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Archive for the tag “reasonable”

The Secret Defense to Debt Collection Matters

Unfortunately, many people find themselves in a situation where they get behind on paying their bills and, due to lack of funds, wind up not paying some of them.  Not paying one’s bills will more often than not result in that debt being sold to a collections agency and that agency suing the debtor for payment (and adding on all kinds of things, like interest, attorney’s fees, penalties and the like to boot).

Selling one’s debt to a collection agency is an important step in the process that directly affects the subsequent lawsuit against the debtor.  Typically, large lenders – especially lenders like credit cards companies – have a fair amount of debtors who stop paying (for whatever reason) on the debt owed to the lender which results in their debts being sent to collections.  When these lenders send debts to collections, they do so by selling the debts to a collection agency.  When they sell the debts to a collection agency, they will often sell the debts in bulk, often for pennies on the dollar.  The transaction benefits the creditor as it gets something for the debts owed without having to pursue costly and time consuming litigation.  The transaction benefits the collection agency because it can pursue collection (including law suit) against a debtor for the full amount despite having bought the debt for far less than its principal value, let alone its value inflated by interest and such.

More often than not, when debts are sold to collection agencies, the initial creditor (e.g.: a credit card company) simply provides an affidavit to the collection agency regarding the amount of the debts and the names of those who owe the debts.  Typically, no other document is supplied by the initial creditor to the collection agency, including any contracts with the debtor or anything bearing the signature on the debtor.  Once the collection agency assumes the debt, it has the right to bring suit against the debtor for the unpaid debt.

The lack of documentation of the contract with the debtor is absolutely key to any defense to the collection of the debt.  If the creditor brings suit against the debtor in the Court of Common Pleas and does not attach the contract between the debtor and the creditor which underlies the alleged debt, the debtor can file objections to the complaint (the document which initiates the law suit) asking for it to be dismissed due to the lack of a contract.  I can say, from personal experience, that such a tactic works as, very often, the collection agency pursing the debtor simply does not have the underlying contractual documentation to prove its case against the debtor.

If the case is brought in small claims court, the creditor does not have the obligation to include a copy of the contract to the complaint, so successfully defending against a collections law suit takes some shrewd strategy.  The lack of documentary evidence is still a huge problem for the creditor, but the small claims aspect of this matter makes the approach different and much trickier.  As the complaint does not require the contract to be appended to it, and the primary place for these matters to be resolved is at a hearing before a judge, the creditor has the procedural advantage.  At the hearing, the collection agency, armed with an affidavit from the initial creditor (as described above), secures almost all of the other evidence it needs to win against the debtor through the debtor’s testimony.

Here is how the hearing would play out: the creditor describes the claim to the judge, which is that the debtor had a contract with a credit card company (for example), he did not pay the debt owed, and is now in collections and all of this is supported by the affidavit.  Now, the affidavit, taken alone, is insufficient to win the case as there is no evidence that the debtor actually contracted with the creditor.  So, at the appropriate time during the trial, the creditor will ask the debtor some questions (i.e.: cross-examination).  These questions will be something like: “did you have a credit card from XYZ company on these dates”?  “Did you make charges on it?” “Did you make all the payments on it?”  “Do you owe $XYZ on the credit card?” And other questions like it.  At the end of the examination, the debtor himself provides all of the evidence against himself that the creditor needs to win the case against him.   As a result, the creditor will win the case against the debtor thanks to the debtor supplying all of the evidence, via his testimony, need by the creditor.

So, how does a debtor avoid the fate of the debtor in the above scenario?  That is where a good lawyer comes into play.

Liberalism and Islam

This is from edwardfeser.blogspot.com which you can find here.  This blog is written by Edward Feser who is a Christian philosopher who I have been recently introduced to who I think provides effective clear, sobering, and direct responses to the advance of secular culture.

Here is a portion of recent piece of his which I thought was rather edifying:

Note: What follows is pretty long, especially if you think of it as a blog post.  So think of it instead as an article.  The topic does not, in any event, lend itself to brevity.  Nor do I think it ideal to break up the flow of the argument by dividing the piece into multiple posts.  So here it is in one lump.  It is something of a companion piece to my recent post about whether Christians and Muslims worship the same God.  Critics of that post will, I think, better understand it in light of this one.

