2015/07/24
Philosophers of Our Times, Edited by T Honderich, Oxford University Press, 2015
This paper tries to re-establish the use of reason and reasons as mind-dependent and flexible against two "phenomena" in philosophy that have combined reasoning and normativity in enthusiastic but misguided ways.
The first is the notion of the 'externality' of reasons: that they exist independent of agency or, perhaps, that they bear on agents independent of their knowledge of them. The second trouble is the insistence that means-ends reasoning is a normative exercise. Author sees this as a "Trojan horse for inserting rationality into practical life... through the breach in the Humean citadel that it has spearheaded." (pg173-4)
Author starts with a basic understanding of the terms involved: reason isn't a "magical faculty or structure" but is instead relational, a "reason for something" (pg174). The idea here is that reason involves "movement of the mind", going from a first mental state to a second by using reasoning. The strategy is to distinguish between a free association of one thing to another and reasoning from x to y, though "it may be hard to say in what the difference consists" (pg175). Author introduces another distinction, this time between "movements" that an agent accepts or endorses and those the agent doesn't know about or doesn't wish to acknowledge. This might roughly be similar to Gibbard's being in the grip of a norm and merely accepting one (pg175). Author offers some remarks about his use of terms: there must be a genuine cognition for there to be "movements" (of the mind), that we can talk about abstract representations without naming actual agents holding the ideas, and that aims and intentions can figure into reasoning just as much as beliefs do. The conclusion: we commend or endorse certain movements as reasonable, others as not, and yes indeed reasons are available to agents even without their knowledge, to be picked up upon (pg177). But this does not mean that there is no additional step needed after a reason is "apprehended", which author goes on to elaborate.
In section III, author discusses the sense in which reasons are "external"-- that there can be reasons for doing x that the agent does not appreciate or is not moved by. Failure to appreciate such reasons can deserve criticism, a point that was lost on Williams, but author accepts and reiterates (pg177). Author argues, however, that the connection in movements from x to y is based on "the contingent ways we are" (pg178), thus there is nothing gained by an externalist on the point that reasons can be considered external to a particular agent.
For author, good reasoning is a kind of guidance for movement, not "its end-points or its consequences": one can reason correctly that x will result in genocide, and this is good reasoning. There can also be bad reasons for doing y even if there are also good ones, as in the case of giving praise for political reasons rather than from admiration (pg178-9). This point is enmeshed in a general discussion about theoretical and practical reason. The trouble with ethical reasoning is, according to author, that "all we are given are moves within the ethical. We are not provided any independent methodology, or independent underwriting of the ethical as a domain." (pg180). The discussion then moves to questioning why some thinkers (eg Parfit) are given to claim that animals can't respond to reasons while only humans can. This is "pure fantasy", argues author, and gives the example of the identical response from a dog and a human when seeing a snake in the path (pg180-1). It similarly does no good to offer the "pain of irrationality" as a motivation to be guided by reasons.
Author moves to consider the "authority of reason", and generally disagrees with Quinn over the following item: having a pro-attitude toward y doesn't supply a reason x to do y (pg182). With some examples this seems acceptable, but author argues that is in indeed "strange" that being hungry doesn't rationalize eating a piece of pie. This leads to a fruitful discussion about reasoning from desires (pg182-3) and how to fulfill them, and also about justifying beliefs-- on a holistic level. In section VII, author goes on to argue that real philosophical questions (like a conflict between self-interest and justice) seem to wither unnecessarily when the good is identified with the reasonable (pg184-5).
Section VIII of the paper starts to attack the second phenomenon, that of normative guidance in means-ends practical reasoning. Author starts by quoting Kant, whom he claims did not believe that means-ends reasoning was normative in the sense some (wrongly) consider it to be. Author argues that there is no such thing as failing to conform to a "norm of means-ends rationality" (pg186), but instead a variety of related failures: incapability, weakness-of-the-will, and 'being a nuisance'. But the bigger issue is whether there is a norm of means-ends rationalist, and author gets to that next. First, author issues a word of caution regarding using intentions or desires are antecedents in a formulation: the best you should hope for are conditionals (pg186). [Important!] Second, author clarifies around the issue of bedeviling deontic logic and the paradox of the gentle murder (pg187-8). Lastly in this section, there is a clear explanation of the differences between being an efficient or rational means-ends planner and doing good things for good reasons (pg188-9), using Othello's Iago as an example.
