February 20th, 2009

The Common Ground of Natural Law


photo credit: m o d e

Last night, the Sutherland Institute and Equality Utah held a debate to present each side’s ideas, field each others’ questions, and respond to some public questions as well. Each camp seemed to have an overriding theme connecting their ideas and arguments. Equality Utah’s theme was framed by Will Carlson, policy director for the organization, who asserted in his opening remarks that just because we don’t agree on everything, that should not mean that we cannot agree on anything. This “can’t we all just get along” argument was a common thematic element of Equality Utah’s statements throughout the night, as they described why they felt that the “basic protections” provided by the bills in their initiative should pass.

The Sutherland Institute’s theme might best be painted in terms of the “laws of nature and of nature’s God,” a core principle found in the Declaration of Independence and cited several times throughout the evening by LaVar Christensen. In a common vein, Sutherland president Paul Mero’s opening remarks forcefully argued that Equality Utah’s beliefs and opinions are, at their core, an illusion. While perhaps not immediately apparent, I believe that LaVar’s references to natural law explain Paul’s argument.

Had I had the opportunity (time was limited), I would have proposed the following question to Equality Utah:

There have been a few references this evening to natural law—a fundamental legal theory upon which our founding documents were based. How do you reconcile your position (if at all) with natural law, and how (if at all) is natural law relevant to the issue at hand?

The problem with this question is that Equality Utah would be forced by the very nature of their position to abandon natural law entirely and make their claims entirely from the basis of natural law’s antithesis, legal positivism.

Positivism is a legal theory that asserts that laws are made by humans, and thus are subject to the whims and desires of those who govern. No natural or innate rights are observed, nor is any connection with morality recognized; in this model, the people look to the government as the sole source and arbiter of the freedoms they enjoy. In a positivist’s mind, the goal of government is to secure the greatest benefit for the greatest number of people (and in this sense echoes the unstated goal of a pure democracy).

Natural law, on the other hand, recognizes a Higher Power from which individual rights are derived. Judge Andrew Napolitano has written this summary:

Natural law teaches that the law extends from human nature, which is created by God. The natural law states that because all humans desire freedom from artificial restraint, and because all human beings yearn to be free, our freedoms stem from our very humanity and, ultimately, from the Creator of humanity.

Natural law is not linked to a particular religion, or to religion at all, necessarily. The ideas simply include rights and rules beyond those written or used by government officials. It recognizes that as human beings, we must have a core set of liberties in order to live just and peaceful lives. Humanity is the basis for these rights, and therefore they are common to all of us.

These liberties belong to us by virtue of our nature, and they persist in spite of any action the government may take against them, regardless of alleged necessity or majority rule. (Andrew P. Napolitano, A Nation of Sheep, p. 2)

Mr. Mero’s assertion that homosexual behavior and its campaign for sanction through public policy are illusions requires the understanding that the legal and societal acceptance of homosexuality as it pertains to marriages and families conflicts with natural law. Taken to its extreme, homosexuality would spell the immediate end of that society which wholly embraced it; without modern and medical intervention, there would be no children and hence no propagation of the species. Artificial attempts to mimic this family life (through artificial insemination) are by their very nature unnatural.

Nature is not without its anomalies, however, as is the case with almost any commonly accepted standard or law. Circumstances abound in which some unique or random exception is made to what is generally understood to be natural. The human child born with twelve fingers and twelve toes serves as a recent example that illustrates this concept. But natural occurrences imply frequency and renewal, meaning that propagation and perpetuation are both inherent and imperative.

We enter a “brave new world” of sorts when there is a concerted effort to blur the lines between nature and its anomalies. Were we to consider a human with 24 digits to be natural, then we have just redefined the definition of nature itself as it applies to humans. When nature is confused and conflated with its limited number of aberrations, then it is anybody’s best guess as to what should not be included in the description of what a natural thing is. In such ways are words rendered meaningless.

The quest to classify homosexuality and its public manifestations as being natural (innate, genetic, etc.) of necessity ignores the reality that this “illusion” (to borrow Mr. Mero’s term) can only persist in longevity and totality so long as artificial means are used. To demand the public acceptance of homosexual marriage and parenthood requires ignoring this simple fact.

But since a successful argument cannot be made which reconciles homosexuality with natural law, legal positivism is the only tool left by which these activists can demand the “rights” they seek. Thus we see bold campaigns to secure the government approval of an entity which before government did not exist. Without the force of law and the positivist creation of these so-called “fundamental rights”, homosexual marriage and its many legislative precursors would not stand a chance.

Natural law is the common ground we must discuss—our common inheritance of individual, inalienable rights not granted by government, but by God. Anything short of this recognition of the source of our rights leads to confusion and a democratic cry for the strong arm of government to dictate what freedoms certain groups of individuals should be granted, often at the expense of other individuals.

19 Responses to “The Common Ground of Natural Law”

  1. JHP
    February 20, 2009 at 10:55 am #

    Very good observations and connections, Connor. The debate between natural and positive law is at the heart of every major legal issue with moral implications in the U.S. today.

    And I think that’s why Paul said that there really is no common ground. The two sides of the “gay rights” debate are based on such drastically different beliefs and assumptions that a person has to stand on one side or the other, they can’t straddle the line.

