Tuesday, December 16, 2008

On Homosexuality

Previously, I mentioned that I had a rant reserved for people who think that the Bible expresses any views about homosexuality, or homosexuals, or "being" homosexual, but that I would skip over that part. Recently, somebody asked if I would elaborate.

I wish that this wasn't a sensitive topic, but I've found that people have an unfortunate inability to discuss theology academically. So if this is a sensitive topic for you, I suggest you just stop reading now. Alternatively, if academic discussions of theology are boring or offensive to you, I likewise suggest that you just stop reading now.

The commenter I refer to asked a couple of questions, which I would group as follows:

1. What is my aforementioned rant?
2. What combination of genetic and environmental factors do I think shapes sexual orientation?
3. Do I agree with research showing that orientation can be changed?
4. Do I think the above has any bearing on a theological understanding of homosexuality?

Most of these questions I am not going to address here in any detail. To briefly dispose of those:

2. I am not a biologist, let alone a biologist with a specialization that bears on the development of sexual orientation. I do know that Robert Sapolsky, who meets at least some of those requirements, took only one class to convince me that "genetic vs. environmental" is not a useful opposition. I consider it common sense that sexual orientation is shaped by a combination of genetic and environmental factors, and I consider myself spectacularly unqualified to hold an opinion beyond that.

3. I don't agree with that research for the two simple reasons that a) I have not seen any, and b) I do not have the intellectual equipment to evaluate it critically even if somebody did show it to me. To give an example I'm somewhat more qualified to discuss, if I showed somebody the work of William Tarn on Alexander the Great, and told them (truthfully) that Tarn was one of the great classicists of the 20th century, they might come to the conclusion that Alexander the Great was one of humanity's great heroes. They would probably have little to no knowledge of subsequent work on Alexander that has severely criticized Tarn's vision as idealistic and even naive. In a similar way, showing me research concluding that orientation can be changed, even if done in a reputable way by a reputable research team, would be insufficient. I do not begin to have either the breadth or depth of education to critically evaluate conversion therapy research, and therefore I decline to have an opinion about it.

4. I think that knowledge about the world "bears on" the theological understanding of anything, so yes. But I don't really think there is much of a theological understanding of homosexuality, specifically.

Which brings me to 1: what is my rant?

EDIT: Thayet points out that I never actually summarize my conclusions, which makes this post a pain to read. So here's the summary:

I don't think the Bible says anything about homosexuality or homosexual orientation. This is no surprise; the concept of homosexuality as a fact of a person's identity was simply not an ancient concept, so we should not expect to find anything about it in ancient works. About half of the texts historically used to support a supposed Biblical ban on homosexuality do not even apply to Christian morality. The most I think you can get from the passages that do apply to Christian morality is a disapproval of homosexual sex. This is how I read those passages, but I recognize that that isn't the only plausible way to read them.

So, there's the summary. Here's what underlies it:

Any time a person says that "the Bible says" something, it's important to look at the actual text. In the case of the Bible's statements on homosexuality, we might identify the following passages:

Genesis 19
Leviticus 18:22
Leviticus 20:13
Judges 19

Romans 1:26-27
1 Corinthians 6:9-10
1 Timothy 1:8-11

I'm not going to bother quoting the passages; you can look them up yourself easily enough, and if for some reason you don't have a Bible handy you can still look them up. But I do encourage you to keep the text on hand in the discussion that follows. I hope it goes without saying, but although I am sometimes citing particular verses, I intend them to be read in their larger context.

The first and most obvious thing to notice about the list above is that the first three references are found in the Torah. This should immediately (but alas, seldom does) raise a red flag in the mind of anybody reading those passages for their application to Christian morality (which is roughly what "the Bible says" really means). Anything found in the Law should immediately bring to mind passages such as:

Acts 13:38-39
Acts 15 (particularly vv. 23-29)
Romans 2-8:11 (particularly 6:14)
Galatians 2:15-16
Ephesians 2:14-16

Those passages, and others like them, are the textual foundation for the well-settled but often-ignored Christian principle that Christians, qua Christians, are not subject to the Mosaic Law. Ordinarily this would be a commonsense principle - nobody expects Hindus to imagine themselves bound by the teachings of Islam, for instance - but because of Christianity's peculiar relationship with Judaism people sometimes forget that Christians do not imagine themselves bound by the strictures of Judaism (this misunderstanding lies at the root of the lamentably common "shellfish argument," I shouldn't wonder).

We need to take a digression at this point to discuss why, if the principle that Christians are not under the Law is so well-settled, Christians are so curiously concerned with the Old Testament in general, and the Torah in particular. A simple answer would be to refer to 1 Corinthians 10:11, but let me try to elaborate on one particular aspect. We care, I venture to say, because plainly enough God cared too, at one time, for one people - and we are interested in what God cares about. This is often phrased in Christianese as looking for the "spiritual principle" behind the text. This is commonsensical enough when applied to books like Samuel, Kings, and Chronicles, which are in the form of history - even so-called "liberal" scholars of the Bible would agree that the authors of those books wrote them down to illustrate particular principles they considered important. When one conceives of God as having person-like qualities, though ("personal" in Christianese), it makes sense to apply the same type of analysis to other types of books as well. If you want to know what sort of man was Robert E. Lee, reading everything he wrote is a good place to start, even if the letters and orders weren't addressed to you. If you want to know what sort of god is ours, we argue, reading everything he wrote is likewise a good place to start, even if the Law you're reading doesn't apply to you.

But it is of course only a good place to start, and introduces a dangerous amount of reader judgment into the picture. What do you conclude from Lee's writings? Reasonable people could conclude different things. What spiritual principle is behind the Levitical Code? Reasonable people could conclude different things. The text still matters, of course - reasonable people cannot, for instance, conclude from Lee's writings that he considered loyalty to one's home state of no account. But the result is still highly sensitive to the individual reader's personal proclivities and outside influences.

That isn't to say that this sort of analysis should never be engaged in, but it is to say that it calls for a great deal of humility. This is particularly true when discussing the conclusions from such analysis with other people.

With these thoughts in mind, let us return to the text.

Each of the Old Testament passages in question relates to homosexual activity. The reference is always to action, and particularly to sexual intercourse. For instance, Leviticus 18:22 by its terms relates to sex "with a male as with a woman." The most obvious literal meaning of "as with a woman," vaginal intercourse, is impossible, but it seems to me that the text is pretty clearly talking about sex of some sort - perhaps as specific as anal intercourse, perhaps as broad as any sort of ejaculatory activity. The reference is specifically to sex, though. Our definition of "lie with" would need to be very broad indeed to bring, say, homosexual kissing within the purview of this passage (and any sort of ban on males kissing males seems unlikely given the cultural context of Leviticus, in any case).

I want to emphasize, for this is a theme to which I shall return, that the Old Testament passages refer to homosexual activity, rather than to homosexual states of being. Leviticus does not say, "Thou shalt not be gay." It seems to say something along the lines of "Don't insert your penis into the bodily cavities of a man." (EDIT: Alanna tells me that there isn't even a word for "homosexual" in ancient Hebrew, and points me to this helpful discussion of what precisely Leviticus might be saying and why.) In two cases - the rapes recounted in Genesis 19 and Judges 19 - the homosexual acts were demanded by mobs that were apparently just as happy to rape women as men, which certainly casts doubt on any attempt to label the activity in those stories as homosexual. Indeed, the emphasis in the rape stories seems to me to be on the perfectly obvious horror of rowdy mobs demanding rape victims, rather than on the gender of the victims or the sexual orientation of their attackers. There's also probably an emphasis in the author's mind on the horror of attacking strangers who are under the hospitality of a local - but I don't think there's anything here talking about homosexual sex, let alone homosexuality.

Setting these observations aside for a moment, let us turn to the New Testament passages.

The New Testament passages are of a different character than the Old Testament ones. They aren't stories, as in Genesis and Judges; neither are they in the form of statutes, as in Leviticus. Instead they are almost asides. Romans 1:26-27 uses homosexual activity as an example of a society gone wrong; 1 Corinthians 6:9-10 assumes that the reader knows or ought to know that those who engage in homosexual activity are unrighteous persons who will not inherit the kingdom of God, and 1 Timothy 1:8-11 likewise lists those who engage in homosexual activity are not righteous persons.

Let me stop here and acknowledge that these are troubling passages. My commitment to them as the Word of God doesn't make me blind to that fact. I decline to say "troubling passages to modern eyes" because I don't think they are any more troubling to modern eyes than they would have been to ancient ones. Again, if this is upsetting to you, I suggest you either stop reading entirely or at least take a break and come back to this post another time.

The Old Testament passages are, in my opinion, fairly easily dismissed. Two of them have only the most tenuous connection to homosexual sex, and the other two are part of a body of law the New Testament specifically states Christians are not bound by. These dodges are not available for the New Testament passages, though. So what do these passages actually say?

The chief observation I would make about them is that they are, again, about homosexual activity. I have heard it argued that the phrase "burned in their lust for one another" in Romans 1:27 suggests that homosexual desire is also seen as sinful by God. I disagree. That argument seems to me to conflate desire with lust. It is neither surprising not controversial to find Scripture stating that God finds lust to be sinful. The word usually translated "lust" here is orexis, which does simply mean "yearning" rather than "lust" specifically (in fact I don't know of any really good Greek equivalent to the English "lust" in its modern vernacular sense; that meaning usually has to be selected by context). But other words in the passage, particularly "burned," make me fairly certain that Paul meant orexis in the sense of "lust" rather than in its tamer sense of "strongly desired." So the Romans passage appears to use women having sex with women, men having sex with men, and both lusting after the aforesaid, as evidence of a degenerate society.