The final conclusion is to avoid using the terms "irrational" because of the implication that such found faults are irredeemable.
7/17/15
Putnam, Hilary - Naturalism, Realism, and Normativity
2015/07/17
Journal of American Philosophical Association, 2015
This article is a review of three positions that author holds, that of "liberal naturalism", metaphysical realism, and normative realism. Author first starts with an elucidation of the term "liberal naturalism"; it emerged first from reading Naturalism in Question, edited by De Caro and Macarthur. In that collection, author wrote an essay that attacked Boyd, Casper and Trout's The Philosophy of Science, which had a disjunctive definition of the natural that was too vague to work. The example author used is how to understand Shakespeare's Julius Caesar (the play). Was it "subject to natural laws", and if so, did that capture the "phenomenon"? (pg312-3) The method of resolving this that author prefers is to rely on the naturalism of John Dewey, which does not allow supernatural entities, but also does not reduce ethics and aesthetics to the natural sciences or as meaningless-- a kind of liberal naturalism (pg313). Author also relies on Burge to argue that psychological terms like "representation" do not need reduction to the physical to be empirically valuable or explanatory, and so reduction is dispensable even as a hope. Yet author believes that liberal naturalism covers a broad range of positions, which he does not share, so further refinement is necessary: author is also a metaphysical and normative realist, which he discusses in the next sections.
Author first takes time to distinguish between his criticisms of a particular kind of metaphysical realism from the more broad view, which he has finally come to understand that he holds (on his 80th birthday) (pg213-5). Author quotes his previous lecture and Maudlin's reaction to it: author attacked the idea that there is a mind-independent reality and that an ideal theory of it could be technically false, and Maudlin agreed that this is indeed a feature, not a fault, of 'Metaphysical Realism'. Author has now come to accept that there could be an assertible, warranted, theory that is technically false (pg315-6), and that his attack of it in Realism and Reason was wrong. But "a responsible metaphysical realist needs to say something about what truth is and not simply what it isn't", so author continues to the next section. (pg316)
Author turns to Tarski's contribution to the concept of "True" in a formal language, as applied to a sentence within that language (pg316). In particular, author thinks that Field, in his Tarski's Theory of Truth, correctly interpreted Tarski's work as connecting the concepts of reference (or denotation) to truth. Author goes into specific elaboration with a formal language "Bob" and a "meta-Bob", which is "set-theoretically more powerful than Bob" in the way Tarski would need it (pg317), using "Snow is white" as an example sentence. Author takes a good amount of time dealing with the proposed Tarskian link between reference and truth (pg318-320). What comes out of this technical re-creation of the meta-Bob language is author's claim that neither the correspondence nor the deflationary theory of truth are supported by Tarski (pg321-2), though one can easily interpret Tarski as presupposing the deflationary theory. The bottom line is that the concept of true depends on successful reference (pg322).
The discussion now moves to the oddity of possibly understanding a claim about the world to be true but not be about the entities (asteroids or daises or marsupials) referred to (pg323). It does no good to understand a sentence to refer in a causal way-- for instance that I learned about asteroids from a textbook-- since the truth of the matter is dependent on my reference, not the causal connection that put me in the position to assert the truth. In this attack, deflationists need to revise their approach, particularly when it comes to translating sentences between languages (pg323-4), and verificationists are also targeted. The ultimate nemesis is Quine with his theory of radical translation, which author takes on next (pg324-5). The response basically is that Quine misses "a liberal naturalist understanding of what natural-scientific explanations are", and doesn't take seriously "relations between the basic needs and activities of animals and the ecological facts about their environments" (pg325). In other words, we refer to what we perceive, and we happen to perceive in a rather regular physio-psychological manner across languages.
