Islam Bans Health Insurance?

Where it prevails, Islamic law invades every aspect of life. Now, one Islamic group has declared health insurance forbidden. The Economic Times reports (via WeStandFirm):

Comparing the benefits of health insurance policy to gambling, key Islamic organisations have termed the policies as "illegal" and directed Muslims to keep away from them.

At a seminar to deliberate whether insuring health was permissible under Islamic law Shariat, the Islamic Fiqh Academy (India) decided that availing such policies was illegal. ...

Health insurance schemes have turned a noble service in to a business activity, hence under Islam it is not permitted, they said. ...

The Ulema suggested that the community could itself organise services to help in the treatment of poor.

There is one exception: if insurance is forced through "legal constraints" (like what?), then a person might be able to get away with having insurance, so long as one spends "the left-over amount... on some form of service to Allah." (Why would there be a "left-over amount?" Isn't health insurance supposed to cover health costs?)

This is the sort of thing that happens when religious dogmatists run things. Nevermind that their views are absurd. Insurance is not remotely like gambling; the point of it is to pool resources to cover the expenses of those who happen to suffer high-cost health problems. If that's gambling, then life is a gamble (but don't tell these Islamists!). Note the socialist presumptions of the Islamists, who define business activities as ignoble. The line about helping the poor is off point; health insurance enables the middle class to avoid poverty. But poverty must be a central concern of such Islamists, as they perpetuate it through their anti-reason, anti-liberty controls.

'Crime Against Nature'

In looking up the original story by WCNC about the pastor in North Carolina who allegedly tried to solicit an undercover male police officer for sex, I read, "Graff is charged with crimes against nature..."

Say what? "Crimes against nature?" Could such a thing actually exist in modern books of statutes?

I looked up the statutes for North Carolina. Sure enough:

SUBCHAPTER VII. OFFENSES AGAINST PUBLIC MORALITY AND DECENCY.
Article 26.
Offenses against Public Morality and Decency.
§ 14‑177. Crime against nature.
If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.

You may read the entire Article 26 if you wish. It is a mixture of justified prohibitions rooted in objective law and and entirely non-objective, ambiguous, and even outright silly prohibitions. Statute 14-196(a)(1) offers another outstanding example of this latter category: "It shall be unlawful for any person [t]o use in telephonic communications any words or language of a profane, vulgar, lewd, lascivious or indecent character, nature or connotation." And I thought Colorado's statutes were pathetic.

Incidentally, the entire Article 27 is devoted to prostitution.

There is no such thing as a real "crime against nature." Apparently the legislators of North Carolina missed this fact, but nature possesses no consciousness, and thus cannot be offended. Of course, "nature" in this context is euphemism for "God," and the statute is rooted in religious bigotry against homosexuals.

Further Discussion of Gay Marriage

Here Ryan Puzycki and I continue our previous discussion regarding gay marriage and Colorado's Amendment 43, which defines "marriage" as between a man and woman. To review briefly, we both agree that gay couples should have the ability to contract as heterosexual couples do in romantic unions. However, while Puzycki believes that Amendment 43 should be overturned by the courts, I'm not so sure.

Following is Puzycki's reply of February 19:

Thanks for your response post.

In asserting that Amendment 43 should be overturned "[b]ased on the religious motivations," I was reiterating my own interpretation of the Amendment. As I understand it, it does not seem to have any secular foundation and seems to rise only from religious beliefs, but the language of the Amendment itself is not religious in nature. So, I agree that this would be difficult to overturn on the establishment clause. But, if the Amendment is interpreted to allow only for "marriages" with no provision for "domestic partnerships," then a very strong argument would still have to be invented to defend a possible secular foundation for why homosexual couples should not be afforded any partnership rights.

However, even if we consider the possible allowance for domestic partnerships, then we would have to explain the need to create "domestic partnerships" apart from "marriage." You have suggested as a "plausible argument" the potentiality of heterosexual marriages to result in children. Notwithstanding the facts you mentioned that homosexual couples can adopt and use artificial insemination, Diana Hsieh already made the valid point that procreation is not an acceptable basis for marriage. As for the historical nominalist argument, that is easily dismissed, as well. I have still heard no secular arguments that stand on their feet.

