Tag Archives: Same sex marriage

Davis & Ad Hominems

Kim Davis, a county clerk in Kentucky, has been the focus of national media because of her refusal to issue marriage licenses to same-sex couples. As this is being written, Davis has been sent to jail for disobeying a court order.

The Scarlet Letter (1926 film)

The Scarlet Letter (1926 film) (Photo credit: Wikipedia)

As should be expected, opponents of same-sex marriage have tended to focus on the claim that Davis’ religious liberty is being violated. As should also be expected, her critics sought and found evidence of what seems to be her hypocrisy: Davis has been divorced three times and is on her fourth marriage. Some bloggers, eager to attack her, have claimed that she is guilty of adultery. These attacks can be relevant to certain issues, but they are also irrelevant in important ways. It is certainly worth sorting between the relevant and the irrelevant.

If the issue at hand is whether or not Davis is consistent in her professed religious values, then her actions are clearly relevant. After all, if a person claims to have a set of values and acts in ways that violate those values, then this provides legitimate grounds for accusations of hypocrisy and even of claims that the person does not really hold to that belief set. That said, there can be many reasons why a person acts in violation of her professed values. One obvious reason is moral weakness—most people, myself included, do act in violation of their principle due to the many flaws and frailties that we all possess. Since none of us is without sin, we should not be hasty in judging the perceived failings of others.  However, it is reasonable to consider a person’s actions when assessing whether or not she is acting in a manner consistent with her professed values.

If Davis is, in fact, operating on the principle that marriage licenses should not be issued to people who have violated the rules of God (presumably as presented in the bible), then she would have to accept that she should not have been issued a marriage license (after all, there is a wealth of scriptural condemnation of adultery and divorce). If she accepts that she should have been issued her license despite her violations of religious rules, then consistency would seem to require that the same treatment be afforded to everyone—including same-sex couples. After all, adultery makes God’s top ten list while homosexuality is only mentioned in a single line (and one that also marks shellfish as an abomination). So, if adulterers can get licenses, it would be rather difficult to justify denying same-sex couples licenses on the grounds of a Christian faith.

If the issue at hand is whether or not Davis is right in her professed view and her refusal to grant licenses to same-sex couples, then references to her divorce and alleged adultery are logically irrelevant. If a person claims that Davis is wrong in her view or acted wrongly in denying licenses because she has been divorced or has (allegedly) committed adultery, then this would be a mere personal attack ad hominem. A personal attack is committed when a person substitutes abusive remarks for evidence when attacking another person’s claim or claims. This line of “reasoning” is fallacious because the attack is directed at the person making the claim and not the claim itself. The truth value of a claim is independent of the person making the claim. After all, no matter how repugnant an individual might be, he or she can still make true claims.

If a critic of Davis asserts that her claim about same-sex marriage is in error because of her own alleged hypocrisy, then the critic is engaged in an ad hominem tu quoque.  This fallacy is committed when it is concluded that a person’s claim is false because 1) it is inconsistent with something else a person has said or 2) what a person says is inconsistent with her actions. The fact that a person makes inconsistent claims does not make any particular claim she makes false (although of any pair of inconsistent claims only one can be true—but both can be false). Also, the fact that a person’s claims are not consistent with her actions might indicate that the person is a hypocrite but this does not prove her claims are false. As such, Davis’ behavior has no bearing on the truth of her claims or the rightness of her decision to deny marriage licenses to same-sex couples.

Dan Savage and others have also made the claim that Davis is motivated by her desire to profit from the fame she is garnering from her actions. Savage asserts that “But no one is stating the obvious: this isn’t about Kim Davis standing up for her supposed principles—proof of that in a moment—it’s about Kim Davis cashing in.” Given, as Savage notes, the monetary windfall received by the pizza parlor owners who refused to cate a same-sex wedding, this has some plausibility.

If the issue at hand is Davis’ sincerity and the morality of her motivations, then whether or not she is motivated by hopes of profit or sincere belief does matter. If she is opposing same-sex marriage based on her informed conscience or, at the least, on a sincerely held principle, then that is a rather different matter than being motivated by a desire for fame and profit. A person motivated by principle to take a moral stand is at least attempting to act rightly—whether or not her principle is actually good or not. Claiming to be acting from principle while being motivated by fame and fortune would be to engage in deceit.

However, if the issue is whether or not Davis is right about her claim regarding same-sex marriage, then her motivations are not relevant. To think otherwise would be to fall victim to yet another ad hominem, the circumstantial ad hominem. This is a fallacy in which one attempts to attack a claim by asserting that the person making the claim is making it simply out of self-interest. In some cases, this fallacy involves substituting an attack on a person’s circumstances (such as the person’s religion, political affiliation, ethnic background, etc.). This ad hominem is a fallacy because a person’s interests and circumstances have no bearing on the truth or falsity of the claim being made. While a person’s interests will provide them with motives to support certain claims, the claims stand or fall on their own. It is also the case that a person’s circumstances (religion, political affiliation, etc.) do not affect the truth or falsity of the claim. This is made quite clear by the following example: “Bill claims that 1+1 =2. But he is a Christian, so his claim is false.” Or, if someone claimed that Dan Savage was wrong simply because of his beliefs.

Thus, Davis’ behavior, beliefs, and motivations are relevant to certain issues. However, they are not relevant to the truth (or falsity) of her claims regarding same-sex marriage.


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Same-Sex Marriage, Religious Liberty & Obedience


Kim Davis, a country clerk in Kentucky, has refused to issue marriage licenses to same-sex couples on the grounds that doing so violates her religious beliefs. When questioned about this, she has replied that she is acting “under God’s authority.” Some of those supporting her, and other clerks who have also decided to not issue marriage licenses, are contending that it would violate her religious freedom to be compelled to follow the law and do her job. This situation raises numerous important issues about obedience and liberty.

