Chapter 4

Last update by mayur on 03/27/2014
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Kants humanity principle (mappes)

to act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same times an end

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  • chants092
    Answered in Chapter 4

    From kant

    v  Liberal approach to sexual morality.

    Ø  Attempts to determine the conditions under which someone would be guilty of sexually using another person.

    v  Sense of “using another person” is best understood in reference to the notion of voluntary informed consent.

    Ø  One person (A) is guilty of sexually using another person if (B) “if and only if A intentionally acts in a way that violates the requirement that B’s sexual interaction with A be based on B’s voluntary informed consent.

    Ø  Using someone à use someone when you violate right to voluntary want to do something

    Ø  when the other party is unable to give voluntary informed consent because he or she is

    §  under age (immature),

    §  incompetent from mental retardation, or

    §  temporarily disordered by alcohol or drugs 

    Ø  when the other party is independent but her independence is weaken.  This second type of failure can occur in a number of ways:

    §   Deception (All deception is intentional.)

    ·         Lying or  misrepresentation: intentionally saying things that you know is false to get people to do things that they usually wouldn’t do à man trying to stunt ex.

    ·         Withholding relevant information (=failure to disclose) à

  • chants092
    Answered in Chapter 4

    v  Rejection of the unnaturalness argument à homosexual sex is wrong because “unnatural”

        Ø  Takes all the definitions of unnatural and plug it into premise

    §  One that is un-normal and unusual

    ·         Everyone has un-normal things about them à Albert Einstein

    ·         Just because un-normal doesn’t mean it’s wrong

    §  What is not practice by other animals is wrong

    ·         Actually other animals do practice do practice it

    ¨       Homosexual seagulls etc.

    §  Not perceive from innate desire is unnatural

    ·         Meaning we are born heterosexual

    ¨       Problem: some say that they were born homosexual

    ·         Is saying that all innate desires are good BUT not true àborn a serial killer

    ·         People don’t choose to be heterosexual or homos

  • chants092
    Answered in Chapter 4
    Background on goodridge case

        Ø  14 individuals from Massachusetts who have been committed for quite some time and have already employed legal means that are available to them (joint adoption, power of attorney etc.)

        Ø  Each had a desire to get married and publicly affirm their commitment and to secure the legal protection and benefits afforded to married couples and their children

        Ø  Attempted to obtain a marriage license and was refused a marriage license on the grounds that Massachusetts doesn’t recognize same sex marriage.

    Couples weren’t even given the right to submit a complaint.
  • chants092
    Answered in Chapter 4
    for the goodridge case decision of lower courts and marshal's view of them

        Ø  Plaintiff’s filed suit against the department of public health and the ruling was in favor of the department.

        Ø  Dismissed claims that the marriage statues should be construed to permit marriage between persons of the same sex and that the marriage exclusion does not offend the liberty, freedom, equality, or due process.


    1.     Procreation: they can procreate

    2.     Optimal setting for child rearing

    3.     Preserve scarce state and private financial resources

    §  Const requires, at a minimum, that states regulatory authority not be arbitrary.

    ·         Regulatory authority must, at very least, serve “legislative purpose in a regulatory way”

    ·         Any law failing to satisfy the basic standard of rationality is void.

    §  The marriage ban does not meet the rational basis test for either due process of equal protection

    v  Marshall rejection of each of the reasons

        Ø  Procreation argument is incorrect because:

    §  fertility is not a condition of marriage nor a ground for divorce

    §  people who have never consummated their marriage, nor do they plan to, may be and stay marr

  • chants092
    Answered in Chapter 4
    Marshall on nature of marriage and constitution

        Ø  Civil marriage enhances the welfare of the community and is a social institution of the highest importance.

    §  Anchors an ordered society by encouraging stable relationships over transient ones.

        Ø  Violated right to due process- right o have a fair trial and etc.

    §  Not allowed to even apply for a marriage license and go through the court system and go through the appeal process

    §  Protects from both freedom from unwarranted government intrusion into protected spheres of life and freedom to partake in benefits created by the state for the common good.

    §  Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family are all among the most basic of every individuals liberty and due process rights.

    Ø       Right to equal protection- person right to have the rights of the state govt to be equally applied to them as everyone else

    §  Without the right to marry, or the right to choose to marry, one is excluded from the full range of human experience and denied full protection of the law

  • chants092
    Answered in Chapter 4
    Sosman's dissenting opinion

        Ø  State does have rational bases for denying homosexual the right.

        Ø  There is no evidence to prove either way that it will harm/ help society.

    §  Reasonable to believe that in the absence of evidence that it is reasonable for the states to keep the status quo and base decision off of those three factors

    §  Need to get evidence

    §  Legislation only needs to survive a Minimal threshold of rationality

    §  Analogy: state old coal company X (power company )à state gives company benefits to stop them from going elsewhere à new power company (y) that wants to benefits that the old company has because there also a power companyà perfectly rational for state to deny them because no evidence that they will be better and not harm.

    §  Argument doesn’t work because can’t be applied to people because the burden of proof is on the state to prove that it can be harmful just like in a court case

    §  Perfectly reasonable for state to wait for evidence before changing what has already been in place

        Ø  Krecz:

    §  Don’t have a study against rapist and murderers getting married and its allowed so there shouldn’t have to be studies against homosexuals

    §  Minimal threshold of rationality doesn’t exist.

    §  Gays are going to raise children anyway; its legal with or without marriage

  • chants092
    Answered in Chapter 4

    v  Marriage” our most basic social institution” is in crisis****

    v  Family structure( husband and wife) is needed to raise children

    v  Announcing a commitment and love is not what marriage is for. It is for producing and raising of children

    Ø   krecz says bull, don’t want children can still get married

    v  Hetro marriage has a basis in thousands of years of western civilization

    Ø  so has homosexual marriage

    v  The traditional view of marriage is under attack:

    Ø  Mass. And Canada 203.

    §  Canada: Marriage is merely individual expressive conduct and there is no obvious reason why some individuals’ expression of gay love should hurt other individuals’ expressions of non-gay love

    Ø  Also the problem with endorsing gay marriage p 205

    §  Not that it would allow a handful of people to choose alternative family forms, but that it would require society at large to gut marriage of its central presumptions about family in order to accommodate a few adult’s desires

    ·         krecz doesn’t agree

    v  Response to the fertility objection p. 206

    Ø  we don’t require fertility test for marriage

    §  True: infertile, old, and some fertile couples that choose not to reproduce marry but every marriage between a man and a woman has the ability, through procreation or adoption, to give a child a father and mother.

    §  Heterosexual marriage help protects children

    ·         Marriage is a vow that a child would not be produced out of wedlock.

    v  Marriage is unsuitable for many gays and lesbian

    Ø  Krecz: if they don’t want to get married or it is unsuitable then they won’t get married

    §  Unsuitable for some heterosexual as well à what different does that make when there is even one couple that it is suitable for

Chapter 4
Chapter 4
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