Legal Shortcuts So Sharp You’ll Cut Yourself

Sorry for the absence, readers!  We’ve been short-staffed due to plague at work.  This week will be usual posts, and next week the atheist round of the Turing Test will begin.

I’m a little troubled by the way same-sex marriage is becoming de facto legal in Pennsylvania.  When I was having SCOTUSblog parties back in June, I found the reasoning based on standing kinda messy.  If a law is challenged, it seems like the appropriate state officials should be obligated to defend it.  Ducking it seems like a odd kind of de facto veto.  And not a proper civil disobedience-y one, a la Mayor Jason West of New Paltz, who conducted then-illegal marriages and was charged for it.

And now this is playing out in Pennsylvania.  The PA Attorney General Kathleen Kane declined to defend her state’s ban on same-sex marriage, and it’s unclear who will pick up the baton, or if anyone will be left with standing to do so.  The proper way to overturn laws is repeal or, if they’re actually unconstitutional, letting them have their day in court.  Not short-circuiting the system over a conscience objection.

Here’s how Kane explained it:

“I looked at it this way,” Ms. Kane said in explaining her decision in the lawsuit. “The governor’s going to be O.K.” But who would represent ordinary people, “the Daves and Robbies”? she asked. “Who represents the Emilys and Amys?”

“As attorney general,” she said, “I choose you.”

But an attorney general isn’t there to do the choosing.  She’s meant to pick all of us, and to defend the system of laws and checks that keep us safe from the whims of politicians, even when we support them.  The Emilys and Amys, Daves and Robbies, can depend on their legislators, but not on the judicial branch, which is there to keep the system running, not to save us from the stupidity we may have built into it.  I’m reminded of this exchange from A Man for All Seasons.

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Down in Louisiana, there’s been another legal mess as a Baton Rouge Sheriff has been entrapping and arresting gay men for having sex, relying on a still-on-the-books law criminalizing “the unnatural carnal copulation by a human being with another of the same sex or opposite sex.”  It was essentially struck down by Lawrence v. Texas, but we don’t traditionally leave constitutional interpretation to local Sheriffs.

The District Attorney has been refusing to prosecute each case the rogue sheriff creates, but that’s a patchwork solution and a poor precedent.  We can’t selectively ignore the bad laws we pass.  Part of our penance is going through legal channels and doind the tedious work to unwind all the knock on effects they’ve had.  Just all agreeing to pretend the law doesn’t exist is a terrible habit.

Prosecutorial discretion is always a dangerous tool. As G.K. Chesterton says in Orthodoxy, “Above all, if we wish to protect the poor we shall be in favour of fixed rules and clear dogmas. The rules of a club are occasionally in favour of the poor member. The drift of a club is always in favour of the rich one.”

About Leah Libresco

Leah Anthony Libresco graduated from Yale in 2011. She works as an Editorial Assistant at The American Conservative by day, and by night writes for Patheos about theology, philosophy, and math at www.patheos.com/blogs/unequallyyoked. She was received into the Catholic Church in November 2012."

  • Berry

    Nothing is being shortcircuited, and the state will have its day in court, the Governor’s legal staff is defending PA against the ACLU. I strongly disagree that the judicial system is not there to stop legislative stupidity, and I feel like if you were trying to make a larger point, you did a poor job of it here.

    • http://eacafe.blogspot.com/ Oo_oc_oO

      “Governor’s legal staff is defending PA against the ACLU” But the attorney general isn’t. That’s the point. It may be that the governor will find someone to do her job for her, but that shouldn’t be necessary.

      In general, yes, the judicial system can repeal bad laws. However, the attorney general should not be able to unilaterally decide which laws get enforced and defended and which don’t. That should be a longer, formal process, which of course already exists.

      • Berry

        Leah said “The proper way to overturn laws is repeal or, if they’re actually unconstitutional, letting them have their day in court. Not short-circuiting the system over a conscience objection,” I was merely pointing out that this is not in fact what is happening. The Governor is okay with discriminating against Gay people, and so the law will be defended.

        The Attorney General can’t unilaterally decide whether or not to enforce laws. She hasn’t in this case, either, she’s simply refused to defend a law she believes is unconstitutional.

        • http://eacafe.blogspot.com/ Oo_oc_oO

          Refusing to defend vs. deciding not to enforce is certainly a distinction without a difference.

          • Berry

            Her refusal to defend doesn’t mean the law will not be enforced. This seems, at a bare minimum, a meaningful difference.

        • LeahLibresco

          The decision about constitutionality isn’t hers, though. It’s meant to go through a court and a judge. It’s her job to shepard the law through that process.

          And the judicial system doesn’t act as a curb on stupidity, just on constitutionality. There’s plenty that’s Constitutional and ill-advised, but judges don’t get to save us from ourselves in those cases.

          • Berry

            Again, the fact that she isn’t defending the law doesn’t mean the law won’t be defended. In fact, I think the analogy Brandon used is very useful here, but it further emphasizes my point. If a court-appointed Defense Attorney has a conflict of interest, then refusing to defend the accused is entirely legal and ethical, and someone else will take their place. In this case, the Governor will take her place in defending the law. She hasn’t made any official judgement as to the law’s constitutionality, and her abstainment has no legal force.

            While it remains true that the Judicial system can’t curb stupidity if it is within constitutionality, and I cede that point readily, judges have and should have enough authority to save ourselves from laws such as these.

          • Brutus

            Suppose the AG has a personal objection to the law and thinks it unconstitutional. Do you expect the defense that the AG would provide, if obligated to under all circumstances, to be the quality of defense which you believe a law deserves?

          • TheodoreSeeber

            Why does that question remind me of this _The Measure of a Man_, the Star Trek Next Generation episode where Riker had to prosecute Data?

          • stanz2reason

            You’re still a nut case who should probably be locked up, but that was a sweet ass reference.

        • Brandon B

          Here’s an anology for you: when a statute is being challenged, the Attorney General (or whichever lawyer is stuck with defending laws) is in the same situation as someone appointed to defend a criminal. The defense attorney does have a right to withdraw representation (though not in a way that violates the right to representation, I think), but that doesn’t mean the defense attorney gets to decided guilt or innocence.

          “How do you defend a guilty person?” is a pretty common question for defense attorneys. The answer that makes the most sense to me is that the defense attorney’s job is to ensure a fair trial, not to necessarily set their client free. In other words, if the client is convicted, the attorney may still have done his/her best, and have succeeded in representing the client well. If the client is guilty, but is acquitted because there wasn’t enough evidence, the defense attorney has done the right thing. Justice has been served, because our laws require that convictions be supported by evidence.

          Ultimately, it isn’t the defense attorney’s job to decide guilt or innocence. That’s the judge or jury’s job. A defense attorney has to make peace with defending someone who is guilty, because most defendants are guilty, and even guilty people have a right to a fair trial.

          I think Leah is right to feel uneasy, because in this situation the Attorney General is making the judgment that the court is supposed to be making. It isn’t the AG’s job to make constitutional rulings, and the AG isn’t as good at it as the court is.

          When the executive branch, or a representative like the AG, makes a decision, only the agency gets to have any input (other than miscellaneous lobbying, protests, and comments from the peanut gallery), and the decision is announced like any other administrative decision. When a court, like the Supreme Court, makes a decision, there are official records of the whole deliberative process and of every argument made; there are long briefs filed dissecting the question in more detail than any layman really has time for; there are usually oral arguments as well, to let the justices ask pointed questions, leaving no stone unturned; and when the final decision is announced, all of the reasoning is published in the court’s opinion, and often there are concurrences or dissents as a bonus. It’s a more transparent and fair process, and it leaves a better legacy.

          • Berry

            While I think your analogy is useful for explaining certain aspects of the issue (as I mentioned below,) I feel the need to point out that Defense Attorney’s are much more restricted in the cases they are allowed to refuse being appointed to. In contrast, the PA Attorney General here has two plausible exceptions she can appeal to which legally allow her to choose not to defend the law.

          • Brandon B

            What two exceptions do you have in mind?

          • Berry

            Sections 204(a)(3) and 204(c) of the Commonwealth Attorneys Act of Pennsylvania. The former is available because of the recent Supreme Court ruling in US v. Windsor, and the latter is strengthened by it, but would be plausible even in its absence.

          • Brandon B

            The relevance of either section depends on what grounds the Attorney General believes she has. 204(a)(3) says

            “It shall be the duty of the Attorney General to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction.”

            I believe the part you are referring to from 204(c) is

            “The Attorney General may, upon determining that it is more efficient or otherwise is in the best interest of the Commonwealth, authorize the General Counsel or the counsel for an independent agency to initiate, conduct or defend any particular litigation or category of litigation in his stead.”

            I don’t think 204(c) is quite relevant, because I don’t see how it makes a difference to this case whether the AG or the General Counsel defends the law.

            If U.S. v. Windsor had ruled that the U.S. Constitution guaranteed a right to gay marriage, then the Attorney General would be squarely within her rights under 204(a)(3) to not defend this law. However, U.S. v. Windsor was about a federal law, and the opinion included as many concerns about federalism and the federal government’s authority (or lack thereof) to disregard state marriage laws as it was about gay marriage itself. We might be very close to having a constitutional right to gay marriage, but we’re not there yet, and I think the Attorney General of Pennsylvania is overreaching.

          • Berry

            The AG only cited 204(c), and not 204(a), that was my addition.