When taking a position on situations like this, people generally do not consider the matter in terms of general principles regarding such things as religious liberty and obedience to the state. Rather, the focus tends to be on whether one agrees or disagrees with the very specific action. In the Davis case, it is not surprising that people who oppose same-sex marriage tend to favor her decision to disobey the law and claim that she has a moral right to do so. It is also not surprising that those who favor same-sex marriage tend to think that she should obey the law and that it is morally wrong for her to disobey the law of the land.

The problem with this sort of approach is that it is unprincipled—unless being in favor of disobedience one likes and opposing disobedience one dislikes is a reasonable moral position. Moral consistency requires the application of a general principle that applies to all relevantly similar cases, rather than simply going with how one feels about a particular issue.

In regards to the situation involving Davis, many of her defenders have tried to present this as a religious liberty issue: Davis is being wronged by the law because it compels her to act in violation of her religious beliefs. Her right to this liberty presumably outweighs the rights of the same-sex couples who expect her to follow the law and do her job.

Having been influenced by Henry David Thoreau’s arguments for civil disobedience and by Thomas Aquinas, I agree that an individual should follow her informed conscience over the dictates of the state. The individual must, of course, expect to face the consequences of this civil disobedience and these consequences might include fines, being fired or even time in prison. Like Thoreau, I believe that a government official who finds the law too onerous should endeavor to change it and, failing that, should resign rather than obey a law she regards as unjust. As such, my general principle is that a person has the moral right to refuse to follow a law that her informed conscience regards as immoral.

In the case of Davis, if she is acting in accord with her informed conscience, then she has the moral right to refuse to follow the same-sex marriage law. However, having failed to change the law, she needs to either agree to follow this law or resign from her position.

That said, I am well aware that a person’s informed conscience can be in error—that is, what she thinks is morally right is not actually right. It might even be morally wrong. Because of this, I also accept the view that while a person should follow his informed conscience, the actions that follow from this might be morally wrong. If they are wrong, the person has obviously acted wrongly—but, to the degree that she followed her informed conscience, she can be justly excused in regards to her motivations. But, the actions (and perhaps the consequences) would remain wrong.

Since I favor liberty in regards to marriage between consenting adults (and have written numerous essays and a book on this subject), I believe that Davis’ view about same-sex marriage is in error. Though I think she is wrong, if she is acting in accord with her informed conscience and due consideration of the moral issue, then I respect her moral courage in sticking to her ethics.

While subject to the usual range of inconsistencies, I do endeavor to apply my moral principles consistently. As such, I apply these principles to all relevantly similar cases. As such, whenever there is a conflict between an individual’s professed moral views and the law she is supposed to enforce, I ask two questions. The first is “is the person acting in accord with her informed conscience?” The second is “is the person right about the ethics of the matter?” This is rather different from approaching the matter by asking “do I agree with the person on this specific issue?”

As noted above, some of the defenders of Davis are casting this as a religious liberty issue. In this case, the implied general principle would be that when an official’s religious views conflict with a law, then the person has the right to refuse to follow the law. After all, if religious liberty is invoked as a justification here, then it should work equally well in all relevantly similar cases. As such, if Davis should be allowed to ignore the law because of her religious belief, then others must be allowed the same liberty.

As might be suspected, folks that oppose same-sex marriage on religious would probably agree with this principle—at least in cases that match their opinions. However, it seems likely that many folks would not be in favor of consistently applying this principle. For example, consider the matter of immigration.

The bible is reasonable clear about how foreigners should be treated. Leviticus, which is most commonly cited to condemn same-sex marriage, commands that “The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt. I am the LORD your God.” Exodus says “”Do not mistreat or oppress a foreigner, for you were foreigners in Egypt” while Deuteronomy adds to this that “And you are to love those who are foreigners, for you yourselves were foreigners in Egypt.”

Given this biblical support for loving and treating foreigners well, a border patrol agent, INS official, or immigration judge could find easy religious support for refusing to enforce immigration laws violating their conception of love and good treatment. For example, a border patrol agent could, on religious grounds, refuse to prevent people from crossing the border. As another example, a judge could refuse to send people back to another country on the grounds that the bible says about treating the foreigner as a native born. I suspect that if officials started invoking religious freedom in order to break immigration laws, there would be little support for their religious liberty from the folks who support religious liberty in regards to breaking the law governing same-sex marriage.

To use another example, consider what the bible says about usury. Exodus says “If you lend money to any of my people with you who is poor, you shall not be like a moneylender to him, and you shall not exact interest from him.”  Ezekiel even classified charging interest as an abomination: “Lends at interest, and takes profit; shall he then live? He shall not live. He has done all these abominations; he shall surely die; his blood shall be upon himself.” If religious liberty allows an official to break/ignore laws, then judges and law enforcement personnel who accept these parts of the bible would be allowed to, for example, refuse to arrest or sentence people for failing to pay interest on loans.

This can be generalized to all relevantly similar situations involving law-breaking/ignoring officials who do so by appealing to religious liberty. As might be imagined, accepting a principle that religious liberty grants an official an exemption to the law would warrant the breaking or ignoring of a vast multitude of laws. Given this consequence, it would seem that accepting the general principle of allowing religious liberty to trump the law would be unwise. It is, however, wise to think beyond one’s feeling about one specific case to consider the implications of accepting a general principle.

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Conservatives should embrace same-sex marriage

Russell Blackford, University of Newcastle

In the case of Obergefell v. Hodges, decided on 26 June 2015, the Supreme Court of the United States has ruled by a 5-4 majority in favour of same-sex marriage. The majority judges have held that state governments must license same-sex marriages and recognize same-sex marriages lawfully licensed and performed elsewhere.

The SCOTUS decision

The “opinion of the Court” – i.e. the opinion commanding a majority of judges – was delivered by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts dissented, along with Justices Scalia, Thomas, and Alito.