The third position of normative realism is now discussed, but is ultimately given short shrift. Author claims that morality evolves according to human needs and interests, and that Kantian categorical-imperative-like claims (Scanlon's What We Owe to Each Other as a stand-in) aren't good foundations for ethics. Instead, they are good tools to use, similar to using utilitarianism as a tool, in recognizing the implications of action (pg326). The final conclusion is liberating: "One can learn from pragmatists and Wittgensteinians and philosophers of so many other kinds without becoming a card-carrying member of any philosophical sect." (pg327)
Journal of American Philosophical Association, 2015
This article is a review of three positions that author holds, that of "liberal naturalism", metaphysical realism, and normative realism. Author first starts with an elucidation of the term "liberal naturalism"; it emerged first from reading Naturalism in Question, edited by De Caro and Macarthur. In that collection, author wrote an essay that attacked Boyd, Casper and Trout's The Philosophy of Science, which had a disjunctive definition of the natural that was too vague to work. The example author used is how to understand Shakespeare's Julius Caesar (the play). Was it "subject to natural laws", and if so, did that capture the "phenomenon"? (pg312-3) The method of resolving this that author prefers is to rely on the naturalism of John Dewey, which does not allow supernatural entities, but also does not reduce ethics and aesthetics to the natural sciences or as meaningless-- a kind of liberal naturalism (pg313). Author also relies on Burge to argue that psychological terms like "representation" do not need reduction to the physical to be empirically valuable or explanatory, and so reduction is dispensable even as a hope. Yet author believes that liberal naturalism covers a broad range of positions, which he does not share, so further refinement is necessary: author is also a metaphysical and normative realist, which he discusses in the next sections.
Author first takes time to distinguish between his criticisms of a particular kind of metaphysical realism from the more broad view, which he has finally come to understand that he holds (on his 80th birthday) (pg213-5). Author quotes his previous lecture and Maudlin's reaction to it: author attacked the idea that there is a mind-independent reality and that an ideal theory of it could be technically false, and Maudlin agreed that this is indeed a feature, not a fault, of 'Metaphysical Realism'. Author has now come to accept that there could be an assertible, warranted, theory that is technically false (pg315-6), and that his attack of it in Realism and Reason was wrong. But "a responsible metaphysical realist needs to say something about what truth is and not simply what it isn't", so author continues to the next section. (pg316)
Author turns to Tarski's contribution to the concept of "True" in a formal language, as applied to a sentence within that language (pg316). In particular, author thinks that Field, in his Tarski's Theory of Truth, correctly interpreted Tarski's work as connecting the concepts of reference (or denotation) to truth. Author goes into specific elaboration with a formal language "Bob" and a "meta-Bob", which is "set-theoretically more powerful than Bob" in the way Tarski would need it (pg317), using "Snow is white" as an example sentence. Author takes a good amount of time dealing with the proposed Tarskian link between reference and truth (pg318-320). What comes out of this technical re-creation of the meta-Bob language is author's claim that neither the correspondence nor the deflationary theory of truth are supported by Tarski (pg321-2), though one can easily interpret Tarski as presupposing the deflationary theory. The bottom line is that the concept of true depends on successful reference (pg322).
The discussion now moves to the oddity of possibly understanding a claim about the world to be true but not be about the entities (asteroids or daises or marsupials) referred to (pg323). It does no good to understand a sentence to refer in a causal way-- for instance that I learned about asteroids from a textbook-- since the truth of the matter is dependent on my reference, not the causal connection that put me in the position to assert the truth. In this attack, deflationists need to revise their approach, particularly when it comes to translating sentences between languages (pg323-4), and verificationists are also targeted. The ultimate nemesis is Quine with his theory of radical translation, which author takes on next (pg324-5). The response basically is that Quine misses "a liberal naturalist understanding of what natural-scientific explanations are", and doesn't take seriously "relations between the basic needs and activities of animals and the ecological facts about their environments" (pg325). In other words, we refer to what we perceive, and we happen to perceive in a rather regular physio-psychological manner across languages.
The third position of normative realism is now discussed, but is ultimately given short shrift. Author claims that morality evolves according to human needs and interests, and that Kantian categorical-imperative-like claims (Scanlon's What We Owe to Each Other as a stand-in) aren't good foundations for ethics. Instead, they are good tools to use, similar to using utilitarianism as a tool, in recognizing the implications of action (pg326). The final conclusion is liberating: "One can learn from pragmatists and Wittgensteinians and philosophers of so many other kinds without becoming a card-carrying member of any philosophical sect." (pg327)
7/10/15
Kennedy, Anthony - Obergefell v. Hodges
7/10/2015
No. 14-574, June 26, 2015
This is a SCOTUS decision that overturns various state prohibitions on same-sex marriage. This is undoubtedly going to be summarized more extensively and adroitly elsewhere, so I'll stick to the basic outline.