The 1 Corinthians and 1 Timothy passages use a curious word, arsenokoitês, and much ink has been spilled about its meaning. Arsenokoitês is a noun, and it is usually translated something like "sodomites" or "homosexual offenders" in English. Translating it is somewhat difficult because it is not a common word, and ancient Greek is a dead language. The two halves of the word mean "male" and "sleeps with," and it bears a striking structural similarity to mêtêrkoitês, "mother-fucker" (with roughly equivalent profane connotations in both Greek and English). A literal translation of arsenokoitês would therefore be something along the lines of "men who sleep with men." I don't think there's enough context to say for sure whether Paul meant the term as a profanity (something like "men-fuckers") or not.

Religioustolerance.org has a more or less useful discourse on possible meanings of arsenokoitês which probably deserves to be mentioned here, since it's the first hit on a Google search for "Bible homosexuality." I disagree with that article in places - chiefly, I think that arsenokoitês may well have been used in place of a paederasty-related word precisely because the author wanted to get at the homosexual sex act itself, rather than limiting his scope to paederasty or expanding it to include the relational aspects of paederasty, and I don't know how you get "masturbators" out of arsenokoitês - but if you're curious, you can take a look.

It is precisely because arsenokoitês is a difficult word to translate that I prefer to default to the literal definition of men who sleep with men, and indeed that is the definition settled upon by the leading academic Greek lexicon. Religioustolerance.org and I agree on at least one point, though, which is that the word's emphasis is on the sex act.

Which brings us to my main point.

Modern discourse about homosexuality assumes that homosexuality is a status. A person's sexual orientation is a part of their identity. A person "is" homosexual or heterosexual. As near as I have been able to determine, the very concept of homosexuality, or homosexuals, is essentially a 19th-century concept. I am quite certain, from my classics education, that the ancients did not think of things in that way. I have no doubt they would recognize that certain people had sex with men more than with women, or vice versa, but that's just it - the focus would have been on the sex act itself and the gender of the sex actees, not on the sex actor. As my professors at Stanford pointed out, gender itself in the ancient Greek conception wasn't really a binary (or even trinary) concept. It was a continuum. We can see this reflected in ancient Greek sexual practice, where it would not be at all uncommon for individuals we would think of as "heterosexual" having "homosexual" sex, and vice versa. You could phrase it as everybody in ancient Greece being bisexual, but even that is missing the point. There simply was no ancient concept equivalent to the modern one of sexual orientation.

When we keep this in mind, it's no surprise to find our New Testament passages talking about specific types of sex acts rather than about sexual orientation. How is Paul supposed to write about something for which he has no concept, let alone a word? Even if he could, why would he, if his readers had no concept of sexual orientation either? For this reason, I think it's very dangerous to assume that when Paul writes about homosexual activity, he is also by implication writing about sexual orientation.

My personal conviction is that everybody who looks for what "the Bible says" about homosexuality using the modern status-based conception is on a fool's errand, for two reasons. The first is that the status-based conception is simply not an ancient one, which I think is seen plainly enough by the fact that Scripture consistently appears to be discussing sex acts rather than types of people. The orientation discussion simply isn't there. The second is that I'm not at all sure that the status-based conception of sexual orientation is even a good way to think about these issues. Personally I am inclined to take a page from the ancients and think of sexual orientation as a continuum, and I'm also strongly tempted to take another page from them and not think that sexual orientation is one of a person's defining characteristics, period.

If I've convinced you thus far, we've arrived at a point where we see no Scriptural passages discussing homosexuality - in short, we've concluded that "the Bible says" nothing on the subject of sexual orientation one way or another. But what about homosexual sex?

I think you'll agree with me by now that there is some room for doubt when it comes to what I think of as the three main Biblical passages on this issue - the Romans, 1 Corinthians, and 1 Timothy passages we've been discussing. Personally, I think the best reading of those passages is to conclude that God doesn't like homosexual sex. There are all sorts of issues one can raise about that reading (e.g., are we to believe that God is okay with people wanting to have sex but not okay with them having it?), but on the whole I think it's more true to the text than any other. I can certainly see how other people can (and have) reached different conclusions, and to the extent that those different conclusions are the honest results of a good faith effort to read the text for what it actually says, I have no problem with them. As for different conclusions that are otherwise held, well, I have a problem with all opinions held as a result of intellectual dishonesty, and I think most people are with me on that one.

It's worth pointing out at the end of this post that the most overwhelming response I have when I search Scripture on this topic is a powerful, humbling response of I don't know. I think we are called to interpret Scripture as best we can, and my best efforts lead me to the conclusion that God has some sort of problem with homosexual sex. Thankfully, not many people crave my approval of their homosexual sex acts (and why should they?), so the issue doesn't come up very often. To the extent that it does, my best answer is this: get to know Jesus, read the Bible, and tell me what you think.

As for the other issues that are current today - such as whether or not it's okay to "be" homosexual, or whether homosexuals can marry - I don't think the Bible says anything specific at all. I can only conclude that either I'm being exceptionally dense in my reading of Scripture, or else God didn't consider those issues noteworthy enough to address in Scripture. I suspect it's the latter, which means I think it would be dangerous for me to make them too big a deal. That leaves me to remember humbly that a) God knows more than I do, and b) God loves "homosexuals" as much as he loves me, and I know from experience that he loves me a great deal indeed. That is enough for me.

Friday, November 21, 2008

Tomb Raider: Underworld

Yesterday I played through the Tomb Raider: Underworld demo for the PC one and three-quarters times, and I thought I’d post some thoughts on it. I’m sure there are going to be plenty of reviews of the actual game posted in the next couple of days, but I’m not a reviewer and in any case, gleaning useful information from the miasma of ad-supported, score-bound reviews is like … well, trying to glean anything useful from anything that can be described with the word “miasma.”

The hour or so I spent with the TRU demo (edit: somewhat more time today) was the longest amount of time I’ve ever devoted to a Tomb Raider title, so I don’t really have much of a sense of the history and idiosyncrasies of the franchise. I mention that because I’ve seen some reviews that seem to criticise the game for being basically about … well, raiding tombs. This seems strange to me. I’m no expert, as I said, but I would have thought you criticise a Tomb Raider title for not raiding tombs (as was in fact the case with some earlier titles, as I understand it).

Speaking of things other reviews seem to criticize the game for, I’m not quite sure whether the people who objected to the camera were playing the same game I was. I had enough camera control that I felt in control at all times (in fact the camera control was one of the selling points for me in a way, see below), and the demo never pushed me into “leap of faith gameplay” territory (to quote Yahtzee). It came close once, early on, but I was always able to manipulate the camera in a reasonable way such that I could see what I needed to see figure out where I was going.

Where I was going was, of course, the major part of the gameplay. I classify Tomb Raider as a “movement puzzle” game, alongside such notable favorites of mine as the Splinter Cell and Prince of Persia franchises. A “movement puzzle” game, as I use the term, is any game where the primary obstacle to the player is how to navigate the environment. There may be combat, but the main challenge and joy of the game is the environment itself and how the player moves around it. In the case of the Splinter Cell game (a Tom Clancy franchise involving the adventures of superspy Sam Fisher) the puzzle is how to navigate realistic environments without being seen, using an array of only slightly-larger-than-life acrobatics and gadgets. In the case of a Prince of Persia game, the puzzle is how to navigate fantastic environments using magical weapons and over-the-top, wire-fu acrobatics.

Tomb Raider falls somewhere in the middle. The ruins that Lara explores are more fantastic than realistic, but no more so than you might expect to find in Hollywood. And they were really gorgeous. I’ve read a couple reviews that mentioned moments that really make you say wow, and I have to admit that the first time I rounded a corner and saw the ruins I was headed towards I really did just stop and admire the view. It wasn’t just that the graphics were good; it was that somebody had planned that moment, had framed the shot, for no other reason than to say to the player, “This is where you are going. Isn’t it cool?” In a movement puzzle game I call that intelligent game design. I am playing the game to move around environments, after all. I appreciate knowing that the game designers know that.

Of course, I am also playing the game to move around environments in cool ways, and I must say that in that regard the Underworld demo was cooler than I expected. The actual range of movement was about what I expected—scaling walls, shimmying along ledges, action heroine leaps, balancing along narrow beams, swinging on poles, wall jumping, the usual sort of thing. What was unexpectedly cool was the way Lara did all that stuff. I was impressed and surprised by the depth of Lara’s animation. To give two examples, at one point I stopped on a staircase to look around. Ordinarily games don’t let you stop in between two steps on a stair, but as I was scanning my surroundings to see where I ought to go next, I noticed that Lara had one foot on the next stair up and was looking around as well. At another point, I was shimmying around a sharp corner, and the game let me pause, stretched precariously between the two faces of the rock I was cornering. The game was just full of little things like that that made the familiar process of acrobatic climbing unexpectedly cool to watch. From interviews I’ve seen the animation team is very proud of their work, and I would say they deserve to be. Ordinarily this isn’t the sort of thing that impresses me about a game, but again, this is a game I am playing in order to move around. The mere act of moving had better be cool.

As for the places I was asked to go—in other words, the actual level design—that was pretty cool too. It took me about an hour to get to the end of the demo the first time through. I felt suitably challenged during that time, and suitably badass climbing to, around, and through the ruins.