Although I have not yet digested the entire 100 pages of the judges’ opinions, it is clear that the case turned on the court’s interpretation of the US Constitution’s Fourteenth Amendment, which, most relevantly, requires as follows: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.”

The legal issue, then, was whether the refusal by numerous states of the union to license, register, and recognize same-sex marriages amounted to a breach of the Equal Protection Clause, i.e. a denial of the equal protection of the laws.

The Fourteenth Amendment was adopted in 1868, soon after the American Civil War, and the obvious intention of the Equal Protection Clause was to forbid discrimination in the American legal systems of the time on racial grounds – particularly, it was to forbid discrimination against emancipated black slaves. The wording is, however, sweeping, and there is nothing to prevent its interpretation as forbidding discrimination by the law on the ground of sexual orientation.

Still, it’s obvious enough that, simply as a matter of black letter legal interpretation and established precedent, the case of same-sex marriage could be argued either way. After all, four of the nine judges dissented in this case, and a court with only a slightly different composition could have ruled the other way. Nor is it clear from what I’ve read so far that the dissenters reasoned in a merely contrived manner: they argue, with much exasperation but some plausibility, that it is the majority who have stretched the historical and legal intention of the words.

At the same time, it is also obvious enough how the words, broadly and generously construed, can be used to strike down state laws that allow opposite-sex couples to marry – with all that that entails socially and legally – while not allowing same-sex couples to do so.

My own support for the provision of same-sex marriages is already on the public record, so it’s not surprising that I welcome the outcome, and I am pleased for the same-sex couples who will benefit from it. (I examine the issues in some detail in my 2012 book, Freedom of Religion and the Secular State.) There is much euphoria, and I extend my congratulations to all the gay men and lesbians who will now have what was denied them: the ability to marry partners whom they love.

Conservatives should move on

There is also room for some dispassionate reflection on what this judgment really signifies in historical perspective. One point that has been missed by many commentators is that this legal victory for gay couples, the result of many years of activism, is not entirely a social defeat for conservatives; and, although they are not my political tribe, I urge them to embrace the outcome as reflecting a social compromise that they can live with and even take some comfort from.

For an earlier generation of left-wing activists, marriage was an outmoded, patriarchal, and oppressive institution aimed largely at reining in the sexuality of women. Prior to the 1980s, it had little attraction (or perceived relevance) to the gay and lesbian community, and many sexual radicals sought its destruction as a key social and legal institution.

For now, that viewpoint – one for which I retain some residual sympathy – has lost out. This happened in the context of a grand social compromise, whereby the nature of marriage was considerably, and increasingly, transformed. In earlier centuries, within European Christendom and its colonial extensions, the purposes of marriage tended to be patriarchal and disadvantageous to women, often less than romantic, and largely concerned with economic ends. The ideal of an equal union involving love, intimacy, and companionship gradually became the dominant understanding of marriage only during past two centuries or so, and marriage’s rejection as a means of sexual control – as a narrow circle within which sexual experience would be legally and socially acceptable – is even more recent.

The institution of marriage has survived the sexual revolution of the 1960s and 1970s. It continues to maintain social prestige, and it retains deep emotional significance for most citizens, including very many gay men and lesbians. Once they shed their aversion to homosexuality itself – as, to their credit, many have – social conservatives should take heart that marriage is something that so many gay men and lesbians actually want, and that it remains, admittedly much transformed, a treasured and idealised institution.

Social conservatism likewise needs to transform itself: conservatives should accept the legal outcome in this case, understand the continuing social importance of marriage as in many ways a victory for their viewpoint, and move on. There are many other issues around which they can continue to define themselves. This should no longer be one of them. The contemporary conception of marriage is one that conservatives can find the resources to accept and value, but it is a conception of marriage from which gays can no longer rationally be excluded.

For the foreseeable future, at any rate, marriage is not going away as a crucial, widely endorsed and admired, social institution. The campaign leading up to the latest result in the US is evidence of that, and the Supreme Court victory may well consolidate, rather than diminish, the institution’s ongoing relevance.

The social meaning of marriage has altered dramatically over the past half-century – for the better, in my opinion – but note that Obergefell v. Hodges is the culmination of changes that had already taken place during that time. This social, and now legal, result confirms that marriage is a different, a kinder, more companionate, less patriarchal, institution from what it was in the eighteenth century or even, say, the 1950s. The provision of same-sex marriage makes sense only in that context: but again, the increasing availability of same-sex marriage is a result, not the cause, of the changing nature of marriage itself.

What about Australia?

My own country, Australia, is increasingly an outlier among Western liberal democracies in not providing for same-sex marriage. At this point, resistance to the idea has become absurd and unnecessary (even, I submit, from the viewpoint of realistic conservatives). It looks mean-spirited and out of touch.

Australian politicians need to understand that the popular mood has changed. Marriage itself has changed, along with its social meaning. It’s about time to accept that.

Russell Blackford is Conjoint Lecturer in Philosophy at University of Newcastle

This article was originally published on The Conversation. Read the original article.

Does the Legalization of Same-Sex Marriage Infringe on Religious Liberty?

In June, 2015 the United States Supreme Court ruled in favor of the legality of same-sex marriage. Many states had already legalized same-sex marriages and a majority of Americans think it should be legal. As such, the ruling seems to be consistent both with the constitution and with the democratic ideal of majority rule. There are, of course, those who object to the ruling.

Some claim that the court acted in a way contrary to the democratic rule by engaging in judicial activism. Not surprisingly, some of those who make this claim were fine when the court ruled in ways they liked, despite the general principles being the same (that is, the court ruling in ways contrary to what voters had decided). I certainly do see the appeal of principle and consistent arguments against the Supreme Court engaging in activism and overruling what the voters have decided and there is certainly some merit in certain arguments against the same-sex marriage decision. However, my concern here is with another avenue of dissent against the decision, namely that this ruling infringes on religious liberty.

