Don't Beg For An Answer To A Question Someone Else Raised

For some reason, it has become commonplace to misuse "begs the question." A very recent example, in addition to a commercial I cringed over in my car, was found in an online article about how to help loved ones who have been diagnosed with HIV: "There are more than 1.2 million people in the U.S. living with HIV, and 1 in 8 doesn’t know it. Though rates have steadily declined in the last decade, there were around 40,000 people newly diagnosed in 2015. Which begs the question: When a loved one tests positive for HIV and decides to tell you about it, what’s next?"

No question has been begged, as if the reader is sitting down, crying out inside, "please ask what we can do next!" Nor has any answer been begged. But the data does raise a question about what, if anything, can or should be done.

To beg the question is a logical fallacy where the proponent of an argument assumes as true the thing to be proved. Here is an example: "The Executive branch of government is charged with executing the laws and cannot do so unless the President has unrestricted power to issue Executive Orders." If this were the complete argument, it would beg the question. The conclusion is that the Executive must have unrestricted power to issue Executive orders. The premise is that the executive is charged with executing the laws. In order for the conclusion to follow from the premise, one must assume that unrestricted power to issue executive orders is necessary to execute the laws in accordance with Article II of the United States Constitution. This is a dangerous assumption.

Being able to identify assumptions like these in an argument can prove a powerful tool for rebuttal or refutation. Many questions may be raised in the process, but never feel that you must beg for an answer to a question you did not raise.

Mid-Year Call to Civility

We are a little past mid-way through another year marked by fear and distrust. From race to terror, sexual liberty to religious liberty, mass shootings to gun rights, this Country and this state—Texas—continuously appear divided. And yet, neither the Country nor the state of Texas has fallen apart or devolved into complete anarchy (much to some libertarians’ dissatisfaction). Why?

The answer remains unchanged by time. Disagreement is natural, especially in a heterogeneous society, among heterogeneous people with different backgrounds, beliefs, ideas, expectations, goals and desires. Most of us are committed, nonetheless, to some basic principles: That every person is to be afforded the greatest liberty compatible with the liberty of any other person, and that every person receive equal treatment under law and equal concern by those who govern. We may continue to disagree on so many issues (including the scope and contour of liberty and equality), but we always return to these core political principles.

Our core political principles infuse a desire to cooperate toward and strive for something better for all, namely a peaceable and sustainable society wherein people are afforded the greatest liberty and treated equally under law. We may disagree on how to achieve our common ends, and we may disagree from time to time over the content that informs our common ends (i.e., what is meant or entailed by “liberty” and “equality”), but we continue to try to work together despite disagreement, despite fear and distrust. We constantly look for ways to trust each other and dispel fear because we value civil society and find it worthwhile to preserve.

This year the Texas Legislature passed some very controversial legislation. And, with a special legislative session starting, the Texas Legislature may pass some more controversial legislation within the next thirty days. Proponents and opponents alike should zealously advocate for their positions, with a proviso: That in promoting one view over another you do not diminish the dignity of any other person. This proviso may often be met simply by lending civility to your position, that is, advocating your position in respectful disagreement with another and a view to seeking common ground.

Three Observations of Pidgeon, et al. v. Turner, et al. "Consistent With," "In Light of" or "Considering" Independence Day

The Texas Supreme Court remanded Jack Pidgeon and Larry Hick’s action against Mayor Sylvester Turner and the City of Houston in an action wherein Pidgeon and Hick’s wish to prevent the City from providing spousal employee benefits to same-sex couples. In a twenty-four-page opinion, with no concurrences or dissents, the Court reasoned that the United States Supreme Court’s opinion in Obergefell v. Hodges, 135 S. Ct. 2484 (2015) held only “that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and . . . it did not hold that the Texas DOMAs are unconstitutional.”

The Pidgeon opinion, delivered by Justice Boyd, concluded that the scope of same-sex marriage couples’ constitutional rights must funnel through the court system, piecemeal: “Pidgeon and the Mayor, like many other litigants throughout the country, must now assist the courts in fully exploring Obergefell’s reach and ramifications, and are entitled to the opportunity to do so.”

Pidgeon deserves greater analysis than this blog will provide. But, since it is Independence Day, and most people’s attention will be turned to relaxing, this blog will provide three brief observations of the Pidgeon opinion.

Justice Boyd’s Janus-Jurisprudence

First, Justice Boyd performed a jurisprudential U-turn from his concurrence in Pagayon, et al. v. Exxon Mobile Corporation, which was issued the week prior to the Pidgeon opinion. In Pagayon Justice Boyd criticized the majority for opting into “Solomon-like solutions” over “Moses-like methods.” This position recognizes that the judicial system disserves the public when, rather than providing clearly prescribed, ex ante rules that facilitate predictability and prospectivity, courts narrowly tailor rules to very specific circumstances. 