I also felt suitably badass during the two combats the demo gave me against Bengal tigers, which brings me to the subject of combat. First, the good. The tigers were faster than I was and I was not able to gun them down before they reached me. By itself that’s bad (but see below), but it did mean that I was forced to outmaneuver the tigers through my acrobatic prowess. Targeting was a non-issue; the game did that for me, which is just as well because I was spending just about every second dodging tigers in a pretty spectacular display of gunplay + tumbling. In other words, even the combat was really basically a movement puzzle, and it looked pretty much exactly how I wanted a fight with a tiger to look.

The bad—on the default settings it took an absurd number of 9mm rounds to put down a big cat. Thankfully the game includes a difficulty slider for how much health enemies have (and a separate one for how much damage Lara takes. Big kudos to Crystal Dynamics for separating those two features, which is the sort of very simple thing I’ve been saying game companies should do for years), so I think that will mostly solve that problem. Once I tuned the difficulty sliders to what I felt was more reasonable (less enemy health, more damage done to me), my weapons felt a lot better. Not realistic, but I’m okay if Tomb Raider is less than a simulation.

More perplexing is this question: while the wildlife fights felt well integrated mechanically, why was I fighting tigers to begin with? There was no indication I had stumbled into their lair or something, and in any case, tigers aren’t pack hunters. Oh, right, and remember the part where I was shooting the tigers? Other than the immediate motivation of trying to stay alive, the whole exercise felt kind of pointless. This goes back to not having played Tomb Raider games before. I gather it’s a convention of the franchise that Lara fights hostile wildlife. I can only imagine this is the result of some poor misguided soul back in the ‘90s who thought it was more acceptable to kill endangered species than human beings. As Ayudaren says, who could possibly have given that the thumbs up? At least with people you can shape a story so that the player feels that yes, these people need to die.

Fortunately, from what I gather, Crystal Dynamics has. In fact a major reason I bothered to pick up the demo in the first place is because I was excited about throwing Lara’s signature athleticism into the mix with some human opponents in environments other than ancient ruins. I can’t really comment on the story, of course, other than what everybody knows from the press—that Lara is looking for Mjolnir to access the underworld, and that all cultures’ afterlives are apparently the same, and I’m pretty sure the villainess from Tomb Raider: Legend (the Crystal Dynamics prequel to Underworld) is still alive. Which is all pretty standard fare for this genre of storytelling. The question is whether they handle the conventions and formulae adroitly or not, and that of course I can’t say from just the demo.

I can say that the voice acting I heard from the demo was surprisingly good. That doesn’t necessarily correlate with good writing, but it’s a positive sign. And of course it is valuable in its own right because, let’s face it, it’s Lara Croft. And if Lara is lame, then the game isn’t worth getting. Which brings us to the issue of Lara Croft.

First off, to get it out of the way, she looks good. We’ve come a long way since 1996, and Lara looks like a human being by now. A human being with large breasts, to be sure, but a human being with breasts. As opposed to, you know, a blow-up doll with melons.

I’ve never fully understood the fascination with Lara’s breasts, because as graphics capabilities have evolved it’s seemed clear to me that she has always intended to be an all-around attractive woman. She’s tough, independent-minded, smart, well educated, well bred, athletic, is comfortable with firearms, and generally solves problems using her brains instead of her body. In the quasi-mythic mindspace of a videogame, it doesn’t water down such a character for her to be pretty (and she is in this incarnation, to be sure). That would be like saying Achilles’ badassness is watered down by the fact that Athena helps him kill Hector, or that Hector didn’t really beat Patroclus because Apollo knocked him senseless first. It’s getting it all backwards. Really, there is nothing wrong or chauvinist with finding a character like that attractive, in the Natalian sense.

And she is attractive. If she wasn’t, to be honest, there’d be no game. Mechanically, Tomb Raider is a movement puzzle game, and Underworld looks like an attractive one to me. But that gets you to game theory. To move beyond game theory to game design, you need an awesomeness factor that turns the product into a brand. Lara Croft is what makes Tomb Raider awesome. But Lara Croft in a very expansive sense—the way she moves, what she moves in and around, why she’s doing it. And on those scores Underworld seems worth my money.

Wednesday, November 19, 2008

Breaking News

Two things that are of critical importance:

1. First, and most importantly: I beat Thayet in Scrabble last night (11/18/08), 330 to 277. This was my win at Scrabble ever. It was also my first bingo (using all 7 letters in a single play) - "ditties," on the bottom triple word score, with the S connecting with another word. Archimedes (and Thayet) would be so proud (I think).

2. Second, the Supreme Court has denied the petitioners' request in Strauss v Horton to stay Proposition 8 until the case was resolved. This means that Proposition 8 will be in effect until the resolution of the case against it, although it doesn't necessarily imply anything about how the court is feeling regarding the merits of that case. All it really means is that the court was unpersuaded that leaving Proposition 8 in place for a few months would cause anybody "irreparable harm."

Friday, November 14, 2008

Strauss v Horton

I apologize if the profusion of Proposition 8 posts is getting monotonous, but this is an issue I care about a lot, so I’m back for another one. Speaking to Ayudaren shortly before the election, he pointed out (or rather, his mother pointed out) that should Proposition 8 pass it would almost certainly precipitate an immediate federal court challenge. At the time, he wondered if this would be the catalyst that would finally force the federal supreme court to weigh in on the issue.

As it happened, the court challenge did materialize – but surprisingly, it was another challenge in state court. Strauss v Horton is the case, presently proceeding before the California supreme court, seeking to get Proposition 8 overturned.

When I first heard about this I was extremely skeptical. After all, a constitutional amendment cannot itself be unconstitutional. If the constitution explicitly says, “Marriage is between one man and one woman,” then that provision stands even though elsewhere the constitution says everyone has a fundamental right to marry. The effect of the two together is simply to define what that right to marry actually looks like. Declaring Proposition 8 unconstitutional on the basis of In Re Marriage Cases would be like declaring the 16th Amendment unconstitutional because Article I prohibits income tax.

Turns out, the plaintiffs’ argument in Strauss is rather more nuanced than that. They are arguing not that the substance of Proposition 8 invalidates it, but rather the way it was passed.

The California constitution can be explicitly altered in one of two ways: by “amendment” or by “revision.” An “amendment” may be put to the people by 2/3rds of the legislature, or through the initiative process. A “revision” may only be put to the people by 2/3rds of the legislature, who may also (again by a 2/3rds majority vote) put to the people the question of whether to call a constitutional convention to “revise” the constitution.

Both “amendments” and “revisions” require a mere majority vote once put to the people for ratification. The key difference is that only “amendments” may be put to the people via initiative, as Proposition 8 was. So the question is, was Proposition 8 an “amendment” or a “revision?” If the former, then all is well and the vote stands. If the latter, then Proposition 8 should never have been on the ballot to begin with and it will not stand.

Unfortunately the constitution provides not a word of guidance as to the difference between an “amendment” and a “revision.” Court cases are rather thin on the ground as well (you might imagine this sort of thing hardly comes up very often).

The leading case, Raven v. Deukmejian, 52 Cal. 3d 336 (1990), concerned an “amendment” put to the people by initiative. The amendment in question was 21,000 words long, substantially altered or outright repealed 15 of the 25 articles of the constitution, dealt with a very broad range of issues, and prevented the state supreme court from interpreting the state constitution in a more defendant-friendly way than the federal supreme court interpreted parallel federal constitutions (the normal rule being that a state supreme court cannot contravene a federal right as construed by the federal supreme court, but is otherwise free to interpret its state constitutional rights as it sees fit – a natural extension of the rule that a state’s supreme court is the supreme authority on that state’s constitution).

In holding that the Raven proposition was a “revision,” the court noted that it constituted a “broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution.” The court explained that telling the supreme court how to do its job (mandating that they use the same reasoning as used by the federal supreme court), and altering such a vast swath of the constitution were “far reaching, fundamental changes in our governmental plan.”

By contrast, twice before the court had held that propositions were actually “amendments” rather than “revisions.” One case (People v. Frierson, 25 Cal.3d 142, 184-187 (1979)) essentially put the death penalty back into the constitution, even though the state supreme court had previously held that it violated the fundamental right to be free from cruel and unusual punishment. That was held to be an amendment, not a revision. Another (Crawford v. Board of Education, 113 Cal. App. 3d 633 (1980), affirmed 458 U.S. 527 (1982)) essentially overruled a court decision that unintentional but de facto school segregation violated the fundamental right to equal protection. That was also held to be an amendment.

Putting these cases together, the picture that emerges is something like this: revisions constitute fundamental changes to the way our society is put together. Taking away the judicial power from the judiciary is a “revision.” Massive changes to the text of the constitution is a “revision.”

Proposition 8 is, on its face, neither of those things. It has only 14 words. It deals with one specific right (the right to marry) found in one specific section of the constitution. It has nothing to do with the allocation of powers between the branches of government; it alters the text of the constitution but, the supreme court remains as free as ever to interpret that text as it sees fit.

So how is it that the plaintiffs in Strauss argue that Proposition 8 constitutes “far reaching, fundamental changes” to our very plan of government? The argument goes that because homosexuals are a constitutionally protected “suspect class” (true in California, uniquely in America) and Proposition 8 takes away a “fundamental right” (the right to marry), Proposition 8 constitutes far reaching, fundamental change in the constitution’s underlying principle of equality. Moreover, plaintiffs argue, by denying homosexuals the right to marry, Proposition 8 takes away one of the court’s core constitutional roles (that of ensuring equal protection under the laws) and thus constitutes far reaching, fundamental change to our plan of government.