The argument from religious liberty is certainly an interesting one. On intriguing aspect is that the argument is made in terms of religious liberty rather than the older tactic of openly attacking gay folks for alleged moral wickedness. This change of tactic seems to show a recognition that a majority of Americans accept their fellow gay Americans and that shouting “fags” at gays is no longer acceptable in polite society. As such, the tactic acknowledges a changed world. This change also represents clever rhetoric: the intent is not to deny gay folks their rights, but to protect religious liberty. Protecting liberty certainly sells better than denying rights. While protecting liberty is certainly commendable, the obvious question is whether or not the legalization of same-sex marriage infringes on religious liberty.

In general, there are two ways to infringe on a liberty. The first is by forbiddance. That is, preventing a person from exercising a freedom. For example, the liberty of free expression can be infringed by preventing a person from freely expressing her ideas. The second is by force. This is a matter of compelling a person to take action against their free choice. For example, having a law that require people to dress a certain way when they do not wish to do so. Since some people consider entitlements to fall under liberties, another way a person could have liberty infringed upon is to be denied her entitlements. For example, the liberty of education in the United States entitles children to a public education.

It is important to note that not all cases of forbidding or forcing are violations of liberties. This is because there are legitimate grounds for limiting liberties—the usual ground being the principle of harm. For example, it is not a violation of a person’s liberty to prevent him from texting death threats to his ex-wife. As another example, it is not a violation of a person’s liberty to require her to have a license to drive a car.

Given this discussion, for the legalization of same-sex marriage to impose on religious liberty would require that it wrongfully forbids religious people from engaging in religious activities, wrongfully forces religious people to engage in behavior contrary to their religion or wrongfully denies religious people entitlements connected to their religion.

The third one is the easiest and quickest to address: there does not seem to be any way that the legalization of same-sex marriage denies religious people entitlements connected to their religion. While I might have not considered all the possibilities, I will move on to the first two.

On the face of it, the legalization of same-sex marriage does not seem to wrongfully forbid religious people from engaging in religious activities. To give some examples, it does not forbid people from praying, attending religious services, saying religious things, or doing anything that they are not already free to do.

While some people have presented slippery slope “arguments” that this legalization will lead to such forbiddances, there is nothing in the ruling that indicates this or even mentions anything remotely like this. As with all such arguments, the burden of proof rests on those who claim that there will be this inevitable or probable slide. While inter-faith and inter-racial marriage are different matters, allowing these to occur was also supposed to lead to terrible things. None of these happened, which leads one to suspect that the doomsayers will be proven wrong yet again.

But, of course, if a rational case can be made linking the legalization of same-sex marriage to these violations of religious liberty, then it would be reasonable to be worried. However, the linkage seems to be a matter of psychological fear rather than logical support.

It also seems that the legalization of same-sex marriage does not force religious people to wrongfully engage in behavior contrary to their religion. While it is legal for same-sex couples to marry, this does not compel people to become gay and then gay-marry someone else who is (now) gay. Religious people are not compelled to like, approve of or even feel tolerant of same-sex marriage. They are free to dislike, disapprove, and condemn it. They are free to try to amend the Constitution to forbid same-sex marriage.

It might be argued that religious people are compelled to allow other people to engage in behavior that is against their professed religious beliefs and this is a violation of religious freedom. The easy and obvious reply is that allowing other people to engage in behavior that is against one’s religion is not a violation of one’s religious liberty. This is because religious liberty is not the liberty to impose one’s religion on others, but the liberty to practice one’s religion.

The fact that I am at liberty to eat pork and lobster is not a violation of the religious liberty of Jews and Muslims. The fact that women can go out in public with their faces exposed is not a violation of the religious liberty of Muslims. The fact that people can have religions other than Christianity is not a violation of the religious liberty of Christians. As such, the fact that same-sex couples can legally marry does not violate the religious liberty of anyone.

It might be objected that it will violate the religious liberty of some people. Some have argued that religious institutions will be compelled to perform same-sex weddings (as they might be compelled to perform inter-racial or inter-faith marriages). This, I would agree, would be a violation of their religious liberty and liberty of conscience. Private, non-commercial organizations have every right to discriminate and exclude—that is part of their right of freedom of non-association. Fortunately, the legalization of same-sex marriage does not compel such organizations to perform these marriages. If it did, I would certainly oppose that violation of religious liberty.

It might also be objected that people in government positions would be required to issue same-sex marriage licenses, perform the legal act of marrying a same-sex couple, or recognize the marriage of a same-sex couple. People at the IRS would even be compelled to process the tax forms of same-sex couples.

The conflict between conscience and authority is nothing new and philosophers have long addressed this matter. Thoreau, for example, argued that people should follow their conscience and disobey what they regard as unjust laws.

This does have considerable appeal and I certainly agree that morality trumps law in terms of what a person should do. That is, I should do what is right, even if the law requires that I do evil. This view is a necessary condition for accepting that laws can be unjust or immoral, which is certainly something I accept. Because of this, I do agree that a person whose conscience forbids her from accepting same-sex marriage has the moral right to refuse to follow the law. That said, the person should resign from her post in protest rather than simply refusing to follow the law—as an official of the state, the person does have an obligation to perform her job and must choose between keeping that job and following her conscience. Naturally, a person also has the right to try to change what she regards as an immoral law.

I have the same view in regards to people who see interracial marriage as immoral: they should follow the dictates of their conscience and not take a job that would require them to, for example, issue marriage licenses. However, their right to their liberty of conscience does not override the rights of other citizens to marry. That is, their liberty does not morally warrant denying the liberty of others.

It could be argued that same-sex marriage should be opposed because it is objectively morally wrong and that even officials should do so on this ground. This line of reason does have a certain appeal—what is objectively wrong should be opposed, even if it is the law and even by officials. For example, when slavery was legal in the United States it should have been opposed by everyone, even officials of the state. But, arguing against same-sex marriage on moral grounds is a different matter from arguing against it on the grounds that it allegedly violates religious liberty.