            I disagree that 204(c) is irrelevant. I think it is relevant for two reasons:

            1. If the AG believes (as Scalia seems to, in his dissent in Windsor,) that it is a forgone conclusion that US v. Windsor’s language will be appropriated by the States to grant Same-Sex Marriage, then handling the case herself would be a waste of time, and thus not in the best interests of the Commonwealth.

            2. If the AG believes that a successful defense of the law would not be in the best interests of the Commonwealth’s citizens, then she is legally covered, but that does open her up to the kind of concerns that Leah gestured at and others have steelmanned for her in the comments.

            3. If she believes that the best interests of the Commonwealth are her getting elected to Governor and taking a strong stance on Same-Sex Marriage is how to do that. (TROLL CLAUSE :p)

            Whether or not 204(a) applies is, I agree, a much more contentious issue, and, Kennedy having written the opinion, it obviously contains lots of language about Federalism and States Rights. I still think that it can be construed as a controlling decision, if you squint a bit.

            Ultimately, calling a case on 204(a)(3) an “overreach” is probably justified, but I think 204(c) more than gives her legal, jurisdictional and ethical leeway in this case.

    • TheodoreSeeber

      They’re setting PA up for another Schwarzenegger……haha, I just realized what a pun that is considering how the Governor got his first career started.

  • Niemand

    It’s part of the job of the attorney general to decide which cases to prosecute and which to decline to prosecute. She is not there simply to do the bidding of the governor. This decision is entirely within her rights. I’d feel the same if she declined to prosecute a case I thought should be prosecuted, except that I’d think she was an idiot for declining instead of agreeing with her decision not to try to uphold an unfair, unconstitutional law. The state can find someone to prosecute or they can do the sane thing and let the law die as similar laws have in many other states. Without any of them collapsing.

    • http://eacafe.blogspot.com/ Oo_oc_oO

      Her job is to select cases, not select laws. See the difference?

      • Niemand

        Selected cases based on what? Should she prosecute at random? She’s made the judgement call that this case is not worth the state’s time and money to prosecute and that it is in fact against the interests of the people of Pennsylvania for the law to be in continued existence. Those seem to me to be the judgements that the AG is supposed to make. She may be wrong in her judgement and there are ways of dealing with AGs who make those judgements poorly (most obviously the voting booth), but it is well within her job description to say that this is a stupid law and she won’t prosecute anyone under it.

        Consider a less controversial example: There is, apparently, a law in Pennsylvania that states that it is illegal to sing in the bathtub (per kind of random web site, but let’s assume for the moment that it’s true.) Presumably no one has been prosecuted for this for some time. But suppose someone was. Say, a sheriff had a grudge against her neighbor and heard him singing in the shower one morning. She arrests the neighbor. Should the AG insist on prosecuting the neighbor or say, “This is really stupid. Dismissed.” and maybe suggest that the sheriff move?

        Yes, unjust, stupid, or out of date laws should be changed. That’s true whether it’s the singing in the shower law or the anti-marriage equality law. But who would it help for her to prosecute someone under that law? It would only mean unnecessary suffering for a prejudiced law that will inevitably meet its end soon anyway.

    • TheodoreSeeber

      I thought part of the AG’s job was to defend all the laws of the state against all challengers. If she can pick and choose, then whose job is it to defend the all the laws of the state against all challengers without picking and choosing?

      • Berry

        She is obligated to defend all suits by or against the Commonwealth, with a few notable exceptions, two of which apply in this scenario. The General Counsel was also named as a defendant here (Schultz) and either they or the Governor will proceed with the defense.

        • TheodoreSeeber

          Up until looking up the laws cited above, I was unaware of any such office of a General Counsel. Is it unique to Pennsylvania?

          • Berry

            Utah, Virginia and New York also have General Counsel offices, but I don’t have a comprehensive list.

  • Niemand

    And sorry to nitpick, but don’t you mean the atheist round of the ideological turing test, in the intro?

    • LeahLibresco

      Zut, yes. I’ll fix

  • Erick

    I think that Leah’s point stands. Governments where the executive branch decides not to execute standing laws but instead ignores them are usually called dictatorship or tyranny. As an officer of the government, attorney generals are duty bound to defend the government in court.

    • Berry

      The Attorney General of Pennsylvania is not always obligated to defend the Commonwealth in court, there are exceptions. This case is one of them.

      • http://eacafe.blogspot.com/ Oo_oc_oO

        Then she should resign. That would be the honorable thing to do, not continue to collect a paycheck from the taxpayers.

        • Berry

          I don’t see why. It’s an elected position, and if the voters are displeased with a decision that is fully within her rights to make, when her term is up, they can simply choose not to vote for her.

  • TheodoreSeeber

    I’m to the point that I am convinced that homosexuality is about trying to ignore reality.

    • ACN

      More thoughtful reasoning from Ted, folks!

      • TheodoreSeeber

        You want the thinking behind it? It’s really quite atheist.

        The soul is unprovable, so we can dispense with that. Emotions are unprovable, so we can dispense with those. If only the material world exists and our thoughts are mere illusion, then physical gender is the only sexuality that is real, *regardless of orientation*.

        Therefore, homosexuality (like heterosexuality) is just ignoring the reality of gender, which is the only sexuality that actually exists.

        • stanz2reason

          I’m curious how that bizzaro logic and incoherent rambling might be considered quite atheist, as none of your drivel has anything at all to do with a disbelief in deities.

          • TheodoreSeeber

            It has to do with a subset- a disbelief in the soul. And in emotions.

          • Brutus

            What are “emotions”, such that you don’t believe in them? Is the neural activity associated with certain blood hormones not part of reality, or is it not emotion?

        • ACN

          “Emotions are unprovable so we can dispense with those”

          Yes, often a claim I hear atheists making. *eyeroll*

          You are thoroughly confused about the difference between gender identity and sexual identity, and I have neither the time nor the inclination to give you a “101″ course.

          • Erick

            ACN, question:
            If I, a self-identifying heterosexual, become celibate and do not to have sex with females, am I no longer a heterosexual?

          • TheodoreSeeber

            “There is no soul” Without the soul, there is no emotion. Without emotion, sexual identity is a non-sequitor, and gender identity is physical.

        • http://thinkinggrounds.blogspot.com/ Christian H

          What exactly are you trying to argue? Right now you seem to be saying, whether intentionally or not, that homosexuality doesn’t even exist. Surely that’s not what you mean to be saying? Because if it isn’t what you’re saying, then I don’t understand what particular (non-controversial) reality is being ignored by …homosexuality? I’m not sure what the subject of the verb “ignore” is in your root post; is it people who claim to homosexual, or people who support same-sex civil marriage, or people who more broadly support LGTB rights and people?

          Basically, I am about 95% sure that I disagree with you vehemently, but I would like to know what position I’m disagreeing with.

          • Erick

            Ted is very funny. Let me hash out the details for those who didn’t quite understand:
            1. Materialism is one of the many atheist strands of thought.
            2. Materialism reduces homosexual orientation to a meaningless set of random and/or predetermined synaptic interactions among the neurons in your brain.
            3. Since there is no meaning, law of evolution declares that hetero sex is the fittest survival value for sexuality, since it is the only form of sexuality capable of propagating the species.
            4. Homosexuality has no value in a materialist ethic.

          • TheodoreSeeber

            That too, but I add a 5:

            5. The entire human race, save a few mutants (very few) is gendered either male or female. This is a physical fact. Homosexuality is the attempt to ignore that physical fact, and therefore, is actively *anti materialist*.

          • Cam

            Hey Ted if two people with penises are attracted to each other and they’re not denying that they both have penises or that they are both attracted to each other then what is being ignored?

          • TheodoreSeeber

            “Hey Ted if two people with penises are attracted to each other and they’re not denying that they both have penises or that they are both attracted to each other then what is being ignored?”

            The purpose of the penis, which only fits in a vagina.

          • Cam

            Where did you find out the purpose of a penis? Is it written on the side? Do they come with instruction manuals? Also penises can fit in many places.

            You could say God decides what the purpose of a penis is, but then you’re not making an atheistic or materialistic argument at all.

          • TheodoreSeeber

            “Where did you find out the purpose of a penis?”

            In high school biology class.

            I don’t need God to figure out that sex is for procreation. Do you need God to tell you that homosexuality is for procreation?

          • avalpert

            Did they cover urination in that class too? Was that where you participated in your first circle jerk? Or was your biology teacher just really lazy in explaining the various biological functions of the penis?

          • TheodoreSeeber

            A penis is not necessary for urination- women urinate also.

          • avalpert

            A penis is used for urination – thus urination is one of its purposes. A vagina is also used for urination, thus its sole purpose isn’t procreation either.

            A chair isn’t necessary for sitting, but sitting is a chair’s purpose – see how logic works?

          • TheodoreSeeber

            No, actually, while the penis does appear to have dual uses, the clitorus, not the vagina, is used for urination.

            Basically, though, what you are claiming is that a chair’s purpose is for car repair.

          • avalpert

            Um, wow – I feel very sorry for your wife. I sure hope you aren’t using her urethra to try to give her orgasms.

          • TheodoreSeeber

            Orgasms are not the point of sex.

          • avalpert

            And I will repeat, I feel very sorry for your wife.

          • TheodoreSeeber

            Orgasms are not rational.

          • avalpert

            Really, really feel sorry for your wife

          • Donalbain

            the clitorus, not the vagina, is used for urination.