 

In an article in The New Criterion over a decade ago, the late political scientist Kenneth Minogue noted a developing tendency in contemporary progressivism toward “Christophobia,” a movement beyond mere disbelief in Christian doctrine toward outright hostility.  The years since have hardly made Minogue’s observation less timely.  The New Atheism, the first stirrings of which Minogue cited in the article, came to full prominence (and acquired the “New Atheism” label) later in the decade in which he wrote.  The Obama administration’s attempt to impose its contraception mandate on Catholic institutions evinces a disdain for rights of conscience that would have horrified earlier generations of liberals.  Opponents of “same-sex marriage” have in recent years found themselves subject to loss of employment, cyber-mobbing, and even death threats — all in the name of progressivism.  If contempt for Christian moral teaching still hides behind a mask of liberal neutrality, Hillary Clinton let that mask slip further still when she recently insisted that “deep-seated cultural codes, religious beliefs and structural biases have to be changed” in order to accommodate easy access to abortion.  Not all liberals approve of these developments, of course.  But demographic trends indicate that a Christophobic brand of progressivism may have little difficulty finding new recruits.
Now, how do contemporary liberals view Islam?  How would one expect them to, given their principles, and given the principles and practice of Islam?  Consider that, like Christianity, Islamic moral teaching unequivocally condemns homosexual behavior, extramarital sex, and the sexual revolution in general.  Feminism has, to put it mildly, had little effect on Islam, which is traditionally highly patriarchal.  In Islam, men can have multiple wives, but wives cannot have multiple husbands.  Men can marry non-Muslim women, but women cannot marry non-Muslim men.  The authority of husbands over wives goes far beyond anything feminists objected to in 1950s America.  Rules governing divorce, custody of children, inheritance, and legal testimony all strongly favor men.  In many modern Muslim countries, the implementation of this patriarchal system takes forms which modern Western women would find unimaginably repressive.  Women are expected to cover their bodies in public to a greater or lesser extent, the burqa being the most extreme case.  In Saudi Arabia, women are forbidden to drive, to go out in public without a chaperone, or to interact with men to whom they are not related.  In some Muslim countries, husbands have a right to discipline their wives with beatings.  In some, female genital mutilation is widely practiced.  “Honor killings” of women thought to have brought shame upon their families often occur not only in Muslim countries, but in Western countries with large Muslim populations.  Of course, not all Muslims approve of all of this.  Nor or is it by any means the whole story about women in Islamic society, and Muslims emphasize the way Islam improved the situation of women compared to pre-Islamic Arabia.   The point, though, is that it is far from being a marginal part of the story. ”

You can read the rest here.

Limiting Legal Malpractice Claims: Applying the Glenbrook Analysis

The statue of limitations for a legal malpractice action in Pennsylvania is two years from the date of the malpractice; however that time period may be extended under certain circumstances.  In Glenbrook Leasing Co. v. Beausang, 839 A.2d 437 (Pa. Super. 2003), affirmed, 881 A.2d 1266 (Pa. 2005), the Pennsylvania Superior Court explored the viability of various ways to potentially extend that two year period.

Plaintiff in Glenbrook is a real estate partnership which purchased office space in a condominium development to be used as medical offices.  The agreement of sale for the office space included language granting Plaintiff use (and alleged ownership) of 35 parking spaces.  Nothing was placed in the deed regarding Plaintiff’s ownership of the aforesaid parking spaces.

About six years later, the condominium association took action to limit Plaintiff’s use of the aforesaid 35 parking spaces.  Unsurprisingly, a dispute arose between Plaintiff and the condominium association regarding the ownership and use of the parking spaces, which eventually evolved into litigation.  The litigation culminated in a ruling in favor of the condominium association.  The ruling was based on the merger doctrine, which generally states that any guarantee to be granted in a real estate transaction must be stated in the deed to the subject property.  As applied to the instant matter, Plaintiff was considered not to have any ownership rights over the parking spaces as they were not memorialized in the deed to the property.

When the initial real estate transaction took place, Plaintiff was represented by Defendant, a real estate law firm.  Plaintiff believed that its loss in the litigation against the condominium association, and the resulting loss of the 35 parking spaces, was a direct result of the legal malpractice of Defendant in failing to take into consideration the merger doctrine, and by failing to include language regarding the parking spaces in the deed to the property at issue.  About a year after the conclusion of the litigation against the condominium association, and about six years after the association first presented the issues regarding the deed, and its lack of language dealing with the parking spaces to Plaintiff, the company brought suit against Defendant law firm, claiming it committed legal malpractice.

