicians who came of age in the 1960s are locked into the conflict and partisan mode of politics. Back then it was always “us” against “them” and this approach has continued to this day.

My neo-con friend thinks that nothing good came from the 1960s. In his eyes, it was a time when America was in decay and chaos. Those who are enamored of that time are, in his eyes, naught but hippies who want to drag America into socialism and decadence.

My view is that the 1960s did have some positive outcomes. Civil rights, women’s rights, and other steps towards equality took place in that time. America had the chance to look deep into its soul and see much that was wrong. This sort of thing is painful for both a person and a nation.

However, as my friends pointed out, the 1960s had many negative effects on America. The taint of decadence, drug use, and other social ills became highly entrenched during that time. The culture of the victim also had its foundations put down solidly in that time and this is one of the most problematic legacies of the 1960s.

The culture of the victim is the view that a person’s identity is to be largely defined and determined by their status as a victim. It is also the view that the victim is neither responsible nor capable in regards to his/her fate.

While it is noble and good to help others who have been harmed, furthering the culture of the victim does nothing to truly help people. In fact, it enervates people by convincing them to remain victims and wait for someone else, perhaps the government, to make things right for them.

This is not to say that we should not help our neighbor. They are our brothers and sisters and we are the keepers of each other. But, people need to be aided and encouraged to succeed. Treating people as eternal victims does not do this. We can acknowledge the sins of the past and the sins of the present while still treating people as they deserve to be treated: as men and women and not as mere victims.

While we are duty bound to honor the sacrifices made in the 1960s, those days are over. Those years were important but there are years that are more important-namely now and the future. It is time to say goodbye to the 1960s and to say hello to tomorrow.