            Thank you Mr Seeber, thank you. On behalf of supporters of gay rights everywhere, may I once again request that you NEVER stop loudly fighting against us. Spread your message far and wide. Please, NEVER stop.

          • Cam

            I think your biology teacher might have given you poor information. If your teacher told you that a penis can be used in combination with a vagina to procreate, then that’s a fact. But if they told you that it’s [i]purpose[/i] was procreation, then they made a logical error. What they did was phrase concepts in what is called a ‘teleological’ way- in a way that attaches inherent purpose. I understand scientific consensus on the matter to be that teleological statements in biology can be useful to understanding (such as when teaching high school students), but are merely shorthand, metaphors to help explain concepts. There are many reasons to reject teleology in biology, some practical (we can’t have high confidence in our knowledge about the purpose of a thing) and some philosophical.

            What you’re essentially arguing is that:
            -people should accept your teleological philosophy (which is widely rejected by modern science), and then
            -accept only your personal beliefs about what the purposes in nature specifically are, using only your criteria (why can’t the purpose of sex be pleasure?), and then
            -accept that a penis can have only ONE purpose, even though other body parts can have multiple purposes (if hands can both hold things and punch, why can’t penises be ‘for’ both procreation and pleasure?), and then
            -accept a moral system which holds that not supporting these purposes is wrong (which would make a straight couple who don’t procreate as morally wrong as a gay couple who can’t).

            Your argument rests on multiple unpopular philosophies and contains many flaws. I think, therefore, that people with penises who are attracted to other people with penises aren’t ignoring natural purposes (because there aren’t natural purposes) and therefore aren’t being *anti materialist*, whatever that is supposed to mean. And even if they were ‘ignoring’ anything, so what? Moral systems which hold ‘good’ to be equivalent to ‘producing the most offspring’ aren’t popular either in your actual Christian morality nor in the secular moralities which you’re trying to strawman.

          • Erick

            From a materialist perspective, homo sex is inferior to hetero sex for the simple fact that evolutionary adaptations within individuals cannot be passed on genetically via homo sex. This is why all animals have evolved the process of reproduction in the first place.

            It’s not a question of morally right or wrong. It’s a question of evolutionary prerogatives. It is better for the species’ evolution that same sex attracted persons be part of the reproduction game and engage in hetero sex.

          • TheodoreSeeber

            Then why do you deny the fact that a penis is used for procreation?

          • avalpert

            Come on, I bet you’ve fit your penis in plenty of other places – be honest now Teddy

          • TheodoreSeeber

            Not for procreation it does not.

          • avalpert

            See, that assumption you are making on what the purpose of the penis is is neither atheist nor correct – but even if it were, we are blessed to live in an age where all you need to do is fir your penis in your hand and yank it out into a cup to procreate so even in that sense you are, of course, wrong.

          • TheodoreSeeber

            “See, that assumption you are making on what the purpose of the penis is is neither atheist nor correct”

            It is based in evolutionary biology. What makes you think evolutionary biology is incorrect?

            Technology is not important in this discussion, and as many an IVF failure couple can tell you, no, that is NOT necessarily true anyway.

            Truth doesn’t change with technology, and you are not following biological facts, but rather your own opinions.

          • avalpert

            Evolutionary biology isn’t incorrect, it just doesn’t mean what you think it means – shocking isn’t it.

            And for every IVF failure I bet there are hundreds of sexual acts that didn’t result in procreation either, if success rate of the act is what determines purpose we definitely should be focusing on the urinating function of the penis.

            Truth is something you are immune to – that you confuse your opinion with Truth and Fact is something we have all come to expect.

          • TheodoreSeeber

            Sure thing, creationist.

          • avalpert

            Sure thing, rapist.

          • TheodoreSeeber

            You’re more of a creationist than I am a rapist (anymore, I once was one). You deny evolutionary biology.

          • avalpert

            Yeah, I know you aren’t much for using words the way the rest of the universe does or being intelligent in general but a big problem you have here is that you admit to being a ‘rapist’ in your terminology yet I firmly acknowledge that all species evolved from common ancestors going back the beginning of life – which would be hard to fit into any definition of creationist that would expand beyond your mind (as warped as it is).

          • TheodoreSeeber

            “I firmly acknowledge that all species evolved from common ancestors going back the beginning of life ”

            Then you disagree with homosexuality, since it isn’t compatible with species evolving.

          • avalpert

            Your a moron. Rather than go in circles again, let’s just sum it up – homosexuality could increase the propagation of genes from one generation to the next through mechanism such as inclusive fitness, it exists in nature so therefor must have evolved somehow, even if that weren’t true it still tells us nothing about ‘purpose’, ‘morality’, or disagreeing with homosexuality because evolution has nothing to say on that matter.

          • TheodoreSeeber

            If it existed at all. Since I have nothing other than the *word of homosexuals* to go on that homosexuality exists, I have no reason to even investigate it.

          • avalpert

            Yeah, like you don’t watch video evidence of it every night – we all know the reason you investigate it is to have your irrational orgasms.

          • LeahLibresco

            Hey guys, it looks like this has gone back and forth for a while without being productive. My word of honor, I won’t think anyone has conceded anything if you give it a breather.

          • TheodoreSeeber

            Pornography is misogynistic.

          • avalpert

            i intend to respect Leah’s request so this will be last post to you on this topic but I do need to ask, how is homosexual pornography between two men misogynistic?

          • TheodoreSeeber

            By showing a hatred of Motherhood.

          • Donalbain

            Then you disagree with homosexuality, since it isn’t compatible with species evolving.

            It still moves.

          • TheodoreSeeber

            No, actually, it doesn’t. It is highly destructive behavior that should be eliminated without eliminating the individual, no different than drug abuse.

          • Donalbain

            Who exactly is destroyed when George Takeii makes love to his partner?

          • TheodoreSeeber

            George Takeii’s partner. And also George Takeii.

          • Donalbain

            And of course you can provide evidence that they have both been destroyed.

          • TheodoreSeeber

            I don’t know why you don’t accept the medical evidence I’ve linked to before in reply to you, but here it is again:

            http://www.cdc.gov/lgbthealth/

            MSM (male active homosexuality, men having sex with men) is a destructive behavior when it comes to standard health. It has no creative aspects at all.

            FSF is actually *better* than MSM, significantly so. Maybe because Lesbians still retain some basic instinct of friendship and caring for others that men have to work at (as any successfully married heterosexual will tell you- heterosexual marriage means *constantly* thinking about the good of the other person, which is something I see as severely lacking in sexual culture in America. I’m not sure about elsewhere in the world, but here in America, both heterosexual and homosexual males are severely deficient in actually paying attention to the good of their sexual partners, which is why rape is so prevalent).

          • avalpert

            “both heterosexual and homosexual males are severely deficient in actually paying attention to the good of their sexual partners”

            Says the man who thinks organsms are illogical…

          • TheodoreSeeber

            Says the man who knows the meaning of the word “illogical”.

          • avalpert

            Exactly, the man who knows the meaning of illogical is pointing out that any one who thinks orgasms are can’t possibly be looking out for the good of their sexual partners

          • TheodoreSeeber

            You must have some strange meaning of the word “illogical” that I have not previously been aware of. Orgasms are momentary bits of chemically induced selfishness, and are not compatible with “looking out for the good of their sexual partners”, since the best good would be to refrain from wasting time and energy on unprofitable sex to begin with.

          • avalpert

            Uh, yeah – strange meanings of words is something you know a lot about.

            But I have always found inducing that chemical selfishness in my partner to be quite integral part of looking out for their good and they have always been appreciative for it.

            As i said before, I feel very sorry for your wife – so sad that you are too selfish to see her enjoyment and pleasure as a profitable use of energy. i take it you also don’t eat anything with flavor?

            Of course you probably also are using a ‘Teddy’ meaning for the words unprofitable, wasting and possibly even sex.

          • TheodoreSeeber

            I get calories out of eating. I get kids out of my form of sex. All you get is transient pleasure- what a pittiful life you lead.

          • avalpert

            Teddy, your stupidity never fails to disappoint.

            Actually, I get calories and enjoyment out of eating, I’ve gotten kids and enjoyment out of sex. I get transient pleasures out of all sort of experiences yet still find time for sustained pleasures, productive interaction with the world and raising children who will carry on a sensible approach to life.

            You, you just leave your wife unfulfilled, teach your children not to enjoy anything in life and probably couldn’t appreciate a fine bottle of wine or perfectly cooked steak.

            Wasting your precious time on this earth because you can’t enjoy your god’s creations is not what he put you there for – you are a big disappointment to him.

          • TheodoreSeeber

            The enjoyment is not material to the case.

          • avalpert

            Of course it is material to it, if god created the act he created the enjoyment as well. That you thumb your nose at what he has created for you is a travesty, that you think your god has ordered you to so is all the more evidence that whatever you worship is surely a false idol.

            How sad for your wife.

          • TheodoreSeeber

            Enjoyment, as a category, isn’t material at all. Thus you’ve failed as an atheist.

          • avalpert

            One of the great things about atheism is no one is grading so there is nothing to fail.

            But even beyond that, your statement (as so many times you use words) isn’t correct based on any actually meaningful definition of the words. Enjoyment is both material in the sense of being relevant (the most natural interpretation of the use in the thread) and in the sense of being physically real – I take it you have never seen brain scans before? Enjoyment is most definitely material.

          • TheodoreSeeber

            It isn’t physically real. Nothing that happens internal to the brain is “physically real”, it’s just software.

            You continue to mistake what you THINK for what IS.