Defendant ultimately filed a motion for summary judgement, claiming that Plaintiff brought suit far beyond the two year statute of limitations.  The trial court ruled in favor of Defendant.  On appeal, the Superior Court affirmed the trial court’s ruling, and the Supreme Court issued a per curiam order affirming the Superior Court’s ruling.  It is the Superior Court’s opinion that is the subject of this article.

While the statue of limitation in a legal malpractice claim is two years, that period can be extended via the equitable discovery rule which sates that the two years is initiated not at the occurrence of the malpractice, but when it was, or should have been, discovered.  The Court ruled that Plaintiff discovered, or should have discovered, that there may have been legal malpractice six years before it initiated suit against Defendant (or four years longer than the two year statute allows) when the dispute with the condominium association first arose.

Plaintiff then argued that the Court should apply the “continuous representation rule” which states that the limitations period would not begin to run until plaintiff terminated Defendant’s services.  The Court was unmoved by Plaintiff’s argument to extend the legal malpractice statute of limitations based on the continuous representation rule.  The Court noted that the rule was not the law of Pennsylvania (although it is in other jurisdictions) and it is not the place of the Superior Court to adopt new rules without authority to do so.

Plaintiff next argued that the limitations period should be extended through estoppel, asserting that the “special relationship” between a lawyer and his client lulled Plaintiff into a false sense of security, through fraud, or deception, or concealment, to trust Defendant beyond when it would have been prudent to do so.  This sort of argument has traction among physicians and patients and Plaintiff attempted here to apply it to attorneys and clients.  The Court rejected this argument as well, as it found Defendant was completely candid with Plaintiff regarding the claims made by the condominium association, including providing Plaintiff with the first allegation of their own malpractice nearly six years prior to Plaintiff’s bringing suit.

Finally, Plaintiff argued that the question of precisely when it discovered the malpractice is a question of fact that should have been decided by a jury, not via a motion for summary judgement.  The Court rejected this argument as well, ruling that the facts in this matter were abundantly clear as to when Plaintiff discovered the malpractice.

The statute of limitations is critical to be aware of when considering bringing suit.  Although the Court made a variety of rulings, as described above, it is significant and useful in that it lays out some guidelines as to how to apply the various means to extend the statute of limitations and notably refuses to adopt and apply the continuous representation rule.

Originally published in Upon Further Review on September 24, 2015 and can be seen here.

US Supreme Court Weighs in on Threats Over Social Media

The new reality of social interaction includes the popular, and seemingly always proliferating, social media websites like Facebook and Twitter.  Considering the increasing ubiquity of social media, it was only a matter of time before the United States Supreme Court would weigh in on its use, which it had opportunity to do in the matter of Anthony Douglas Elonis v. United States, 135 S.Ct. 2001 (2015).

 

In the Elonis matter, the petitioner Anthony Douglas Elonis’s wife left him in May 2010, taking their children with her.  Following their separation, Mr. Elonis began listening to “violent music” and posting so-called “rap lyrics” to his Facebook page.  Eventually he changed his name on his Facebook profile to “Tone Dougie,” a rap-style nom de plume, in order to create an “on-line persona.”  His rap lyrics contained rather violent and graphic language but did contain a disclaimer that his lyrics were fictions with no intentional resemblance to real persons.  He also said on Facebook that he writes these lyrics, and other such posts, as a form of therapy for himself to deal with the pain of the breakup of his family.

 

Unfortunately for Mr. Elonis, people who viewed his Facebook posts did not seem to appreciate his therapeutic efforts.  Evidently, after the Halloween following his separation, Mr. Elonis posted a photograph of himself from a Halloween event at his place of employ holding a toy knife to his co-worker’s throat, accompanied by a caption reading “I wish.”  Mr. Elonis was fired by his employer for this post due to its violent and threatening nature regarding his co-worker.

 

Mr. Elonis responded to his termination from employment at an amusement park with the following Facebook post: “Moles! Didn’t I tell y’all I had several? Y’all sayin’ I had access to keys for all the f***in’ gates. That I have sinister plans for all my friends and must have taken home a couple. Y’all think it’s too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I’m still the main attraction. Whoever thought the Halloween Haunt could be so f***in’ scary?””  This post formed the basis for the first count of his criminal indictment for threatening park patrons and employees.

 

In addition to the above, Mr. Elonis also posted crude, demeaning, and violent material regarding his ex-wife, including a long post adapting a comedian’s sketch about how to avoid overtly saying one wishes to kill the president to a post of similar content about killing one’s wife.  In the post he included accurate details about his ex-wife’s home and rhetorically asked whether the reader is willing to “go to jail for [one’s] Constitutional rights.”