So, what justification does the government have for establishing a "marriage" for heterosexual couples and a "domestic partnership" for homosexual couples? Even if marriages and domestic partnerships afforded the same rights to couples of either sexual orientation, one must ask why it is necessary for the government to make a legal distinction between straights and gays. As I wrote in my earlier email, "separate" implies inequality--or why else make the distinction? The establishment of "domestic partnerships" would denigrate gays to a second-class status before the law, at least as far as marriage contracts are concerned. The concept of blind justice is meant to suggest that laws should be objective, but if the law instead sees a distinction between heterosexuals and homosexuals, it is not.

Before the law, all individuals must be afforded equal protection of their rights as stipulated in the 14th Amendment. It would therefore be unconstitutional to make any law that establishes separate legal status to individuals based on their sexual orientation. Before the law, sexual orientation is irrelevant. A murderer's sexual orientation is no more relevant to the crime committed than is a homebuyer's sexual orientation to a loan. The only questions the law can legitimately ask in regard to marriage are: are these two individuals of age and did they both consent?

While it seems obvious that Amendment 43 was motivated by religion, the Amendment itself makes no mention of God, so demonstrating the Amendment's intent would be better left to a sophisticated lawyer who could make a clear case based on the establishment clause. However, the Amendment is, clearly, a violation of the equal protection clause because it does not explicitly protect the rights of gays to contract in any form of "marriage" and, secondly, because the potential allowance it implies is inherently unequal and legally baseless.

On that basis, then, Colorado's courts should overturn the Amendment.

Our disagreement is not about Amendment 43 -- we both disapprove of it -- but whether it should be overturned by the courts based on the establishment and/or equal-protection clause. I think we also agree that the amendment more plausibly violates the equal-protection clause. However, I'm still going to argue that it should not be overturned even for that reason, though my argument is tentative.

In Colorado, by law the state government distributes a document commonly called the "blue book" that contains the language of ballot measures as well as summaries of arguments from proponents and opponents. The 2006 blue-book information about Amendment 43 pertains to this discussion:

Summary and Analysis

Definitions of marriage affecting Coloradans. Federal statutes define marriage as a legal union between one man and one woman for purposes of all federal laws relating to marital status. Colorado statutes define marriage as a legal union between one man and one woman for purposes of the state's laws relating to marital status.

For a marriage to be valid under Colorado statutes, it must be: (1) between a man and a woman; and (2) licensed, solemnized, and registered according to established procedures. In addition, Colorado recognizes common law marriage between a man and a woman who live together and hold themselves out publicly as husband and wife. Common law marriages are treated exactly the same as licensed marriages.

Legal effects of marriage in Colorado. The marriage relationship in Colorado provides spouses with a number of legal rights, responsibilities, and benefits, including:

* collecting benefits such as pensions, life insurance, and workers' compensation without being
designated as a beneficiary;
* jointly incurring and being held liable for debts;
* making medical treatment decisions for each other;
* protection from discrimination based on marital status in areas such as employment and housing;
* filing income taxes jointly; and
* ending a marriage and distributing property through a legal process.

Arguments For

1) The public has an interest in preserving the commonly accepted definition of marriage. Marriage as an institution has historically consisted of one man and one woman and, as such, provides the optimal environment for creating, nurturing, and protecting children and preserving families.

2) A constitutional amendment is necessary to avoid court rulings that expand marriage beyond one man and one woman in Colorado. In Massachusetts, a statutory definition was not sufficient to prevent a court from requiring the state to recognize same-sex marriages. Any change to the definition of marriage should be determined by the voters, not judges.

Arguments Against

1) Language that limits marriage to opposite-sex couples does not belong in Colorado's Bill of Rights, which generally guarantees individual rights. Amendment 43 may be unconstitutional because it denies same-sex couples and their children the legal benefits and protections that are available to married couples and their children.

