Friday, November 07, 2008

Proposition 8 and universal human rights

Let's say that there's a controversy over whether people should be required to eat Brussels sprouts or whether they should be prohibited from eating Brussels sprouts. (I know it's a false dichotomy, but run with me here.) Obviously, we'd have a big fight on our hands. People (such as myself) who find Brussels sprouts disgusting would strongly resist any attempt to force us to eat the damn things. Likewise, those who (inexplicably) find them delicious would strongly resist any attempt to force them to go without Brussels sprouts.

Sometimes, there are issues we just have to fight about. Should, for example, husbands be permitted to rape their wives? It is only recently that the law has answered this question in the negative. There are some who disagree, and we fight them: we put them in jail if they disobey, and any philosophical argument they might raise in their defense to justify their behavior is simply irrelevant.

If we look at the Brussels sprouts issue, we realize that the same issue applied to every kind of food: spinach, broccoli, ice cream (which a lot of people find vile), and on and on. If we simply let the majority rule on each individual food item, we find that the majority of people (indeed almost everyone) will be denied one food or another, with no compensation. Majority rule leads in this case to majority dissatisfaction. We must look at this issue more deeply.

(We don't have to find that majority rule leads to majority dissatisfaction to look more deeply; just the fact of a strong, deep controversy is sufficient grounds to look. But that there are occasions where majority rule leads to majority dissatisfaction justifies looking more deeply in general in powerful way.)

One way of looking at an ethical issue more deeply is to ask a more general, abstract question: how do we feel about food in general, without naming the specific foods? Can we come to a broad, relatively non-controversial agreement on general principles, and apply them in such a way that the majority is satisfied? And of course we can: we eat what we like; we are prohibited from eating (or more precisely selling) only food that will kill us quickly.

The same analysis also applies to speech.

Let me be frank: I wish the Nazis, the racists, Fred Phelps, etc. ad nauseam would just shut the fuck up, and if they did, I would be unabashedly happy. If you asked me the question in isolation — Should we force these assholes to remain silent? — I'd probably say yes.

But of course everyone has some sort of minority opinion, so answering each question of speech in the particular would lead to most everyone forced to be silent about something. (There are, as John Stuart Mill explained, additional arguments against silencing minority opinions.) So we have to ask the general question: What in general should people be permitted or prohibited from speaking? And the answer we've come up with is to permit everything except provable libel, slander, incitement to riot, treason and conspiracy.

We can ask an even more general question: what activities should be tolerated in general for everyone. More specifically, what comprises the set of universal human rights?

What California Proposition 8 has done is remove the right to marry from the set of universal human rights. It is now acceptable for the government to arbitrarily determine, subject only to the will of the majority, who may marry and who may not. And far from "protecting" marriage, they have made marriage more vulnerable.

I am married. I'm in an interracial, atheist, intentionally childless marriage. All of those are minority positions. Now that Proposition 8 has passed, now that marriage is not a universal human right, it is legitimate for the government or the majority of people to deny me the freedom to marry on the basis of any of those factors. Traditionally people marry others of their own race: I did not. Traditionally people are married by a member of the clergy: I was not. Traditionally people are married to provide for their children: My wife and I will not have children (indeed we cannot; I've had a vasectomy). (And traditionally people marry others of approximately the same age: My wife is 20 years younger than me.)

Traditionally Americans are married in a Christian church. Those who are not Christians do not. Traditionally Americans are married in a Protestant Christian church. Those who are not Protestant Christians do not. Traditionally people marry someone from their local community. Traditionally people marry someone of the same religious faith. Traditionally people marry someone at about the same level of physical attractiveness. Traditionally people marry in their 20s.

Since we have now set a precedent of answering the question of who should marry in the particular, that the majority has a right to judge this question at the specific level, everyone whose marriage is non-traditional in any way could lose their right to marry by the arbitrary will of the majority.