 

Upon seeing the above-mentioned post, his ex-wife began to fear for her life and secured a protection order against Mr. Elonis.  In response Mr. Elonis posted on Facebook what appeared to be lyrics or poetry contemplating whether a protection order could stop a bullet and suggested blowing up a police department with a bomb.  This post formed the basis of two more counts of his criminal indictment.  The fourth count of Mr. Elonis’s criminal indictment flowed from a subsequent Facebook post regarding potentially mass killing a local kindergarten class.  After the FBI investigated the aforesaid post, Mr. Elonis followed it up with what formed the basis of the fifth count of his criminal indictment, namely a post threatening the life of FBI agents (though none by name).

 

Mr. Elonis was eventually indicted for making threats to injure patrons and employees of the park, his estranged wife, police officers, a kindergarten class, and an FBI agent.  All of these threats were in violation of 18 U.S.C. Section 875(c) which states “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”

 

Mr. Elonis filed a motion to dismiss the indictment on the basis that none of the charges against him contained any allegation that he intended to threaten anyone.  The District Court (his matter originated in the Eastern District of Pennsylvania) denied the motion.  At the trial for the charges Mr. Elonis testified that his posts were emulating rap lyrics (especially those of Eminem who also penned lyrics about killing his wife) and, therefore, were made without any intent to threaten anyone.  The prosecution presented witnesses who testified that they felt threatened and in fear of injury.  At the conclusion of the trial, Mr. Elonis’ requested that the jury be instructed that in order for him to be convicted the prosecution must prove he had an intention to threaten.  His request was denied.  Ultimately, Mr. Elonis was sentenced to three years and eight months’ incarceration and three years’ suspended release.  Mr. Elonis then appealed his conviction to the Court of Appeals of the Third Circuit which upheld the conviction and ruled that the intent suggested by Mr. Elonis was not required by the law.  Mr. Elonis then appealed to the United States Supreme Court, and it is that Court’s decision that is the subject of this article.

 

Mr. Elonis argued to the Supreme Court that the term “threat” necessarily implies an intention to inflict harm.  Unpersuaded, the Court pointed out that the definition of “threat” proffered by Mr. Elonis speaks to the message conveyed by the threatening statement and not the mental state of the speaker.  The government noted that the other crimes in the statutes neighboring 18 U.S.C. Section 875(c) all explicitly include a mental state in their terms which suggests that the legislature intentionally left such a provision out of 18 U.S.C. Section 875(c) and, therefore, no mental state is required for conviction under this section.  The Court was unpersuaded by this argument as well indicating that all that could be concluded is that Congress laid out a broad class of crimes but simply did not include what mental state, if any, is required for conviction.  Based on the above, the Court observed that neither party sufficiently identified any indication of any particular mental state required by 18 U.S.C. Section 875(c).  Despite this, the Court recognized that any crime must carry with it some conscious action (e.g.: mens rea) and that the mere omission of a mental state from 18 U.S.C. Section 875(c) does not mean none exists.

 

After a review of the applicable case law, the Court concluded that when a criminal statute is silent on mental state, the only mens rea that can be read into it is only that which is enough to separate wrongful conduct from innocent conduct as applied to each element of the crime.  Furthermore, the Court ruled that the mental state requirement, relative to Mr. Elonis’ case, must apply to whether the communication itself contains an actual threat.  By contrast, Mr. Elonis’ conviction was based solely upon how his posts would be perceived by a reasonable person.  As a result, the Court rejected the government’s argument for a mental state closer to negligence (i.e.: “reasonable person”) as well as Mr. Elonis’ argument from ignorance asserting that he could not be convicted unless it was shown he knew the posts could be characterized as threatening.

 

Ultimately the Court reversed Mr. Elonis’ conviction.  The Court held that the jury instructions mentioned above were insufficient.  There must be something more than the prosecution merely proving that a reasonable person could regard Mr. Elonis’ posts as threats.  Instead, there must be an instruction indicating that a mental state for Mr. Elonis is necessary for conviction.  The Court was confident that the mental state requirement would be satisfied if it could be shown that Mr. Elonis knew that his posts could be understood to be a threat and/or were posted to be threatening.  Although the Court rejected a negligence standard, as noted above, the Court declined to rule whether a recklessness standard would be sufficient to convict for the crime at issue herein as that issue was not raised by the parties until oral argument and briefly at that.  The Court was reluctant to be the first tribunal to rule on the issue and, instead, opted to allow the lower courts to initially look at the issue.  Consequently, the Court also remanded Mr. Elonis’ case for further proceedings per the Court’s ruling.