2) Adding the proposed language to the constitution is unnecessary because there is already a statutory ban in Colorado on any marriage that does not consist of one man and one woman. Additionally, federal statutes define marriage as between one man and one woman for purposes of federal laws.

I'm not finding much here relevant to the establishment clause. While I think the "arguments for" are faulty, I also think that they are separable from religion.

So what about the equal-protection clause? The second "argument for" claims that the goal is to prevent the courts from overturning state law. And, as an addition to the state's Constitution, Amendment 43 would restrict the action of state-level courts. But it would not stop federal courts from tossing it out on equal-protection grounds.

The first "argument against" expressly raises the matter of equal protection, claiming that Amendment 43 "denies same-sex couples and their children the legal benefits and protections that are available to married couples and their children." However, the second argument points out that "there is already a statutory ban in Colorado on any marriage that does not consist of one man and one woman."

As discussed previously, Amendment 43 does not seem to restrict "domestic partnerships" for gay couples. Thus, if a court were to intervene on equal-protection grounds, I think the more likely route would be for the court to require the state to allow for "domestic partnerships" in statute.

I have suggested that, regardless of the position of the courts, the legislature should provide for "domestic partnerships" through statute.

Would this, as Puzycki argues, still violate the equal-protection clause? I remain unconvinced.

Puzycki claims that offering "marriage" contracts for heterosexual couples but "domestic partnership" contracts for homosexual couples would create separate status for the two, and "'separate' implies inequality." However, unlike segregated schools, having two titles for contracts of romantic unions would not physically separate heterosexuals from homosexuals. The only difference that I can see is that the contract would have a different title on top, which doesn't strike me as much of an imposition.

I don't want to fall into the trap of failing to take the principled stand on this one. But I just don't see any significant difference between "marriages" and "domestic partnerships" for gay couples. Why fight for eliminating a distinction that doesn't matter? Adding "domestic partnerships" via statute would be a lot easier than removing Amendment 43 and instituting "marriage" for gay couples. As far as I can tell, we're not even talking about a "whole loaf" versus "half of a loaf" here; we're talking about the same loaf in a differently-labeled wrapper.

Marriage, Homosexuality, and Amendment 43

What is the government's legitimate role in marriage? What distinctions may the government properly draw between unions of heterosexual and homosexual couples, if any?

Ryan Puzycki sent in the following comment on February 13 regarding my previous post:

I enjoyed your post on "A 'Religious Foundation' for Law," but was intrigued by your conclusion that you're "not convinced that Amendment 43 violates the establishment clause, as there may be some plausible nonreligious arguments in favor of it." I have attempted, since becoming seriously interested in the issue of gay marriage, to find a secular reason against it. While other Objectivists have raised the possibility that there might be valid arguments against it, none have indicated what those arguments may be. To date, I still have not heard a valid secular argument. From this viewpoint, I do not think there is any way to reconcile Amendment 43.

If marriage is only a religious institution, then the state should have no business involving itself in any aspect of it whatsoever. Those who are married should practice it as a sacred rite, such as the Eucharist or holy orders, outside the authority of the state in the privacy of their homes and churches. The establishment clause would prohibit state interference in the matter, and it would be left to the churches, rightly, to decide whom they are willing to marry. The secular state would still have an obligation to protect those who are unwilling or too young from marriage and to protect the right of the consenting and legally-aged to practice the rite, but otherwise it should confer no special rights, privileges, or benefits.

In upholding the wall of separation, the State would Catholics to marry only one man to one woman, Unitarians to marry gays, and even Mormons to marry one man to several women -- and it would prevent Muslims from marrying a man to a child. The state would have no business sanctioning marriage, as a religious institution, nor offering a secular, civil equivalent. Indeed, there could be no to secular equivalent to a holy union made inviolate by God. In the eyes of the secular state, marriage would be nothing more than a religious observance -- but it would still have the obligation to protect those who wish to practice it. Of course, conversely, religions would have no right nor incentive to ask the state to interfere in religious affairs.