    This doesn’t mean we can’t be civil and compassionate toward each other, but when it comes to matters of public policy and the family, we must choose a side and stand our ground.

  2. JHP
    February 20, 2009 at 11:09 am #

    One more thought:

    I think that debate demonstrated something very important. In soundbites and in shallow debate, you hear the common arguments that “pro gay marriage” advocates are fanatical zealots who want to force their lifestyle on everyone else and that “anti gay marriage” advocates hate “gay” people and want to oppress them.

    There are people on both sides who are like that. But the debate showed that both sides have actual legal, philosophical, and empirical arguments that support their claims. An hour and a half isn’t enough time to dig deep enough into the issues, but it was a lot better than what you get from the media.

    Most importantly, I think that the debate proved that the pro traditional marriage arguments are rooted much more in substantial legal and philosophical arguments than the other side. The Equality Utah team was on its heels the entire time and provided little convincing evidence to me that I should move any closer to their side on this issue. From a purely logical debate perspective, Sutherland crushed Equality Utah. But I’m certainly open to hearing any better reasoned arguments from the other side.

  3. Reach Upward
    February 20, 2009 at 11:24 am #

    Thanks for the thoughtful analysis.

  4. Curtis
    February 20, 2009 at 11:32 am #

    I must complement you on your post, though I do feel that we come from fundamentally different points of view on how gay marriage should be treated specifically and where the evolution of law comes from generally.

    But that is the rub – who is to say what version of the law is actually correct? Naturally we each think our own way is the correct one and the other is out in left field. When an issue like this comes up, we will but heads.

    In the end I feel that we should disagree without being disagreeable. You should fight for what you believe in and, in return, I will do the same. Somewhere in the middle we will find a compromise that neither of us truly like but moves our country forward on this issue.

  5. Chip Browne
    February 20, 2009 at 11:47 am #

    Perhaps, we can go on to say that that which we call marriage belongs to our natures as man and woman. Marriage, to a certain extent, is being defined in our minds as a creature of the state, requiring a license, a solemnizer recognized by state statute, and a certificate. How many of us believe that legal and lawful marriage is only what is recognized by God?

    And once we are recognized by the state as being married, married couples receive all the legal and economic benefits. These benefits appear to be coming from the state and have been “added to” the natural meaning of marriage in its original form. It is these additions that those in favor of the Common Ground Initiative are fighting for.

    Should we justify that marriages are entitled to these additions or should we refuse to receive them (automatically) and acquire these additions through legal documents using the same procedures that we expect other non-married couples to do?

    Perhaps by giving up these legal and economic benefits and giving up the notion that a marriage is not a marriage until it is solemnized by the state, we return to the natural laws concerning man/woman marriage.

  6. bloggernacleburner
    February 20, 2009 at 12:07 pm #

    The thinly veiled logical fallacies in this argument are the following a) “homosexuality would spell the immediate end of that society which wholly embraced it; without modern and medical intervention, there would be no children and hence no propagation of the species” and b) that this is the philosophical grounding for natural law as it pertains to this subject.

    With respect to contemporary jurisprudence natural law simply holds that an unjust law is somehow legally deficient while legal positivism would find no legal fault with an unjust so long as it was/is legally mandated.

    As Thomas Jefferson states “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”
    While I question Equality Utah’s ‘let’s all be friends’ attitude as a legal opinion, it’s certainly acceptable as a social position from which to base civic action: i.e. a vote. In fact with respect to the Thomas Jefferson quote above, it seems certainly acceptable in the bounds of natural law to expect all people to have an unalienable right to life, liberty, and the pursuit of happiness through a legally upheld civil union. And if we want to play social contract, they do pay taxes after all…shouldn’t they get equal protection under the law in return?

    To use a twelve fingered/toed baby as a similar example to homosexuality in a debate about natural law is ridiculous. We’re not discussing evolutionary biology, we’re discussing inalienable rights and the last time I checked, a twelve toed baby could still qualify as a US citizen with a legal right to a civil union.

    P.S. Andrew Napolitano works for FOX and used to have a television career as a wanna-be Judge Judy. I’m not sure I’d trust him as the eminent opinion on natural law.

    http://en.wikipedia.org/wiki/Andrew_Napolitano

  7. Clumpy
    February 20, 2009 at 12:32 pm #

    Connor, what’s to stop somebody from arguing for divinely given rights, among which gay domestic partnerships (or even marriage) are included? It’s plain that federal and local law is “created by humans” in a technical sense, but it’s up to us and our appropriate spiritual processes to determine if a law upholds the more universal laws we believe to be Divinely decreed.

    After all, not every relationship protected by government is geared toward the physical perpetuation of the species. I don’t think this issue can be argued from a “they reject higher law and are thus taking a stand against inalienable liberty” standpoint.

  8. Connor
    February 20, 2009 at 1:21 pm #

    bloggernacleburner,

    While I question Equality Utah’s ‘let’s all be friends’ attitude as a legal opinion, it’s certainly acceptable as a social position from which to base civic action: i.e. a vote.

    I absolutely agree, just as the popular fifth grader running for class president campaigns on promises of extended recess time and better snacks in the vending machine. Social positions and their corresponding civic actions can stem from any number of political and personal preferences, but that doesn’t mean that they should be implemented as demanded.