I am in favor of gay marriage in California, but I think these are bad arguments. They aren’t laugh-out-loud stupid, but I think they deserve to lose on their merits. In turn:

The first argument goes that taking away a fundamental right specifically from a suspect class is violating a core principle of our society, and that constitutes a fundamental change to our very plan of government. I do not think this is true. In the first place, Proposition 8 only sort of takes away the right to marry. It takes away the right to marry someone of the same sex, but it does not take away the right to marry someone of the opposite sex. Neither is Proposition 8 actually targeted at the suspect class. It applies equally to homosexuals, heterosexuals, those who wish to marry more than one person, and those who wish to marry partners who are neither men nor women. Of course it happens that at present there are far more homosexuals wishing to get married than people wishing to enter into plural marriages or non-human marriages, but that need not always be the case. There’s a big difference between “marriage is between one man and one woman” and “homosexuals cannot get married.”

I recognize that this argument may strike many as pedantic, though, so let’s grant for the sake of argument that Proposition 8 takes away a fundamental right from a suspect class. Is that really a fundamental change in the way our society works? Granting for the sake of argument that one of our democracy’s core principles is violated, is the very structure of the democracy itself overthrown or substantially altered? I don’t think so. Rights are not the same thing as structure. And while I recognize that taking a right away is different than not having it in the first place, it is difficult for me to imagine that returning things to the status quo of 2007 can constitute a fundamental change to our plan of government (in fact we haven’t even returned to the status quo ante; homosexuals remain a suspect class in California).

The second argument in Strauss goes that one of the traditional core roles of the judiciary is to ensure equality for all, and because Proposition 8 would take away the courts’ ability to ensure homosexuals the equal right to marry, it impinges upon the traditional core role of the judiciary and thus constitutes a far reaching, fundamental change in our plan of government. This argument seems wrong to me for a couple of reasons.

For one thing, it isn’t true that one of the traditional core roles of the judiciary is to ensure equality for all. The judiciary is supposed to ensure equal treatment before the law and, as I said above, Proposition 8 is a facially neutral law.

For another, I don’t see the difference between this argument and either Frierson or Crawford. In both those cases a supreme court ruling based on fundamental rights was invalidated by initiative. The court held those cases to be amendments, not revisions, even though it recognized that the amendments necessarily impinged somewhat upon the judiciary. Once again we have a case where an initiative would partially invalidate a supreme court decision founded upon a fundamental right. I don’t see a meaningful distinction between this case and those.

It is true of course that Proposition 8 takes away the courts’ ability to ensure that homosexuals (and heterosexuals) may marry a person of the same gender. But that is not the same thing as taking away the judiciary’s ability to ensure equality under the laws, or telling the judiciary how to think and reason. Homosexuals remain a suspect class under California law, and the judiciary is free as ever to apply strict scrutiny to legislation that targets or can be shown to have a disparate impact upon them.

Some commentators have made a third argument, which I do not believe has been formally made in Strauss but which deserves to be discussed nonetheless. This is the argument that fundamental rights should not be able to be taken away by a mere majority vote. Elsewise, some argue, the rights of the minority are not really protected from the majority. One could apply this line of reasoning to the amendment vs. revision issue to suggest that any change to the constitution disproportionately affecting the fundamental rights of a minority must be a revision. The constitution doesn’t say as much, of course, but isn’t it one of the fundamental principles of our society that the rights of the minority are protected against the tyranny of the majority?

I would argue not. It is true that one of the reasons society institutes constitutions and governmental branches like the judiciary is to protect the rights of the minority. But those are cases of the majority saying, “We would like to be restrained in the future from doing these certain things, and we shall appoint you, our servants, to restrain us.” The judiciary, and indeed the constitution, remain subordinate to the sovereignty of the people, which is controlled by the majority. If the majority really wants to throw off the restraints it has placed on itself, it is allowed to do so. There is no way to get any other result without also overthrowing the democracy.

This is not to suggest that the fundamental basis of the Strauss challenge is unfounded. It is not; the people of California have asked our servants to restrain us from throwing off certain restraints except in certain very specific ways, and it is absolutely proper for the supreme court to hold us to that. But it is to suggest that there is nothing inherently suspect about the 50%-of-the-electors threshold as opposed to the 66%-of-the-legislature threshold, nothing to suggest that something is a automatically a revision because it affects the rights of a minority.

I’m not nearly as close to this case, the facts and the precedent and the arguments, as are the justices of the supreme court and the advocates. It may well be that there’s something here I’m not seeing. But as I understand the law and the arguments, it seems to me that Proposition 8 really was an amendment, not a revision. I’m sure I’ll post further on this issue as it develops.

Wednesday, November 12, 2008

How Do Christians Read the Bible?

Well, Proposition 8 passed. That’s not what I wished for my state, but I can’t muster too much outrage about it. The rule of law means more to me than gay marriage rights, and as I explained in my last post, the people of California must be able to correct what they believe to be erroneous readings of the constitution by our supreme court. I’m aware that there are some novel arguments being advanced against the legality Proposition 8, but I haven’t had a chance to look into their legal footing on my own, so I’ll refrain from commentary until then.

What I really want to talk about today is the Bible, and how Christians like me read it. I say “like me” because the church is vast and contains more schools of thought than I am well acquainted with. Nevertheless I think what I say in this post will go for most Christians, and in particular for most Christians who believe in the “authority of Scripture” or would identify as “fundamentalist” or read the Bible “literally.” How do people like us actually read the book? By what principles do we declare one passage binding upon us and another not binding? Are there even any principles?

This is an issue that I think is of critical importance for American civic discourse. Obama once said in a speech that people of faith have an obligation to present our views in ways that one does not have to be a person of faith to understand. That is certainly true, and important. But it is equally true and important that people not of faith have an obligation to present their views in ways that one can be a person of faith and still understand.

I am of the opinion that for most of my lifetime Americans have generally failed on both these points. It is a scathing indictment of our educational philosophy, I think, that Americans grow up without the slightest attempt at teaching them the hermeneutics of the world’s major religions. As a matter of civics, it is deeply important to understand the different worldviews in one’s society. Yet when an American screenwriter wants to present a fundamentalist Christian as a bigot and a hypocrite, it’s a common trope to present that character with one example that “the Bible says” is verboten (e.g., same-sex sex), followed by five more commonplace examples of things that “the Bible says” which are not followed by that character in everyday life (e.g., eating shellfish, wearing cloth woven of two threads, the Levitical criminal code, a woman having short hair). Invariably the Christian is caught flat-footed, his or her belief system exposed for the farce it is, reason and tolerance triumphant.

I’d be tempted to dismiss this sort of thing as a farce, except that it shows up in surprising places. The West Wing, a show I normally associate with witty and well-educated writers, has stooped to this one. So has Barack Obama (the shellfish example), himself a Christian who I’d think ought to know better. I know personally friends whom I consider thoughtful, intelligent, and in other respects well-educated, who have either articulated this line of argument before or confessed their ignorance as to how people like me deal with it. The unspoken assumption (or perhaps fear) is that we haven’t thought of these issues before.

For those who fear, we have. For those who assume … really? You think that? I don’t mean to sound too sarcastic, so I’ll just note that this issue has been around for 2,000 years.

Of course, before I get too high and mighty, I should acknowledge that most Christians probably haven’t thought about this issue explicitly. But that doesn’t mean that the church hasn’t, or that the unquestioned assumptions of most Christians aren’t informed by our very old tradition of analyzing this question.

But enough of that. How do we read the Bible? M’lakMavet has phrased it well, I think, so I’m going to crib his words:

1. What does the text of this passage require me to think, do, or believe?
2. What does the context of this passage tell me about its intended meaning?
3. What does the rest of Scripture have to say about this?

That’s it. That’s the process whereby we decide what is and isn’t binding on us as Christians, even those of us who read the Bible “literally.” There are two popular substitute processes which deserve mention, because they are popular, although I wouldn’t (and I don’t think any theologian would) recommend them. Those are:

1. What does my [spiritual authority of choice] say?


1. Is this passage culturally relevant? If so, I shall think, do, or believe as it says.
2. If not, what does it tell me about the unchanging character of God?
3. How can I implement that "spiritual principle" in my thoughts, actions, or beliefs?*

But back to the way we actually do it, or the way we are actually supposed to do it. A couple of things about that process deserve pointing out. One is that probably all Christians are not capable of going through that process, because most Christians (I would guess) haven’t read the entire Bible.**

But (and this is the second thing that deserves pointing out) it isn’t rocket science. Oh, it isn’t always easy to read multiple passages against each other and figure out the result in a way that is true to all passages concerned. But the process really is within the mental capacity of the average person. This is something anybody can do.

The third thing that deserves pointing out is that the result of this process is not fixed. There is room for debate. As a church, we debate all the time, and if the public cannot see or appreciate it, perhaps it’s because the public was never taught the rules and never cared to figure it out.

Of course there are some Christians who simply will not debate, either because they’re stupid or (more likely) because they’re scared. But I think most of us would welcome as a refreshing change a serious debate with a non-Christian as to whether or not Scripture really says what we think it does.