Originally published on August 25, 2015 in The Legal Intelligencer and can be seen here.

The Absolute Truth About Relativism

This is from edwardfeser.blogspot.com which you can find here.  This blog is written by Edward Feser who is a Christian philosopher who I have been recently introduced to who I think provides effective clear, sobering, and direct responses to the advance of secular culture.

Here is a portion of recent piece of his which I thought was rather edifying:

“I don’t write very often about relativism.  Part of the reason is that few if any of the critics I find myself engaging with — for example, fellow analytic philosophers of a secular or progressive bent, or scientifically inclined atheists — take relativism any more seriously than I do.  It just doesn’t come up.  Part of the reason is that many other people have more or less already said what needs to be said about the subject.  It’s been done to death.
It is also possible to overstate the prevalence of relativism outside the ranks of natural scientists, analytic philosophers, theists, and other self-consciously non-relativist thinkers.

As Michael Lynch notes in his book True to Life: Why Truth Matters, remarks that can superficially seem to be expressions of relativism might, on more careful consideration, turn out to have a different significance.  For example, when, during a conversation on some controversial subject, someone says something like “Well, it’s a matter of opinion” or “Who’s to say?”, this may not be intended to imply that there is no objective fact of the matter about which view is correct.  The person may instead have simply decided that the discussion has reached an uncomfortable impasse and would like to change the subject.

On the other hand, many people seem not to understand the difference between the claim that there is no agreement about such-and-such and the claim that there is no objective truth of the matter about such-and-such.  Hence even many people who are primarily concerned to assert the first proposition rather than the second may nevertheless affirm the second one too if pressed.  And in that case they are at least implicitly relativists.  Thus, while Lynch is right that there are probably fewer self-conscious relativists than meets the eye, that is not necessarily because the people in question are all self-consciously non-relativist.  Many people just have confused or inchoate ideas about these things.”

You can read the rest here.

Marriage Inflation

This is from edwardfeser.blogspot.com which you can find here.  This blog is written by Edward Feser who is a Christian philosopher who I have been recently introduced to who I think provides effective clear, sobering, and direct responses to the advance of secular culture.

Here is a portion of recent piece of his which I thought was rather edifying:

Lake Wobegon, where all the women are strong, all the men are good looking, and all the children are above average.

Garrison Keillor, A Prairie Home Companion

If you printed a lot of extra money and passed it around so as to make everyone wealthier, the end result would merely be dramatically to decrease the buying power of money.  If you make it easier for college students to get an “A” grade in their courses, the end result will be that “A” grades will come to be regarded as a much less reliable indicator of a student’s true merit.  If you give prizes to everyone who participates in a competition, winning a prize will cease to be a big deal.  In general, where X is perceived to have greater value than Y and you try to raise the value of Y by assimilating it to X, the actual result will instead be simply to lower the value of X to that of Y.

You will also merely relocate rather than eliminate the inequality you were trying to get rid of.  If money loses its value, then people will trade in something else — precious metals, durable goods, or whatever — and a different sort of economic inequality will arise.  If grades can no longer tell you which students are most likely to do well as employees or in graduate school, you’ll find some other way of determining this — writing samples, interviews, letters of recommendation, or whatever — and the hierarchy of student achievement will reassert itself.  If getting a prize ceases to impress, then athletes and others engaged in competitive enterprises will simply find some other way to stand out from the pack.

Egalitarian schemes, in short, often have great inflationary effect but little actual egalitarian effect.  They can amount to mere exercises in mutual make-believe.  You can pretend all you want that all the children in Lake Wobegon are above average.  People who wish it were true may even go along with the pretense.  But of course, it isn’t true, and deep down everybody knows it isn’t true.  Hence even many who do pretend to believe it will act otherwise.  There will be a lot of pious chatter about how special all the children are, but no one will take the chatter very seriously and everyone will in practice treat the children differently according to their actual, differing abilities.”

You can read the rest here.

 

 

Aristotle watches Blade Runner

This is from edwardfeser.blogspot.com which you can find here.  This blog is written by Edward Feser who is a Christian philosopher who I have been recently introduced to who I think provides effective clear, sobering, and direct responses to the advance of secular culture.

