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Rediscovering the Lost Art of Democratic Argument – Lunch w/ TED

Posted By Dustin R. Steeve On June 24, 2010 @ 12:00 am In Lunch with TED,Moral Philosophy,Philosophy,Politics,Religion | 4 Comments

Harvard professor Michael Sandel has an idea that would revolutionize political discourse – and it’s not to eliminate cable news.

It is popular to point at the drama on cable news and decry the “state of political discourse.”  However, most of the time, people are distracted by the glitz and loudness of cable news and therefore miss its biggest problem.  The problem of cable news, and the problem of political discourse, is that it fails to discuss the right questions.

Sandel believes that underneath our most contentious political issues are big questions of moral philosophy, big questions of justice.  That doesn’t sound like too contentious a claim, except it confronts directly deep assumptions about the place of moral presuppositions in the public square.  Take the recent trial over California’s proposition 8.

I their formal arguments against proposition 8, a proposition which upholds the precedent of state-recognized marriage as being between one man and one woman, opponents attempted to link the proposition to Evangelical Christian moral belief [1] about marriage.  Their objective was to associate the passage of the law with influence from improper, private morality.  Consider the following passages from the closing arguments [2] between the Court and Mr. Olson, attorney for the anti-proposition 8 plaintiffs (emphasis mine):

THE COURT: Do I have to find that it is a discriminatory motive on the part of the voters; that this is an effort to establish some private morality through the initiative process?

MR. OLSON: Well, the Lawrence case talks about the private morality and that — as an improper basis.  Is it discriminatory? It has to be found that it’s discriminatory. It says –

THE COURT: Unlawfully discriminatory.

MR. OLSON: Pardon me?

THE COURT: Unlawfully discriminatory. Many discriminations are perfectly lawful and perfectly constitutional.

Mr. Olson here argues that private morality is an improper basis for making law, per his reading of Lawrence v. Texas, and that it has to be found that the law is discriminatory.  The judge must then step in and assert that discrimination is not the problem, unlawful discrimination is the problem.  If one function of public political debate is to shape the opinions of lawmakers and thus the law itself, then Mr. Olson would have us set aside our private morality and the discriminations that come with it.

All law is inescapably shaped by moral prescriptions and presuppositions.  Consider the judges rejoinder to Mr. Olson: discrimination is perfectly lawful and perfectly constitutional.  Upon what are these discriminations based?  Moral assumptions.

Now consider the next portion of Mr. Olson’s argument on this matter (emphasis mine):

MR. OLSON: That’s right. And I’m saying that and I’m saying that it is, irrespective of the motive of a particular person in the voting booth. Nice people voted for Proposition 8 and people that didn’t have nice motives voted in favor of Proposition 8. We heard all kinds of evidence during the course of the trial of some awful stuff that was being told to people about gay people. But I submit and I’m willing to acknowledge that. I mean, there’s plenty of good Californians that voted for Proposition 8 because they are uncomfortable with gay people. They are uncomfortable with gay people entering into marriage, and they are uncomfortable with the very idea that gay people are just like us.

They didn’t hear, and too bad they couldn’t have seen the evidence in this trial of what the psychologists said and the sociologists said and the psychiatrists said about this is a characteristic between individuals that is normal, and it’s acceptable, and it’s not someone who is engaged in bad conduct.

Now, you can have a religious view that this is not acceptable. You can have a religious view — it was true in the Loving case. The argument was made that it’s God’s will that people of different races not be married. It’s in the briefs and it was in the testimony in this trial; that people honestly felt that it was wrong to mix the races; that it would dilute the value of the race and do all of these terrible things.

People honestly felt that way, but they were — they were permitted under the Constitution to think that, but they are not permitted under the Constitution to put that law — that view into the law and to put that view into the Constitution of their state in order to discriminate against individuals.

Mr. Olson is strategically equating discrimination against same-sex marriage to discrimination against interracial marriage.  It’s a compelling appeal, but notice that he believes the reason anti-interracial marriage laws were unconstitutional was because they originated from private moral belief – in this case, religious belief.  He argues, one is not permitted under the Constitution to put that law – that view into the law and to put that view into the Constitution of their state in order to discriminate against individuals.

Mr. Olson says nothing about the essence of marriage itself.  He avoids the big questions of moral philosophy to which Sandel’s TED talk points us.  Were the conversation about the moral philosophy of marriage, proponents of proposition 8 could easily argue in favor of interracial marriage and against same-sex marriage while upholding a consistent moral philosophy of marriage.  However, Mr. Olson refuses to go there.  Instead he concludes with an emotional appeal (emphasis mine):

MR. OLSON: I think, your Honor, that this law is discriminatory.

The evidence is overwhelming that it imposes great social harm on individuals who are our equals. They are members of our society. They pay their taxes. They want to form a household.  They want to raise their children in happiness and in the same way that their neighbors do. We are imposing great damage on them by the institution of the State of California saying they are different and they cannot have the happiness, they cannot have the privacy, they cannot have the liberty, they cannot have the intimate association in the context of a marriage that the rest of our citizens do. We have demonstrated during this trial that that causes grave and permanent, irreparable and totally unnecessary harm, because we are withholding from them a part of the institution of marriage that we hold — one of the language of one of those Supreme Court decisions is on the point — intimacy to the point of being sacred; that right of marriage in the context of the intimate relationship. We are withheld holding that from them, hurting them and we are doing no good. If we had a reason, a really good reason for inflicting all of that harm, that might be another matter, but there is no reason that I heard.

Sandel sums up Mr. Olson’s perspective as such: “If we engage in moral questions, that’s a recipe for intolerance.”  The assumption is that intolerance is bad.

For Christians, the most frustrating part of the same-sex marriage debate and political discourse in general, is the rejection of private moral belief from public conversation.  This reduces the debate to inhumane comparisons of data, sociological studies, and psychological guessing games.  It becomes a farce, an appeal to a common sense of humanity that we are all afraid to examine.

Sandel concluded his talk with this point, a perfect conclusion to this essay: “However, a better way to mutual respect is to engage directly with the moral convictions that citizens bring to public life rather than to require that citizens leave their moral convictions outside the public square.” ‘


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URLs in this post:

[1] moral belief: http://latimesblogs.latimes.com/lanow/2010/01/prop-8-opponents-seek-to-show-link-between-religion-anti-gay-discrimination.html

[2] passages from the closing arguments: http://www.telladf.org/userdocs/PerryClosingArgumentsTranscript.pdf

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