However, marriage is not only a religious institution. Indeed, in the secular realm, marriage is a contract between consenting adults. The marriage contract has a secular, legal, and necessary basis for the protection of, for instance, the transfer of property between spouses upon death and also the legal adoption of a spouse's children. This is not an exhaustive list, but a full list would, of course, exclude tax incentives and other state conferred "benefits." The state's role is merely to enforce that the contract is between consenting adults by protecting the rights of either party if the terms of the contract are breached. And, as with other contracts, the state has no business delimiting the gender of the parties involved (or, even, how many parties are involved). Amendment 43, therefore, nullifies equal protection before the law (14th Amendment) by delimiting who is allowed to contract and who is not.

I think the unconstitutionality of this is made more clear by considering what Amendment 43 would mean if it were translated to other contracts. The state rightly does not dictate the gender or sexual orientation of parties contracting for mortgages, car sales, employment, or transfers of property. In that vein, Amendment 43's potential allowance for "domestic partnerships" is entirely irrelevant. In the same way that the state cannot provide "separate but equal" services for blacks and whites, it is equally unconstitutional to mandate heterosexual loans, homosexual mortgages, and certainly separate classifications for marriages. On the wedding train, what is the constitutional basis for reserving a "civil union" car for Plessy and a "marriage" car for Ferguson? The concepts of "domestic partnership" and "civil union" denote a second-class status to gay marriages. "Separate" is inherently unequal.

Based on the religious motivations that spurred Amendment 43 alone, it should be overturned as unconstitutional. But, even if the Amendment were not religiously inspired, there would be no constitutional or secular basis for a state mandate that discriminates based on sexual orientation. The 14th Amendment is a reminder that the government's primary function is to protect rights equally for all individuals -- not to confer to or deny them any. Insofar as the government has an obligation to enforce contracts, it cannot do so if it legally prohibits individuals from contracting. The state has a duty to recognize and protect the right of any and all adults to consent to a legal union. Therefore, if the state is to refer to such a union as a "marriage," it should recognize only one marriage contract for all consenting adults.

I'd be interested to know your thoughts in response to this, and in light of your post.

Best regards,

Ryan Puzycki

I appreciate the subtle points that Puzycki brings up. I largely agree with Puzycki -- except that I'm still not convinced that Amendment 43 should be overturned by the courts.

I emphatically add that I did not support Amendment 43. I voted against it. It was not one of my major issues of the year, though, for I was busy opposing increased wage controls (which passed) and supporting the partial re-legalization marijuana (which failed). I did write the following about an alternative measure (which also failed): "Referendum I would create domestic partnerships. It makes sense to assure legal standing for gay couples."

I agreed with Diana Hsieh's take on the two measures:

Amendment 43 - Marriage... My vote: No! This amendment is the darling of the Religious Right. ... It must be defeated.

Referendum I - Domestic Partnerships ... My vote: Yes. Voting "yes" on this referendum is perhaps the most clear way of rejecting Christian government in Colorado this election. I do worry that permitting gay marriage will usher in major subjectivism in marriage law, e.g. marry whomever you please, including two women, three men, and a goat. However, that's not a problem with gay marriage (or domestic partnerships) per se, but rather with people's failure to understand the proper grounds of marriage. Moreover, I regard that subjectivism as far less evil -- and far less likely -- than a return to a seriously religious conception of marriage. On that view, Paul and I aren't really married since we're not producing more children for God and community. For an example of that view, see this OpinionJournal op-ed by a Methodist Pastor. Oh, and don't miss Augustine's fantastically revolting views on marriage. Moreover, consider the main argument in our Colorado "Blue Book" against the referendum:

Domestic partnerships diminish the significance of marriage for society by reducing marriage to a list of benefits and responsibilities. The benefits given to married couples are intended to support child rearing by one man and one woman. The state has an interest in restricting recognition and legal protection to these married couples to provide stability for the individuals, their families, and the broader community.

In other words, marriage is a mysterious gift from God, not to be understood in words by man. Also, the sole justification for marriage is the demands of raising proper children in a stable family and community. People who choose not to procreate have no claim to the goods of marriage. In general, marriage is not two people committing to integrating their lives according to their own values. That's obviously too selfish and too individualistic.