A. Author briefly discusses the institution of marriage and denies that the petitioners for same-sex marriage are seeking to devalue it. Instead, petitioners would like to take part in its privileges and responsibilities.
B. Marriage has both 'continued and changed' throughout time, most especially recently as women became equal in the marriage and laws against miscegenation were struck down. Such changes to the concept of marriage worked "deep [essential] transformations in its structure". Thus the understanding of marriage is dynamic. Author reviews the changing understanding of homosexuality as well, and then its relation to marriage. The Due Process Clause of the 14th Amendment of the US Constitution is posited to extend to "certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs". While the original ratifiers of the amendment may not have known the "extent of freedom in all of its dimensions... they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning".
III. The right to same-sex marriage starts with the right to marry, protected by the Constitution, for example in Loving v. Virginia, Zablocki v. Redhail, and Turney v. Safley. Author acknowledges that the court assumed these to be opposite-sex marriages, however the "essential attributes of that right [are] based in history, tradition, and other constitutional liberties" that now must be applied to considering a proscription to same-sex marriage. This application uses four "principles and traditions" that demonstrate that "marriage is fundamental" with "equal force" to same-sex couples.
The four principles and traditions:
-Whom to marry is inherent in the "concept of individual autonomy", an "abiding connection between liberty and marriage", and part of the right to privacy.
-The right to marry is "fundamental because it supports a two-person union unlike any other in its importance to the committed individuals", and is an "intimate association".
-Marriage is a protection for children, and is therefore connected to related rights regarding childrearing, procreation, and education. These rights are protected in the Due Process clause of the Constitution, according to the precedent from Zablocki v Redhail. Author reasons that the rights of children being raised by same-sex couples need protecting by allowing same-sex marriage of the parents-- the rights of the children not to be stigmatized or suffer "significant material losses" mean that marriage for the parents must be possible.
-Marriage is the keystone of the US social order and there is "no difference between same- and opposite-sex couples with respect to this principle". Locking same-sex couples out of this "central institution" provided by the states is demeaning.
Author responds to criticism that the right to same-sex marriage is a new right, not the fundamental right to marry. Response: previous cases didn't talk about the right to interracial marriage, just the right to marry in the "comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right". Furthermore, we understand rights do not get their meaning from who had them in the past, but "rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." Here, the connection between the Constitution and the right to same-sex marriage is given by the author somewhat cryptically: "The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each my be instructive as to the meaning and reach of the other". Author does go on to show how these two clauses were used sometimes in conjunction in the precedent-building cases of Loving, Zablocki, in multiple cases involving coverture, Eisenstadt, Skinner, and Lawrence.
Roberts delivers the dissent
Roberts' main point is that the court "is not a legislature" and that the right to same-sex marriage isn't in the constitution. "The fundamental right to marry does not include a right to make a State change its definition of marriage". Thus states can stick to "the historic definition" of marriage, which Roberts argues is between one man and one woman. Roberts separately claims that the court does harm to same-sex couples by "stealing the issue" from them and not letting them convince the minds of their fellow citizens through a democratic process. Roberts argues for judicial restraint, and acknowledges that there is no serious dispute about a right to marry. The real question he asks is for the definition of marriage, and, especially, who decides on that definition.
A. Roberts argues that the term marriage only and forever has referred to one relationship: between one woman and one man. This is not a coincidence but had a background in ensuring children were raised in stable lifelong conditions. Since the US Constitution says nothing about marriage, Roberts argues the states were entrusted with questions of domestic relations, and the reference of the term marriage either "went without saying" or was understood as opposite-sex. Roberts argues that while marriage did change over time, most especially by removing coverture and bans on miscegenation, that didn't do anything to transform the fundamental "core meaning" as Kennedy argues it did.
B. Roberts give some history on the struggle for same-sex marriage in both the courts and the states and agrees with the "carefully reasoned" decision of the Court of Appeals.
II. Roberts attacks the Due Process basis for the decision, particularly the reasoning behind the Four principles and traditions. He argues this a case where the court employed "substantive" Due Process, as it did in Lochner v. New York; Roberts expressly disavows reasoning about Due Process this way and considers it judicial excess. In the pages that follow, Roberts argues that the court should not be in the business of being a kind of super-legislature, being the final arbiter of whether a law was in the public good or not (the "substantive" Due Process reading which allows this kind of error). While Roberts accepts the notion that some fundamental rights can be implied and not enumerated, his real target is the substantive Due Process and judicial excess, quoting, at one point, Kennedy himself urging the same principles (Glucksberg).