In some cases of course the text really leaves very little room for debate. The shellfish debate (Leviticus 11:9-12) is pretty conclusively answered by Romans 3 and passages like it (growing up in America not knowing that Christians consider themselves not bound by the Mosaic law is only one step more defensible than growing up in America not knowing that Christians consider Jesus their savior if you ask me, but whatever).

But of course nobody actually cares about shellfish. They care about issues like same-sex sex, or gay marriage, or abortion, or non-marital sex. And on those issues the analysis is considerably more involved (and, correspondingly, more interesting). I don’t mean to say that it’s all a gray area and no firm conclusion is possible. But the analysis is complex enough that there’s room for genuine discussion. By corollary, to one degree or another, reasonable people can disagree on most of the “morals” issues people actually care about today. And I think most Christians would agree with me when I say that’s perfectly okay. If you can come to a reasoned, good-faith, internally consistent belief that Scripture says something different than what I think it says, taking into account all the evidence and all the arguments, then you are still in my conservative fundamentalist opinion submitting yourself to the authority of Scripture, and I can ask no more from you.

When was the last time you had a debate with a Christian friend about those sorts of things on the Bible’s own terms? Or when was the last time you really sat down and constructed a proof for yourself of why you believe Scripture says what you think it does about one of those issues?

* Of course there’s nothing wrong with gleaning spiritual principles from the Bible; I don’t see how you could answer the question, “What does the rest of Scripture have to say about this?” without doing so. But it is decidedly dodgy to have a branching analysis where the decision to activate one procedure over the other hinges on a question as subjective as, “Is this culturally relevant?”

** From a faith standpoint that’s actually “okay.” I think it’s dumb for several reasons, but you can indeed get by holding onto your faith without ever peeking under the hood, so to speak, to see the intellectual structure that supports it - as long as you don’t want to deal with anybody outside your faith, in any way, ever.

Wednesday, October 29, 2008

Proposition 8, Part Two

I wanted to take a moment to go back to the issue of Proposition 8, which I introduced in my last post. After some further helpful discussions with Marion and Thayet, I've decided how I'm going to vote (unless, of course, an unforeseeably persuasive argument is presented between now and November). Ordinarily I don't discuss these sorts of things, but ordinarily that's because I'm afraid of being ostracized for my unfashionable (in northern California) views, not because I think it's none of anybody's business.

So let me get this out of the way: I'm going to vote no on 8. This means I will be voting not to have the word "marriage" defined as pertaining only to a man and a woman for purposes of California state law.

Why am I telling you this? For two reasons. One, because I hope that my friends who read this might find my reasoning useful if they haven't made up their own minds already. Two, because I hope that this post will help promote tolerance of conservative Christianity in anybody who reads this, friend or not.

I should be clear that I don't mean "tolerance" in the all-too-fashionable modern senses of either a) relativity or b) acceptance. I mean "tolerance" in the sense of live-and-let-live, and hopefully, in the sense of understanding. My hope is that at least one person who hates, is frustrated by, cannot comprehend, or otherwise is unable to engage with theologically conservative Christians on the issue of gay marriage as fellow constituents of The People (both of the state of California and of the United States) will read this post and come away with at least marginally less hatred and frustration, and a little more comprehension and ability to engage. Maybe even some empathy.

If this is going to work I'll need to explain a few things about myself theologically. Friends and family can skip this paragraph, but for our hypothetical new readers, a few salutary identity statements are in order. First, I'm a Christian. I have been so, in a thinking sense, for something like 15 years. I am a Pentecostal Christian (actually Charismatic, if you care to make the distinction). I am an evangelical Christian. I speak in tongues (or, for the skeptics, I believe I speak in tongues). I believe in modern-day prophecy, and I believe I have engaged in it myself. I believe that Jesus is the only route by which human beings may be saved. I believe that homosexual sex saddens the heart of God (I have a rant reserved for people of any stripe who think the Bible expresses any views whatever on homosexuality, or on being homosexual, or on homosexuals, but I'll spare you). I should also mention, in case anybody cares, that I hold a bachelor's degree in classics and a juris doctorate, both from Stanford.

If none of these facts strike you as at all incongruous with the fact that I am voting against Proposition 8 then you might as well stop reading now; this post is not for you. Otherwise, I hope you will find it edifying to know why somebody with my religious background intends to vote as I do.

Table of Contents
Arguments I Credit
1. The Political Focus of Christianity
2. Moral Priority in Christian Thought
3. What’s Loving?
Arguments I Don’t Credit, For
1. We Need to Defend the Dignity of Marriage
2. We Need to Protect the Institution of Marriage
3. Homosexual Marriage is Wrong
4. Restoring the Right of the People
Arguments I Don’t Credit, Against
1. Proposition 8 is Unfair
2. Equality
3. Marriage is a Fundamental Right
4. Gay Marriage is Coming

Arguments I Credit
1. The Political Focus of Christianity

Let's start with the positive. The telling question, for me, is this: what should the main goal of Christianity be in a democracy? As a devout Christian, I might phrase that question another way: what do I think is God's main goal for America?

There are plenty of answers a conservative Christian might have to the question of what I think God's goals are for America. Peace, within our borders and with other countries. A reduction in the total incidence of sin in the nation. An increase in the lovingness Americans have towards their fellow men. Improvement of the public morals. That all Americans choose to become Christians. But the answer to the question of what the main goal is, I think, has to be this: that Americans fall in love with Jesus and then begin to become more like him.

I submit, then, that the basic question an evangelical Christian should ask is this: which way will Proposition 8 tend to push the Californian (and perhaps the American) public? Towards falling in love with Jesus? Away from falling in love with Jesus? Neutral?

Given the highly charged nature of the amendment, I think we can do away with neutral.

If Proposition 8 passes, how will people tend to view the Californian church (and, by extension, California Christians like me)? Will they tend to see us as a people who love all human beings, regardless of identity or behavior, and seek their good? I don't think they will. I think they'll tend to see us more as paranoid bigots, and frankly just plain mean social bullies. And they will tend to see Christ the way they see us.

Now of course that isn't fair, or remotely intellectually honest. Christ is who Christ is (or again, for the skeptics, Christ isn't who Christ isn't) regardless of how people who call themselves Christians behave. But that's the way it is, and indeed we are explicitly charged with acting like Christ to the world around us, so fair or not (idiotic or not) I think that's how it should be. I think it's clear that Proposition 8 will hinder, rather than help, the people of California and America from seeing in Jesus as he really is and falling in love with him. As a result, I oppose it.

2. Moral Priority in Christian Thought

A word deserves to be said here about the order in which I think Christians should be concerned about moral issues. Recall that I said “that Americans fall in love with Jesus and then begin to become more like him.”

I didn't say, “For people to begin to become more like Jesus and then fall in love with him.”

Because it isn't supposed to work that way. Christian morality - the principles that govern right and wrong behavior and interpersonal interaction as we see it - is not supposed to be prescriptive. That's orthopraxy, and we are not an orthopraxic religion. Antilles explained it to Violet perfectly way back when we were freshmen in Rinconada: Christian morality is supposed to be voluntary, and given not from the fear of disobedience but from the joy of doing what pleases God. This is a perfectly ordinary dynamic of human relationships, but the opposite perception is rooted so deeply in American culture that I need to make it explicit here.

It isn't that I think who you have sex with is a morally neutral issue; I don't. It also isn't that I think the moral propriety of who you have sex with is determined solely by whether or not the two of you love and are committed to one another; I don't. But who you have sex with is much less important to me than whether I am helping or hindering you from seeing Jesus as he really is and falling in love with him.

Let me deploy a bit of Christianese here. We say in Christian circles that God sees the heart. We also say that God judges the heart. Let us now stipulate, for the sake of argument, that God doesn't like homosexual sex. Would he then be pleased with a society where people want to have homosexual sex but don't because it's illegal? Of course not. Would he even care that it had been made illegal? I doubt it.

Of course, making it illegal could possibly reduce the number of people who want to do it. If we had any credible reason to believe that I might even support the amendment. But we don't - and we have lots of reason to believe precisely the opposite.

3. What’s Loving?

You’ll notice I said that I don’t think God would care whether we made homosexual sex illegal. It’s a short jump from there to saying that I don’t think God will care if we make homosexual marriage illegal. I make that jump. If Proposition 8 passes I don’t think God will be pleased. I don’t think it will increase the numbers of people acting out of a desire to please him. If anything I think it will do the opposite, and God will find that a tragedy.

So far I’ve said I think the California public will unfairly judge Christians if Proposition 8 passes, and that I don’t think passing it will please God or cause people to please him at a greater rate than they presently do. Not exactly compelling, morally epic reasons for voting against Proposition 8.

Here’s what I think is the most compelling, morally epic question to ask. I hinted at it earlier: what’s loving?

What is the loving thing to do for our homosexual fellow-citizens?

I probably wouldn’t be asking this question if I thought that passing Proposition 8 would be pleasing to God (instead I’d be asking what was the most loving way to pass it), but I don’t. So I am asking this question, because my conviction that passing Proposition 8 will not please God gives me the wonderful freedom to do so. And in fact I think it is partly in order to give me the freedom to choose the loving thing to do that God feels as he does on the issue of Proposition 8.

As a lawyer, I can’t help but feel it’s a little bit silly to care so deeply about what name the state government puts on your paperwork (which is, as I’ve said several times already, all this proposition actually amounts to). But as a man, and a married man at that, I understand. The name does matter to the heart, and it matters even if it’s only the state government using the name. It would matter even if it were one individual using the name. Maybe it matters more than it “should.” But it matters, and that’s the important thing.