It could be argued that the legalization of same-sex marriage will violate the religious liberty of people in businesses such as baking wedding cakes, planning weddings, photographing weddings and selling wedding flowers.

The legalization of same-sex marriage does not, by itself, forbid businesses from refusing to do business involving a same-sex marriage. Legal protection against that sort of discrimination is another, albeit related, matter. This sort of discrimination has also been defended on the grounds of freedom of expression, which I have addressed at length in other essays.

In regards to religious liberty, a business owner certainly has the right to not sell certain products or provide certain services that go against her religion. For example, a Jewish restaurant owner has the liberty to not serve pork. A devout Christian who owns a bookstore has the liberty to not stock the scriptures of other faiths or books praising same-sex marriage. An atheist t-shirt seller has the liberty to not stock any shirts displaying religious symbols. These are all matters of religious liberty.

I would also argue that religious liberty allows business owners to refuse to create certain products or perform certain services. For example, a Muslim free-lance cartoonist has the right to refuse to draw cartoons of Muhammad. As another example, an atheist baker has the right to refuse to create a cake with a cross and quotes from scripture.

That said, religious liberty does not seem to grant a business owner the right to discriminate based on her religion. For example, a Muslim who owns a car dealership has no right to refuse to sell cars to women (or women who refuse to fully cover themselves). As another example, a militant homosexual who owns a bakery has no right to refuse to sell cakes to straight people.

Thus, it would seem that the legalization of same-sex marriage does not violate religious liberty.




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Is Baking a Gay Wedding Cake an Endorsement of Same-Sex Marriage?

Indiana’s version of the Religious Freedom Restoration Act set off a firestorm of controversy. Opponents of the law contended that it would legalize discrimination while some proponents argued that it would do no such thing. Some proponents contended that it would allow people and businesses to refuse certain services to homosexuals, but that this should not be considered discrimination but a matter of freedom of expression. This approach is both interesting and well worth considering.

In the United States, freedom of expression is a legally protected right. More importantly, from a philosophical perspective, it is also a well-supported moral right. As such, an appeal to freedom of expression can be a useful defense.

In the case of the Religious Freedom Restoration Act, the argument from freedom of expression would certainly not work in regards to justifying general discrimination in regards to goods and services. For example, the owner of a pizzeria would be hard pressed to claim that not being allowed to refuse service to a person just because she is gay violates his freedom of expression. However, freedom of expression might be applicable in certain cases.

While the freedom of expression is typically presented as a right against being silenced, it also provides the right not to be compelled to express views (specifically views that one does not hold or that one opposes). The right to not be compelled in one’s expression would thus seem to give a person a moral (and a legal) right to refuse certain services.

This line of reasoning does have considerable appeal. For example, I operate a writing business—I write books to be sold and I do freelance work. I obviously have no moral right to refuse business from someone just because she is gay, Jewish, Christian, or a non-runner. However, my writing is clearly an act of expression. As such, my freedom of expression grants me a clear moral right to refuse to write a tract endorsing Nazism or one advocating hatred of Christians. I also design book covers and do some graphic work (graphic as in visual, not as in adult content). Since these are clearly expressions, I would have the moral right to refuse to do a book cover for book expressing ideas I regard as morally wrong, such as eliminating religious freedom in favor of enforced atheism. This is because the creation of such work entails a clear endorsement and expression of the ideas. If I write a tract in favor of white supremacy, I am unambiguously expressing my support of the idea. If I knowingly do a cover for a book on white supremacy, then it would be reasonable to infer I agreed with the ideas. In such cases, an appeal to freedom of expression would seem quite relevant and reasonable.

Obviously, an author or cover designer who believes that her religion condemns same-sex marriage as wickedness would also be protected by the freedom of expression from being required to express views she does not hold. If a LGBT group approached her and offered her a fat stack of cash to pen a piece in favor of gay marriage, she would have the moral right to reject their offer. After all, they have no moral right to expect her to express views she does not hold, even for fat stacks of cash.

In contrast, I could not use freedom of expression as a reason to not sell one of my books or works to a person. For example, freedom of expression does not grant me the right to forbid Amazon from selling my books to Nazis, racists, intolerant atheists, or non-runners. After all, selling a book to a person is not an endorsement of that person’s ideas. I do not endorse intolerant atheism just because an intolerant atheist can buy my book.

Likewise, the author who believes her religion condemns same-sex marriage as wickedness could not use freedom of expression to demand that Amazon not sell her books to homosexuals. While buying a book might suggest agreement with the author (but it obviously does not entail it—I have plenty of philosophy books whose contents I regard as being in error), it does not suggest that the author is endorsing the purchaser. So, if a gay person buys the author’s anti-same-sex marriage book, it does not mean that the author is endorsing same-sex marriage.

Not surprisingly, no one has claimed that religious freedom acts are needed to protect Christian writers from being forced to write pro-gay works. However, it has been argued that the acts are needed to protect the freedom of expression for people such as caterers, bakers, and photographers.

The argument is that catering a wedding, baking a wedding cake, doing a wedding or engagement photo shoot and similar things are expressions and are thus covered by the right to freedom of expression.

Obviously enough, if these activities are expressions analogous to the paradigm cases of speech and writing, then the freedom of expression does protect them. As such, the key question is whether or not such actions are acts of expression such that engaging in them in relation to a same-sex wedding would express an endorsement of same-sex marriage.

To get the obvious out of the way, refusing to cater, photograph or bake a cake for a wedding because the people involved were Jewish, black, Christian, white, or Canadian would clearly be discrimination. If the person refusing to do so said that baking a cake for a Jew endorsed Judaism, that catering a black wedding endorsed blackness, or that photographing Canadians being married was an endorsement of Canada, she would be regarded as either joking or crazy.  But perhaps a case could be made that catering, baking and photographing are expressions of agreement or endorsement.