    In fact with respect to the Thomas Jefferson quote above, it seems certainly acceptable in the bounds of natural law to expect all people to have an unalienable right to life, liberty, and the pursuit of happiness…

    Correct.

    …through a legally upheld civil union.

    Incorrect.

    You’re specifying demands for which the pursuit of happiness (or the other criteria) must apply. So, you’re claiming that civil unions should be permitted under natural law because it makes homosexuals happy. But this argument falls apart when you introduce some other behavior, such as pedophilia, murder, or theft. The individual claim of happiness, to be sanctioned by public policy, must be subjected to public judgment.

    And if we want to play social contract, they do pay taxes after all… shouldn’t they get equal protection under the law in return?

    This questions illustrates the confusion that exists between rights (natural law) and privileges (positivism). Marriage and some of its related benefits are not rights, but are positive laws manufactured by the government, and thus subject to the public’s determination and preference. Homosexuals do already get equal protection under the law, since they as individuals are able to have recourse for fraud, injury, etc. But it is incorrect to frame the pursuit of economic and legal benefits as an issue of “rights”, or even worse, equal protection.

    To use a twelve fingered/toed baby as a similar example to homosexuality in a debate about natural law is ridiculous.

    I was not equating the two, so your assertion is disingenuous. The example of the baby was used only to indicate that there are exceptions to what is otherwise considered a generally absolute standard of conformity.

    P.S. Andrew Napolitano works for FOX and used to have a television career as a wanna-be Judge Judy. I’m not sure I’d trust him as the eminent opinion on natural law.

    I’m aware of (and not a fan of) his affiliation with FOX. But his description nevertheless true, and was subscribed to by Jefferson and his philosophical predecessors.

    Clumpy,

    Connor, what’s to stop somebody from arguing for divinely given rights, among which gay domestic partnerships (or even marriage) are included?

    Arguing based on a perception of divine law usually falls into a theological debate, and the majority of subscribers to a certain theology get to define just what those divine rights (and rules) are. But natural law is based upon self-evident truths, easily discernible by any free-thinking individual. Seeing that the human species is propagated through heterosexual unions does not require any religious affiliation.

  9. Carborendum
    February 20, 2009 at 3:29 pm #

    blogburner,

    fallacies in this argument are the following a) “homosexuality would spell the immediate end of that society which wholly embraced it

    I see you making an accusation. But I see no arguement. Could you elaborate? How would a society wholly embracing homosexuality possibly propogate without modern medical intervention?

  10. Seth Caldwell
    February 20, 2009 at 5:02 pm #

    I find this whole debate somewhat pointless. Marriage itself is unnatural by your definitions, because it is based on things man has created – taxes, and so forth.
    And love between two members of the same sex is natural. Too many types of animals practice same sex relations to consider it unnatural.

    For these two simple reasons alone, I sigh every time the debate is brought up from a scientific standpoint because it is painfully obvious that gays should have the same rights as everyone else.

    From a non-scientific and religious standpoint, I understand how some people want to stop gays from claiming god loves them and supports them in their marriages… because this would be a fundamental change to their religion, and many people who practice religion do not see it as something that evolves and change over time (one of the fallacies I see in religion in general).

    You will not find any laws about video recording, the internet or space travel in the bible. So ultimately, we must govern ourselves, write our own bibles, look deep into our hearts and god given spirits, and determine what is right or wrong in future issues. Does the bible say anything of this process?

  11. Seth Caldwell
    February 20, 2009 at 5:14 pm #

    oh, and about the society falling apart…. consider this:

    Male giraffes spend most of their time in bachelor groups, where they entwine necks and rub against each other for up to an hour at a time. These “necking” sessions often culminate in mounting, and can outnumber heterosexual encounters 9 to 1.

    Obviously giraffes are not extinct. There is even an argument that a society with bisexual tendencies would be _stronger_ than a purely heterosexual one, as more members of the society would persist – when there are an excess of males, the males pair up and take care of eachother, ensuring their survival and ability to pair with a female who’s male counterpart is taken by predators… and visa versa for female overpopulation in a society.

    http://seattletimes.nwsource.com/html/nationworld/2002340835_gaycritter19m.html

    “Though it’s tricky to impute motives to animals, the fact that homosexuality is so widespread shows it is not unnatural or biologically aberrant”

  12. Daniel
    February 20, 2009 at 5:23 pm #

    As the resident atheist, it falls to me to ask the questions:

    1) How do you know that a supernatural being (such as a god) exists? (Something better than “I have a warm feeling in my heart”, please.)

    2) How do you know what that god wants? (‘Scripture’ or ‘prophets’ is not a good answer here; people with other views have scriptures and prophets as well.)

    3) Isn’t it awfully convenient that this god wants the same things you want?

    4) What about people who believe in a god, but who come to different conclusions about what god wants?

    5) Is it just to use your god-belief as a basis for legislating the behaviour of people who do not believe in any gods or who come to different conclusions about what a god wants?

    You may not like the alternative, but natural law is a silly and self-serving notion with no basis in fact. You might as well say, “I know I’m right because I know what god wants” which is probably blasphemous. Not that there’s anything wrong with that, but you should be intentional about it.