I do not support homosexual sex. I am sorry if that makes me an unfeeling ogre or a hopeless yokel in some people’s eyes. My commitment to Jesus’ will as revealed in Scripture is what it is, and my reading of Scripture is what it is. I cannot change my principles, and so far my reading of the text has not changed (although of course it could, and of course I am open to debate on the point).

What I can do consistent with my principles is vote against Proposition 8. I am sure that this seems a very poor gift to many, who wish that my principles or my reading of Scripture were different, or both. But it is the only gift that I have, and I give it freely.

Arguments I Don't Credit, For
1. We Need to Defend the Dignity of Marriage

I'll be honest, I'm not exactly sure what this one means. The dignity of marriage? Who gets married because they want to lay hold of some dignity? I certainly didn't. I got married because I was in love with my wife, because I wanted to honor that love by strengthening it every way I knew how, and because God told me to do so.

If that's what people mean by “the dignity of marriage,” then I'm not really see how Proposition 8 is relevant at all. So maybe I'm going at the problem backwards. What will Proposition 8 weaken? Maybe if I can identify that, I'll know what people mean by “the dignity of marriage.”

As you know or should know by now, Proposition 8 is solely a question of names. It isn't a question of the rights afforded to homosexual couples; that was settled in 2003 with the Domestic Partnership Act. I also doubt very strongly that it is a question of societal acceptance. If constitutional amendments could dictate how society feels about certain groups, then the history of the civil rights movement from 1865 onward would have been radically different.

But what Proposition 8 is a question of is a question of how broadly the word “marriage” can be applied by the state of California. Which means that the thing - the only thing, in my view - that it will weaken is how exclusive is the right to have the state government call you “married.”

I italicize state government because it’s important to remember that the constitution does not, by and large, affect the behavior of non-state actors. If Proposition 8 passes, individual citizens will still be perfectly within their rights to call homosexual couples “married.” If Proposition 8 does not pass, individual citizens will still be perfectly within their rights to refuse to call homosexual couples married. Doing either of these things might be considered deeply insulting to some people, and also may create some verbal confusion. But there is nothing illegal or unconstitutional about individual citizens being deeply insulting to some people or using imprecise and improper terms to discuss legal concepts. Both of those happen all the time; the campaigns around Proposition 8 are themselves perfect examples.

Some people will object that this point is splitting hairs. Perhaps those people feel a deep desire to conform their behavior even to those areas of the constitution which do not apply to them, whether or not doing so agrees with their principles. That’s fine, and maybe even admirable, but it’s their choice to act as if they are bound by something which does not purport to bind them. Perhaps instead there are some who feel that, as a practical matter, society will over time tend to follow the constitution. That may be so, but if that movement of society’s overrides society’s principles, then shame on society for not having the moral fortitude to stick to its guns.

So it is the state government alone upon whose actions we are being called to vote restrictions up or down. Let us try to imagine the state of mind of someone who thinks that because his right to be called “married” by the state government is now less exclusive than it was his marriage has less “dignity.” What can we say of this person's state of mind? Quite a lot, I imagine, and little of it flattering. I submit that we can definitely say he is not viewing the world or his place in it as Christ sees it. And so I decline, as a Christian, to think that way.

2. We Need to Protect the Institution of Marriage

This is a subtly different argument from the “dignity” one, but ultimately I pay it no more heed. The argument here goes that the institution of marriage has some benefit, and that Proposition 8 will somehow reduce that benefit.

What benefits does marriage have? Certainly it has personal benefits. Will Proposition 8 reduce those? I think the analysis here is the same as it is for dignity. No, it will not, because Proposition 8 does not speak to the individual.

Marriage also has societal benefits. Will Proposition 8 reduce those? I submit that it will not. If there were any sort of credible research consensus that homosexual families are less likely to produce valuable citizens than heterosexual families, then I might consider voting against Proposition 8 on that basis. But to my knowledge no such consensus exists (though there are some conflicting studies both ways). My personal expectation is that with another couple decades of data available, homosexual families will turn out to be every bit as lousy at turning out valuable citizens as heterosexual families have, but only time will tell.

In any case, Proposition 8 will not alter the existing equality between homosexual and heterosexual families as child-rearing units. Homosexual couples did not gain any child-rearing rights when In Re Marriage Cases was decided, and so Proposition 8 will not take any child-rearing rights away.

Some people argue that we need to preserve the institution of marriage because upon that rock our whole society is founded, and without it our society will flounder. What they really mean by “preserve” is restricting the class of relationships the state government calls “marriage,” which I think makes this argument look pretty silly just on its face. But because a lot of well-meaning people seem to put a lot of stock in this interpretation, let me spend some more time with it.

First off, I’d like to point out that we have enacted lots and lots of laws that could be viewed as undercutting the institution of marriage. No-fault divorce means legalized adultery – the law cares not one whit who my wife sleeps with. Don’t we think that undercuts the institution of marriage pretty strongly? The elimination of bastardy laws means marriage no longer confers the right to have legitimate children. That one looks pretty heinous from the perspective of, say, six hundred years ago. Or how about separate property states? You mean to tell me that my wife and I are one flesh but our property stays separate? Blasphemy!

And yet, somehow, society has endured.

Second, I’d like to point out that the institution of marriage is not the rock upon which our whole society is founded. As a Christian, I do not believe that marriage is what ultimately upholds and preserves the United States of America. As a Christian, I believe that Jesus Christ is what upholds and preserves the United States of America, as he does the rest of existence. He is my rock, not the laws of my state or even my country. Now of course, that’s no excuse to move my country in ways that will displease him. But as I explain throughout the rest of this post, I don’t believe that voting against Proposition 8 will displease him.

So far I have skipped what some might consider an important Christian objection to the benefits of marriage. That is because I think it deserves its own topic, and I turn to it next.

3. Homosexual Marriage is Wrong

This is my way of phrasing the objection that homosexual marriage is simply sinful, and therefore ought to be outlawed. I don't credit this objection, but I consider it very serious, so I want to give my views of it in some detail.

To begin with, I don't think that homosexual marriage is sinful, and I don't think the Bible thinks that either. I promised to spare you my rant on this subject, so for the moment allow me to simply state in conclusory fashion that the Bible thinks homosexual sex is sinful (I will also spare you my rant on the misperceptions, unwarranted enlargements, and abuses of the word “sinful”). As I understand it, plenty of marriages involve practically no sex or very infrequent sex, and I see no reason to believe that homosexual marriages will turn out to be any different. But let us for the moment, and strictly for the sake of argument, conflate marriage and sex, as so many do. Ought we then to outlaw homosexual marriage, on the basis that it is sinful?

As a matter of positive law, we don't outlaw lots of things on the mere basis of sinfulness. We don't outlaw covetousness or adultery at all, and we outlaw only certain kinds of lying. We also don't outlaw being non-Christian or blaspheming the Holy Spirit. Some of these, of course, present practical difficulties - how exactly do you write a bill outlawing “blaspheming the Holy Spirit” or “covetousness?” But others - such as adultery - are the sorts of things that are perfectly easy to outlaw, and indeed have been outlawed in the past, and we don't outlaw them today despite what I suspect would be a national consensus that they are indeed at least usually morally wrong.

There is a sense that some Christian circles sometimes develop that we ought to reduce the total instance of sin in our land. Now, don’t get me wrong, I agree that a reduction in the total instance of sin in America would be good for the nation, as it would be good for any nation. But have we ever, as Christians, been called by God to effect that reduction on a national scale? I submit that we have not.

One thinks immediately of passages like 2 Chronicles 7:14: “if My people who are called by My name will humble themselves, and pray and seek My face, and turn from their wicked ways, then I will hear from heaven, and will forgive their sin and heal their land.” This is a promise which was spoken to Hebrews rather than Gentiles, as most American Christians are, but I would agree that it portrays something timeless about the heart of God. I would also agree that America is my land, within the meaning of the promise. But the passage does not call for me to make “my land” turn from its wicked ways. It calls on My people who are called by My name. The promise is not that God will heal America if I stop my non-Christian neighbor from being in a gay marriage. The promise is that God will heal America if I, and other Christians, will humble ourselves, pray and seek the face of God, and turn from our wicked ways.

Another way to arrive at this same conclusion would be to simply ask what sin is, and whether Proposition 8 bears on sin at all. Sin is not fundamentally an action, as I think we all know. Again, for the sake of argument, let us stipulate that gay marriage is sinful. Would a man in such a universe who wished with all his heart to be married to another man be any different from the man in Matthew 5:28 who looks at a woman wishing with all his heart to have sex with her? Of course not. The existence or absence of a legal barrier to gay marriage is immaterial to that question; the essence of sin is in the heart. The state constitution has no sway, and does not purport to have any sway, over the hearts of the residents of California.

4. Restoring the Right of the People

This one usually starts something like “four activist judges …” and references the fact that 61.4% of Californians voted Proposition 8’s exact language into law in 2000. I’ve harped on this before, so I hope nobody reading this is so ignorant as to believe that a statute passed by initiative is immune to judicial review. The easiest counter-example is to imagine that 61.4% of Californians had voted into law in 2000 language that said, “All persons of African descent shall be chattel property in California.” Suppose a majority of the California Supreme Court struck down that law as violative of the constitution. Would it be valid to say, “But 61.4% of Californians voted for that law?”