          • avalpert

            And you mistake what you think for something remotely rational.

            But I’ll go tell all those neuroscientists that they can stop the scans – what they are observing isn’t physically real per Teddy’s ‘mind’.

          • TheodoreSeeber

            Oh, I NEVER claimed to be rational myself, I just point out that other people aren’t either. Rationality is impossible for any being that has even a smidgen of emotion.

            But nice to know that these “neuroscientists” think they know that they are measuring the immeasurable. Must have some very interesting scanners. Or very tiny rulers.

          • Donalbain

            Sorry. where is marriage shown to be destructive in that?

          • TheodoreSeeber

            It is homosexuality that is destructive to friendship.

          • avalpert

            But since number 3 is false the conclusion doesn’t hold.

            Though I also don’t think that is what Teddy is saying since he declared heterosexuality imaginary as well. It seems more likely that he is tripping himself us in some semantic play on ‘sexuality’ and ‘gender’.

          • TheodoreSeeber

            In what way is #3 false? I want to know if homosexuals have figured out how to breed without the involvement of a third person!

          • avalpert

            It’s false in many ways, for starters its false that there being no meaning implies evolutionary fitness is valuable. It is also false that genetic traits which limit some members of the species from procreating must decrease genetic fitness.

          • TheodoreSeeber

            I don’t understand why either of those is false.

            If there is no soul and no free will, then of course the only reason our species exists is survival of the fittest.

            A lack of ability to procreate, in the long run, will destroy any species- the species will go extinct.

            So both of those look true to me, do you have some other input that suggests they are false?

          • avalpert

            Color me shocked that you don’t understand…

            Why is survival of the fittest a reason for existence? It may be a fact of biology, but that doesn’t make it an ends in itself – whether a soul exists or not.

            A lack of procreation among some individuals will not only not make the species go extinct it can improve overall fitness of the gene pool – or do you not know anything about inclusive fitness.

            They may look true to you, but that is only because you are blind to Truth.

          • Erick

            A lack of procreation among some individuals will not only not make the species go extinct it can improve overall fitness of the gene pool

            Are you stating that homosexuality is only a condition of individuals with a poor contribution to the gene pool? This is a ridiculous statement.

            Homosexuality prevents individuals from passing on their genes, regardless of its quality. A homosexual could have the best adaptation on the planet, yet they would not pass it on because of their sexuality. This is why, from a materialist point of view, homosexuality is not a good adaptation for the species.

          • avalpert

            No, didn’t say that. You would think the least you could have done before responding is doing the most basic level of research and looking up inclusive fitness on wikipedia. Sure it wouldn’t completely overturn your cartoon understanding of evolution but at least it is a start.

            And again, beyond your lack of understanding evolution, why on earth do you think a materialist point of view should care about what is a good/bad adaptation for the species?

          • Erick

            I have read inclsive fitness and I find no evidence that this argument about homosexuality even fits in that framework. Inclusive fitness is meant to describe altruistic behavior. You are basically saying that homosexuals are engaging in altruistic self-extinction in order for their heterosexual kin to pass on genes that they share together without giving any particular reasoning. Again, this is a ridiculous argument.
            Second, materialism cares about good adaptations because it is a matter of survival. It’s not a moral judgment.

          • avalpert

            There are plenty of hypothetical reasons out there. But you still don’t understand the mechanisms at all – still jut reflecting a cartoon version of evolution. ‘Altruistic self-extinction’ has nothing to do with procreation, self-extinction of a homosexual means his/her death – all homosexuals and heterosexual will become self-extinct at some point. Self-extinction of the species or gene pool is the opposite of what inclusive fitness causes.

            Procreation among humans always only passes on a subset of their genes (at least until we perfect cloning) – whether that subset is 50% or 25% and whether you can contribute more to your genes total survival by supporting one of those subsets is driven by specific circumstances. There is nothing ridiculous about the argument, we just don’t have enough of an understanding at this point to know which hypothesis are most plausible.

            And, you move the goal posts but don’t answer the question with materialism – why should a materialist care about species survival?

          • TheodoreSeeber

            If evolution is true, then survival of the fittest is the ONLY reason for existence. Thanks for admitting to being a creationist.

          • avalpert

            Haha, you are a funny nut. If evolution is true (it is) then survival of the fittest explains how traits are passed on generation to generation – it tells us nothing about the ‘reason for existence’, it doesn’t even imply there are any.

          • TheodoreSeeber

            The only reason there is a next generation under survival of the fittest at all, is because the previous generation reproduced.

            I’m surprised you disagree with that statement.

          • avalpert

            I don’t disagree with that statement, but nowhere does that suggest the the existence of the next generation is the ‘reason’ why the current generation exists. Just because you need to see the world through that lens doesn’t make it so.

          • TheodoreSeeber

            The two aren’t compatible. Either you agree that the current generation exists because the previous generation reproduced (and therefore the existence of the next generation depends on the current generation reproducing) or you don’t.

            Which is it?

          • avalpert

            Um, yeah. All that can be true and it still doesn’t imply that the purpose of existence is creating the next generation. You just keep begging the question assuming the purpose.

          • TheodoreSeeber

            “All that can be true and it still doesn’t imply that the purpose of existence is creating the next generation”

            The purpose needs to fit the reason. The problem is, you are trying to deny the reason for an agenda of your own.

          • avalpert

            The reason for the penis need not be the same as the reason for the existence of the next generation. I know comprehension is tough for you but the same word can apply to different categories.

            The problem is, you are so deluded by your dogmatic frame of the world that you can’t comprehend anything that is premised on the same frame. No worries, at least you don’t have orgasms…

          • TheodoreSeeber

            Only because you’ve invented different categories.

          • Donalbain

            The purpose needs to fit the reason.

            And yet still no evidence that there IS a purpose.

          • TheodoreSeeber

            Only because you are willfully blind for political purposes.

          • Erick

            avalpert, this is just simply illogical denial of evolution. Evolution details that adaptations that pass on to the next generation are stronger than those that do not pass on. If homo sex prevents procreation, it is not a strong adaptation compared to hetero sex.

          • avalpert

            Erick, this is just simply illogical. First, evolution does not say anything about ‘strength of adaptations’. It describes the mechanism by which change in gene pools over time happen, it does not make value judgments (even if that language is sometimes used for convenience sake). An adaptation that is weeded out in one environment may be perfectly fit for another even just a few miles away, you cannot assert that it is absolutely better or worse.

            Second, there is more that contributes to the persistence of specific genes from one generation to the next than just the act of procreation. A genetic adaptation that doesn’t help the individual procreate but in some way helps kin of the individual procreate can not only contribute but improve evolutionary success of the gene pool.

          • Erick

            avalpert, first, I admit the term stronger is simply allegorical, but it still stands that the number one criteria for fitness of an adaptation is its ability to be passed on to the next generation.
            also, while your second point is true, you would have to assume that the heterosexual kin has the better genes to add into the gene pool or that the homosexual individual does not have any genes that are better than the kin for it to be a valid reasoning in this argument.

          • avalpert

            No, again I would suggest you do some research into inclusive fitness. It isn’t an all or nothing process – supporting kin reproduction can increase the survival of your own genes more than your own reproduction under certain circumstances. Keep in mind I am not asserting a theory as tho why a genetic tendency towards homosexuality evolved in humans (there are several out there but we just don’t yet have the data and understanding to reach conclusions) – but, it is simple mathematics which tells us that if my not procreating can increase the likelihood of my kin’s offspring reaching sexual maturity by a greater percentage than 2x if I did it on my own than my genes have a better chance of surviving into the future if I support my kin’s offspring than trying for my own (that’s why nearly all bees are sterile even after all these years of evolution).

          • Guest
          • TheodoreSeeber

            Let me know when the New Mexico Whiptail becomes a member of the species Homo Sapiens.

          • TheodoreSeeber

            I’m also saying that heterosexuality doesn’t even exist.

            The particular non-controversial reality being ignored by homosexuality is gender.

          • http://thinkinggrounds.blogspot.com/ Christian H

            So you’re comfortable making something you believe to be non-existent the subject of a verb? Huh.

            Can I suggest that you’re equivocating a bit? When you make “homosexuality” the subject of “ignores,” do you maybe mean something else? Like, “people who claim to be homosexual”? I find the whole false-consciousness claim here nonsensical, but I would, at the very least, like a coherent subject for “ignores” before I leave this thread. After all, an abstract noun can only ignore something if you’re using the abstract noun as a metonym for something with a consciousness (ie. “existentialism” for “people insofar as they are existentialists”). I want to know what “homosexuality,” here, is a metonym for.

          • TheodoreSeeber

            Yes, of course, I’m a software engineer. I work in imaginary concepts that have real world consequences every single day.

            But at least I know them to be imaginary.

            I certainly don’t base my life on the idea that I can deny my gender merely by believing I’m attracted to people of the same gender.

          • http://thinkinggrounds.blogspot.com/ Christian H

            Hey, look, I owe you an apology. I was publicly baiting you for your grammar use because I disagree with you, and that was petty of me. I still think your opinions are outlandishly wrong and that the way you present them can be avoidably offensive, but that’s not a reason to treat you like I did. So I’m sorry about that, and I will try really hard not to do it in the future (especially since this is time number two).

          • Brutus

            “Physical gender” isn’t a cogent noun phrase. Did you mean “Biological sex”?

          • TheodoreSeeber

            I would agree with that phrase as well, yes.

            What authority defines what is “cogent”?