Here is a portion of recent piece of his which I thought was rather edifying:

“You can never watch Blade Runner too many times, and I’m due for another viewing.  In D. E. Wittkower’s anthology Philip K. Dick and Philosophy, there’s an article by Ross Barham which makes some remarks about the movie’s famous “replicants” and their relationship to human beings which are interesting though, in my view, mistaken.  Barham considers how we might understand the two kinds of creature in light of Aristotle’s four causes, and suggests that this is easier to do with replicants than with human beings.  This is, I think, the reverse of the truth.  But Barham’s reasons are not hard to understand given modern assumptions (which Aristotle would reject) about nature in general and human nature in particular.

Barham suggests that, where replicants are concerned, a four-cause analysis would look something like this: their efficient cause is the Tyrell Corporation and its engineers; their material cause is to be found in the biological and mechanical constituents out of which they are constructed; their formal cause is the human-like pattern on which the Tyrell Corporation designed them; and their final cause is to function as human-like slave laborers.”

You can read the rest here.

Marriage and The Matrix

This is from edwardfeser.blogspot.com which you can find here.  This blog is written by Edward Feser who is a Christian philosopher who I have been recently introduced to who I think provides effective clear, sobering, and direct responses to the advance of secular culture.  Usually when I reblog someone else’s post I only provide a teaser quote here and a link to the full blog post.  This piece is so good I have decided to post the entire thing here (as well as the link of course); it really demonstrates in stark relief just how baseless the arguments are in favor of same sex marriage.  I really cannot say anything that could do the piece justice so I will stop trying.  Here is the blog post in full (and you can find the original post here):

“Suppose a bizarre skeptic seriously proposed — not as a joke, not as dorm room bull session fodder, but seriously — that you, he, and everyone else were part of a computer-generated virtual reality like the one featured in the science-fiction movie The Matrix.  Suppose he easily shot down the arguments you initially thought sufficient to refute him.  He might point out, for instance, that your appeals to what we know from common sense and science have no force, since they are (he insists) just part of the Matrix-generated illusion.  Suppose many of your friends were so impressed by this skeptic’s ability to defend his strange views — and so unimpressed by your increasingly flustered responses — that they came around to his side.  Suppose they got annoyed with you for not doing the same, and started to question your rationality and even your decency.  Your adherence to commonsense realism in the face of the skeptic’s arguments is, they say, just irrational prejudice.
No doubt you would think the world had gone mad, and you’d be right.  But you would still find it difficult to come up with arguments that would convince the skeptic and his followers.  The reason is not that their arguments are rationally and evidentially superior to yours, but on the contrary because they are so subversive of all rationality and evidence — indeed, far more subversive than the skeptic and his followers themselves realize — that you’d have trouble getting your bearings, and getting the skeptics to see that they had lost theirs.  If the skeptic were correct, not even his own arguments would be any good — their apparent soundness could be just another illusion generated by the Matrix, making the whole position self-undermining.  Nor could he justifiably complain about your refusing to agree with him, nor take any delight in your friends’ agreement, since for all he knew both you and they might be Matrix-generated fictions anyway.
So, the skeptic’s position is ultimately incoherent.  But rhetorically he has an advantage.  With every move you try to make, he can simply refuse to concede the assumptions you need in order to make it, leaving you constantly scrambling to find new footing.  He will in the process be undermining his own position too, because his skepticism is so radical it takes down everything, including what he needs in order to make his position intelligible.  But it will be harder to see this at first, because he is playing offense and you are playing defense.  It falsely seems that you are the one making all the controversial assumptions whereas he is assuming nothing.  Hence, while your position is in fact rationally superior, it is the skeptic’s position that will, perversely, appear to be rationally superior.  People bizarrely give him the benefit of the doubt and put the burden of proof on you.

 

This, I submit, is the situation defenders of traditional sexual morality are in vis-à-vis the proponents of “same-sex marriage.”  The liberal position is a kind of radical skepticism, a calling into question of something that has always been part of common sense, viz. that marriage is inherently heterosexual.  Like belief in the reality of the external world — or in the reality of the past, or the reality of other minds, or the reality of change, or any other part of common sense that philosophical skeptics have challenged — what makes the claim in question hard to justify is not that it is unreasonable, but, on the contrary, that it has always been regarded as a paradigm of reasonableness.  Belief in the external world (or the past, or other minds, or change, etc.) has always been regarded as partially constitutive of rationality.  Hence, when some philosophical skeptic challenges it precisely in the name of rationality, the average person doesn’t know what to make of the challenge.  Disoriented, he responds with arguments that seem superficial, question-begging, dogmatic, or otherwise unimpressive.  Similarly, heterosexuality has always been regarded as constitutive of marriage.  Hence, when someone proposes that there can be such a thing as same-sex marriage, the average person is, in this case too, disoriented, and responds with arguments that appear similarly unimpressive.