Of course not. Constitutions take certain laws off the table no matter how many people vote for them. That’s what constitutions do; it’s what they’re for. And one of the most important jobs of a supreme court is to announce when a law has crossed the line into unconstitutionality. That’s all In Re Marriage Cases was.

Now of course, the people are allowed to disagree with the supreme court. If they do, they’re supposed to enact a constitutional amendment to clarify their position on what the constitution says or should say. That’s exactly what Proposition 8 is; it’s asking the people of California whether the state supreme court got it right, or whether they disagree with the court’s reading. We’ll find out soon enough if the people of California still feel the way they did in 2000, or if they have changed their minds. In the meantime, it’s idiotic to argue that because the people voted one way in 2000, they should vote the same way in 2008.

Arguments I Don't Credit, Against
1. Proposition 8 is Unfair

Working in San Francisco, I hear this one a lot. “Vote no on 8; it’s unfair and wrong.” This one makes no more sense to me than the “dignity of marriage” objection on the other side. “Unfair?” By what benchmark? By the benchmark that says “marriage is for all people?” That’s begging the question.

Begging the question is hard to avoid in the debate over Proposition 8, because a lot of that debate boils down to what people think the word “marriage” means or should mean. That’s no excuse, though. If you assume that marriage is for all people then yes, Proposition 8 is unfair. But whether marriage is for all people is precisely what the people of California are being asked to decide. It does not add to the debate to simply repeat one’s conclusion that yes, marriage is for all people. That does not tell people why one thinks that. It isn’t an argument. Understandably, I find it unpersuasive.

2. Equality

This one is also popular, because of the unspoken rule that you can’t vote against “equality” in America without being an ignorant bigot.

Of course, you can vote against equality. The principal of equality we’re supposed to hold to is treating equal things equally. We don’t object to the inability of committed 14-year olds to marry because we have some sense, as a society, that 14-year olds are different than adults. If they’re different, they have no claim to being treated equally. We would object to the inability of interracial couples to marry because we have some sense, as a society, that race is not a material difference when it comes to marriage.

Many opponents of Proposition 8 believe that homosexuality isn’t a material difference either. I happen to agree with them in many respects. But this isn’t an argument; it’s a conclusion. Again, the question is what the people of California think marriage should mean. To rephrase, the question is whether the people of California think homosexuality is a material difference. If a person is unsure, then it does no good to throw the equality slogan in that person’s face, because the equality slogan assumes that homosexuality is not a material difference. It’s begging the question.

A similar issue is the “discrimination” slogan. “It’s about discrimination and we must always say NO to that,” says Senator Feinstein. Stirring words, but plainly untrue. We discriminate between minors and adults, and nobody complains about that. Why? Because we think majority is a material difference; it justifies different treatment. Apparently Sen. Feinstein thinks homosexuality is not a material difference. That’s fine, but again, it isn’t an argument. It’s just begging the question and hoping that people won’t notice.

3. Marriage is a Fundamental Right

This is a slightly more intellectually coherent version of “Proposition 8 is unfair.” This argument goes that marriage is a fundamental right, and so we shouldn’t take it away. Sometimes it’s phrased as “restricting the freedoms” of homosexuals, or something like that. And we in America Do Not Take Away Fundamental Rights.

This one seems to have a lot of traction among the people I hang out with, but I cannot for the life of me see what is so persuasive about it.

For one thing, we do take away fundamental rights. We take away the fundamental rights of criminals all the time. Oh, but they did something to deserve it, comes the objection. We don’t take away the fundamental rights of people just because of who they are! This is America!

Except that of course we do take away the fundamental rights of people just because of who they are. Committed fourteen year olds cannot marry, though marriage is a fundamental right. Uncommitted eighteen year olds can. An eighteen year old man has a fundamental right to marry a forty year old woman – but not if she’s his mother. Or already married. Why take away the fundamental right of the one and not the fundamental right of the other? After all, it’s a fundamental right, right? Fundamental!

Marriage may be a fundamental right, but that doesn’t tell us who the right should extend to, and who the right should extend to is the question at issue. So it does no good to prate on and on about how marriage is a fundamental right. That is true, but utterly beside the point.

Now of course it is true that, in a very literal sense and if one holds to a certain kind of legal philosophy, Proposition 8 is “taking away” the fundamental right of homosexuals to marry (i.e., have the state government use the word “marriage” in reference to them if they jump through certain hoops) in California. But it is insidious in the extreme to label invalid, on that basis alone, the efforts of those trying to do so.

That is, from a legal realist’s standpoint. If we stick to the way the law views itself, then Proposition 8 isn’t taking away anything at all. It’s simply correcting the state supreme court’s reading, pointing out that “in fact” homosexuals have never had a fundamental right to marry in California. As a matter of legal fiction, the right to marry guaranteed by the California constitution has always applied to homosexuals. That’s an important legal fiction and too few people give it the weight it deserves.

But if we put our realists’ hats on, we can recognize that the California right to marry had not been interpreted as applying to homosexuals until 2008. We can further recognize that, in reality, four human beings read the state constitution and said, in effect, “Wow, I never noticed this, but this right applies to homosexuals! Who knew?!” From a certain point of view, those four human beings “conferred” a right upon homosexuals by reading the constitution in that way.

If Proposition 8 passes – if the people of California in effect say to our supreme court, “No, that is not the way we want our constitution to be read” – then, from that same certain point of view, the people of California will have “taken away” a right from homosexuals. I recognize that. I get that.

But here’s the thing. The people of California must be allowed to do so. Otherwise the final say as to what the constitution means lies not with the people of California, but with the state supreme court. That strikes at the very heart of what a constitution is supposed to be: the supreme expression of the will of the people. It is precisely because the constitution is the supreme expression of the will of the people that the supreme court invalidated a law passed by popular vote to begin with. You cannot have it both ways. If the constitution is the supreme expression of the will of the people, then In Re Marriage Cases was validly decided, and the people of California must be allowed to “take away” the fundamental right of marriage. And if the constitution is not the supreme expression of the will of the people, then by the same fundamental principles that justified the Revolution the people are not bound by it, and marriage is not a fundamental right at all.

4. Gay Marriage is Coming

This is my category for the class of arguments that say, in one form or another, “Gay marriage is coming whether you like it or not, and we should help social change along with the constitution.” I want to distinguish it from the class of arguments that say, “Gay marriage is coming whether you like it or not, and we should keep the constitution in line with social change.”

The latter I think is a perfectly reasonable statement, though it doesn’t tell one how to vote on Proposition 8. The former, though – the idea that we should use the state constitution as an instrument to promote social change – is deeply distasteful to me.

As I’ve said elsewhere in this post, Proposition 8 applies only to the behavior of the state government. Nevertheless it is natural for many people on both sides of the debate to view it as a proxy for social change. Boiled down to its essentials I think the hope is this: that guaranteeing the right of homosexual couples to be called “married” by the state government of California will strike a blow for the ultimate cause of homosexuals not being seen as abnormal by private individuals.

And the truth is that maybe it will. People are weird like that. But I don’t think it should, and I think it evinces a deep disrespect for the rule of law to alter the state constitution in the hopes that it will change the beliefs of private individuals. That’s not how I want my constitutional law to be made.

One might object that, on this philosophy, I ought to object to the 13th, 14th, and 15th amendments. That is not so. I would encourage somebody to vote for those amendments if they were of the personal conviction that slavery ought to be abolished in America, that the rights of the federal constitution should be imposed upon the state constitutions, that the franchise should be extended irrespective of race, etc. But I would have objected to somebody voting for those amendments because they hoped by doing so to force people to change their minds.

That is not to say I think people should not try to change their fellow citizens’ minds. It is to say I think they should have the courage to do so through debate and example rather than the coercion of the laws. It is not to say I think that no law should be voted for which may compel a person to act contrary to his personal beliefs. It is to say I think no law should be voted for because it will compel a person to act contrary to his personal beliefs, in the hopes that eventually he will give his beliefs up.

Friday, September 12, 2008

Proposition 8

In less than two months California voters will go to the polls for the general election, and a little after that there will be crying and screaming and much gnashing of teeth. People will rant about our inevitable doom as a country and rail against the direction America is set upon for the next four years. I wish that elections didn't evoke these kinds of reactions in people, but they seem to do so with fair consistency, so there it is. Ordinarily I try to stay above it all, especially here.

I'm going to give in a bit today, though, and direct my own small tirade against the hype surrounding Proposition 8. Proposition 8 is the constitutional amendment version of Proposition 22, which defined marriage as between a man and a woman. You may recall that the California Supreme Court held that proposition as violative of the California constitution in In Re Marriage Cases, which I posted my response to on May 19. Proposition 8 would make the following words part of the California constitution:

Only marriage between a man and a woman is valid and recognized in California.

This is the exact same text as was in Proposition 22, overturned in In Re Marriage Cases. If you will recall, In Re Marriage Cases said that the California constitution prohibits such a law. The obvious reply, for those who have a problem with that reading of the constitution, is to change the constitution.

So far, all well and good. This is exactly how our legal system is supposed to work. No chicanery yet.

The chicanery comes when the proponents and opponents of the proposition try to convince voters to see things their way. No, scratch that. To vote their way. I have no idea whether true proponents and opponents of Proposition 8 really see things the way they spin things. I sure hope not. Here are some of the things I've seen thrown around about Proposition 8 that have really ticked me off:

It's about equality. This one seems to be the big pro-8 line, and it isn't nearly as bad as many of the anti-8 lines. Is Proposition 8 about equality? Well, maybe it is and maybe it isn't. What kind of equality? It certainly isn't about equal rights. If Proposition 8 passes the state will revert to the status quo ante In Re Marriage Cases. Under that regime, the state has two parallel relationships: "marriage" (available to opposite-sex couples only) and "domestic partnership" (available to all same-sex couples and opposite-sex couples where at least one partner is over the age of 62). The two relationships are entered into in different ways, but they have the same rights. In case that was confusing I'll put it a different way: they're called different things, but they have exactly the same rights.