On the face of it, catering food for a wedding would not seem to be expressing approval or agreement with the wedding, regardless of what sort of wedding it might be. Selling someone food would seem to be like selling them a book—their buying it says nothing about what I endorse or believe. When the pizza delivery person arrives with a pizza when I am playing Pathfinder, I do not say “aha, Dominoes endorses role-playing games!” After all, they are just selling me pizza.

In the case of the wedding cake, it could be argued that it is a specific sort of cake and creating one does express an endorsement. By this reasoning, a birthday cake would entail an endorsement of the person’s birth and continued existence, a congratulations cake would entail an endorsement of that person’s achievement and so on for all the various cakes.  This, obviously enough, seems implausible. Making me a birthday cake does not show that Publix endorses my birth or continued existence. They are just selling me a cake. Likewise, selling a person a wedding cake does not entail approval of the wedding. Obviously enough, if a baker sells a wedding cake to a person who has committed adultery, this does not entail her approval of adultery.

It could be argued that bakers have the right to refuse a specific design or message on the cake. For example, a Jewish baker could claim that he has the right to refuse to create a Nazi cake with swastikas and Nazi slogans. This seems reasonable—a baker, like a writer, should not be compelled to create content she does not wish to express. Given this principle, a baker could refuse to bake a sexually explicit wedding cake or one festooned with gay pride slogans and condemnations of straight “breeders.” However, creating a plain wedding cake is not the expression of ideas and would be on par with selling a person a book rather than being forced to write specific content. By analogy, I cannot refuse to sell a book to a person because he is an intolerant atheist, but I can refuse contract to write in support of that view.

Since photography is a form of art (at least in some cases), it is certainly reasonable to regard it is a form of artistic expression. On this ground it is reasonable to accept that photography is protected by the freedom of expression. The key issue here is whether taking pictures commercially is like writing words—that is, photographing something is an endorsement of the activity or if it is like selling a book, which is merely selling a product and not an endorsement.

On the face of it, commercial photography would seem to be like selling a book. A person who is paid to cover a war or a disaster is not taken to be endorsing the war or the disaster. One would not say that because a person took a photo of a soldier shooting a civilian that he endorse that activity. Likewise, a person photographing a wedding is not endorsing the wedding—she is merely recording the event. For money.

It might be countered that a wedding photographer is different from other commercial photographers—she is involved in the process and her involvement is an expression of approval. But, of course, commercial photographers who take photos at sports events, political events, protests and such are also involved in the process—they are there, taking pictures. However, a photographer hired to take pictures of Hilary Clinton does not thus express her support (or vote) for Hilary. She is just taking pictures.  Fox News, after all, takes video and photos of Hilary Clinton, but they do not thereby endorse Hilary. As such, the freedom of expression would not seem to grant a commercial photographer the right to refuse to photograph a same-sex wedding on the basis of an appeal to freedom of expression since taking photos does not involve endorsing the subject.

That said, another approach would be to argue that while taking a photo of an event does not entail endorsement of the event, an artist cannot be compelled to create a work of art that she does not wish to create. Since a photograph is art, a wedding photographer cannot be compelled to create an image of a same-sex wedding, just as a writer cannot be justly compelled to write a certain sort of book. This certainly has considerable appeal. After all, a photographer would seem to have every right to refuse to take photos of a wedding orgy or even of a tastefully nude wedding on the basis of the content.

Of course, this would also seem to allow commercial wedding photographers to refuse to take photos of blacks, Christians, Jews, or anything on the grounds that she does not want to create, for example, a photographic work including crosses or black people. So, consistency would seem to require that if wedding photographers can refuse to serve gay clients on the basis of artistic content, then a wedding photographer could refuse anyone on the same grounds. Thus, wedding photographers should be permitted to have “whites only”, “straights only” or “gays only” signs on their business. For artistic reasons, of course. This does seem a bit problematic in regards to commercial wedding photographers.


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For Better or Worse Reasoning Free on Amazon 2/23/2015-2/27/2015


The Kindle version of my book about the arguments against same sex-marriage will be free on Amazon (all countries) from February 23, 2015 to February 27, 2015.

Here is the link to the Amazon.com (USA) version.

Here is the link to the UK version.

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Utah, Same-Sex Marriage & The Procreation Argument

Gay Couple with child

Gay Couple with child (Photo credit: Wikipedia)

As a general rule, I would contend that if something is morally wrong, then it should be possible to present non-fallacious and reasonable arguments to show that it is wrong.  I would also probably add that there should be actual facts involved. I would obviously not claim that the arguments must be decisive—one generally does not see that in ethics. While people continue to argue against same sex marriage, the arguments continue to be the usual mix of fallacies and poor reasoning. There is also the usual employment of “facts” that are often simply not true.

In the United States, the latest battle over same-sex marriage is taking place in Utah. The state is being sued on the grounds that the amendment that forbids same-sex marriage is a violation of their rights. The lawsuit certainly has merit—a state does not get to violate constitutional rights even if many people vote in favor of doing so. As such, a rather important legal question is whether or not same-sex couples’ rights are violated by this law.

Utah is following the usual model of arguing against same-sex marriage, although they have at least not broken out the argument that allowing same-sex marriage will lead to or is equivalent to a person marrying a goat.

As might be expected, they made used of the usual pair of fallacies: appeal to tradition and appeal to common practice by claiming that defining marriage as being between a man and a woman is correct because it is “age-old and still predominant.”

Utah also tried the stock procreation gambit, with an added bit about the state’s interest: “Same-sex couples, who cannot procreate, do not promote the state’s interests in responsible procreation (regardless of whether they harm it).” Utah has also made use of the boilerplate argument about “responsible procreation” and “optimal mode of child rearing.”

Same-sex marriage is thus criticized on two grounds in regards to “responsible procreation.” The first is that same-sex couples cannot procreate naturally. The second is that same-sex couples will fail to provide an “optimal mode of child rearing.” To deny same-sex couples the right to marry because of these criticisms would require accepting two general principles: 1) marriage is to be denied to those who do cannot or do not procreate and 2) people who are not capable of the “optimal mode of child rearing” are to be denied marriage.