          • Brutus

            If you want to use a definitions that disagree with my desk-reference dictionary, you have to specifically mention it. That’s because I’ve chosen my dictionary based on it’s ability to be used to communicate with people who wish to communicate with me. If your only point is that gender does not exist apart from sex, observational evidence trumps all thought experiments.

          • TheodoreSeeber

            Your desk reference dictionary is your scripture of authority? It can’t be wrong?

          • Brutus

            What do you mean by ‘wrong’, when referring to mapping words to their referents? It’s *standard*, in that people communicating with me note when their usage is inconsistent with the standard.

          • TheodoreSeeber

            I asked who defined what was cogent and what was not, and you replied that your desk dictionary defines what is cogent and what is not. I am not disputing the meaning of the word cogent, I am asking you what authority defines what is cogent.

          • Brutus

            Oh, I was saying that referring to the natural existence of a grammatical construct is not convincing or believable by clear or incisive presentation.

            My authority is an observed reality in which my observations are not expected to differ significantly from yours.

          • TheodoreSeeber

            Then you agree that biological gender exists?

            The next stage, is do anecdotal stories about emotions constitute evidence?

          • Brutus

            I believe that what I call gender is not biological in the sense that sex is, but is biological in the sense that intelligence is. That which is biological in the sense that the pulmonary system is biological is sex. The distinction between sex and gender is only important where it is important; are you saying that it is important here, and we are having difficulty communicating, are you saying that it is unimportant here without making any claims about other communications, or are you claiming that the observed distinction does not exist in reality?

            I would expect to hear lots of consistent (with each other) anecdotal stories about emotions if they existed; if they didn’t exist, I would expect the anecdotal stories about emotions to be inconsistent and/or uncommon. Anecdotal stories about emotion that are common and consistent would be evidence for emotion existing.

            That’s entirely irrelevant, because emotions create behavior, and we have enough knowledge about some of the mediating brain structures that we can use direct stimulation to elicit those behaviors in lab rats and confirm the results in humans. Emotions are biological in the same sense that the ability to localize a sound to a location is biological.

          • TheodoreSeeber

            “I believe that what I call gender is not biological in the sense that sex is, but is biological in the sense that intelligence is. ”

            How do you prove a gender?

            I’m saying that biological gender is no different than biological sex, and has nothing to do with the brain at all, but only the reproductive equipment.

            I have no proof of what is inside somebody’s brain other than anecdotal evidence.

            Homosexuality is an anecdotal story that is inconsistent from biological gender- and since it is inconsistent, I cannot assume that it is true.

            Behavior itself is just an anecdotal story that isn’t reproducible. Stimulation is not reproducible 100% of the time in human beings or even in lab rats.

            Localizing a sound to a location, I can measure with the proper technology. Attraction is not something I can measure, therefore, it does not exist.

          • Brutus

            Okay, I’ll update my model of your communication to use ‘gender’ as ‘the expressed phenotype commonly associated with sex’.

            Additionally, I’m going to need references for: “Prove/proof”, “anecdotal”, “evidence”, “story”, “inconsistent”, “assume”, “true”, “behavior”, “reproducible”, “stimulation”, “attraction”, “measure” and “exist”. I don’t think you are using many of those words in the standard sense or in any jargon sense with which I am familiar.

          • TheodoreSeeber

            Prove: Present enough empirical evidence, and in the case of dealing with secular culture physical and easily verifiable evidence, to support an assumption.
            Anecdotal: Any story told by an individual. Data is not the plural of anecdotal.
            Story: a human being telling you something, as opposed to something you directly are able to observe yourself
            Inconsistent: Not consistent (did I really have to tell you that?)
            Behavior: A set of actions done habitually, but not always.
            Reproducible: An event that happens reliably 100% of the time.
            Stimulation: Input into a nervous system.
            Attraction: In this case, emotional attraction, which I doubt even really exists- it’s just a lie we tell ourselves to rationalize previous behavior.
            Measure: Observation that is reproducible and repeatable and can be numerically quantified.
            Exist: In the case of secular atheism, something that is reproducible and physical exists and is part of the natural world. Everything else is part of the supernatural world.

          • Brutus

            It might just be that I’m significantly better at math and can quantify numerically things that you can’t, or it might be that you don’t share my understanding of what “enough evidence” means,or you might not understand the distinction between time-variant and time-invariant observations, but I find the proof trivial.

          • TheodoreSeeber

            Ok, what’s the equation for attraction then?

          • Brutus

            The value for someone’s attraction is equal to the value that they entered on a specific survey which asks them about their attraction.

            How would you measure the ability of a group of people to localize a sound?

          • TheodoreSeeber

            “The value for someone’s attraction is equal to the value that they entered on a specific survey which asks them about their attraction.”

            And thus, is purely anecdotal evidence and cannot be accepted.

          • Brutus

            No, everyone else reading that survey gets the same value; it’s repeatable and even time-invariant for as long as the media holds together. It’s equally as anecdotal as the value someone wrote down after looking at a thermometer or dial caliper. (If you don’t call “I saw a value of 3.2 micometers” anecdotal, why do you call “I am attracted 3.2 arbitrary units on a linear scale from 0 to 10″ anecdotal?)

            What would evidence in your world that supports an alternative hypothesis to ‘Emotions exist’ look like?

          • TheodoreSeeber

            Yes, I’d expect everybody reading the same set of anecdotes to get the same value. The question is, do you get the same value without excluding other people’s anecdotes?

            Don’t have a human reading the dial at all. Record *everything* with mechanical devices. Humans can’t be trusted.

          • Brutus

            In your rhetorical(?) question, whose anecdotes are being excluded? The study as suggested is intended to show that priming in a specific manner produces a predictable effect (people who just watched Old Yeller have a higher self-reported level of sadness), which is evidence for sadness being a real thing that people have that is similar enough across different people.

            Is it trustworthy machines all the way down, or do you trust a human to recognize the automated alarm and politely suggest that if he could hold a belief, he would believe that the pressure vessel is about to explode?

          • TheodoreSeeber

            The study failed to ask the people who didn’t have a self-reported level of sadness after watching Old Yeller- and didn’t control for the *expected* culture based belief that we should feel sad after watching Old Yeller.

            If it isn’t mechanical all the way down, it does not exist by pure objectivism- it isn’t evidence.

          • Brutus

            The (counterfactual) study included everyone. It also didn’t ask what the cause of sadness was, it only looked for it,

            But because you don’t think anything that you see is evidence (or even real) because you have to see it, there is no room left to communicate. You aren’t even wrong.

          • TheodoreSeeber

            “How would you measure the ability of a group of people to localize a sound?”

            By comparing it to a triangulation from twin microphones and a computer that eliminates the human element.

    • Donalbain

      Please… NEVER stop doing this!

  • Thomas W

    I also agree with Ms Libresco. When California officials declined to defend the California Constitution (be defending Proposition 8) they set a very bad precedent. Unfortunately in some further research it appears this has happened in the past.

    Having the Attorney General pick and choose which laws to defend makes a mockery of the legislative process (or popular referendum, I’m not sure which passed the law). While the state can decide what cases to prosecute, it seems obligated to defend any suit brought against the state, or (as in the California case) against state officers.

    • http://thinkinggrounds.blogspot.com/ Christian H

      “While the state can decide what cases to prosecute, it seems obligated to defend any suit brought against the state, or (as in the California case) against state officers.”
      But why? I simply don’t see a reason. If no one within the government even remotely thinks the law is a good idea, why would they need to appoint someone to defend it? Why not just say, “I’m glad you pointed that out. Give us a moment to fix that”? People are guaranteed a right to legal defense, but why should laws enjoy that same privilege? Or, to put that differently, people can plead guilty and admit they were wrong; why can’t states do the same, or what conditions that would allow a state to admit error are not being met in the California or Pennsylvania cases?

      • LeahLibresco

        If the state thinks a law is a bad idea, it can repeal it. That’s what “Give us a moment to fix that” should cash out to.

        People aren’t just entitled to a legal defense but to a non-capricious system of law. Hence no ex post facto charges, for one thing. We have a legal way to roll back bad law, and we should stick to it. The courts (not the one lawyer) or the legislature.

        • Berry

          There is more than one way to roll back law. I don’t see the President getting overly much flak over the Pocket Veto, but it’s much the same as what’s going on here. Further, people here, in these kinds of governmental vetoes (where the state declines to defend a law,) have recourse and standing, assuming they fit certain criteria. In the Oral Arguments for Perry, Roberts listed a number of people who legitimately could have had standing that were not the Government or the Lobby groups. This is practically identical to how suits against normal laws function, so I don’t see why this is particularly capricious or arbitrary.

          There are a number of elected State officials who can independently choose to take up the defense (in this case, the AG, the Governor and the General Counsel,) failing that, there are legitimate legal methods for certain private citizens to gain standing.

          Considering all this, I would say there are at least as many, if not more, democratic checks-and-balances on this kind of legal challenge than there are in the average legislative process.

        • http://thinkinggrounds.blogspot.com/ Christian H

          The Problem of Pain‘s theory of communication. OK. I find that almost convincing. Not quite, though, on the grounds that I think the amount of harm done by adhering to an unjust law outweighs the harm done by loosening our obedience to the law. And I’m talking about harm to us, in the virtue ethical sense, as well as the consequentialist sense.

        • Brutus

          Isn’t the system of checks and balances intended to allow any two branches to counter any action of the third branch? If the legislature passes a bad law, why should the executive branch enforce it or the judicial branch defend it?