12 comments:

  1. I was about to ask if it's ever been considered a universal human right, but then figured I should do my own research, and according to Article 12 of the ECHR "Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right." *wince*

    I still don't understand why it's there at all, but I wonder if one could try to make a case that "Men and women" is synonymous with "People"* and that it therefore applies to same sex marriage as well. No? Arse.

    *I'll let the lack of consideration for those of us with identities outside the binary gender spectrum slide for now

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  2. Comrade PhysioProf loves Brussels Sprouts!

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  3. Brussels sprouts are only good to eat if they have been cooked to appropriate tender mushiness. Alas, this is seldom done, resulting in bitter, nasty brussels sprouts that only a freak could love.

    The whole frickin' thing depresses me so much. Prop 8, I mean, not the mistreatment of veggies. The stupidest part of the entire thing appears to be that Prop 8 passed based on people's fears that their children would be exposed to the idea of gayness, and gay love! Do they really think that's not going to happen now? We still have civil unions and just as many gay people, and schools will still teach tolerance. Dumb fucks.

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  4. Jasmine The Pakistani Heretical Girl11/7/08, 10:59 AM

    It's like this group- protectmarriage.com i mean, it's just a joke, it's full of Mormons and stuff. Huh, aren't they like marrying 10 wives including very young persons? That's protecting marriage?
    No- that's patriarchy. God doesn't like gay men (he's insecure), and he hates lesbian women cos they make men
    redundant (hence the need to invent god to make sure they're so scared they never cross that line).
    Now how does our type of marriage give rise for a need to protect straight marriage? How does that work? And why don't they outlaw adultery if they are really worried about protecting marriage, or is that next?
    if u just had any idea what the progress America is (sorry- was) making in fundamental human rights means to people around the world then u would really fight this, for us, for u, for a world without hate.

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  5. Jasmine-The Pakistani Heretical Girl11/7/08, 11:48 PM

    According to the national laws, that relatavism.
    There's bigger human rights- this is right to family and private life and to a sexual life also.
    Proposition 8 is a violation of these basic fundamental rights.
    How come i know this stuff?
    Got to know me rights, i didn't in 2004, now i do, in fact, me human rights been rouitnely VIOLATED as person in a same sex relationship- who want to stay together, and so reject marriage.
    I am REALLY starting to dislike heterosexuals, and i just feel disgust also with heterosexual sex. Good. They disgust with me and stuff, maybe me own disgust is even more with them. It's horrible what straight persons do, really it is.
    More and more i find me hate of me religion also is linked to hatred of men.
    And this means, (i am smart enough to see this also)- i am concluding i want to live in pardah (seculsion of women in the haraaam). Never men, of course. This anger i got is like a sickness in me head. This hate of men. Of straight men.
    This is not what it's supposed to be about. i am going backwards culturally, just like America. I will probably end up veiled, surrounded by chattering women, liveing behind a mud brick wall.

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  6. The best way to cook brussels sprouts is to quarter them and sautee them in olive oil with a fuckload of garlic. I think that people learn to hate brussels sprouts because all they have eaten are pre-cooked frozen ones. These are an abomination and are nothing like fresh brussels sprouts.

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  7. This law does not forbid anyone from doing something that noone else can do. It restricts people from marrying anyone they want, but that will always be the case - you can't just marry anyone.

    This law isn't restricting people from getting married. Gay people can still get married, however, they may not want to.

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  8. Kyle, that's a completely retarded attempt at an argument.

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  9. Why do philosophy students so often put forward such stupic arguments?

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  10. It's not an argument, I'm just pointing out that it is not preventing a sub section of the population from doing something. It is preventing everyone from doing something.

    I don't normally post on subjects like this because it is not the sort of thing I'm very interested in, but your post seemed so hysterical that I thought I would say something.

    You say that homosexuals are being denied something that even mass murderers are allowed, but that is simply not true. Mass murderers cannot marry the same sex either.

    You may still think that the law is wrong, but it is not wrong for the reasons you state here.

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  11. It's not an argument...

    No, it's not. I really don't have time for your retarded opinions.

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