The Logical Fallacy of the Appellate Court

In an earlier post, I discussed the issue of identity formation as it relates to the discussion of homosexuality. Essentially, I argue that because we have come to consider homosexuality an identity as opposed to something a person does or feels, we have created a category of personhood that naturally calls to mind the need for a different form of legal recognition and provisions. I believe that changing the nature of marriage in the United States in order to accommodate the sexual preferences of everyone will shift our focus away from children, which I believe is the historic purpose of government involvement in marriage. However, I recognize that my opinion is not the only one, and I am therefore alarmed when the weighty decision about the nature and purpose of marriage is dictated by a court as opposed to the voice of the people. In the case of the 9^th Circuit Court of Appeals hearing the arguments for the constitutionality of Proposition 8, this concept of identity and a convolution of words has also caused the federal judges to make a critical error:

Quoted from Forbes magazine: "The 9^th Circuit Court of Appeals has ruled that the California ban on gay marriage violates the equal protection clause of the 14^th Amendment to the United States Constitution.

The equal protection clause states that no state shall deny to any person within its jurisdiction the equal protection under the law. Accordingly, the court ruled that denying gay and lesbian couples the right to marry denied them the same rights provided to heterosexual couples." (italics added)

The Court's official statement: “Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted." (italics added - and will be explained below)

Their logic is sound. Different classes of people shouldn't be treated differently by the law. But are they? Are people with same sex attraction feeling discriminated against because they are being treated differently, or because they are being treated the same? While we certainly acknowledge the feelings of others, one’s feelings do not constitute a class that requires special treatment. Can individuals claim "LGBTIQ" as an identity or class of people they belong to? Of course - as much as vegetarians, alcoholics, lefties or nudists can. They also have to pay taxes, drive on the right side of the road, and put on their pants in the morning like everyone else. Without denying the fact that many people experience these real, undeniably strong feelings and form fulfilling relationships as a result, we have a right to vote on whether or not to make special legal provisions for them – especially the right to define marriage, a social contract. The problem is that those who see homosexuality as an identity are more likely to assume that they are being treated unfairly by a law that treats everyone equally.

This assumption has led the justices of the 9^th Court of Appeals to make a logical fallacy in their argument against Proposition 8. They reference the 14^th amendment to claim equal rights protection on “persons” and then automatically skip to declaring the right of “couples” to be treated equally. At first glance, this issue seems like discrimination against individuals – especially when the proposition is referred to as a "ban against gay marriage" - but is it really a ban on gay people marrying, or a ban on the type of marriage they want to exist? The meanings are lumped together in this pejorative phrase, but the distinction is critical.

A relationship does not have the same rights as an individual. We have encountered the same controversy in regards to corporate personhood - that is, while a corporation may be a group of individuals, a corporation does not have the same rights as an individual. Aren’t individuals with same sex attraction just as welcome to get married as anyone else – Muslim, blond, quadriplegic? Yes. In this sense, marriage is certainly an individual right. But can they dictate the requirements for that social contract? No; no more than can two cousins in love, or a Muslim in the U.S. who wants to take a second wife. Under our current laws, even Mary the mother of Jesus would probably be too young to get married to Joseph. But we can vote to change the contract, just like everyone else can.

This debate is not about whether or not gay people have the right to get married, it's about what the definition of marriage is. That should be obvious to everyone by now. Assuming that an individual is of age and mental capacity, everyone in America has the right to get married - everyone, equally. We also all have the right to vote to change the nature of the marriage contract - also an equal right. The 14th Amendment supports that and so do I. While marriage is clearly a more attractive option for some people than others (for a variety of cultural, psychological, social, biological, and financial reasons), it is the same option. No one is being treated specially here.

Individuals have the freedom to live as they choose, and we have the moral responsibility to respect each other regardless of our differences. Whether a relationship should be sanctioned as a marriage, though, depends on what you believe the purpose of marriage should be about - legitimizing relationships, rearing children, racial purity, gender relations, human population control - your priorities might be different than mine. But regardless of one's opinions about whether or not such relationships are inherently moral, we should not mistakenly use the Constitutional rights afforded individuals as a universal legal protection for all types of relationships. No one would agree with all the implications of that.

Some readers hopefully now realize a key lapse in understanding on both sides. We agree that getting married is a right, but who you marry is a social contract with lots of important implications for the future of our society, and therefore a contract in which society has some say. The courts do not have the right to redefine the contract of marriage without the consent of the governed. One’s personal feelings and preferences do not provide special rights or the right to force one’s opinions on others any more than my religious feelings and beliefs allow me to do likewise. It should be sufficient for us in a democratic nation to allow such factors to clarify our own priorities and inform our own choices. That is why we vote.

Religion vs. Sexuality - What Constitutes Identity?