Unfortunately, this "domestic partnership" measure will impose more government-mandated entitlements (e.g. health care and worker's compensation) upon businesses, but that's a problem with the government-mandated entitlements, not domestic partnership per se.

So I'd strongly recommend voting in favor of this measure.

Last year, I also wrote an article titled, "A Defense of Marriage for Couples." There is a "contractual basis of marriage," I argued, and it is among the government's legitimate functions to facilitate and uphold contracts. However, I saw no important difference between "gay marriage" and "domestic partnership;" I wrote that "gay marriage (or 'domestic partnership') rightly puts homosexual couples on equal footing with heterosexual couples..."

Puzycki writes, "Based on the religious motivations that spurred Amendment 43 alone, it should be overturned as unconstitutional." I disagree with this argument.

Take, for example, the abolition of slavery. Obviously that was religiously motivated. There may have been some abolitionists who were not Christians and who did not offer Christian reasons for abolishing slavery, but I am not able to name any. Obviously, we do not wish to re-institute slavery because its abolition was religiously motivated.

The important point, as I argued in my recent post, is whether the reasons for a law are separable from religion: "[S]ome laws have a solid secular moral foundation (regardless of whether they also match some religious code), while other laws have a strictly religious foundation. Laws that arise solely from religious beliefs should be repealed or overturned for precisely that reason."

The protection of individual rights, regardless of race, does not fundamentally depend upon any religious doctrine. It is entirely separable from religion. For example, Ayn Rand eloquently argued against racism on purely secular grounds, and she argued that rights arise from man's nature as a reasoning being, which has nothing to do with race.

The spending of tax dollars to teach creationism is an example of a policy that is not separable from religion. Creationism promotes a distinctly religious view that a supernatural being or force created the world and life.

I'm still not convinced that Amendment 43, whatever its faults and problems, violates the establishment clause or the equal-protection clause. I wrote:

[T]here may be some plausible non-religious arguments in favor of it. If it's true that Amendment 43 allows for "domestic partnerships" -- an equivalent of the marriage contract for gay couples -- then that strikes me as a reasonable alternative that should be pursued through the legislature. The courts are not always the answer to religiously-motivated bigotry against homosexuals.

Note that I did not claim that the non-religious arguments must be valid. I claimed merely that they must be "plausible." (By the way, I know of no Objectivist who has claimed to make a valid argument against gay marriage, but I'd be interested in learning about such claims if they exist.)

I think that I can offer at least one such plausible argument: "The difference between heterosexual marriage and homosexual domestic partnership is that only heterosexual marriage can result in one partner impregnating another. Obviously female domestic partners can become pregnant, but the sperm necessarily comes from a party external to the partnership. Male partners can adopt children but not give birth themselves. Thus, while the domestic partnership contract is substantially similar to the marriage contract, it must accommodate the real, biologically-based differences between heterosexual and homosexual couples."

I don't think that argument ultimately holds up, because heterosexual, married couples can also adopt children and use artificial insemination, and the marriage contract seems to accommodate such situations.

Here is another argument that is less plausible (because based on philosophical nominalism) but still not religious: "By common understanding, practically everyone sees 'marriage' as the union of a man and a woman. Thus, we need some other name to describe unions of homosexual couples."

I'm convinced that Amendment 43 was unnecessary, that it doesn't belong in the state's Constitution, and that it was largely motivated by bigotry rooted in religious dogma. Yet I am still not persuaded that Amendment 43 should be overturned by the courts based on the establishment or equal-protection clause. (I remain open to debate on this matter, and the argument about equal protection strikes me as more forceful.)

However, Puzycki's main point seems to be that homosexual couples deserve comparable protection of contract law, and on this point I quite agree.

February 21 Update: Readers are welcome to read the further discussion on this topic.

A 'Religious Foundation' for Law

Lynn Bartels wrote an interesting article for today's Rocky Mountain News that begins, "A lesbian couple wants to overturn a voter-approved ballot measure that defines marriage in Colorado as the union of one man and one woman."