  13. bloggernacleburner
    February 20, 2009 at 5:25 pm #

    Connor, you’re playing fast and loose with definitions. The constant one throughout the piece is that you conflate ‘natural’ with ‘right’. Right, like right action, correct, moral.

    You’re free to argue that homosexuality is wrong. It’s patently absurd to state that it is unnatural. It’s a mash of two arguments in order to hid what you’re actually arguing. Homosexual sex by males and females is present across human and mammalian society. It is obviously natural because it exists in nature. To draw your assertion to it’s radical conclusion,If everyone were female the human race would end. However, that does not make it wrong to be female. What you need to be arguing is that being gay is wrong. Arguing that being gay is unnatural is just a cover.

    It’s an exercise in extreme hubris to define anomalies in nature as ‘unnatural’. They are outside of the majority, but they are not unnatural because they occur in nature and have been observed both in humans and in other mammalian species. This particular attack is really troubling because it has been used extensively in the past to define groups of humans as being outside the bounds of humanity, Jews in Germany, blacks in America. Be careful how you use it. The definition of people with physical deformities as unnatural in some way detracting or departing from ‘normal’ humans is also personally offensive.

    Personal unalienable rights have to be available to all. That means, even positivist laws promoting a certain world view, like marriage laws, have to bow to unalienable rights like equal protection under the law.

    Just because Equality Utah is presenting a weak argument in this instance does not change underlying facts. The natural law in this case is equal protection for all citizens under the law. The positivist law are certain benefits applied to married heterosexual citizens. The positivist law MUST bend to the natural law. Any attempt to promote positivist laws in the face of natural law cannot be a just law and is morally reprehensible.

    If you place it under ‘pursuit of happiness’, perhaps your argument might apply. I’m not. Equal protection for all citizens under the law. Equal protection, whether sanctioned by public policy or not, cannot be subjected to the public judgement because it is an inherent, unalienable right. The law that results is unjust and it is the right and responsibility of citizens to break such unjust laws.

  14. jasonthe
    February 20, 2009 at 8:16 pm #

    I think what’s lost in your analysis is that it hinges entirely on knowing the mind of God as a means of determining “natural law.”

    That being an impossibility, unless you mean to assert that we are even remotely capable of understanding the mind of God, we should probably stop forming an argument that our laws should reflect what we believe personally to be the mind of god.

    Additionally, the separation of church and state would also be a principle of our founders, which many are arguing were inspired by divine providence in writing those same founding principles.

    The logical circles you walk in here are impossible to ignore, regardless of which side of this issue a person falls, therefore, the argument leads us nowhere we should want to go when discussing the law of our states and the foundations or our governance in a man-made system.

    On the bright side, every time a person uses this reasoning, those who believe equal treatment in our personal lives (and by extension in the laws we feel are just) better represents the principles of Christ come out on top.

    So please, go on… :)

  15. Connor
    February 20, 2009 at 11:41 pm #

    Seth,

    Marriage itself is unnatural by your definitions, because it is based on things man has created – taxes, and so forth.

    If you’re referring to the construct of laws that are associated with marriage in our country, then yes, positivism is definitely introduced. But the positive laws are based on the fundamental, natural law to begin with, so I don’t view them as unnatural or wrong. However, the union of a heterosexual couple does not require government sanction, and existed long before government was organized.

    And love between two members of the same sex is natural.

    Love is simply an emotion, and can be freely expressed between all sorts of individuals. But love and union are two different things. I don’t care if two men claim to love each other. Good for them. But I believe it’s wrong to assert that a union they create in imitation of the natural family is itself a natural thing.

    Too many types of animals practice same sex relations to consider it unnatural.

    But those animals cannot procreate in this manner, and thus the laws of nature require the practice of heterosexual unions (except in asexual organisms and such) in order to continue the creation of new life.

    For these two simple reasons alone, I sigh every time the debate is brought up from a scientific standpoint because it is painfully obvious that gays should have the same rights as everyone else.

    You’re going to have to provide a definition of what rights you’re referring to before I’ll agree. Individuals have rights by nature of their existence. This is what natural law is all about. Gays should not be granted any special types of rights because they exhibit some sort of sexual behavior, just as hispanics should not be given extra rights because of their race. We as individuals inherit our rights, regardless of whatever affiliations we may have. But if you’re referring to the government recognition of a union as a right, then I disagree. The right they enjoy is to freely associate with whom they please. Homosexuals can live together and associate one with another and spend their lives in each others’ company. That is the individual right they have. But marriage—the public recognition of a specific type of union—is not and never will be a right, any more than saying I have a right to build a nuclear reactor in my basement. When you’re asking for your neighbors to accept and sanction your private practice, then they get a say in whether that happens.

    From a non-scientific and religious standpoint, I understand how some people want to stop gays from claiming god loves them and supports them in their marriages…

    I know of few people (save the extremists who should rarely be listened to) who would make such an argument. I personally think that God loves all of His children regardless of their actions and lifestyle. But the argument at hand is regarding natural law—or, rather, the self-evident truth that only heterosexual unions can produce children and create real families. That doesn’t mean that people who fall outside of that “norm” are to be shunned or are unloved.

    You will not find any laws about video recording, the internet or space travel in the bible. So ultimately, we must govern ourselves, write our own bibles, look deep into our hearts and god given spirits, and determine what is right or wrong in future issues. Does the bible say anything of this process?

