You put the load right on me

27 03 2013

I don’t believe in rights.

No, no, that’s not, mm, right. I don’t believe in natural rights, inalienable rights, rights granted by the Creator. . . you know Imma ’bout to tag-team this off to Bentham, don’t you?

Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts.

Rights are, instead, rhetorical artifacts, crafted out of history and philosophy and given heft in political culture. They haven’t always existed; they may not always exist. But, for now, we act as if they do, and grant them such privileged status in our theories of liberty (another rhetorical artifact) that a claim of right serves to silence alternate claims of expedience and desire.

(Or, y’know, start a fight  if one’s rights claim is countered with another. Then Mill is invoked: The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people, i.e., my right to swing my arms ends at your nose. And when that doesn’t work, well, that’s another post.)

Where was I? Ah, yes: the durability and privileged status granted to rights.

Which brings me to Prop 8 and DOMA and Constitutional rights and democracy.

I’m not a Constitutional scholar, nor even a dedicated Court-watcher (more of a Court-peeper, actually), so I have nothing to say regarding the juridical strength and weaknesses of the petitioners arguments before the Court. I do find issues of Constitutional interpretation interesting, mainly because I find issues of interpretation interesting (and will blow a gasket at Scalia’s claims regarding originalism), but, today, I don’t have anything to say on what the justices may or ought to say about the Constituion vis-a-vis same-sex marriage.

This doesn’t mean I have nothing to say, of course. (D’oh!) Let’s talk politics! Yay! More specifically, let’s talk about the politics of rights-claims versus majoritarianism, and which is the better way to cement a political victory.

Ruth Bader Ginsberg has famously argued that Roe v. Wade was decided too broadly, that more and more states were moving to relax their abortion laws, and that by creating a federal right to abortion, the Court simultaneously energized the anti-abortion opposition and imperiled reproductive rights.

It is a plausible interpretation of events. I am not at all sure, however, that it is the correct one.

Which, roughly, brings us to the question: When ought claims be treated as preferences and run through majoritarian processes, and when ought they be treated as rights and granted (near) absolute status, safe from majority preferences?

I don’t know that there’s any good answer to this. On the one hand, I prize liberty, for which rights are a if not the crucial component, but I also prize representative democracy, in which majorities may legitimately impose their preferences on minorities. Turn everything into a right, and the collective may do nothing; disregard rights, and majorities become tyrannies.

It is demonstrably the case that majorities (or the fervent sub-majority among them) can get irritated when they are prevented from imposing their views on others, and, sometimes, may so strongly react against such prevention that the backlash may be worse than and last longer than would have the original situation.

So what’s a minority to do?

The Ginsberg approach argues in favor of the slog: get in and chip away, chip away, chip away, until the mountain pressing down upon you crumbles away. Once it’s gone, it’s damned well gone.

There’s a lot to recommend to this approach, and, on the whole, I favor it.

But that doesn’t mean one can’t or shouldn’t occasionally stick some dynamite into that mountain, yell FIRE IN THE HOLE! and blow that sucker to smithereens. Sometimes justice—oh, yeah, justice!—demands the weight removed in all due haste.

Sometimes justice says to hell with the backlash.

Justice, too, sits alongside and occasionally jostles rights and liberties in a democratic society. Minorities must have justice, but so, too, must majorities; is there any way to determine ahead of time who must carry the weight?

No, there isn’t. You go with what you’ve got, and if you lose in one arena, you try for the win in the other. If you think you’re right, if you believe your claim is a matter of liberty and justice for all, then you fight in every way possible.

That’s politics.

