Thursday, August 05, 2010

Perry v. Schwarzenegger, post II

The whole role of the trial court in Perry v. Schwarzenegger is an example of why decisions about distributive justice – who should get what in society and how society should be structured – were normally made by legislators, not courts. Sure, courts announced what the law should be in new cases or cases where the rules announced before made no sense, but they did so in the context of affecting one plaintiff and one defendant. Courts did corrective justice – restoring the balance between the doer and the sufferer, as Aristotle might have put it. No court prior to the last forty years or so would have considered it right for it to restructure the entire law and institution of marriage. Yet that is exactly what this court hopes will happen if its opinion is ratified by the federal Ninth Circuit Court of Appeals and the Supreme Court of the US.

In the trial, the court heard a small selection of “experts” pontificate on vast areas of knowledge well beyond the verification of science or art, particularly in such a short time by so few individuals. Yet, in theory, the whole future history of the United States could turn on these few poorly grounded opinions. One of the more interesting factual findings of the court was:

“Religious beliefs that gay and lesbian relationships are
sinful or inferior to heterosexual relationships harm gays and
lesbians.” P.101

Is this a precursor to persecution and harassment of Christians who publically hold true to the moral beliefs of centuries of mankind and the clear teaching of the Bible? Perhaps that is too radical a supposition, but it is hard to see it in any other light since religious belief has nothing to do with the facts of the case before the court. No such “finding of fact” was necessary. Certainly too, the experts could not prove such a thing. That no one likes to be told their conduct is immoral is obvious. But it is good for people engaged in immoral conduct to be reminded of their error and of the true way regardless of how embarrassing that may be. No doubt brothel owners and professional con men would prefer their chosen livelihoods to be legal and socially acceptable. Perhaps they cry real tears at night over the hostility of antiquated religious beliefs. No doubt they justify their conduct to themselves and say they are only giving people what they want and need to be happy. No doubt it would be a great personal loss to them to change occupations since their upbringing and inclinations may have equipped them for no other trade. But no court should say laws against prostitution or pyramid schemes violate the Fourteenth Amendment to the US Constitution as a result of their hurt feelings. Nor should any court threaten people with faith in God by proclaiming their beliefs “harmful” to the pimp or fraudster so in need of repentance.

6 comments:

trob1111 said...

Marriage is just a word! Isn't it?

A more excellent example of post-modernism could not be found than this recent decision, and with it, we see the danger of appointing a disciple of Nietzche to be an Article III judge. This would make for an excellent exercise in academic discussion . . if it were not so real. At the very least this fiasco serves to show why scrutinizing the personal philosophies of every potential federal judge is so important.

I admit that at one time, I naively believed that freedom and oppression were incompatible, but thanks to this judge, and W.V.O. Quine, I now see that coherence is in the eye of the beholder.. . (part one)

trob1111 said...

I am an absolutist myself, and I have no qualms in saying that it is wrong for a federal judge to use his judicial powers to impale a state's rights. Here, it is not so much that this judge felt that he was justified in overturning this amendment to the state's constitution, what is most terrifying is that this judge believed his decision did not need to be justified at all. He merely felt it was wrong. Further, and more important to this discussion, is the wanton disregard this judge showed toward the will of seven million voters. (part two)

trob1111 said...

Even if one accepts the position of Prop 8 detractors as correct, just for argument's sake, this proposition at worst only served to maintain the status quo. Prop 8 did not seek to enact any change that has not been law or custom since California became America's 31st state on September 9, 1850

It is undeniable that it was the supporters of Prop 8 who threw down the gauntlet here. Activists sought to change the Constitution by fiat rather than through the proper legislative process, to pervert the most sacred institution of any nation. The universally accepted, traditional meaning of the word "marriage" came under attack and the voters responded. It was gay activists who chose a constitutional battlefield, and it was gay activists who chose to use semantics as their weapon of choice. Their tactic? Point to the fact that the word "marriage" was not defined in the state's Constitution. This absence of reference and definition allowed, they declared, for them to rightfully give the word whatever meaning they chose (Wittgenstein would surely be laughing with joy at this proposition--if he wasn't so busy wailing and gnashing his teeth). Thus, this entire 2 1/2 year battle was forced on people who were left no choice but to protect marriage from being crushed underfoot by the same people who so enjoy trampling the American flag. (part three)

trob1111 said...

California voters responded lawfully and constitutionally, using the right of the people to propose legislation that has been ignored by their representatives. Though, admittedly, the proposition is laughable. Obviously it is ludicrous to have to write an amendment to define a word that is already irreducible; a word that has been self-defining since the advent of recorded history. But what other choice did these seven million voters have if they were to defend traditional marriage?

Unfortunately, a major battle has been lost with this decision. And though the war is not over, the eventual demise of marriage appears inevitable. This victory, however hollow, demonstrates the reality of the danger this nation is facing from constructivists and those who abjure moral absolutes. Through language manipulation, as taught by Wittgenstein, Nietzche's acolytes are finally succeeding in transvaluation and bringing their their will to power. For when words can be so easily redefined, there are no rules. Nothing is sacred . . . and nothing is safe. "Marriage" has officially lost its meaning. So has "family." Can the meaning of "society" last much longer in light of such change?


The very fabric of community that once held this country together is being torn apart one thread at a time. So, forget about Prop 8, it never really had a chance. Instead, begin preparing for the next battle. For the next battle will be against the disciples of Derrida, and their target of "deconstruction" will be the Bill of Rights itself; this document contains many terms that the Left seeks to redefine, and for which many people have given their lives to preserve: terms like: freedom of exercise, checks and balances, equal treatment under the law, due process, justice, freedom of assembly, and personal liberty. (end)
Written by: Trevor

trob1111 said...

California voters responded lawfully and constitutionally, using the right of the people to propose legislation that has been ignored by their representatives. Though, admittedly, the proposition is laughable. Obviously it is ludicrous to have to write an amendment to define a word that is already irreducible; a word that has been self-defining since the advent of recorded history. But what other choice did these seven million voters have if they were to defend traditional marriage?

Unfortunately, a major battle has been lost with this decision. And though the war is not over, the eventual demise of marriage appears inevitable. This victory, however hollow, demonstrates the reality of the danger this nation is facing from constructivists and those who abjure moral absolutes. Through language manipulation, as taught by Wittgenstein, Nietzche's acolytes are finally succeeding in transvaluation and bringing their their will to power. For when words can be so easily redefined, there are no rules. Nothing is sacred . . . and nothing is safe. "Marriage" has officially lost its meaning. So has "family." Can the meaning of "society" last much longer in light of such change?


The very fabric of community that once held this country together is being torn apart one thread at a time. So, forget about Prop 8, it never really had a chance. Instead, begin preparing for the next battle. For the next battle will be against the disciples of Derrida, and their target of "deconstruction" will be the Bill of Rights itself; this document contains many terms that the Left seeks to redefine, and for which many people have given their lives to preserve: terms like: freedom of exercise, checks and balances, equal treatment under the law, due process, justice, freedom of assembly, and personal liberty. (end)
Written by: Trevor

Professor McConnell said...

Great comment. Thanks Trevor.

You came to the point well. The trial court appears to think it can make "marriage" mean whatever it wants and at the same tome tell us it is not giving a totally new definition to the word.

To paraphrase C.S. Lewis, without belief in objectrive truth, objective morality, and divinly ordered ideas behind words,
albeit blurred by human fallenenss, there is no barrier to tyranny.