    Keep in mind that in Latter-day Saint theology, we believe in modern prophets who do indeed receive revelation that is relevant and applicable to our modern world. So while the Bible says little (if anything) on such topics, modern prophets certainly do.

    Obviously giraffes are not extinct.

    You’re missing the point of my argument, where I said that if taken to its logical extreme (meaning, if everybody was homosexual), then the human race would indeed become extinct (save for those artificial medical interventions). The fact that around half of giraffes exhibit this behavior doesn’t affect my argument, which uses the example of absolute homosexuality to prove it is not natural since it is completely unsustainable.

    Daniel,

    As the resident atheist, it falls to me to ask the questions:

    Your questions rest on the assumption that natural law requires a belief in God. But this is not the case as I have claimed above. Rather, natural law rests on self-evident truths that can be seen through simple observation and analysis, and is not dependent upon any specific or general theology.

    As I have said, the compatibility of heterosexual unions with natural law is itself self-evident, since it is in our human nature to only procreate in one fashion. We make seek to alter or abuse those procreative powers in other pursuits of pleasure and personal preference, but that does not alter the fundamental natural truth that only heterosexual unions can result in offspring and continue the creation that abounds in nature.

    bloggernacleburner,

    The constant one throughout the piece is that you conflate ‘natural’ with ‘right’. Right, like right action, correct, moral.

    Pray tell, what are some examples of things in nature being wrong?

    Homosexual sex by males and females is present across human and mammalian society. It is obviously natural because it exists in nature.

    Using its existence to argue that it is natural is lunacy. Under this argument, every unique manifestation of some genetic oddity would itself be natural to that person or creature. There is no room in this argument for things that fall outside the common definition of something natural. To use the example of the baby with 24 digits again, your argument implies that since in nature (or, rather, in our world) there do exist these certain types of people (individuals with 24 digits), that a human with that characteristic is completely natural. Where is there room here for abnormality?

    To draw your assertion to it’s radical conclusion,If everyone were female the human race would end. However, that does not make it wrong to be female.

    Correct, but it would be unnatural to have every person be a female, since human nature implies the creation of both male and female. However, this argument doesn’t apply since it refers to an innate characteristic that the person cannot choose, whereas sexuality is a manifestation and action of some inner driving force, and thus as a behavior can be changed or suppressed as one may desire. In other words, people can choose to do unnatural things for any number of reasons. But I didn’t choose to be born a male.

    It’s an exercise in extreme hubris to define anomalies in nature as ‘unnatural’.

    Is it hubris to attempt to describe an antonym of a word? An anomaly is a deviation from what is normal, or natural. Since it is not natural, it then follows that it is unnatural. How is that hubris?

    They are outside of the majority, but they are not unnatural because they occur in nature and have been observed both in humans and in other mammalian species.

    I’m defining a natural thing as something different than you are. You’re here claiming that any occurrence of anything in nature (or in the world) is natural, whereas I’m providing for both natural and unnatural things in the world by asserting that the natural things are those that can perpetuate their manifested characteristics, propagate/procreate, and can renew themselves. Only heterosexual unions apply to this definition. Your definition makes everything apply, and thus considers everything to be normal. Sounds a lot like Equality Utah’s “can’t we all just get along” stance.

    This particular attack is really troubling because it has been used extensively in the past to define groups of humans as being outside the bounds of humanity, Jews in Germany, blacks in America. Be careful how you use it.

    Funny you should say this, since Will Carlson of Equality Utah said pretty much the same thing in reference to the Bible. When questioned about the Bible’s prohibition of homosexuality, Carlson said that the argument is a poor one since the Bible has in times past been used to justify all sorts of immoral and evil actions, and thus it should be ignored completely because of this history. While doctrines, policies, and actions may have been corrupted in times past and abused to satisfy some agenda, that doesn’t mean that it should be forever rejected. Rather, we should reject the way in which it was misapplied.

    The definition of people with physical deformities as unnatural in some way detracting or departing from ‘normal’ humans is also personally offensive.

    Who is saying that unique individuals “detract” from normal people?

    Personal unalienable rights have to be available to all. That means, even positivist laws promoting a certain world view, like marriage laws, have to bow to unalienable rights like equal protection under the law.

    What personal, unalienable rights are not currently available to homosexuals?

    The natural law in this case is equal protection for all citizens under the law.

    I fail to see how the GLBT community does not enjoy equal protection of their rights. Keep in mind that rights imply corresponding duties, and if your duty requires forcing another individual to relinquish his rights, than that original right is in fact not a right at all. The easy example is the employment issue, a subject of one of the CGI bills. Claiming that homosexuals have a right to not be fired for simply being gay means that the employer must be compelled to associate with people he would rather not. This duty abrogates his individual rights, which means that the right to employment is no right at all. Same goes for education (which requires forcing teachers to provide that education) and health care (which requires doctors and nurses to provide their service). Rights are what are enjoyed by yourself, free from any compulsion on anybody else (life, liberty, and the pursuit of happiness). But the Common Ground Initiative ignores this altogether.

    jasonthe,

    I think what’s lost in your analysis is that it hinges entirely on knowing the mind of God as a means of determining “natural law.”

    See my comments above to Daniel. This is incorrect.