          Due process is being had by making the plaintiff prove his case to a judge.

      • Thomas W

        I’m more familiar with the California Prop 8 case than the current Pennsylvania controversy. In Prop 8 the people of the state passed a constitutional amendment. State officials essentially said “we don’t care what the people wanted, we don’t like this law and won’t defend it’.

        A bigger problem is the general approach of “the ends justify the means”. If the situation were reversed (Pennsylvania had a same-sex marriage law and the AG declined to defend it), arguments would be reversed — proponents would decry state officials not doing their jobs and opponents would cheer.

        Of course “ends justify the means” has always been a tradition in politics but that doesn’t mean it’s a good way to legislate.

  • Anonymous

    Wrt standing in Perry – I think Kennedy’s dissent was correct. The State can appoint anyone they want to represent their interests in court.

    The flipside to this is that the State can make their own decisions about defending laws. If they simply don’t want to require their AG to defend their laws, fine. Heck, they could instruct the person they appoint to represent their interests to not defend any of their laws. I think it’s good policy for a state to require someone to defend their laws, but there’s no legal reason why a state has to choose this policy.

  • stanz2reason

    While I actually agree in principle, there are practical political realities to consider. This isn’t really an instance of ‘tyranny’ as was suggested by someone below, but more of a calculated pander for someone who appears to be considering a run for governor. Based on recent court cases and a trend in public opinion that isn’t slowing down let alone reversing, she’s positioning herself to be able to say ‘I couldn’t defend a blatantly unconstitutional law, nor could I justify wasting taxpayer dollars to do so.’ It’s political theater, cutting the corners into ethical gray-ish territory of what can be fairly argued as not doing your job. It’s up to her constituency whether or not they’re OK with that. She’s wagering they are.

  • grok87

    “As G.K. Chesterton says inOrthodoxy, ‘Above all, if we wish to protect the poor we shall be in favour of fixed rules and clear dogmas. The rules of a club are occasionally in favour of the poor member. The drift of a club is always in favour of the rich one.’”

    Nice Chesterton quote.

  • http://thinkinggrounds.blogspot.com/ Christian H

    “Part of our penance is going through legal channels and doing the tedious work to unwind all the knock on effects they’ve had. Just all agreeing to pretend the law doesn’t exist is a terrible habit.”
    I don’t think anyone is pretending the law doesn’t exist. They’re saying (Kane is saying) that the law very much exists but is indefensible. There’s a rather biggish difference.
    More importantly, I feel like your virtue ethics is misdirected in this case. First, those who had no hand in making the law hardly need to do penance. Second, while we’re doing this penance, people are getting hurt and injustice continues to be done (I’m assuming for the moment that you still support same-sex civil marriage; if you don’t, then the relevant disagreement isn’t this one). This isn’t a case of choosing between doing a consequentialist thing (not prosecuting people who are guilty of an unjust law) and doing a virtue ethical thing (using penance to train yourself to write just laws); it’s choosing whether you want to train the virtue of care or the virtue of legal/juridical savvy. Now, my ethics have always leaned much more towards consequentialism than deontology, so we’re coming from different places, but I think that even within the logic of virtue ethics (and I’m reading your argument as a state-level virtue ethics…am I wrong to do so?) you’d need to defend the particular virtue (legalism) you’re developing at the expense of others (e.g. “care” or “integrity of conscience”).

    In other words, I think you might be straying toward Lawful Neutral territory here. You aren’t there yet, but if you keep sacrificing the Good for the Law like this you might need to mark an alignment change on your character sheet.
    I guess it sounds to me as though you’d like to force her to commit an immoral act (defending an unjust law) on the grounds of some greater morality (maintaining the legal system), which sounds like poor ethical pedagogy; how does this train you to be ethical? Or, to put it differently, how can doing something harmful to another ever constitute effective, or even admissible, penance?

    • http://thinkinggrounds.blogspot.com/ Christian H

      I do find the Chesterton quote pretty compelling, though. If you wish to argue, you’d likely find that kind of argument most fruitful.

      • grok87

        I like the Chesterton quote too. It reminds me off Psalm 9:18

        http://www.biblegateway.com/passage/?search=Psalm%209&version=NRSV

        “For the needy shall not always be forgotten,
        nor the hope of the poor perish forever.”
        Re your post above, I think Leah’s point is that not enforcing laws willy nilly sets a dangerous precedent.

  • http://patheos.com/blogs/hallq/ Chris Hallquist

    I’m not sure what point you’re trying to make with the rogue sheriff thing. Yeah not prosecuting the people he arrests is an imperfect solution – the ideal solution would be to somehow force him to stop arresting people under a law that’s almost certainly unconstitutional. You can’t seriously be suggesting that when the Supreme Court makes a ruling, local law enforcement should ignore the ruling until… the legislature votes to follow the court ruling? A local court makes a more specific ruling? What would the alternative even be?

    Furthermore, while I’m a hardcore civil libertarian and share your worries about prosecutorial discretion, my understanding is that the executive branch has always had some discretion in how laws are enforced. It’s nice to say, “oh, we’ll just avoid abuses of prosecutorial discretion by by not having any discretion,” but it’s not clear that that would be remotely feasible.

    And finally, where is that actual harm to the poor guy here? If you’re worried about misuse of prosecutorial discretion, why not focus on the kind of cases that, say, Glenn Greenwald focuses on?

    • Mariana Baca

      I don’t think Leah is suggesting they ignore the ruling. But if the ruling is being ignored by local law enforcement, the solution is not for the DA to just ignore those arrests, but to move to strike down the law to prevent arrests from happening at all.

      The harm to “the poor member” here is that a law can be selectively enforced when they want to harrass specific gay people. An “in with the gov’t” gay person has nothing to fear, but the law can be selectively applied to other gay men (maybe suspected of other crimes) as an excuse for arrest or investigation, even if it never goes to trial. That situation should be remedied.

      • autolukos

        While it would be better for the LA legislature to repeal the law, that has no chance of happening in the near future. This means that the DA can either:
        1. Refuse to waste resources by prosecuting cases sure to fail on appeal
        2. Use his office’s limited resources to prolong the harassment of defendants sure to win on appeal
        The first is obviously preferable both for defendants and for the DA’s allocation of resources.

        • Mariana Baca

          The right course of action is to discipline the police making incorrect arrests, and ask the law to be repealed. I’m not even sure the law needs to be repealed, though — I thought if a law was unconstitutional, they couldn’t enforce it even via arrests? I’m very confused by this case. Regardless, “not prosecuting” seems like the wrong course — the police office should admit to incorrect arrests.

          • autolukos

            It would be quite bizarre for a DA to simultaneously try to bring charges against the sheriff (which probably isn’t possible in this case) and prosecute the cases that gave rise to those charges.

          • Mariana Baca

            He shouldn’t do both. I believe in this case the sheriff ended being reprimanded and he apologized.

          • autolukos

            Then I’m confused as to what you mean when you say, “‘not prosecuting’ seems like the wrong course.” That appears to mean that you think the DA should prosecute the men the sheriff arrested.

      • Brutus

        The sheriff is an elected position, right? The solution is to either elect a different sheriff or secede.

    • Martha O’Keeffe

      It’s political weaselling; the officials can keep one eye on the polls and another on the next election, and instead of having to alienate any potential voters by doing their job and enforcing the laws on the books or if they really do have a conscientious objection, refusing to do that, they leave it up to the courts and then shrug and say “We can’t do anything about it, the judges say it’s unconstitutional so we have to repeal it”.
      I would ask Ms. Kane what about the Joes and Sallys, the Bills and Cathys, who voted in or support or don’t want to change the law you are so worried about on behalf of the Daves and Robbies and Emilys and Amys? Fine, you are saying you are willing to represent one set of voters – what about the other set?

  • Cam

    While I agree that for the most part your legalistic position is the best, the problems are sort of glossed-over. The Emilys and Amys can’t depend on their legislature- this is the US we’re talking about. One possible thing to look at is who the law is being bent in favour of- a powerful majority, or a disenfranchised minority?

    This is an aside, but Thomas More burnt people alive, right?

    • TheodoreSeeber

      No, Thomas More was beheaded for not being willing to deny the Church. Witch burnings had largely stopped in England a good hundred years before, and it would be another generation before the English Reformation would heat up again (pun intended) under Good Queen Bess.

      • Cam

        Wikipedia disagrees with you, “…After the case of John Tewkesbury, a London leather-seller found guilty by More of harbouring banned books and sentenced to burning for refusing to recant, More declared: he “burned as there was neuer wretche I wene better worthy.”
        And,
        “In total there were six burned at the stake for heresy during More’s chancellorship: Thomas Hitton, Thomas Bilney, Richard Bayfield, John Tewkesbery, Thomas Dusgate, and James Bainham…More’s influential role in the burning of Tyndale is reported by Moynahan.”

        • TheodoreSeeber

          “reported by Moynahan.”

          Sounds like Reformation Era Propaganda after the fact to me.

    • http://thinkinggrounds.blogspot.com/ Christian H

      Six people were burned alive for heresy during More’s Chancellorship; he was influential in at least one of those burnings. He also explicitly supported burning heretics (ie. Protestant reformers) alive. He didn’t touch the torch to the kindling himself, as far as I know, but he oversaw the legal process in which it happened and got a few people further along that process. He was beheaded for religious convictions as he had others burned for theirs. Lots of blood on all sides.