But Justice Boyd does not heed his own criticism in Pidgeon. The first paragraph of the conclusion opts into a piecemeal approach to same-sex issues that may arise. Justice Boyd points out in a footnote that same-sex issues are still funneling through the courts, such as the issue whether a cake shop owner can be held liable in damages for refusing to bake a cake for a same-sex couple. Of course, the major difference between the cake-maker case and same-sex marriage, is that the cake-maker case primarily deals with relationships between citizens, whereas the same-sex issue cases deal with citizens' relationship to the state. It is not clear why Justice Boyd opts into “Solomon-like solutions” over “Moses-like methods” when it comes to the scope of constitutional rights. Granted, the Pidgeon opinion latches on to the historically contingent nature of same-sex rights as an apparent basis to let the issue continue to be fought in courts, but the historically contingent nature of rights generally does not overcome the purpose of Constitutional rights, which is to protect certain rights from historical whims.  Nor do historical contingencies justify turning courts into places people go to find out retrospectively what rights they possess and duties they owe.

(Ill)-Advisory Opinion?

Second, the Pidgeon opinion at times reads as an advisory opinion. Specifically, the opinion should have ended at section II, “Our Jurisdiction.” Jurisdiction, according to the Court, hinged on the difference between “consistent with” and “in light of” or “considering.” Since the court of appeals had remanded the case to the trial court, instructing the trial court to proceed “consistent with Obergefell and De Leon,” Pidgeon argued that the trial court might mistakenly apply De Leon as if it were binding authority. De Leon is a U.S. Fifth Circuit case, which, the Court noted, is not binding on Texas Courts. The Court reasoned that, since the court of appeals did not instruct the trial court to proceed “in light of” or “considering” De Leon, this gave rise to uncertainty in the law and unfairness to the litigants, giving the Court jurisdiction to hear this interlocutory appeal.

Even accepting the Court’s opinion as reasonable or true, the Court could have simply instructed the trial court to proceed “in light of” or “considering” De Leon, which itself is not binding but persuasive authority. The problem for the Court, of course, is that, as it notes, U.S. Supreme Court decisions are binding on Texas Courts, including the Texas Supreme Court. So, the Court would also have to instruct the trial court to proceed “consistent with Obergefell.” Now here’s the kicker, De Leon held Texas’ Defense of Marriage Act (DOMA) unconstitutional based on the Obergefell opinion, which itself held five other state DOMAs unconstitutional.  To state the obvious, the Court’s distinction between “consistent with” and “in light of” and “considering” is trivial at best.

Here was an opportunity for Justice Boyd to heed another criticism he lodged in Pagayon: "When it is not necessary to decide more, it is necessary not to decide more." 

Tip-Toe Through the Trivials

Third, the Pidgeon opinion is riddled with trivialities. Some examples have been provided above. I’ll add just a couple more here. The Court notes that Obergefell held “that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons.” If the Texas Supreme Court ever gets to hear Pidgeon or a Pidgeon-like case in the future, it will be interesting to see how the Court would justify finding that the state can offer same-sex couples and opposite-sex couples disparate benefits and still “recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages.”

The Court also entertains Pidgeon and Hicks argument that Obergefell only held a “‘fundamental right to same sex marriage’” but not “a fundamental right ‘to spousal employee benefits.’” If that is really an issue, it is a trivial one at best. There is no argument here. Even denying a fundamental right to government benefits of any sort, the issue would remain whether a state, specifically Texas, may provide more benefits to opposite-sex couples than it does to same-sex couples when both types of couples possess a fundamental right to marry. Simply put, this is an equal protection case, invoking the Fourteenth Amendment.

Independence Day Note

State Sovereignty does not justify or legitimate disparate treatment of particular groups or persons. In fact, the legitimacy of any state is premised on equal treatment and concern for every citizen. The Texas Constitution makes this point clear: “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.” Art. 1, sec. 2. Notice that this clause does not say that political power is inherent in only SOME people, or that government is founded on the authority of a SELECT GROUP of people, or instituted for the benefit of ONE GROUP over another.

No doubt, in a society compiled of people with different and often incompatible beliefs, ideas, religions, and visions of the good life, the opportunities for disagreement will far exceed the opportunities for sustainable consensus. There will never be easy resolutions to social issues, especially when government is viewed as the vehicle through which to promote one vision over another. The Texas Constitution, like the United States Constitution, was designed to take away from government the power to dictate any one moral, political, or social vision over all others.

This Nation was founded on great principles. Our Declaration of Independence records the self-evident truths that all persons are created equal and endowed with inalienable rights, among them the right to life, liberty, and the pursuit of happiness. Why “self-evident?” Because we do not need to explain or justify equality among and between people; we do not need to explain or justify that each person’s life is his or her own; we do not need to explain or justify that, with this one life that he or she has, he or she can seek out his or her own vision of the good life.

I proudly celebrate this Nation’s birth! I am proud to be an American, a United States Citizen, and I am proud to have served this Country and no other. Pride in one’s country is important, for it forges our destinies, knits us into a common history, and makes us complicit in this Nation’s past and responsible for its future. We share common political space and common political principles; that is our core. We differ in personal opinions and beliefs; that is our strength.

The eyes of freedom are upon you, Texas.