    Additionally, the separation of church and state would also be a principle of our founders, which many are arguing were inspired by divine providence in writing those same founding principles.

    Separation of government influence on church, yes. Separation of religious influence in public policy, certainly not. Nearly all the founding fathers actively encouraged the religion and morality of the people for the perpetuation of liberty and republican government.

    The logical circles you walk in here are impossible to ignore, regardless of which side of this issue a person falls, therefore, the argument leads us nowhere we should want to go when discussing the law of our states and the foundations or our governance in a man-made system.

    Like the bloggernacleburner did above, you’re making an accusation without providing an argument. If you believe I’m walking in logical circles, then show me how.

    On the bright side, every time a person uses this reasoning, those who believe equal treatment in our personal lives (and by extension in the laws we feel are just) better represents the principles of Christ come out on top.

    I advocate equal treatment as much as the next person. But equal treatment pertains to our individual liberty, not our classifications and personal decisions. I’m certainly not going to treat a pedophile the same way I would treat my elderly neighbor. As individuals they are entitled to the same protection under the law. But their actions and choices have consequences which public policy dictate. Jesus advocated a strict moral code complete with blessings promised on one side, and punishments affixed on the other. He wasn’t tolerant of others’ actions, though he did always love them as an individual and child of God. This takes us back to the common “hate the sin, love the sinner” argument, which doesn’t necessarily apply to the discussion at hand.

  16. bloggernacleburner
    February 21, 2009 at 6:19 am #

    Connor – Define your ‘natural law’ regarding marriage. You’ve been throwing around these terms as if they are self evident. They are not.

    Natural, in the sense that I am using it means observable occurrences in nature, including both human and all other sorts of life. Nature is observable, definable and quantifiable. It is distinguished from the supernatural.

    Natural Law is an entirely different concept. At the very basic level, coming from the Stoics, natural law is the idea that there is a rational, purposeful order to the world. This is an order that can be understood by human beings.

    Christianity (mostly Aquinas) took this concept of natural law and grafted in the idea that God defined what natural law was and that humans could not understand natural law.

    Hobbes divides human motivation into two categories, seeking happiness and fear of violent death. Hobbes defines natural law as how rational people who desire to prosper should act. This was, according to Hobbes, only possible when one submitted wholly to the edicts of a ruler.

    Locke reverses Hobbes on himself. He states that if a ruler goes against natural law, the people have a right to overthrow the state and form a new one.

    In law, natural law theory is a whole ‘nother kettle of fish. Natural law is not created or granted by government power. It is only found. It can be found in the process of resolving conflicts. The primary role that the idea of natural law plays in our court system is in the invalidation of laws that are unjust and in the moral position that the breaking of unjust laws is not a crime. Natural law governs interactions between human beings within the context of a state or group. The close companion to natural law is the social contract. Humans give up some of their Hobbesian desires in order to get protection from their Hobbesian fears.

    Let me make this clear. Natural law (legal) and Natural Law (philisophical) has JACK ALL to do with evolutionary biology.

    OK. You’ve accused me of making accusations while not making an argument. Let me spell the argument out in a basic notation. All definitions are as I’ve defined them above and in previous posts

    1. Equal protection for all persons under the law is natural law
    2. Homosexual citizens are persons under the law
    3. THUS Homosexual citizens require equal protection under the law

    1. Marriage rights are positive law
    2. Positive law must bow to natural law
    3. Marriage rights must be given to all citizens under the law

    Moving on. A detailed response to your response.

    Natural does not equal right. Natural does not equal wrong. I find lion behavior morally outrageous and perfectly natural. It is not moral to eat the young of your wife’s ex husband. It is, however, natural. Again, evolutionary biology has JACK ALL to do with natural law.

    Every unique genetic manifestation is natural Connor. It’s just a deviation from the median expression of genetic traits. That’s where the room for abnormality comes in, a deviation from the median. But again, evolutionary biology has JACK ALL to do with natural law

    The discussion over the genetic expression of homosexuality is something I won’t get into, because… evolutionary biology has JACK ALL to do with natural law. Observable phenomena versus legal concept.

    On differing definitions of moral

    Yes you are, you are using natural as a moral concept. Nature is not about morality, but natural law is about morality. Get your definitions right. Yes heterosexual couplings are the only way to produce children and to propagate the species. That is natural. However, all heterosexual couplings are not moral. Natural does not always equal moral and you have to work the argument through. You cannot just conflate natural with moral. If we’re getting into the radical consequences game again, you would have to admit that all heterosexual couplings are natural/moral.

    Again, natural expression of evolutionary biology has JACK ALL to do with the human conception of natural law. I am arguing from the natural law that all human beings should be receive equal treatment under the law.

    Connor, you’re not arguing with Will Carlson. You’re arguing with me. Carlson sounds like a pretty ineffective debater. That doesn’t make his issue wrong.

    More diagramming on the deformities as unnatural

    1. What is natural is moral
    2. Deviations from the natural are present
    3. All deviations from the natural are immoral

    Think your arguments through.

    The personal, unalienable rights not available to homosexuals are equal protection under the law.