B. Roberts then goes through the majority's decision to try to show its weaknesses.
1. First is a discussion of how previous precedent-relevant cases did not change the "core definition" of marriage, as "traditionally defined".
2. Roberts takes the majority to also be arguing that the implied right to privacy links up with the right to marry to support same-sex marriage. Roberts argues there is no such connection and continues to urge for judicial restraint and seems to imply that the procreative purposes of marriage should be an guide to understanding its meaning.
3. Roberts returns to rail against the majority's decision by again comparing it to Lochner v. New York, and calling it "free-wheeling". The judicial excess that Roberts argues the majority has enjoyed is then subject to further questions, most notably: why is it only that two people can be married, under this decision? Why not plural unions?
4. Roberts dissects the majority's argument that same-sex marriage would "pose no risk of harm" to be a matter of moral philosophy, not constitutional law. The argument from the previous section is expanded: if a tradition such as opposite-sex marriage can be overruled by the court, what other social institution could be too?
III. Roberts now discusses the Equal Protection Clause as a basis for the majority decision. Roberts asks for the usual framework that uses means-ends reasoning regarding the laws and the proposed social benefits, and argues it isn't there in the majority's decision. He argues the discussion is "difficult to follow". It is here that Roberts discusses the lack of precision in the decision: he might be inclined to agree if specific harms, like hospital visitation, were being challenged.
IV. To wrap things up, Roberts rails against judicial excess as undercutting the judiciary's fundamental role and the respect it is afforded in the US. Roberts argues that this question should have been decided democratically and the court is a "blunt instrument" for "creating rights". Roberts also opens up the question of the collision of religious practice with this ruling.
Scalia also dissents
Scalia mostly discusses the loss to US democracy by the decision, and the abuse of power the court exercised. Furthermore, Scalia argues that because at the time of ratification of the 14th Amendment (which the majority argues is the basis for the right), marriage was understood as between one woman and one man, this fact alone "resolves these cases". Scalia decries that a decision that should have been legislative was made instead by a non-representative group of judges. Scalia also attacks the reasoning behind using the Due Process and Equal Protection Clauses, in an unusually sarcastic manner.
Thomas also dissents
Justice Thomas offers (in IIA1-2) a lengthy reconstruction of what the term "liberty" was taken to mean at the crafting of the US Constitution (plus amendments). Under his reading, drawing primarily from Locke, Blackstone, and the Magna Carta, "liberty" as enumerated in the 14th Amendment was taken to be freedom from external imposition on one's body-- a negative liberty. More importantly, Thomas argues that the right to liberty is a natural right, not one granted by the government. This is considered a "freedom from, not freedom to". For Thomas, to use the term liberty not as a shield against government imposition but instead as a sword to acquire new rights is backwards. The idea here is expressed thus: "Petitioners cannot claim, under the most plausible definition of 'liberty', that they have been imprisoned or physically restrained by the States for participating in same-sex relationships" (B). Thomas sees states refusing to grant same-sex marriage as in no way restricting petitioners lives, but instead it's just petitioners asking for government entitlements. Thomas needs to justify striking down anti-miscegenation laws, which he does so because slavery was "invidious" (footnote 5).
Thomas also complains about not settling this argument through a democratic method, and brings up the question of religious practices as well.
IV. Lastly, Thomas argues that while human dignity is innate and important, there is no "dignity clause" in the Constitution and no government law can deprive anyone of their innate dignity. This is where Thomas has to concede, in a weird way, that "Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved." The meaning here seems to be that the slaves still had innate dignity, even if it wasn't being recognized due to being enslaved.
Alito also dissents
Alito argues that there is no right to same-sex marriage in the US Constitution (it is left to the States) and that "liberty is a term of many meanings". Alito discusses the traditional understanding of marriage as a way to get at stable procreative relationships. Whether same-sex marriage will undermine that-- or it has already been undermined-- is not a question for the court. It is for the legislature. Alito quotes himself at length from Windsor. Alito finishes by claiming, as did previous dissenters, that the court is doing a grave disservice to its authority and the separation of powers and democracy.
No. 14-574, June 26, 2015
This is a SCOTUS decision that overturns various state prohibitions on same-sex marriage. This is undoubtedly going to be summarized more extensively and adroitly elsewhere, so I'll stick to the basic outline.