The first principle entails that straight couples who do not want children or cannot have them must also be denied marriage. After all, if an inability (or unwillingness) warrants denying same-sex couples the right to marry, the same would also apply to different-sex couples.

This principle would also seem to imply that couples who use artificial means to reproduce (such as in vitro fertilization or a surrogate) must be denied marriage. After all, same-sex couples can use these methods to procreate. Alternatively, if different-sex couples can use these methods and be allowed to marry, then same-sex couples who procreate would thus also be entitled to marriage.

The principle would also seem to entail that all married couples would be required to have at least one child, presumably within a specific time frame to ensure that the couple is not just faking their desire (or ability) to have children in order to get married. This would certainly seem to be a violation of the rights of the parents and a rather serious intrusion of the state.

The second principle would entail that straight couples who are not optimal parents must be denied marriage.  This would seem to require that the state monitor all marriages to determine that the parents are providing an optimal mode of child rearing and that it be empowered to revoke marriage licenses (much like the state can revoke a driver’s license for driving violations) for non-optimal parents. Different-sex parents can obviously provide non-optimal modes. After all, child abuse and neglect are committed by different-sex couples.

While I do agree that irresponsible people should not have children and that the state has an obligation to protect children from harm, it seems absurd to deny such people the right to marry. After all, not allowing them to marry (or dissolving the marriage when they proved irresponsible) would hardly make such people more responsible or benefit the children. Now to the matter of the state’s interest.

For the sake of the argument, I will grant that the state has an interest in having people reproduce. After all, the state is just a collection of people, so if there are no new people, the state will cease to exist. Of course, this also would seem to give the state an interest in immigration—that would also replace lost people.

This interest in procreation does not, however, entail that the state thus has an interest in preventing same sex-marriage. Allowing same-sex marriage does not reduce the number of different-sex marriages—that is, there is not a limited number of allowed marriages that same-sex couples could “use up.” Also, even if there were a limited number of allowed marriages, same-sex couples would only be a small percentage of the marriages and, obviously enough, marriage is not a necessary condition for procreation nor responsible procreation. That is, people can impregnate or be impregnated without being married. People can also be good parents without being married.

In light of these arguments, the procreation argument against same-sex marriage is still clearly absurd.

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Slippery Slope, Same Sex Marriage, Goats & Corpses

Gray-GoatWhile same-sex marriage seems to have momentum in its favor in the United States, there is still considerable opposition to its acceptance. This opposition is well stocked up with stock arguments against this practice. One of these is the slippery slope argument: if same-sex marriage is allowed, then people will then be allowed to marry turtles, dolphins, trees, cats, corpses or iPads.  Since this would be bad/absurd, same-sex marriage should not be allowed. This is, of course, the classic slippery slope fallacy.

This is a fallacy in which a person asserts that some event must inevitably follow from another without any argument for the inevitability of the event in question. In most cases, there are a series of steps or gradations between one event and the one in question and no reason is given as to why the intervening steps or gradations will simply be bypassed. This “argument” has the following form:

1. Event X has occurred (or will or might occur).
2. Therefore event Y will inevitably happen.

This sort of “reasoning” is fallacious because there is no reason to believe that one event must inevitably follow from another without adequate evidence for such a claim. This is especially clear in cases in which there are a significant number of steps or gradations between one event and another.

In the case of same-sex marriage the folks who claim these dire results do not make the causal link needed to infer, for example, that allowing same-sex marriage will lead to people marrying goats.  As such, they are committing this fallacy and inviting others to join them in their error.

While I have written a reply to this fallacious argument before, hearing someone making the argument using goat marriage and corpse marriage got me thinking about the matter once again.

Using goat marriage as an example, the idea is that if same-sex marriage is allowed, then there is no way to stop the slide into people marrying goats. Presumably people marrying goats would be bad, so this should be avoided. In the case of corpse marriage, the gist is that if same-sex marriage is allowed, then there would be no way to stop the slide into people marry corpses. This would presumably be bad and hence must be avoided.

The slide down the slippery slope, it must be assumed, would occur because a principled distinction cannot be drawn between humans and goats. Nor can a principled distinction be drawn between living humans and corpses. After all, if such principled distinctions could be drawn, then the slide from same-sex marriage to goat marriage and corpse marriage could be stopped in a principled way, thus allowing same-sex marriage without the alleged dire consequences.

For the slippery slope arguments to work, there must not be a way to stop the slide. That is, there is a smooth and well-lubricated transition between humans and goats and between living humans and corpses. Since this is a conceptual matter rather than a matter of actual slopes, the slide would go both ways. That is, if we do not have an adequate wall between goats and humans, then the wall can be jumped from either direction. Likewise for corpses.

So, for the sake of argument, let it be supposed that there are not such adequate walls—that once we start moving, we are over the walls or down the slopes. This would, apparently, show that same-sex marriage would lead to goat marriage and corpse marriage. Of course, it would also show that different sex-marriage would lead to a slide into goat marriage and corpse marriage (I argued this point in my book, For Better or Worse Reasoning, so I will not repeat the argument here).

Somewhat more interestingly, the supposition of a low wall (or slippery slope) between humans and animals would also lead to some interesting results. For example, if we allow animals to be hunted and there is no solid wall between humans and animals in terms of laws and practices, then that would put us on the slippery slope to the hunting of humans. So, by the logic of the slippery slope, we should not allow humans to hunt animals. Ditto for eating animals—after all, if same-sex marriage leads to goat marriage, then eating beef must surely lead to cannibalism.