 

Like the skeptic about the external world (or the past, or other minds, or change, etc.) the “same-sex marriage” advocate typically says things he has no right to say consistent with his skeptical arguments.  For example, if “same-sex marriage” is possible, why not incestuous marriage, or group marriage, or marriage to an animal, or marriage to a robot, or marriage to oneself?  A more radical application of the “same-sex marriage” advocate’s key moves can always be deployed by a yet more radical skeptic in order to defend these proposals.  Yet “same-sex marriage” advocates typically deny that they favor such proposals.  If appeal to the natural ends or proper functions of our faculties has no moral significance, then why should anyone care about whether anyone’s arguments — including arguments either for or against “same-sex marriage” — are any good?  The “same-sex marriage” advocate can hardly respond “But finding and endorsing sound arguments is what reason is for!”, since he claims that what our natural faculties and organs are naturally for is irrelevant to how we might legitimately choose to use them.  Indeed, he typically denies that our faculties and organs, or anything else for that matter, are really for anything.  Teleology, he claims, is an illusion.  But then it is an illusion that reason itself is really for anything, including arriving at truth.  In which case the “same-sex marriage” advocate has no business criticizing others for giving “bigoted” or otherwise bad arguments.  (Why shouldn’t someone give bigoted arguments if reason does not have truth as its natural end?  What if someone is just born with an orientation toward giving bigoted arguments?)  If the “same-sex marriage” advocate appeals to current Western majority opinion vis-à-vis homosexuality as a ground for his condemnation of what he labels “bigotry,” then where does he get off criticizing past Western majority opinion vis-à-vis homosexuality, or current non-Western moral opinion vis-à-vis homosexuality?   Etc. etc.

 

So, the “same-sex marriage” advocate’s position is ultimately incoherent.  Pushed through consistently, it takes down everything, including itself.  But rhetorically it has the same advantages as Matrix-style skepticism.  The “same-sex marriage” advocate is playing offense, and only calling things into doubt — albeit selectively and inconsistently — rather than putting forward any explicit positive position of his own, so that it falsely seems that it is only his opponent who is making controversial assumptions.

 

Now, no one thinks the average person’s inability to give an impressive response to skepticism about the external world (or about the reality of the past, or other minds, etc.) makes it irrational for him to reject such skepticism.  And as it happens, even most highly educated people have difficulty adequately responding to external world skepticism.  If you ask the average natural scientist, or indeed even the average philosophy professor, to explain to you how to refute Cartesian skepticism, you’re not likely to get an answer that a clever philosopher couldn’t poke many holes in.  You almost have to be a philosopher who specializes in the analysis of radical philosophical skepticism really to get at the heart of what is wrong with it.  The reason is that such skepticism goes so deep in its challenge to our everyday understanding of notions like rationality, perception, reality, etc. that only someone who has thought long and carefully about those very notions is going to be able to understand and respond to the challenge.  The irony is that it turns out, then, that very few people can give a solid, rigorous philosophical defense of what everyone really knows to be true.  But it hardly follows that the commonsense belief in the external world can be rationally held only by those few people.

 

The same thing is true of the average person’s inability to give an impressive response to the “same-sex marriage” advocate’s challenge.  It is completely unsurprising that this should be the case, just as it is unsurprising that the average person lacks a powerful response to the Matrix-style skeptic.  In fact, as with commonsense realism about the external world, so too with traditional sexual morality, in the nature of the case relatively few people — basically, traditional natural law theorists — are going to be able to set out the complete philosophical defense of what the average person has, traditionally, believed.  But it doesn’t follow that the average person can’t be rational in affirming traditional sexual morality.  (For an exposition and defense of the traditional natural law approach, see “In Defense of the Perverted Faculty Argument,” in Neo-Scholastic Essays.)