A. Author briefly discusses the institution of marriage and denies that the petitioners for same-sex marriage are seeking to devalue it. Instead, petitioners would like to take part in its privileges and responsibilities.
B. Marriage has both 'continued and changed' throughout time, most especially recently as women became equal in the marriage and laws against miscegenation were struck down. Such changes to the concept of marriage worked "deep [essential] transformations in its structure". Thus the understanding of marriage is dynamic. Author reviews the changing understanding of homosexuality as well, and then its relation to marriage. The Due Process Clause of the 14th Amendment of the US Constitution is posited to extend to "certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs". While the original ratifiers of the amendment may not have known the "extent of freedom in all of its dimensions... they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning".
III. The right to same-sex marriage starts with the right to marry, protected by the Constitution, for example in Loving v. Virginia, Zablocki v. Redhail, and Turney v. Safley. Author acknowledges that the court assumed these to be opposite-sex marriages, however the "essential attributes of that right [are] based in history, tradition, and other constitutional liberties" that now must be applied to considering a proscription to same-sex marriage. This application uses four "principles and traditions" that demonstrate that "marriage is fundamental" with "equal force" to same-sex couples.
The four principles and traditions:
-Whom to marry is inherent in the "concept of individual autonomy", an "abiding connection between liberty and marriage", and part of the right to privacy.
-The right to marry is "fundamental because it supports a two-person union unlike any other in its importance to the committed individuals", and is an "intimate association".
-Marriage is a protection for children, and is therefore connected to related rights regarding childrearing, procreation, and education. These rights are protected in the Due Process clause of the Constitution, according to the precedent from Zablocki v Redhail. Author reasons that the rights of children being raised by same-sex couples need protecting by allowing same-sex marriage of the parents-- the rights of the children not to be stigmatized or suffer "significant material losses" mean that marriage for the parents must be possible.
-Marriage is the keystone of the US social order and there is "no difference between same- and opposite-sex couples with respect to this principle". Locking same-sex couples out of this "central institution" provided by the states is demeaning.
Author responds to criticism that the right to same-sex marriage is a new right, not the fundamental right to marry. Response: previous cases didn't talk about the right to interracial marriage, just the right to marry in the "comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right". Furthermore, we understand rights do not get their meaning from who had them in the past, but "rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." Here, the connection between the Constitution and the right to same-sex marriage is given by the author somewhat cryptically: "The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each my be instructive as to the meaning and reach of the other". Author does go on to show how these two clauses were used sometimes in conjunction in the precedent-building cases of Loving, Zablocki, in multiple cases involving coverture, Eisenstadt, Skinner, and Lawrence.
Roberts delivers the dissent
Roberts' main point is that the court "is not a legislature" and that the right to same-sex marriage isn't in the constitution. "The fundamental right to marry does not include a right to make a State change its definition of marriage". Thus states can stick to "the historic definition" of marriage, which Roberts argues is between one man and one woman. Roberts separately claims that the court does harm to same-sex couples by "stealing the issue" from them and not letting them convince the minds of their fellow citizens through a democratic process. Roberts argues for judicial restraint, and acknowledges that there is no serious dispute about a right to marry. The real question he asks is for the definition of marriage, and, especially, who decides on that definition.
A. Roberts argues that the term marriage only and forever has referred to one relationship: between one woman and one man. This is not a coincidence but had a background in ensuring children were raised in stable lifelong conditions. Since the US Constitution says nothing about marriage, Roberts argues the states were entrusted with questions of domestic relations, and the reference of the term marriage either "went without saying" or was understood as opposite-sex. Roberts argues that while marriage did change over time, most especially by removing coverture and bans on miscegenation, that didn't do anything to transform the fundamental "core meaning" as Kennedy argues it did.
B. Roberts give some history on the struggle for same-sex marriage in both the courts and the states and agrees with the "carefully reasoned" decision of the Court of Appeals.
II. Roberts attacks the Due Process basis for the decision, particularly the reasoning behind the Four principles and traditions. He argues this a case where the court employed "substantive" Due Process, as it did in Lochner v. New York; Roberts expressly disavows reasoning about Due Process this way and considers it judicial excess. In the pages that follow, Roberts argues that the court should not be in the business of being a kind of super-legislature, being the final arbiter of whether a law was in the public good or not (the "substantive" Due Process reading which allows this kind of error). While Roberts accepts the notion that some fundamental rights can be implied and not enumerated, his real target is the substantive Due Process and judicial excess, quoting, at one point, Kennedy himself urging the same principles (Glucksberg).