Of course one might think that Proposition 8 isn't about rights equality. You might think it's about social equality, and that things that are substantively equal should be called the same thing as well. If that's the kind of equality you're talking about I'm not going to call you stupid. I'm not going to call you obviously right, either, because I don't know that I think the constitution should have any business telling people what they should name something. Imagine if somebody put a constitutional amendment on the ballot that specified one and only one term that could properly be used to refer to African Americans. Legal, sure. But a good idea? I'm not so sure. Of course, the constitution won't be telling me what I have to call same-sex couples. Even if Proposition 8 passes, I could legally call them Dell laptops for all the constitution would care (doing so would probably make me a jerk, but the constitution doesn't care if I'm a jerk or not). Still, if social equality is the real issue here (and I think it is), should we be satisfied before society's terminology changes, even if the constitution's has? I doubt it. Is it a good idea to alter the constitution in hopes that people's terminology will follow? Maybe. Not so sure, myself.

It's correcting the outrageous decision of four activist Supreme Court judges. As a lawyer, this one really makes me mad. First off, it wasn't four judges on the Supreme Court who overturned Proposition 22. It was the Supreme Court. People who keep throwing the number "four" around tick me off the same way as do people who claim that only half the country elected the President. The American people elected the President, whether all the individuals comprised of that body voted for him or not. People who think otherwise need to go read Plato's Crito, preferably after being beaten about the head with it.

Second, the decision wasn't outrageous, and throwing that term around will not make it so. It was a tough case, and the legal issues presented were not obvious (nor were they the social issues people have pinned on the case. You can't crucify a justice for being "outrageous" or "activist" on the one hand and for not deciding issues that were not before the court on the other. Pick one). Give the justices some credit for trying to do their job in a difficult situation.

Third, the justices were not being "activist." The justices in Brown v Board of Education (mandating school de-segregation) were being "activist;" they ignored the legal arguments with the most merit and instead did what they thought was right. Everybody agrees about that for that case. That is judicial activism. The justices in In Re Marriage Cases were asked to say what the constitution says when it says that Californians have a "right to marry." A right to marry who? asked the litigants in that case.

Put yourself in that situation for a moment. A gay couple wants the right to claim the title "married" under California law. They claim that the constitution says they have such a right right now, and indeed has always said that, whether anybody bothered to recognize it or not. Somebody else comes along and disputes that, saying the constitution says no such thing and never has. You are empowered, under the most ancient of American legal traditions, to resolve the dispute as to what the constitution says. If you agree with the gay couple, that the constitution does indeed say that they have a right to marry and always have - and if that is your honest reading of the constitution - are you being an "acvitist?" How can you possibly get more conservative than simply telling people what the constitution says? If you agree with their opponent, that the constitution doesn't say that at all - are you being any more or less judicially conservative than in the first case? You're doing the exact same thing. It's methodology, not conclusion, that should define whether we call a justice "activist" or not.

It will restore the will of the people. This one sounds nice because Americans love to rage against elitism. But seriously. The justices said that Proposition 22 is in violation of the constitution. If the constitution is not the ultimate expression of the will of the people, what is? If 61.4% of "the people" voted for an initiative that said, "All black people shall henceforth be chattel property" would we allow it? Would we say, "13th and 14th Amendments be damned; The People Have Spoken?" Of course not. The people have indeed spoken - when they adopted the constitution.

Oh, but you didn't vote for the California constitution? Well, no, you didn't. If you think that matters, and you still in live in California, you deserve to be beaten with the Crito until you are black and blue.

It will make our children be taught that same-sex marriage and opposite-sex marriage is the same. I'm pretty sure our kids are taught in school that men and women are equal already. As far as I know they can still the difference between the two.

But look, I get this one. Truly, I do. I get the gut-wrenching feeling that your kid is in a public school being taught a legally mandated curriculum which includes a worldview that isn't yours. And I don't even have kids yet. I'm sure I'll feel that gut-wrenching feeling a million times more strongly when I do have kids.

But here's the thing: that's part of education. I went to a Catholic school, and I had my view of Catholics exploded by people like Judith Langford who were hardcore, devoted Catholics and honest-to-God born-again Christians and genuinely "good people" in the popular sense of that overused phrase. I did not come out of that school thinking that dead people can hear me when I address them, or that Mary was without sin, or with my view of the Pope's spiritual authority altered one iota. Were all of those things taught to me in the school's mandatory religious curriculum? Yeah. And yet here I am, a thoroughly non-Catholic (though not anti-Catholic) Christian.

I was force-fed something I didn't believe in in school. And instead of being brainwashed by it or rejecting it like a bigot I learned to use it to challenge my own beliefs, to better understand the people who held that belief, and to feel compassion for them as human beings. I'm going to go so far as to say that this is one of the three critical life skills that K-12 school is supposed to teach you, and by far the most important (the others being how to write an analytical essay, and how to do algebra).

So what if your kid is forced to learn something at school you don't believe in? Is that bad? Is that to be avoided? I really don't think it is, and I mean that in all seriousness. Yes, parents are supposed to reinforce their worldview in their children. I think people who think otherwise are lunatics. But school is not parents. Kids are supposed to be exposed to different worldviews in school. Many of those worldviews are going to be garbage. That's okay. It may even be helpful. Parents have a responsibility to reinforce their worldview in their children, but they also have a responsibility to do so in a way that does not turn their kids into straitjacketed bigots who can't function in any world other than their own. If you think you can do that without having your kid be exposed to other worldviews, good luck to you.

Wednesday, August 06, 2008

Tech Support

So Thayet's laptop went down a few days ago after installing Service Pack 3. This isn't really a surprise per se; veteran PC owners have by and large come to accept the fact that Microsoft will occasionally break their systems for no good reason. It's sort of the PC equivalent of living in tornado country. Going Mac would be, I guess, I don't know, like living in New York. Do they have natural disasters in New York?

I'm not a PC expert, but I've picked up enough to be able to do basic household maintenance. I can usually diagnose the cause of a problem with reasonable precision, and I can buy and build a functional system from components. I own one or two useful gizmos with no real purpose other than when things go wrong. So I ran through the usual battery of tests and determined that the problem was indeed most likely SP3. No trouble: simply rolling back to the previous system restore point should do the trick.

Except of course you can't do that without a CD of Windows, and Thayet's laptop runs Windows XP Media Center Edition. If you're thinking that nobody has an actual disk copy of XPMC, you're right. Actually, we might have had a copy at some point; I don't know what Dell provides in their recovery CD package. Knowing Microsoft I rather doubt it (/shakes fist), but in any case, somehow those CDs got lost.

I'm not really a fan of recovery CDs, but they're cheaper than going out and buying a new copy of XP. So I called up Dell to see what it would take to get a replacement set. This meant I had to deal with tech support.

I'm not one of those geeks who abhors tech support. They're doing a job, and as anyone who's ever tried to do tech support over the phone to friends and family knows, their job is terrible. I've found that the key to a successful tech support call is to treat it like scuba diving: just relax, and never be in a hurry. Be ready to walk through all the steps you've done, and communicate everything little thing you're doing so you can stay on the same page (There is a button on the screen labeled "yes." I am going to click the button. I have clicked the button). So this post is not about how Dell tech support sucks. It's about how Dell tech support is ridiculous.

Turns out the recovery CDs are free (great!). But they're only available to computers in warranty, which Thayet's was not (no surprise). And in any case, we really should have a service call to try to resolve the problem now, which will cost $69 since the computer is out of warranty (here we go). Couldn't they just mail me the CDs? I don't really want a service call. Well, yes, they can, but only if I purchase a temporary warranty for $69, which comes with a mandatory free service call (sigh). Is there any way I can get my hands on those CDs without paying $69 for something? No. At least the guy admitted it.

So we have our service call. There were two surprising things about that service call. The first is that it did in fact convey useful information. The second is that, if you sift through the mandatory tech support communication (see two paragraphs up), the sum total of said useful information came down to this:

Hold down Ctrl and mash F11 on boot.

I'm serious. Apparently Dell has a system restore utility on their hard drives which will hose the system and put it back to the state in which you purchased it. Accessing this utility requires holding down Ctrl and mashing F11 repeatedly on boot (I actually had to do it twice in order to mash F11 with the requisite frequency). Ridiculous.

Since I had pretty much given up hope of getting to do the easy fix (roll back to a previous system restore point) and wasn't sure that would work in any case (it is a Microsoft recovery product, after all), hosing the system was about all I could hope for. And I had an up-to-date complete backup of her hard drive anyway, so it's not like I lost anything.

But seriously. I just paid $69 for you to tell me how to access something you deliberately hid from me on the disk? There's no way I would have stumbled upon that by myself, so I admit I received valuable knowledge, but ... $69? You couldn't have, I don't know, just told me? You couldn't have included that little tidbit in the laptop's documentation somewhere?

I don't know if the Ctrl+F11 is a Dell standard thing or an industry standard thing, but this one totally goes into the computer home repair file. And it should go into yours too.

That'll be $69, please.