  • autolukos

    Leah, there is a quite basic flaw in your treatment of the LA case: you say “we don’t traditionally leave constitutional interpretation to local Sheriffs” while endorsing the legal interpretation of the sheriff over that of the DA. In your link, the DA explains his position plainly: his office disagrees with the sheriff’s understanding of the law. He doesn’t say, “well, that’s the law, but we don’t want to follow it”; he says, “from what I’ve seen of these cases, legally, we found no criminal violation.” I find it bizarre to argue that the DA should cede his role in determining whether a law has, in fact, been violated to a legal amateur. Unfortunately, police make unjustified arrests all the time; prosecutors should not be obligated to prosecute these cases if they find no crime.

    Edited to add: The sheriff’s position relies on one or both of the following premises:
    1. Where they conflict, acts of the Louisiana legislature overrule SCOTUS decisions.
    2. SCOTUS decisions are not binding on any but the immediate parties.
    These are directly contrary to American legal principles; federal law trumps state, a judicial precedent is law, and SCOTUS precedents are binding in all American jurisdictions.

    • Brutus

      Option 3: The sheriff has the position that this law is not covered by the SCOTUS decision.

  • avalpert

    I think this Leah’s way of trying to figure out how she can back into the conclusions she is supposed to reach now as a Catholic without wading into the trickier challenge of justifying moral assertions she doesn’t actually believe.

    Sure it might mean twisting yourself into knots trying to explain how a sheriff’s interpretation of the law is more authentic than a DA’s or completely ignoring the existence of the general counsel position in PA and the AG responsibility to take SC rulings into account but that is a small price to pay to getting to the ‘right’ answer.

    • Randy Gritter

      There is nothing particularly Catholic about Leah’s conclusions here. It is a legal matter about how laws should or should not be repealed or made unenforceable. There is no right Catholic answer. It actually has nothing to do with gay marriage in the sense that the same tactic could have been used by a republican on a gun control law. Is this a legitimate way to get rid of a law when you don’t have the votes required to repeal it? There is no conclusion about that which a Catholic is supposed to reach.

      • avalpert

        Um, yeah you kind of missed the point. The conclusion she is reaching is that homosexual marriage should remain prohibited in Pennsylvania and homosexual acts prosecuted in Louisiana. Her method for defending that conclusion is disingenuously pretending that DAs don’t use discretion in deciding which arrests get prosecuted or AG’s aren’t required to account for supreme court decisions in determining what arguments she can make to defend a law – even if that means she has to acknowledge that under current precedent it is indefensibly unconstitutional.

        It has everything to do with gay marriage, the whining about the tactic is just a diversion to help her get there.

        • stanz2reason

          I disagree. Knowing her only by what she’s written here, I believe that she is in favor of legal gay marriage (though she often remains conspicuously silent on her views of the church’s position on that and other matters) and I would be surprised if she was objecting to the ends rather than the means here in both the PA & LA cases. I think what she’s addressing is what can be argued as deliberate selective defense of laws based on personal views. True, this happens on some level regardless, but there is a slippery slope here with a DA taking an overtly partisan stand that is worthy of discussion.

          • avalpert

            See, that’s odd. It seems obvious that it is the Sheriff who was taking an overtly partisan and clearly unconstitutional stand – the DA was appropriately saving the time, money and embarrassment of attempting an obviously doomed to fail prosecution.

            While I agree, this isn’t being generous to Leah based on her past, I’ve found the drift in her postings noticeable and see this as just the next test step to see if she can convince herself of it.

          • stanz2reason

            I’m sure the sheriff was choosing to enforce laws based on his personal views. I think the point is that (under the assumption that our branches of government were operating correctly, and you can criticize Leah here for being naive and overly idealistic) the proper course of action would be for the legislature to strike said laws from the books rather than a DA just opting not to defend them (and keeping an avenue open for bigoted sheriffs to harass people). Keep in mind, you might feel differently had the law the DA decided not to defend a law that aligned up closer to your own ideological preferences.

          • avalpert

            There are lots of anachronistic laws left on the books. Might it be better hygiene for legislatures to remove them, probably, but that doesn’t preclude DAs from rightfully not prosecuting ones that can’t possibly pass constitutional muster.

            It isn’t naivete or idealism to believe that that isn’t part of our branches of government acting appropriately – it is just disingenuous. DAs have a requirement not to prosecute unconstitutional laws just as they shouldn’t bring prosecution when they are based on clearly unconstitutionally obtained evidence – that is part of their professional discretion they are employed to exercise.

          • stanz2reason

            Speculating of course, but which do you think played a larger part in the DA’s decision: the unconstitutionality of the law or the political posturing?

          • avalpert

            This is a quote from the DA:

            ““The Sheriff’s Office’s intentions are all good, but from what I’ve seen of these cases, legally, we found no criminal violation.”

            Sounds like very basic prosecutorial discretion to me – no political posturing at all

          • stanz2reason

            Sorry, referring to Pennsylvania DA. Question stands.

          • avalpert

            She’s an AG, not a DA, which is an elected position in the state executive branch – politicians politically posturing is kind of the point of the game. If the electorate doesn’t like the posturing they will have a chance to make that known at the ballot box.

            That said, the notion that the executive branch has an independent authority to disregard laws it believes unconstitutional is neither new nor particularly controversial – it goes back at least as far as Jefferson and the Sedition acts.

          • stanz2reason

            Sorry again for the error. Twas late and I was typing on my phone.

            Political posturing isn’t the point of the game, doing their jobs is. It’s a reality that posturing is part of the game and I accept that as a pragmatist. My question, again, still stands. While speculative, do you think that the decision of the Pennsylvania Attorney General was motivated more by the high potential unconstitutionality of the law, or the theater of the whole situation?

            While I’m sympathetic to the ends, were I to answer that question I’d say it was probably the latter. Personally I think political rhetoric & theater has become more intrusive into the actual implementation of policy, to the point where Congress… OK, Republicans in congress are willing to do genuine harm to the country because they actually believe the circus act of what they’re saying. In an ideal situation bad, outdated & unconstitutional laws would be stricken from the books, not selectively defended or enforced. I think that was the point Leah was going for, not a half-hearted attempt to reconcile her natural inclination with her newish faith.

          • avalpert

            I don’t think those two reasons are mutually exclusive and whether one weighed more heavily than the other isn’t particularly interesting to me. That said, she has said she isn’t going to run for Governor next year so I’m willing to accept that she believes it is the right policy, not just the right politics.

            As for whether political theater is more intrusive than in the past – I think that is more the result of looking back through rose colored glasses. The politics of congress has always been ugly. And while maybe it is the case that in an ‘ideal situation’ the laws are removed by the legislature, that ideal has never been reality and practically speaking never will (it actually would be a waste of legislative time and energy as well) so I would rather think she was trying a new way at reconciliation than wasting a blog post on an ‘ideal’ that doesn’t really impact reality at all.

          • stanz2reason

            Personally I think the prospect of defending the laws you choose in part because the legislature is gridlocked is a slippery slope. I’ve no doubt that this discretion is and has been used in some degree each day. That’s ultimately secondary here. That it is used in lieu of the legislature doing it’s job is, in my opinion worthy of conversation. I’m not quite as concerned as Leah, but I see her point and sympathize to a degree. Agree to disagree.

            I’m fully aware that politics has been a contentious playground for as long as we have records of such things. I’m under no illusions that this is new phenomena. I don’t have an issue with competing ideologies vying for control of the steering wheel. What is a relatively new trend is the tactic of simply throwing a monkey wrench into the engine via endless obstruction and wildly unrealistic policy and calling that governance. Rhetoric regarding budget ceilings by the minority party is not new. Nearly leading to defaults is new. Use of a filibuster is not new. Requiring a cloture vote for even the most mundane items is new. This legislative disfunction at both the federal and state level will lead to more and more instances of Attorney’s General downshifting from using reasonable discretion to playing political theater and trying to pick up the slack left by the legislature by ignoring their responsibilities. Again, you might not see this as an issue. Agree to disagree.

          • Donalbain

            This is a quote from the DA:

            ““The Sheriff’s Office’s intentions are all good, but from what I’ve seen of these cases, legally, we found no criminal violation.”

            This quote worries me slightly. What exactly are the good intentions of someone who arrests people for the “crime” of being gay?

          • avalpert

            His intent was to protect the children, that it was filtered through his bigotry is unfortunate, but hardly surprising.

          • Donalbain

            Protect what children? There were no children involved.

          • avalpert

            Apparently these stings were going on in a local park where there were complaints of lewd behavior.

    • Berry

      Deserving of many upvotes, this comment is.

    • Martha O’Keeffe

      Okay – the situation in Louisiana seems to boil down to this: is the act for which the sheriff is arresting people illegal? Technically, yes: there is a law on the books and they are performing the action defined in the law as illegal and criminal just like laws about parking on double-yellow lines or littering.

      Is what the sheriff is doing wrong? Note, I’m not asking is it immoral or discriminatory or prejudiced or is he abusing his powers, I’m asking is he entitled to do what he is doing? Answer seems to be yes – personally, I hate sting operations or honeytraps or entrapment cases or relying on jailhouse informants, but if it’s common practice (as it seems to be nationally and indeed internationally), you can’t complain that Sheriff Jones set up an entrapment to arrest people on charges of sodomy when you’re not also complaining that Sherriff Smith got a conviction of Bankrobber Bob through entrapment.