    If you want to talk about natural law you have to talk about Hobbes and LOcke. Both Hobbesian and Lockeian interpretations of natural law involve a social contract. The natural law of equal protection under the law must override objections based on cultural or religious biases. If a big enough majority of heterosexuals decided they did not want to associate with homosexuals, that would result in the violent death of homosexuals. Indeed, it does on a regular basis. Hobbseian violent death is something we avoid through the social contract, giving up some Hobbseian happiness. Your hypothetical business owner’s right to Hobbesian happiness must be subsumed to the gay citizens Hobbesian fear of violent death. That’s the social contract.

    Again Connor, what’s with the page from the segregationist playbook? The gay citizen has no inherent right to employment, the gay citizen has only the inherent right to be evaluated based on his skills instead of his sexual identity. This is equal protection under the law.

    You have a bizarre interpretation of rights. Rights and privileges are restricted and expressed through a social contract. If your pursuit of happiness infringes on a gay persons right to life and liberty, sorry buddy, I’ll choose the right to life and liberty. The libertarians usually throw in ‘property’ in there, and I’d include it. Your happiness cannot infringe on others equal protection under the law.

  17. Connor
    February 21, 2009 at 11:52 am #

    Define your ‘natural law’ regarding marriage. You’ve been throwing around these terms as if they are self evident. They are not.

    I’ve already stated this numerous times. Natural law marriage rights are only tied to heterosexual unions since they are the only union that naturally can ensure that society continues.

    Natural Law is an entirely different concept. At the very basic level, coming from the Stoics, natural law is the idea that there is a rational, purposeful order to the world. This is an order that can be understood by human beings.

    And that order can only be preserved through heterosexual union. Anything else is fleeting and self-serving.

    The primary role that the idea of natural law plays in our court system is in the invalidation of laws that are unjust and in the moral position that the breaking of unjust laws is not a crime. Natural law governs interactions between human beings within the context of a state or group.

    And the primary role that it plays in our legislature is the creation of laws that are just.

    3. THUS Homosexual citizens require equal protection under the law

    Yet you still haven’t stated how homosexuals do not currently enjoy equal protection under the law, as individuals.

    1. Marriage rights are positive law
    2. Positive law must bow to natural law

    And what is the natural law that forces the bestowal of marriage rights to all individuals? In your example, where is the line drawn, then, between other unions such as pedophilia, polygamy, and incest? So long as the unions are voluntary, would not the positive marriage laws have to bow to this supposed natural right to have a government-issued marriage license?

    3. All deviations from the natural are immoral

    I never claimed to so conflate the two terms as to assert that all natural farms are inherently mortal. As you point out, there are plenty of heterosexual unions (father and daughter, for example) that would generally be seen as immoral. So neither did I intend to claim that all deviations are thus inherently immoral themselves. They simply differ from what the normal precedent and pattern is, but that does not make their very existence wrong.

    The personal, unalienable rights not available to homosexuals are equal protection under the law.

    Again, what equal protection do homosexual individuals not enjoy?

    Your hypothetical business owner’s right to Hobbesian happiness must be subsumed to the gay citizens Hobbesian fear of violent death. That’s the social contract.

    The action of murder in this example is a clear aggression by one individual against another. The removal of benefits (through firing a homosexual) to which the person is not inherently entitled (unlike life itself) is not a violent action. Your argument only applies to matters of inherent rights that do not require the forced duty of any other individual. H. Verlan Andersen explained this:

    Is it not apparent that it is impossible for government to “create” rights in one person or group without destroying the rights of another? When it gives special privileges to one it must deny them to someone else. This result is unavoidable because when government creates a “right” in one person, it must at the same time create a “duty” in someone else. A right is without any substance unless there is someone against whom it can be enforced. But the one against whom it is enforced is saddled with a duty he did not formerly owe. The law compels him to do something or refrain from doing something and punishes him if he refuses. But you cannot compel a person against his will, nor can you punish him, without taking from him either his right to life, his right to liberty or his right to property. Thus the law has destroyed his rights in attempting to create “rights” in someone else. (H. Verlan Andersen, via Quoty)

    The issues at hand in the Common Ground Initiative are not rights, nor should they be viewed as such. The marriage issue is certainly a much larger and broader debate, and often the two become intertwined. But CGI supporters continually claim that their bills do nothing to advance gay marriage, and so the discussion of homosexual marriage in the context of the Common Ground Initiative should not even need to take place.

    Again Connor, what’s with the page from the segregationist playbook?

    I have no problem with segregation, since that’s what moral agency affords. I personally think it’s unkind and without reason to refuse to associate with different individuals, even those with whose lifestyles I might disagree. But my opinion in this matter does not cross the line into public policy, since the force of law should never be used to force the association of individuals who, if they enjoyed their liberty, would choose otherwise. Since when did government become the authoritarian babysitter that groups kids together how she thinks best?

    The gay citizen has no inherent right to employment, the gay citizen has only the inherent right to be evaluated based on his skills instead of his sexual identity. This is equal protection under the law.

    There is no inherent right to be evaluated in any specific fashion, since the employer is the one who chooses whether the individual will be retained for employment on whatever criteria he chooses. Perhaps the employee takes long lunch breaks, or is unkempt and smells bad, or is not a good fit with the team, etc. There is far more at play in at-will employment that just your skills. There is no inherent right to be evaluated on that criteria alone, since the evaluation is subjective and up to the personal judgment of the employer.