One reader made an excellent comment I'd like to respond to with the following:
By arguing that sexuality is developed later in life, and that people change their sexual preferences over time, many Christians have argued that sexuality is therefore not a part of one's identity and should not be regarded thus. Sexuality in that sense is unlike race or gender. However, being Christians, there is clearly a flaw in their logic: Religion is also something developed later in life, and may change over time. How then can we argue that religion is part of one's identity? While religion unlike sexuality, is protected under the Constitution, I think this particular argument against accepting a homosexual identity flawed and unhelpful. Many things contribute to one's identity - family, school, language, style, activities - all of which are developed over time.

Fundamentally, the question then becomes, what is the difference between religion and sexuality? They're not just categories. What would you say? Religion is what you _____ and sexuality is what you _______.

Before I give my answer, let me be clear: For the sake of this argument, whether you consider yourself "religious" or "spiritual" or a "free thinker" or a "conservative" - I consider these all versions of religion - terms that that refer to one's set of beliefs about what is true, and what is good. Sexuality, for this argument, I'll define as how someone chooses to be fulfilled sexually.

So... I filled in the blanks thus: Religion is what you believe, and sexuality is what you want. If you generally agree with these categories, their difference should be clear. What someone truly believes about how the world is and should be is the overarching decision-maker in their system. In any society it should be master of the desires and appetites and train the body and mind with wisdom, discipline, and civilization. It doesn't sound very exciting, but this is one of the primary factors that differentiates us from animals.

Both religion and sexuality clearly influence identity, but certainly not in the same way. The attempt to equalizing religion and sexuality by saying that both are part of your identity is like saying that a teacher and an eraser are both part of a classroom. The executive nature of the one far exceeds the presence of the other in importance and scope. Sexuality only impacts you to the extent that your personal beliefs allow it, or as much as you allow your beliefs to be impacted by it.

Someone with a "Carpe Diem" tattoo is going to get upset at this notion, but while feelings and desires should be explored and enjoyed, wisdom should be the ultimate referee of our actions. And clearly, true wisdom is not the destroyer of fun, but the enabler. Wisdom dictates that saving, getting out of debt, and budgeting helps us to have leftover money for Disneyworld. Wisdom teaches us that eating well and exercising means we can look sexy on the beach or run a 5K. And wisdom shows us that waiting to have sex until it's done in the right way at the right time with the right person means we'll be a lot happier in the long run.

Where does this so-called wisdom come from? Well, research and experience etc. But these are only factors that influence what is ultimately filtered through the framework of our religion - in other words, the questions we can't study scientifically, the "why"s of the universe, the value judgments about what is ultimately true, good, and important. Regardless of how other factors may influence you, which answers you choose to believe, or what pieces of evidence you will consider the most important - your ultimate answers - come from your personal religious beliefs.

Note that I haven't made any statements prioritizing one religion over another. That's because I have faith that most people's fundamental beliefs are basically good. I believe that people are born with a basic sense of right and wrong, and that if that sense is followed throughout life, one's religion or worldview or personal philosophy will also be basically good. When sexuality, or appetite, or addictions, or any other type of preferences is regarded at the same level as religion, or allowed to dictate religious belief, we lose the executive that directs us to be moral, civilized, thoughtful people and lose all the privileges that wisdom offers us. Regardless of your sexual inclinations or sexual choices, at the end of the day they should be guided by, and not dictate, one's religious beliefs.

In conclusion, while we may claim many things that contribute to who we are, our religious identity should be seen as one of the most important, above sexual identity, vegetarian identity, or kid-from-the-suburbs identity, because it is and should be the executive function of our actions. We should believe in and act on the truest, best things we know, regardless of our own personal behavior, because what we choose to believe will dictate our actions, and ultimately, who we will become.

Extrapolating: Communists and Constitutionalists

I made an interesting discovery a while ago. As a sociologist and social worker by education, I had obviously been raised with liberal political views, and one thing I felt very strongly was that Republicans were bad because they hated poor people. My personal experience with staunch conservatives had been quite negative in this regard. It seemed clear that Republicans hated welfare, thought it was a waste of money, and didn’t think poor people deserved help of any kind from the rest of society. They were the “self-made” men, who from the viewpoint of Charles Dickens' character Mr. Bounderby in Hard Times, are ultimately a myth. Where you come from has such a huge impact on what you’re able to achieve -- without denying there are individual differences that may exacerbate or ameliorate an individual’s situation -- as a group there are clearly barriers to success that those from wealthier backgrounds don’t have to confront. Regardless of what we may say about everyone having a fair chance in America, some people just don’t. Whether they were taught poor values, born with a drug addiction, have an unstable family, or simply live in a neighborhood without jobs, public transportation, decent schools, or grocery stores that sell fresh produce. I have spent most of my educational life bitter and angry towards the selfish, snobby Republicans who are so clearly oblivious to these factors and think only of protecting their “hard-earned” money.