Here, I am not so much interested in whether the measure should be overturned by the courts, but rather in what sort of arguments people are making on both sides. Here is the basic debate, as summarized by Bartels:

The lawsuit claims Amendment 43, which 56 percent of voters approved in 2006, is unconstitutional on several grounds, including it was "religiously motivated" and has the effect "of establishing religion."

Rep. Kevin Lundberg, R-Berthoud, who helped put the amendment on the ballot, laughed at that argument.

"If that's the case," he said, "we can throw out most of our laws because most are based on some moral perspective, and you could argue that is a religious foundation."

"We could even throw in the Declaration of Independence on those grounds: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights... Creator."

I have heard Lundberg's basic argument many times before. The argument is that all laws have a moral foundation, and all moral truths have a divine origin, thus all laws have a religious base, and no law may be rejected merely because it has a religious base. Lundberg's argument is complete nonsense.

It is true that all just laws have a moral foundation. However, it is not true that moral truths depend upon a god. Our right to life, liberty, and the pursuit of happiness does not depend upon the existence of a supernatural "Creator." To take another example, murder laws are based on the immorality of unjustified killing; there are perfectly secular, non-religious, earth-bound reasons not to kill others (excepting cases of self-defense).

Various religions, on the other hand, offer a variety of "reasons" for killing others, along the lines that God said so. For example, Leviticus 20:13 advocates the murder of homosexuals: "If a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death, their blood is upon them" (the Oxford Revised Standard).

The distinction that Lundberg fails to make is that some laws have a solid secular moral foundation (regardless of whether they also match some religious code), while other laws have a strictly religious foundation. Laws that arise solely from religious beliefs should be repealed or overturned for precisely that reason.

The question, then, is whether Amendment 43 is basically grounded in religion, or whether it also has a serious secular foundation. That is, is the issue fundamentally separable from religion? If it is, then it should not be overturned based on the establishment clause.

This is not always an easy thing to figure out. For example, clearly the Blue Laws -- prohibitions on select economic activity on Sundays -- have a religious background historically. However, today nobody seriously supports those laws on religious grounds. Instead, arguments in favor of such laws are essentially protectionist in nature. Thus, while the Blue Laws should be repealed because they violate rights of contract and property, it's not obvious that they should be overturned based on the establishment clause.

Clearly, Lundberg himself is strongly motivated by religion. For example, he endorses Mike Huckabee for president because Huckabee's "faith and principles guide his every step." Given that Lundberg endorses the idea of religious faith guiding a politician's every step, mightn't we conclude that Lundberg's opposition to gay marriage (or partnership) is religiously motivated?

I looked up an old article about Amendment 43, and it too suggests a strong religious motivation for the measure:

Push to nix gay nuptials begins
But groups not all on same page -- Focus on the Family and others disagree on whether a state amendment should ban civil unions too.
The Denver Post, December 9, 2005
Eric Gorski

What was envisioned as a broad coalition coming together to put a constitutional amendment prohibiting gay marriage on the Colorado ballot next fall is divided over what exactly the measure should say.

According to sources involved in the discussions, the influential Colorado Springs evangelical Christian group Focus on the Family is pressing for a measure that would ban not only gay marriage but also same-sex civil unions or domestic partnerships.

But other potential backers of an amendment -- including the state's three Roman Catholic bishops -- prefer a narrower, potentially less divisive ballot measure that would simply define marriage as between one man and one woman, sources said.

Another key player, the Rev. Ted Haggard of Colorado Springs, president of the National Association of Evangelicals, said Thursday that he stands with the Catholic position.

He said the institution of marriage deserves constitutional protection and that civil unions are a matter for the state legislature.

The fact that Haggard was later discovered to have purchased illegal drugs and various services from a male prostitute does not change the fact that that Amendment 43 was religiously motivated.

However, I'm not convinced that Amendment 43 violates the establishment clause, as there may be some plausible non-religious arguments in favor of it. If it's true that Amendment 43 allows for "domestic partnerships" -- an equivalent of the marriage contract for gay couples -- then that strikes me as a reasonable alternative that should be pursued through the legislature. The courts are not always the answer to religiously-motivated bigotry against homosexuals.