B. Roberts then goes through the majority's decision to try to show its weaknesses.
1. First is a discussion of how previous precedent-relevant cases did not change the "core definition" of marriage, as "traditionally defined".
2. Roberts takes the majority to also be arguing that the implied right to privacy links up with the right to marry to support same-sex marriage. Roberts argues there is no such connection and continues to urge for judicial restraint and seems to imply that the procreative purposes of marriage should be an guide to understanding its meaning.
3. Roberts returns to rail against the majority's decision by again comparing it to Lochner v. New York, and calling it "free-wheeling". The judicial excess that Roberts argues the majority has enjoyed is then subject to further questions, most notably: why is it only that two people can be married, under this decision? Why not plural unions?
4. Roberts dissects the majority's argument that same-sex marriage would "pose no risk of harm" to be a matter of moral philosophy, not constitutional law. The argument from the previous section is expanded: if a tradition such as opposite-sex marriage can be overruled by the court, what other social institution could be too?
III. Roberts now discusses the Equal Protection Clause as a basis for the majority decision. Roberts asks for the usual framework that uses means-ends reasoning regarding the laws and the proposed social benefits, and argues it isn't there in the majority's decision. He argues the discussion is "difficult to follow". It is here that Roberts discusses the lack of precision in the decision: he might be inclined to agree if specific harms, like hospital visitation, were being challenged.
IV. To wrap things up, Roberts rails against judicial excess as undercutting the judiciary's fundamental role and the respect it is afforded in the US. Roberts argues that this question should have been decided democratically and the court is a "blunt instrument" for "creating rights". Roberts also opens up the question of the collision of religious practice with this ruling.
Scalia also dissents
Scalia mostly discusses the loss to US democracy by the decision, and the abuse of power the court exercised. Furthermore, Scalia argues that because at the time of ratification of the 14th Amendment (which the majority argues is the basis for the right), marriage was understood as between one woman and one man, this fact alone "resolves these cases". Scalia decries that a decision that should have been legislative was made instead by a non-representative group of judges. Scalia also attacks the reasoning behind using the Due Process and Equal Protection Clauses, in an unusually sarcastic manner.
Thomas also dissents
Justice Thomas offers (in IIA1-2) a lengthy reconstruction of what the term "liberty" was taken to mean at the crafting of the US Constitution (plus amendments). Under his reading, drawing primarily from Locke, Blackstone, and the Magna Carta, "liberty" as enumerated in the 14th Amendment was taken to be freedom from external imposition on one's body-- a negative liberty. More importantly, Thomas argues that the right to liberty is a natural right, not one granted by the government. This is considered a "freedom from, not freedom to". For Thomas, to use the term liberty not as a shield against government imposition but instead as a sword to acquire new rights is backwards. The idea here is expressed thus: "Petitioners cannot claim, under the most plausible definition of 'liberty', that they have been imprisoned or physically restrained by the States for participating in same-sex relationships" (B). Thomas sees states refusing to grant same-sex marriage as in no way restricting petitioners lives, but instead it's just petitioners asking for government entitlements. Thomas needs to justify striking down anti-miscegenation laws, which he does so because slavery was "invidious" (footnote 5).
Thomas also complains about not settling this argument through a democratic method, and brings up the question of religious practices as well.
IV. Lastly, Thomas argues that while human dignity is innate and important, there is no "dignity clause" in the Constitution and no government law can deprive anyone of their innate dignity. This is where Thomas has to concede, in a weird way, that "Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved." The meaning here seems to be that the slaves still had innate dignity, even if it wasn't being recognized due to being enslaved.
Alito also dissents
Alito argues that there is no right to same-sex marriage in the US Constitution (it is left to the States) and that "liberty is a term of many meanings". Alito discusses the traditional understanding of marriage as a way to get at stable procreative relationships. Whether same-sex marriage will undermine that-- or it has already been undermined-- is not a question for the court. It is for the legislature. Alito quotes himself at length from Windsor. Alito finishes by claiming, as did previous dissenters, that the court is doing a grave disservice to its authority and the separation of powers and democracy.
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