I found out I was wrong.

It was on a date, ironically, with a cute guy who seemed to have a lot in common with me - until politics were brought up. I was as far left as you could go while still thinking Communism was generally bad. He was a libertarian. He said, no government - I said, the poor need help. He said no government, I said, the poor need help. Then he said this: Yes, you’re right, they do need help. And I think we should help them. I just think it shouldn’t be the government that does it. He talked about enabling and inspiring people to develop community initiatives, nonprofits, and individual giving, that a reduction in taxes would give people and companies more freedom to do that. Woah. Uh, I hadn't thought of that. I struck back when I challenged that some underrepresented groups still wouldn’t get help and that we risked people not being generous to the poor because we’ve set a precedent of government help, but at the end of the date two things happened. I knew there wasn’t going to be a second date, and I realized that all Republicans don’t really hate the poor. They believe the poor should be helped - but that for many reasons it’s better that it not be the government who does it.

In eight years of higher education, no one had ever suggested that possibility. Read: no one in the sociology or social work departments where I found myself had ever mentioned it. It had never occurred to me. It totally flipped my worldview (Nevertheless, we did not have a second date).

Over the course of two years, I gradually came to accept the hypocrisy in my own education and the ignorance I had so long been seeing in others as my own fault as well. I became angry at the people who had kept me so polarized and narrow-minded -- what were they trying to do to me? Did no one ever suggest this possibility to them or were they too one-sided to recognize the ugly truth when it challenged their philosophical box? Yeah -- that’s how it went down. I kept it pretty undercover from my new husband (who started not one but two Republican-oriented clubs in high school, actively campaigned for local Republican politicians and wrote for his college conservative newsletter). I could now see holes in both arguments, and suddenly I wasn’t sure who the good guys and bad guys were anymore.

Then I found out I was right… Partially. I wasn’t wrong about my previous experience with Republicans. I HAD met some snobbish pigs. I just realized that they weren’t all in one party. The nature of the problem in both parties is taking a single good principle and extrapolating it to an extreme to the exclusion of all other principles.
People who feel very strongly about maintaining the original intent of the Constitution often get upset about the federal government overstepping its Constitutionally outlined powers. Doing so opens the doors to lawlessness the compromise of checks and balances and diminished power of local and state governments to respond to the needs of their citizens. However, as Mitch Daniels said to far-right activists known as the Conservative Political Action Conference last February, “We should distinguish carefully skepticism about big government from contempt for all government” (New York Times). Some people fall into exactly that hole. Their beliefs about big government dominate their beliefs about behavior in every other realm (When all you have is a hammer, etc). While Republicans are more likely to donate to charities than Democrats, overall attitudes toward poor and minority groups are more positive among Democrats. This is extrapolation: When Republicans believe that the governments shouldn’t help the poor, so therefore the poor don’t deserve to be helped. In fact, there is a baby being thrown out with the bathwater. The truth is more complex and more compassionate. While I am hardly an expert on what the role of the government should be regarding poverty and inequality in America, I know for certain what my role should be as a citizen, a wife, a daughter, a neighbor, a tax payer, and a member of my community. I know I have a responsibility to act with wisdom and compassion, being aware of and responding to the needs of those around me. This, however must not lead to false extrapolation #2 : socialism.

While Republicans may be more prone to top-down extrapolation errors, Democrats are far more likely to err from the bottom up. With the firm conviction of the power of and need for change and a deeply held concern for the well-being of those around us, Democrats reach for the tools at their disposal - including individual, community, and government initiatives, without seeing any significant differentiation between them. During my time in the field, the distinction between these entities was never regarded as significant, other than that individuals and communities SHOULD help, but the government is OBLIGATED to help. I attribute this to one of two possible causes: Social scientists may be so focused on the nature and cause of various social issues that they neglect a careful study of government and economics (which is certainly true in my case). Secondly, the concerns of Constitutionalists and economists may be overlooked or seen as trivial when compared to the urgent welfare of Burmese refugees, victims of child abuse, collapsing families, or racial inequality.

Democrats believe that the rich should help the poor, but instead of simply using personal influence to encourage those with means to improve the lives of others, it has become a matter of enforcing it legally. Democrats, as a result, are more likely to make this extrapolation: These individuals need help, and therefore everyone and every entity should be obligated to help. Such views, when taken to this extreme, compromise civil liberties and wear the mask of communism.

The concept of extrapolation, then, is a common among both parties. The issues are different, the directions are opposite, but the problem is the same. Let us understand better the role of government, the role of personal freedom, and understand the power of both in improving our lives and maintaining our freedoms. The solution is somewhere between the two -- not a compromise, but a synergy of truth. Our country can embrace freedom and equality, but only as government and individuals understand and fulfill their unique, vital roles.