December 20, 2008

Thought for 12.20.08

The voice of the people is not lightly to be ignored; but neither is it to be heeded when it urges the abrogation of fundamental rights. The old saying, “The voice of the people is the voice of God,” may be true; but sometimes it is a false god. Beware of idols.

Tobias Stanislas Haller BSG


June Butler said...

Go, Jerry Brown! (aka Moonbeam)

Tobias Stanislas Haller BSG said...

My sentiment, exactly!

Erika Baker said...

While I agree with the sentiments themselves (naturally!)... "fundamental rights" refer to that which is not criminal and not disturbed.

Homosexuality was only classified as normal a comparatively short time ago. So to those who still believe it to be deeply immoral and something that ought to be illegal, "fundamental rights" is a meaningless concept in this context.
Just as it would be meaningless to me if it was applied to paedophiles.

The task is not to make people accept "fundamental rights", but to make them understand that homosexuality is not immoral and truly falls under that heading.

A. S. Haley said...

Father Haller, while the sentiment expressed is noble and entirely correct, it actually has no application to gay marriage as such. For marriage is not a "right", let alone a "fundamental" one, regardless what some justices may say. (Rights belong only to individuals, not to couples, and every individual of the proper age may indeed marry, provided it's not to a sibling, a minor, or to someone of the same sex.)

Because the State defines and limits its terms, and does not grant it to all on an equal basis, marriage is a state-sponsored privilege, something which in law is very different from a right. While the State's definition may not satisfy everybody, it is nonetheless perfectly rational when it is extended just to unrelated people of opposite sex and appropriate age. (In the same way, 15- and 16-year-olds may be very unhappy with being denied the privilege of a driver's license, and may call the State arbitrary in granting them just to older persons, but they cannot deny that a rational basis exists for defining the privilege in such a fashion.)

Meanwhile, congratulations! On account of your superior blogging, you have officially been designated a recipient of the Superior Scribbler Award.

For the story of the Award, see this post. For your judge's citation, and where you go from here (if you wish), see this post. Merry Christmas!

Tobias Stanislas Haller BSG said...

Thanks, A.S. for this viewpoint. I still prefer to think of the capacity to enter into a marriage covenant to be a fundamental right -- a form of the right to create associations, and related to the right to enter into contracts. This does not mean it is an unalienable right (though one wonders at the scope of the "pursuit of happiness"!), and it may legitimately be restrained in the interest of the social order; just as other rights, such as freedom of speech, can be limited to certain extents for the good of society. It is where the limits lie that are in question at present, and as you know doubt know, there is considerable variablility in the biblical and legal tradition concerning the scope of marriage, and the various limitations various cultures have placed upon it. In some cases the right to religious liberty conflicts with marriage regulations; so that, for instance, in some states observant Jews are exempt from one of the incest restrictions (uncle / niece marriage).

Perhaps it also goes without saying that things that preexist the foundation of a state can be said to have a certain preeminence; thus speech and marriage (albeit not "civil" but as a human and humane reality) preexist the social order; and might be said to contribute to its evolution and development. At least that is what the people who keep saying marriage is the foundation of society appear to believe; and if they are correct, foundations come before buildings.

But I'm growing a bit whimsical. To get back to your other point, "individual" vs. corporate rights: the same could be said about the freedom of contract -- which involves more than one person -- and of course, some debate that point too; that is, whether it is a "right" or not. But from my perspective the freedom to marry, like that to contract, is individual to each of the parties qua individuals, even though they engage it jointly. It is an individual right only exercised in the plural.

In the long run my point has wider application than simply to natural or fundamental rights, of course. There is always a balance between the needs of a social order and the needs of individuals within that order; and the language of rights evolved primarily to defend minorities from an undue form of social domination. Of course, this gets us off into larger questions concerning the philosophy of law itself.

My sincere thanks for the Scribbler recognition, and I shall soon take the required next steps. It is an honor to be honored by someone who writes as clearly and graciously as you do.

A blessed Christmastide.

Frank Remkiewicz aka “Tree” said...

It seems to me that marriage/civil union is an extension of the social contract. As such it is an inalienable right and quite frankly the only reason for curtailing this type of right is when it does harm to another. Your right to punch me ends at my nose. Since marriage/civil unions (both practiced and accepted by society at large) is part of the social structure it seems it is an inalienable right, yes the pursuit of happiness. I almost agree with both Tom and AS.

Frank Remkiewicz aka “Tree” said...

Whoops - pardon my slip not Tom but Tobias.

Sebastian said...

Roman Catholic theology has long considered marriage a natural right, based on natural law, for those who are qualified (of age, of different genders, able to commit themselves to lifelong mutual and loving fidelity and openness to children, not already married or in religious vows or promises, and able to engage in sexual intercourse). This natural right arises from the nature of the human person, who is created to need companionship, to reproduce, and to build society. Therefore, by this understanding of natural law, the state may regulate the particulars of, but may never deny access to, the expression of this right. The key question, of course, is the list of those qualifications, above. Since the RCC does not generally seek to impose those qualifications in civil law, why does it seek to impose the different gender requirement? Bullying. The bishops would never get away with trying to prohibit marriage between hetero couples who intended never to have children, or couldn't consummate the marriage, or who were already previously married and divorced, etc.

Tobias Stanislas Haller BSG said...

I think the laws of Animal Farm are sometimes more in play than most of us would like to admit. Especially, "all animals are equal but some animals are more equal than others." I think it has to be admitted that there is a balance between "individual rights" and "social order" -- and different societies will "construct" their concepts of freedoms differently.

The social construction of such concepts as marriage, and more broadly of sexuality, are often restrictive or asymmetrical in application. Biblical law is a prime example in this respect; in which only men can be the victims of adultery. The biblical incest regulations are another case in point, with all of their ambiguities and contradictions, particularly when it comes to incest by affinity.

One of the strange incongruent duties in the Roman Catholic tradition is the prohibition on the marriage of persons in capable of "the sexual act in human manner" (e.g., a quadriplegic male) while permitting marriage to those in capable of childbirth. This appears to place greater premium upon the sexual act itself than upon its purported "natural" end.

In fact, most marriage law, sacred and secular, is terribly inconsistent and made up of a bundle of notions, only some of which actually make much sense in the real world. One of my efforts, in studying this field, has been to hack through the thicket of taboos and myths that surround this particular aspect of human individuals and human societies.

Anonymous said...

This appears to place greater premium upon the sexual act itself than upon its purported "natural" end.

Bingo! It's all about Tab A in Slot B---everything else is Icky to the Vatican (re male paraplegics, I remember that line in the film "Born on the Fourth of July": where one quad Vietnam Vet says to another, re satisfying women, "If don't have it in the hips, you've got to have it in the lips". Oh No You Don't, sez the Vatican)

The Coital Obsession is deeply disturbing :-X (only coincidentally when, um, coming from male celibates)