And a right to marry? I honestly don’t know if there is a right to marry, for anyone. But it seems that if that right is granted to some, then—liberty and justice for all—it should be granted to all.

~~~

h/t for that fantastic Michael Bérubé link—go ahead, click on it!—to Scott Lemieux, LGM

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Come together, right now

8 02 2012

With all apologies to morons, Representative Louis Gohmert is a moron:

“The court, as I understand it today, struck down a law that said marriage is between a man and a woman. It’s interesting that there are some courts in America where the judges have become so wise in their own eyes that they know better than nature or nature’s God,” Gohmert said on the House floor.

“Nature seemed to like the idea of an egg and a sperm coming together because of pro-creation,” he continued. Drawing a parallel to Iowa Supreme Court justices who ruled in favor of same-sex marriage in 2009, he said, “Apparently they thought the sperm had far better use some other way biologically, combining it with something else.”

If nature really wanted sperm and eggs to come together, why keep ’em so far apart in the first place?

In any case, given that as few as twenty percent of all fertilized eggs result in a live birth, nature may want sperm and egg to play together, but not stay together.

h/t Jennifer Bendery, Huffington Post





Johnny, are you queer?

13 11 2008

I used to be straight; now, not so much.

It’s an odd thing, in the midst of one’s life, to shift from one position to another, from one side to the middle.

Is that what bisexuality is? The middle? I guess, if sexuality is to be stretched across a linear spectrum (‘On a scale of 1 to 10, how would you measure. . .’).

I don’t know that sexuality is to be stretched across the linear spectrum.

Despite having once written a (very bad) conference paper on the biology of sexuality, I claim no expertise on the origins or development of sexuality. Yeah, evolutionarily speaking, het sex makes sense, but so what: while we are also evolutionary creatures, we are not only evolutionary creatures. Besides, what about the urge to reproduce requires orgasms?

Where was I? Oh, yeah. So I’m bi, but I don’t know that I’m bi in the same way someone else is bi. (Then again, when I was straight, I don’t know that I was straight in the same way others were straight.) It’s not that I suddenly want to sleep with every woman or have threesomes or feel the need to alternate man-woman-man-woman in my affections.

Nope, it’s much simpler than that. Although I do have all kinds of attractions to all kinds of people, in almost all of these instances, the attraction isn’t sexual. (This is good, as it would be awkward if I wanted to sleep with my friends. Some people could manage that; I couldn’t.) But, sometimes, I am intensely attracted to someone, and want to get to know him (and now, her) in a variety of unbiblical ways.

And that’s it. Before, if I happened to find myself physically attracted to someone, that person was a guy. I didn’t question this. Then, about a year and a-half ago, I was jolted by the recognition that, hm, I could be physically attracted to a woman.

Whoa! Jolted is the right term: Where the hell did this come from?

I have long had friends who are lesbians, have joked about who I’d jump the fence for, said that while I wasn’t turned off by the thought of sleeping with a woman, I wasn’t particularly turned on by it, either. Yeah, I said, I could sleep with a woman and probably enjoy it, but I don’t think she’d get much out of it.

Have I been in denial all this time? Nah. I think that before I wasn’t attracted to both women and men, and now I am.

Why the switch? I came to this realization around the time I finished my first novel, when I was still a bit dazed at the fact that I had written a novel. So, at one point, when talking about both the novel and this bi-recognition to M.P, I mentioned my bewilderment. Maybe these things are connected, she said. Maybe in opening yourself to the writing, in letting yourself be creative, you let out other parts of yourself. M. is much more willing to call upon spiritual notions than I am, but what she said made a kind of sense to me. I have no other explanation.

As a practical matter, however, little has changed. I was alone then and I’m alone now. Being bi, I tell people, just gives me twice as many ways to screw things up.

Beyond such bitter-tinged glibness, however, there is something real. On a political level, I’m no longer just a gay-positive straight chick, acting on principle and on behalf of friends. In fact, a big part of the reason I’m blogging about this now is in response to Prop 8. I don’t live in California and I have no desire to marry anyone, but that my fellow citizens could take away a constitutionally-recognized right to marry doesn’t just offend my principles, it slices at the possibilities of my own life. Denouncing Prop 8 without coming clean—coming out—feels like lying. Liberation can’t be built on lies.

But this is not mainly a political issue for me, largely because I’ve always supported the ‘gay agenda’. No, this is deeply personal, and deeply disruptive of my sense of self. As mentioned in previous posts, it’s not as if I previously had a strong sense of who I am, but I’ve been able in many ways to treat this as a philosophical puzzle. Having my sexuality thrown into question—thrown open—forces me out of my abstractions and into the actual world. Before, I could think idly about what a possible future relationship looked like, how we’d deal with each other, etc., and continue in this nice, smooth, speculative groove. I was operating in default mode, unquestioned and unreal.

No more. I’ve been tossed out of myself, and now have to decide whether to crawl back into that (appropriately adjusted and resealed) groove, or take this chance to find something new.

Take a chance, I know, take the chance! But I’m so used to crawling. . . .