In the case of the low wall (or slippery slope) between corpses and humans, then there would also be some odd results. For example, if we allow corpses to be buried or cremated and there is no solid wall between the living and the dead, then this would put us on the slippery slope to burying or cremating the living. So, by the logic of the slippery slope, we should not allow corpses to be buried or cremated. Ditto for denying the dead the right to vote. After all, if allowing same-sex marriage would warrant necrophilia, then denying corpses the vote would warrant denying the living the right to vote.

Obviously, people will want to say that we can clearly distinguish between animals and humans as well as between the living and corpses. However, if we can do this, then the slippery slope argument against same-sex marriage would lose its slip.

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Splitting Marriage: Love Union

Author: Bagande

(Photo credit: Wikipedia)

In previous essays I argued in favor of splitting marriage by proposing theological unions (for the religious folks) and civil unions (to cover the legal contract aspect of marriage). However, there does seem to be one aspect of marriage left out, namely the matter of love.

On the one hand, it is sensible to not include the notion of love in marriage. After all, a couple that is getting married does not have to prove that they are in love. People who do not love each other can get married and people who do love each other (in the romantic sense) need not get married.

On the other hand, the notion of marriage for love does have a certain romantic appeal—fueled by literature and movies (if not reality). As such, it seems worthwhile to include a third type of marriage, namely the love union. While the romantic image is appealing, there is also a more substantive basis for the love union.

As noted in another essay, the theological union was proposed to allow people to exercise both freedom of religion and freedom from religion. As was noted in the essay after that, the civil union was proposed to handle the legal aspects of marriage. In the case of the love union, the purpose is to allow couples to create their own relationship bond (and rules) apart from that of religion and the state. That is, this is a relationship defined entirely by the couple. While the couple might involve others and have a ceremony, a love union would not be a theological union and would have no legal status.  That is, the rules are only enforced (or not) by the couple. Naturally, a love union can be combined with the other types. A couple could, for example, get a theological union at their mosque, get a civil union from the state, and then have an event with friends to announce their love union.

Given that the love union has no theological status or legal status, it might be wondered what it would actually do. The answer is, of course, that this would vary from union to union. However, the general idea is that the couple would define the aspects of their relationship that are not covered by theology (which might be all of it) and do not fall under the dominion of the state. This sort of definition might be something as simple as a declaration of eternal love to a fairly complex discussion of the nature of the relationship in terms of rights, expectations and responsibilities. While not every couple will want to establish a love union, this does seem like a good idea.

Love is, apparently, the least important aspect of marriage when it comes to the political debates over the matter. This might be a reflection of the reality of marriage (that it is about religion and legal rights) or a sign of misplaced values. Because of this, I thought I would at least give love a chance.

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Splitting Marriage: Civil Unions

English: A woman makes her support of her marr...

(Photo credit: Wikipedia)

In an earlier essay I argued in favor of splitting marriage and focused on the creation of theological unions. Each religious institution could define its own theological union in accord with its doctrines, thus allowing people to exercise their religious freedom. However, the theological union would have no legal status—thus allowing people to exercise their right to freedom from other peoples’ religions. Marriage as currently practiced does have numerous legal aspects that range from tax status to hospital visitation rights. On the assumption that these legal aspects are worth preserving, I propose a second type of marriage. At the risk of some confusion, it could be called a “civil union”—but I am not wed to this name. I am also open to the idea that some or even all of the legal aspects of marriage are not worth preserving and would certainly consider arguments to that effect.

A civil union of the sort I am proposing would actually cover a variety of legal relationships and would allow people various options. I base this on the idea that people should, in general, have the freedom to define their legal relationships in this context.

Those who prefer a more traditional approach could select the full traditional marriage civil union with all the legal obligations and rights that compose current marriage. In terms of who should be allowed to engage in such unions, the answer would seem to be that it is open to all adults who are legally capable of giving consent. Thus, this would exclude civil unions with turtles, corpses or goats.  The basis for this is the right of legally competent adults to enter into legal contracts. As I see it, the legal aspects of marriage (such as joint property, insurance coverage, and so on) are merely legal agreements that hold between adults and the sex of the individuals seems to be irrelevant. As such, same-sex civil unions would be just as legitimate as different-sex civil unions. People engage in business contracts with people who are of their same sex all the time and the legal aspects of marriage are rather similar to a business contract—most especially in matters of divorce.

In addition to the “standard package” based on traditional marriage, people could also create more personalized contracts of union. This would involve specifying the legal obligations and rights that define the union. In terms of why this should be allowed, it is absurd that the marriage merger is a one size fits all deal when any other contract can be custom made. As such, I propose that people can create contracts of union that would allow couples to specify the legal aspects of their civil union. While many of these would be drawn from the “standard package”, these could also include tailored specifications. For example, a contract of union might specify the division of property that will occur in the case of divorce. In fact, given the high divorce rate, such contracts would be rather sensible and would save considerable problems later on.

Given that the legal aspect of marriage are based on a contract, it seems reasonable that many of the rights and privileges should be open to people who are not in a union. For example, people should be able to designate the people who get to visit them in the hospital.

It might be contended that this approach to marriage fails to consider the role of religion in marriage. My obvious reply is that this is exactly right. The religious aspects of marriage should be made distinct from the legal aspects, which is why I proposed the religious union as well.

It might be objected that this contract view of marriage would sully the sacredness of marriage. This proposal would seem to reduce marriage to a legal contract and, of course, people might enter into such unions for impure reasons such as financial gain or to get a green card.

The easy and obvious reply to the sully objection is that marriage has already been well and thoroughly sullied. Hence, replacing traditional marriage with a civil union would hardly sully it. To use an analogy, adding a bit more dirt to a mud puddle is not going to sully its purity, for it has none.

In regards to the impure reasons, it is obviously the case that people engage in traditional marriage for such impure reasons. Thus, this would make civil unions no worse than traditional marriage.

As a final point, it can be argued that marriage is defined by the state to encourage a certain type of marriage and in accord with traditional rights. The easy reply to this is that the state can still encourage marriage types by specifying the contracts and that an appeal to tradition is a mere fallacy.

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