 

Indeed, the parallel with the Matrix scenario is even closer than what I’ve said so far suggests, for the implications of “same-sex marriage” are very radically skeptical.  The reason is this: We cannot make sense of the world’s being intelligible at all, or of the human intellect’s ability to understand it, unless we affirm a classical essentialist and teleological metaphysics.  But applying that metaphysics to the study of human nature entails a classical natural law understanding of ethics.  And that understanding of ethics in turn yields, among other things, a traditional account of sexual morality that rules out “same-sex marriage” in principle.  Hence, to defend “same-sex marriage” you have to reject natural law, which in turn requires rejecting a classical essentialist and teleological metaphysics, which in turn undermines the possibility of making intelligible either the world or the mind’s ability to understand it.  (Needles to say, these are large claims, but I’ve defended them all at length in various places.  For interested readers, the best place to start is, again, with the Neo-Scholastic Essays article.)

 

Obviously, though, the radically skeptical implications are less direct in the case of “same-sex marriage” than they are in the Matrix scenario, which is why most people don’t see them.  And there is another difference.  There are lots of people who believe in “same-sex marriage,” but very few people who seriously entertain the Matrix hypothesis.  But imagine there was some kind of intense sensory pleasure associated with pretending that you were in the Matrix.  Suppose also that some people just had, for whatever reason — environmental influences, heredity, or whatever — a deep-seated tendency to take pleasure in the idea that they were living in a Matrix-style reality.  Then, I submit, lots of people would insist that we take the Matrix scenario seriously and some would even accuse those who scornfully rejected the idea of being insensitive bigots.  (Compare the points made in a recent post in which I discussed the special kind of irrationality people are prone to where sex is concerned, due to the intense pleasure associated with it.)

 

So, let’s add to my original scenario this further supposition — that you are not only surrounded by people who take the Matrix theory seriously and scornfully dismiss your arguments against it, but some of them have a deep-seated tendency to take intense sensory pleasure in the idea that they live in the Matrix.  That, I submit, is the situation defenders of traditional sexual morality are in vis-à-vis the proponents of “same-sex marriage.”   Needless to say, it’s a pretty bad situation to be in.

 

But it’s actually worse even than that.  For suppose our imagined Matrix skeptic and his followers succeeded in intimidating a number of corporations into endorsing and funding their campaign to get the Matrix theory widely accepted, to propagandize for it in movies and television shows, etc.  Suppose mobs of Matrix theorists occasionally threatened to boycott or even burn down bakeries, restaurants, etc. which refused to cater the meetings of Matrix theorists.  Suppose they stopped even listening to the defenders of commonsense realism, but just shouted “Bigot!  Bigot!  Bigot!” in response to any expression of disagreement.  Suppose the Supreme Court of the United States declared that agreement with the Matrix theory is required by the Constitution, and opined that adherence to commonsense realism stems from an irrational animus against Matrix theorists.

 

In fact, the current position of opponents of “same-sex marriage” is worse even than that.  Consider once again your situation as you try to reason with Matrix theorists and rebut their increasingly aggressive attempts to impose their doctrine via economic and political force.  Suppose that as you look around, you notice that some of your allies are starting to slink away from the field of battle.  One of them says: “Well, you know, we have sometimes been very insulting to believers in the Matrix theory.  Who can blame them for being angry at us?  Maybe we should focus more on correcting our own attitudes and less on changing their minds.”  Another suggests: “Maybe we’ve been talking too much about this debate between the Matrix theory and commonsense realism.  We sound like we’re obsessed with it.  Maybe we should talk about something else instead, like poverty or the environment.”  A third opines: “We can natter on about philosophy all we want, but the bottom line is that scripture says that the world outside our minds is real.  The trouble is that we’ve gotten away from the Bible.  Maybe we should withdraw into our own faith communities and just try to live our biblically-based belief in external reality the best we can.”

 

Needless to say, all of this is bound only to make things worse.  The Matrix theory advocate will smell blood, regarding these flaccid avowals as tacit admissions that commonsense realism about the external world really has no rational basis but is simply a historically contingent prejudice grounded in religious dogma.  And in your battle with the Matrix theorists you’ll have discovered, as many “same-sex marriage” opponents have, that iron law of politics: that when you try to fight the Evil Party you soon find that most of your allies are card-carrying members of the Stupid Party.

 

So, things look pretty bad.  But like the defender of our commonsense belief in the external world, the opponent of “same-sex marriage” has at least one reliable ally on his side: reality.  And reality absolutely always wins out in the end.  It always wins at least partially even in the short run — no one ever is or could be a consistent skeptic — and wins completely in the long run.  The trouble is just that the enemies of reality, though doomed, can do a hell of lot of damage in the meantime.”

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