natural rights

A Jumbo For Sulu

/ Jack Marshall / 36 Comments

SuluGeorge Takei, the Japanese-America actor permanently enshrined in pop culture history for his role of Sulu in the original “Star Trek” TV series. He has essentially lived off that one felicitous part for forty years, recently acquiring less moldy,  non-sci-fi following by being a gay rights advocate.

Takei recently skimmed, or just didn’t comprehend, Clarence Thomas’s  audacious dissent to the Supreme Court’s Obergefell ruling and Justice Kennedy’s majority opinion declaring same-sex marriage to be a fundamental right protected by the Constitution. Apparently he also does not comprehend that Supreme Court dissents are both stimulating and useful to legal scholars as well as those, unlike Mr. Sulu, possessing an open and curious mind.

Thomas made the unusual but provocative argument that human dignity is innate:

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which
this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

Thomas was expressing  his disagreement with the majority that the government withholding the right to marry from gays robbed them of human dignity. I think it is a rather pedantic argument that has more validity in the abstract than in reality, but the position that rights come from creation rather than the government is a core concept in the Declaration of Independence, and one that statists, as in “modern Democrats,” like to ignore. If individuals are born with rights, they cannot be truly taken away. If citizens must look to the government to have their rights granted to them, then government is granted too much power in exchange. Thomas’s philosophical argument is classic conservatism. Naturally, that means, in Takei’s intolerant and partyist world view, that he deserves abuse. Continue reading →

Comment of the Day: “The Ethicists, Backing Judge Walker and Gay Marriage, At An Unacceptable Price”

/ Jack Marshall / 8 Comments

The motion to vacate Judge Walker’s ruling on Proposition 8 has been filed, you can read it here. Since the original post, I have detected some cracks in the formerly near-united front of legal ethicists and journalists deriding Walker’s critics. Some of them are finally, grudgingly, admitting that the Judge might not have handled his potential conflict so well after all, and that the motion is not a frivolous, anti-gay outrage as they originally labelled it.  The most rickety of the rationalizations put forth on Walker’s behalf, advanced by some his most respected defenders, is that he had no obligation to reveal his own sexual orientation by disclosing his domestic arrangement because of its intimate and private nature. Yet the judge voluntarily disclosed it after his decision was in the books, raising a rebuttable presumption that his original silence was to avoid suggestions of conflict, not out of a desire for privacy.

First time commenter Jada adds her Comment of the Day to the discussion: Continue reading →

The Ethicists, Backing Judge Walker and Gay Marriage, At An Unacceptable Price

/ Jack Marshall / 38 Comments

"Oh, all right...as long as we like the decision."

Thanks to the Judge Walker controversy, now have proof that the best legal ethicists in the nation are human. I suppose that’s something.

My colleagues in the legal ethics field are arguing—decreeing, really— that Judge Vaughn Walker’s decade-long same-sex relationship didn’t need to be disclosed before he ruled against Proposition 8 (California’s voter-approved gay marriage ban) because, they say, it created no reasonable doubts about his impartiality. Coincidentally, they also really, really like his decision. But then, so do I. Continue reading →

Judge Walker Was Wrong

/ Jack Marshall / 27 Comments

Now that we know about Bert, should Judge Ernie have recused himself?

Judge Vaughn Walker, the Federal District judge who a year ago ruled California’s Proposition 8, which banned same-sex marriages, unconstitutional, was wrong. No, not about the law, which is pretty clearly unconstitutional: his opinion was fair and well-reasoned, and is likely to be upheld on appeal. Walker was ethically wrong in his handling of the delicate issue of his own sexuality, which had raised a controversy about his objectivity and ability to be impartial.

Two weeks ago, following his retirement from the bench, Walker publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. This changes the analysis regarding the propriety of his ruling on Perry v. Schwarzenegger. Walker had long been rumored to be gay; supposedly “everybody” knew he was gay. My position, as well as that of many others considering the arguments of anti-gay marriage opponents that he should recuse himself, was that sexual orientation could not and should not create a presumption of bias, any more than gender, age, race or marital status. Continue reading →

Perry v. Schwarzenegger: Choosing Ethics Over Morality

/ Jack Marshall / 3 Comments

Predictably, Judge Walker’s decision in Perry v. Schwarzenegger striking down California’s voter approved Proposition 8 has infuriated foes of gay marriage, who have condemned his opinion as judicial activism, a rejection of democratic process, and an agenda-driven farce. Walker himself is being attacked for having a conflict of interest, because he is widely believed to be gay himself. (The belief that a gay judge cannot rule objectively on the issue of gay marriage while a straight judge can is itself an expression of bias.) This is not surprising. What is surprising, at least to me, is that the only substantial argument critics of the opinion can articulate is based on the exact proposition Walker rejected in his opinion: that laws should be able to prohibit conduct based on morality and tradition alone, without quantifiable and verifiable reasons relating to the best interests of society. By insisting that a California law that would withhold a fundamental right—marriage—from a class of Americans must justify itself with reason rather than tradition, Judge Walker ruled that it is ethics, not morality, that should govern American law and justice. Continue reading →

Ethics Quote of the Month: Judge Vaughn Walker

/ Jack Marshall / 1 Comment

His opinion declaring the voter-approved ban on same-sex marriages in California unconstitutional is here.

The opinion really begins on page 110. Opponents of the opinion are calling it “judicial activism,” “overturning the will of the people,” and “ruling by fiat.” Don’t buy it. The judge logically, fairly and appropriately explains why withholding the basic right of marriage from same-sex couples is a violation of essential values and American principles of ethics and law. Forget about the pundits and the spin: read what Judge Walker wrote.