    You have a bizarre interpretation of rights.

    If you think it’s bizarre to claim that rights are those which can be freely enjoyed in the absence of government, then perhaps we’ll just have to agree to disagree. Anything layered on top by a governmental structure is a privilege or delegation of authority, and not an inherent right.

    If your pursuit of happiness infringes on a gay persons right to life and liberty, sorry buddy, I’ll choose the right to life and liberty.

    I agree with you and would likewise side with life and liberty. But nothing you’ve argued here indicates to me that homosexual individuals’ rights to life and liberty are being infringed absent the “basic protections” being proposed in the Common Ground Initiative bills. They’re simply not be extended certain economic privileges that they desire to obtain.

    Your happiness cannot infringe on others equal protection under the law.

    And again, I fail to see how homosexuals do not currently enjoy equal protection. If a landlord wants to evict me for being LDS, or if a gay employer fires me for being straight, then so much the better. I would much rather find other opportunities of mutual benefit and toleration than to use the force of law to keep me in an environment where people would rather I not be. It’s much like a third grade teacher forcing the group of popular kids to let the nerdy kid hang out in their group. We can achieve differences through cultural persuasion and progress, but force should not be used.

  18. bloggernacleburner
    February 21, 2009 at 1:59 pm #

    No no, Connor darling. Define your terms.

    1. How is marriage natural? (from nature)

    OR

    2. How is marriage natural law? (from the philisophical and legal concepts of natural law)

    It appears, and I can only speculate on this, that you are defining hetrosexual marriage itself as a natural law. That is a moral position and has no standing in the current legal understanding of natural law. Some philosophers might take it up as a natural law revealed from God, in the spirit of Aquinus, but that is not self-evident natural law.

    If you’re going to use the specific legal, philisophical and scientific terms you have to engage with the current scholarship. You can’t piggyback your own ideas on those specific terms

    Homosexuals do not currently enjoy equal protection under the law as individuals because they are specifically excluded from certain positive rights and obligations granted to heterosexual persons, namely marriage, inheritance rights, hospitial visitation benefits, and health benefits. The consititutional definition of Marriage in Utah qualifies as such an exclusion.

    The error you’ve made, and continue to make is to conflate your own position with natural law and your opponents with positive law. Marriage and associate rights are positive law, as are the Common Ground initives. Civil rights laws, which are positive law, are responses to earlier jim crow laws. The discussion over countering previous law with current law, I don’t really want to get into. I just want to see you defend marriage as natural by critera 1 or criteria 2.

    If marriage is not natural or natural law (and I can see no possible way that you can define marriage as natural or natural law without resorting to divine fiat) then there are natural laws that supersede the positive laws. The primary one in this case is equal protection under the law. Because homosexuals are specifically excluded from marriage there are two alternatives. Marriage and associated rights can be removed or those rights can be extended to all. Polygamy would have to be allowed. Marriage between cousins, brothers and sisters would have to be allowed.

    Conflating paedophila and incest with this issue is distracting and rests on other philisophical points like consent. It’s a dirty debating tactic. Stick to the issue. You defined marriage as natural. Define it as 1 or 2.

    Connor, you don’t claim that moral = natural, you just assumed and you went from there. Then you based your argument around it. You assumed that your definition of morality was natural. Then you mixed this particular notion with a confused grasp of natural law theory, which again has JACK ALL to do with the natural world.

    The common ground inititive has very little to do with this. It’s a political tool used in a very specific context to try to gain political ground and set the stage for a future Supreme Court Challenge. Whatever they say will be in support of their cause. I don’t care. It’s a distraction from the basic fundamentals.

    Here’s my argument again.

    Argument 1
    1. Equal protection for all citizens under the law is natural law (philisophical and legal traditions as such)
    2. Homosexuals are citizens
    3. Homosexuals thus deserve equal protection under the law

    Argument 2

    1. Marriage Laws are positive law
    2. Positive law must bow to natural law
    3. Marrige (or any other privledge) must be given to all citizens

    Connor. I am not arguing the Common Ground Initive with you. I am not arguing employment law. I am not arguing the finer points of libertarian fantasy worlds. I am arguing very specific points. 1. Nature, or what is pertaining to the natural world. 2. Natural Law, the philisophical and legal tradition. You state that marriage is a natural law, I want you to specifically lay out how marriage is from 1 or from 2. Define your terms.

    Positive laws like marriage, employment law, inheritance law, tax law are responses to conditions and context. Thats what the common ground folks are doing. Indeed, it’s what the state of Utah did when they passed the amendment to their constitution excluding homosexuals from marriage. You can’t remove your position on marriage from scrutiny simply by rhetorically shining it up and slapping a natural law sticker on it.

    As for the inherant right to evaluation on merit, you’re right there. I got a little overblown in my rhetoric. It’s a minor point.

  19. Jeff T.
    February 21, 2009 at 9:30 pm #

    Connor,

    Your conclusions are true, but your argument is the weakest it has ever been. Take that from a friend who cares. There are much better ways to argue your point, because the one you present here is, as other commentators have said, fallacious (basically, that homosexual marriage doesn’t perpetuate the species and is, for that reason, not a natural right; also, that natural rights are self-evident). Sadly, I do not have time to elaborate.

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