      What should the District Attorney do? Again, technically, if the relevant law is being broken and the arrests are done correctly, he/she should prosecute. Or lay out the grounds on why he/she will not prosecute these cases, and give legal reasons (e.g. such laws have been found unconstitutional, case law precedent means that judges will not convict and so forth). And lobby for a change in the law.
      What is not good law or good practice – and it doesn’t matter if you’re Catholic or atheist – is to cobble together a patchwork, as Leah says, where prosecution or not is at the discretion of the District Attorney and he/she exercises that discretion based on personal interest and/or political calculation.

      If this current D.A. refuses to prosecute because it contradicts their set of beliefs (and I don’t mean simply religious beliefs, I mean “belief that prejudice is wrong, belief that this is discrimination against gay men, belief that this is bigotry and persecution, conviction that this is a civil rights matter”), that doesn’t stop the next D.A. from agreeing to prosecute because it agrees with their set of beliefs, which is not good precedent for anyone to be confident that they will get fair and impartial treatment in the judicial system.

      I think there should be conscience exceptions but I also think that people should be clear about their conscience exceptions. Most people, as I understand it, would argue that a Catholic politician, whether in local or national office, should uphold the law in cases like “abortion is legal here” even if it conflicts with their personal belief, because you are not merely representing your own tribe but everyone.

      Same thing holds for the Pennsylvania Attorney General. She’s not just representing the Daves and Robbies, she’s representing the Joes and Sallys. If the law is bad or wrong or unconstitutional or unupholdable, then make the case – but don’t say “I won’t carry out my duties because I don’t like this law”. If she were arguing that, for instance, she would not defend a law on abortion being permissible up to 24 weeks because “I choose the unborn”, how much media encouragement would she get, do you think?

      • avalpert

        Maybe this really just is a complete naive understanding of the duties of the executive branch, how prosecutors operate and legal process – I would expect more from educated folk.

        It is well established that DAs are not only empowered but obligated to apply the law in alignment with the constitutional whether the legislature acts or not. Section 2 of DOMA has not been repealed, does that mean the Obama administration should be enforcing it? The Supreme Court ‘strikes’ down laws all the time – they are still on the books, are they enforceable?

        The DA here is doing the entirely correct thing not from a moral, political or ethical bent but from a legal perspective. The law in question is clearly unconstitutional and unenforceable – it would be not only a waste of resources but a misuse of his office to prosecute.

        And even without a judicial declaration of unconstitutionality as you have in this case, it is well established that the Executive Branch can, and may have a duty to, independently determine the constitutionality of laws. Even if the Judicial Branch is the final arbiter of constitutionality it is not the only. If you want a decent introduction to the issue you can check out Saikrishna Prakash’s 2008 Geoergetown Law Review Journal article, The Executive’s Duty to Disregard Unconstitutional Laws.

      • autolukos

        No, the act for which the sheriff is arresting people is not illegal; I will point you to the DA’s comment that, “the Sheriff’s Office’s intentions are all good, but from what I’ve seen of these cases, legally, we found no criminal violation.” Remember, case law IS law, not a suggestion to legislators, so the governing law here appears to be Lawrence v. Texas, which, as a Supreme Court case, overrides Louisiana statute law. The sheriff is flagrantly defying the relevant law, and the DA has gently reminded him of this.

  • Erick

    Thanks. From what I gather of your reply, you seem to agree with Ted’s materialist interpretation that sexual identity is a subjective mental fabrication. This goes to Ted’s point that gender identity and reproductive function are the only truly objective (and hence real/meaningful) identities according to the materialist POV.

  • http://crudeideas.blogspot.com/ Crude

    The fact that Leah’s point is being missed by so many is discouraging. The role of an official is to enforce the laws on the books as they were intended to be enforced. No, it doesn’t matter that they are elected democratically – that leads to the corruption of the system in question. Legislators are the ones who change laws – we can even amend the constitution. Yes, I know, it’s rather difficult to do so at times, and this may mean the law you want to have passed or amended or struck down will not be – if you think that gives you license to choose whatever easy, unethical and immoral shortcut you like so long as you get your way, then you likely deserve the government you will ultimately end up with.

    • avalpert

      If that’s the point it is just wrong. Each branch, the legislative, executive and judiciary have the responsibility to interpret laws in light of the constitutional and if they find them unconstitutional they should not enforce them. If the court finds a law unconstitutional in one case, it would be a dereliction of duty for the executive to continue enforcing it in others whether or not the legislature acts. Otherwise, you would be giving the legislature a veto power over the judiciary that has not been how our government has functioned since Marbury.

      This isn’t really controversial – it has been done explicitly by President’s going back at least to Jefferson

      • http://crudeideas.blogspot.com/ Crude

        If that’s the point it is just wrong. Each branch, the legislative, executive and judiciary have the responsibility to interpret laws in light of the constitutional and if they find them unconstitutional they should not enforce them.

        No. It’s the job of the judiciary branch to determine if actually-passed legislation is, as a matter of fact, unconstitutional. The time to determine whether or not a law is constitutional on the part of legislators is at the time they are writing it. At best, this becomes more of a grey area issue in federal v state sort of cases, but no, the idea that every public official has a duty to act as mini-judges and refuse to enforce laws they “decide are unconstitutional” is complete garbage.

        If the court finds a law unconstitutional in one case, it would be a dereliction of duty for the executive to continue enforcing it in others whether or not the legislature acts.

        No, it would not. Again, it is the court’s job to determine the constitutional status of laws.

        Otherwise, you would be giving the legislature a veto power over the judiciary that has not been how our government has functioned since Marbury.

        The legislature does have veto power over the judiciary. It’s called ‘amending the constitution’. What’s more, even in your own example, it’s the executive rep whose power is being overridden – not the judiciary’s. Again: the constitutionality of laws is determined by the courts. The time for anyone else to worry about constitutionality is at the time of the law being written. After that, the law is to be enforced unless a relevant – key word, relevant – judge overturns the law or orders it not to be enforced.

        Creative shortcuts, even popular ones, are rotten ideas when it comes to government. When everyone is deciding which laws they will and will not enforce – better when, which they will and will not enforce in particular situations, even when the law is quite clear – we’re creating tyranny.

        This isn’t really controversial

        Yes, it is. It’s not controversial with people who agree with you. Problem: many people do not, myself included.

        I don’t know your education regarding separation of powers and the judicial process. Maybe you hold a PhD in the relevant fields. If so, you’ve been robbed, and you are part of the problem. If not, read up on the separation of powers and how the judicial process was designed to work from the start. Realize that it’s entirely possible for people in any of the three branches do A) do things that are utterly wrong, B) to get away with it, and C) for these acts to be popular.

        • avalpert

          [i]No. It’s the job of the judiciary branch to determine if actually-passed legislation is, as a matter of fact, unconstitutional.[/i]

          So all those Presidents that make signing statements noting they won’t enforce aspects of laws because they are unconstitutional are doing what? And that the SC has at no point questioned that practice even when they alter decide the executive was wrong tells you what?

          [i]No, it would not. Again, it is the court’s job to determine the constitutional status of laws.[/i]

          So all those people int he executive branch who take an oath to “preserve, protect and defend the Constitution” have to twiddle their thumbs until the judiciary tells them what the constitution means?

          [i]After that, the law is to be enforced unless a relevant – key word, relevant – judge overturns the law or orders it not to be enforced.[/i]

          You do know judges don’t overturn laws right? They determine individual cases. Is Obama supposed to continue enforcing DOMA until the legislature repeals it?

          [i]Yes, it is. It’s not controversial with people who agree with you. Problem: many people do not, myself included.[/i]

          It is not controversial with people who know the least bit about about our government and legal system whoa aren’t being disingenuous (i,e, those that didn’t complain when Reagan refused to defend the FCC’s affirmative action policies that were eventually upheld by the supreme court but whine about this).

          The only garbage here, the only who was robbed of an education is you, You clearly don’t have the basic knowledge of history in this area, take your own advice and read up on separation of powers, what it means to have co-equal branches of government, actual legal history, the actions of every President in recent history and the fact that no court has ever suggested that executive interpretation of the constitution (with or without judicial decisions) is in and of itself wrong.

    • kenofken

      Arguments from the anti-SSM crowd about “following the democratic process” on gay marriage are specious because they don’t recognize the legitimacy of any government that doesn’t bend to their position. When courts find gay marriage legal, they’re “activists judges” usurping the role of the legislative branch. When elected official pass a gay marriage bill, they’re illegitimate because they’re elites subverting the will of the “silent majority.” It should be a referendum, we’re told. When the grassroots public finally does form a majority in support of gay marriage, that’s no good because it’s not the “true” true will of the people. It was engineered by the evil mainstream media and the gay mafia….

  • kenofken

    Our entire legal system functions on prosecutors and even cops making prudential/political decisions on how to apply the law. This is just one of the rare moments in history where white conservatives found themselves on the wrong end of that discretion.

  • Alexander Stanislav

    This comment is way late, but now that Jersey seems to have ruled similarly I decided to dig up the only level headed critique of the Pennsylvania ruling that I could remember.

    It sounds like you defending the deontological rule “always defend the law” on some basis that I can’t quite wrap my head around. And I know you’re not a deontologist. Why do you think that rule is immutable? I can cook up a dozen scenarios in which not defending the law as an attorney general is the ethical thing to do. Sometimes the law is simply incorrect.

    You’ve argued convincingly that defending the law is good general policy for the welfare of the people, but I don’t see why it should be an absolute rule.


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