Constitutional Law

On Friday the Priest Got His Goat

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Last year I noted the case of Jose Merced, a Santeria priest in Euless, Texas, who was fighting the city's ban on animal slaughter as a violation of his religious freedom. Merced, who performed animal sacrifices at his house for 16 years without incident until he got into trouble after someone ratted him out in 2006, unsuccessfully sought an injunction against the city in U.S. District Court. But he appealed that decision with help from the Becket Fund for Religious Liberty, and today the U.S. Court of Appeals for the 5th Circuit ruled that Euless' attempt to stop him from sacrificing animals violates the Texas Religious Freedom Restoration Act (TRFRA). Under that law, legal restrictions that impose a substantial burden on the free exercise of religion are permissible only if they are the least restrictive means of serving a compelling government interest. The 5th Circuit concluded that the city's asserted interests in protecting public health and safety could be satisfied without preventing Merced from practicing his religion. Because Merced won on statutory grounds, the court did not address the question of whether Euless' sacrifice ban also violates the First Amendment. A 1990 Supreme Court decision substantially narrowed the grounds for overturning laws that interfere with religious freedom (a development that gave rise to the TRFRA as well as similar laws in other states and at the federal level). But Merced's case bore a striking resemblance to a 1993 case in which the Court nevertheless overturned a ban on animal sacrifice in Hialeah, Florida, that was challenged by Santeria practitioners there.

The 5th Circuit decision in Jose Merced v. City of Euless is here (PDF). The Becket Fund has a press release here.

discussed religious freedom and drug rituals in a 2007 Reason article.

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  1. For some reason this guys wacky superstitions being oppressed doesn’t set of my outrage button like it normally would. Might be an animal cruelty thing for me, not sure.

  2. It’s because he is a brown person Chip.
    Face it, you are a racist.

  3. If they had as their purpose the protection of animals from cruel slaughter, and if the slaughter in question were cruel, then this kind of ban should surely stand. Stopping cruelty to animals should suffice as a compelling interest.

  4. MNG | July 31, 2009, 8:15pm | #
    If they had as their purpose the protection of animals from cruel slaughter, and if the slaughter in question were cruel, then this kind of ban should surely stand. Stopping cruelty to animals should suffice as a compelling interest.

    RTFA MNG,

    “Animal cruelty” wasn’t an issue in the case at all.

    Merced’s sacrifices were performed in a humane manner, utilizing a method that is approved as humane by federal statute.

    Though I suppose “animal cruelty” might be a promising new front in the effort to stifle religious freedom now that the “public health” avenue is closed

  5. Though I suppose “animal cruelty” might be a promising new front in the effort to stifle religious freedom now that the “public health” avenue is closed

    People are animals. Relgion is false. Therefore religion is cruelty. It’s the job of the government to protect us from ourselves.

  6. Is the Priest’s lawyer a young, handsome guy who has never lost a case and who just joined a prestigious New York law firm?

  7. Ending an animal’s life for such a stupid reason as religious sacrifice IS animal cruelty. Freedom of religion should not include the right to slaughter animals indiscriminately. There is no way to end an animal’s life humanely unless it is to end the pain and suffering of the animal. Where is this bozo getting his animals from? As long as it’s not your backyard, who cares right?

  8. Meat is tasty.

  9. Ending an animal’s life for such a stupid reason as hunger IS animal cruelty. The human need for protein should not justify the right to slaughter animals indiscriminately. There is no way to end an animal’s life humanely unless it is to end the pain and suffering of the animal. Where is this bozo getting his animals from? As long as it’s not your backyard, who cares right?

  10. Max,

    My mockery was shorter.

  11. Max
    Someone that spends as much time as you do defending the rights of one celled life should think before mocking those who defend life with hundreds of thousands of cells, limbs, nervous systems, brains, etc.

  12. Someone that spends as much time as you do defending the rights of one celled human life should think before mocking those who defend non-human life with hundreds of thousands of cells, limbs, nervous systems, brains, etc.

    FTFY.

    Oh wait, with that fix, the distinction becomes clear and your snark becomes meaningless.

    Nevermind.

  13. robc
    Care to tell us why uni-cellular life that happens to be human warrants more moral weight than much more complex non-human life? “Just cuz?” Or do we just jump straight to “cuz the Bible tol’ me soooo.”

  14. MNG,

    Care to tell us why uni-cellular life that happens to be human warrants more moral weight than much more complex non-human life?

  15. MNG,

    Care to tell us why uni-cellular life that happens to be human warrants more moral weight than much more complex non-human life?

    Ask Max, its not my argument, it is his.

    Im just saying you misrepresented his argument. His argument does not depend on cells, limbs, etc. I was just burning your strawman as fast as possible.

    Damn tags.

  16. Er, robc, I don’t think it does…

  17. Humanity and complexity are too different issues. For me, it isnt a humanity vs complexity issue, it is humanity vs tasty issue.

  18. MNG,

    Things in italics are quotes. Are you new here or something?

  19. s/too/two/

    ugh, typing hard today.

  20. robc, how did I misrepresent his argument? Max argues for rights for absurdly simple life that happens to have human DNA, but mocks those who argue for rights for life that is exponentially more complex that happens to have non-human DNA. Since I’ve never got a workable, sensible reason from Max as to what moral weight the bare configuration of the DNA warrants, I think he should probably keep his mocking in check.

  21. I find non-human meat very tasty thank you. But morally that bears pretty much no weight (I also enjoy vaginas but that does little to justify my doing with them what I will without their owner’s consent).

    Likewise, I like humans more than non-humans, but I’ve never come across any reason why morally the bare fact that life falls into a certain species should matter as to the level of moral respect it deserves.

    I’m afraid complexity of something, whether it be capacity to experience pain, engage in thought, exercise autonomy, etc., is about the only thing that can be used in conferring moral weight on life.

    And Max regularly seriously argues for strong rights for absurdly simple forms of life. Therefore his mocking of someone who argues for even bare rights for exponentially more complex forms is truly ballsy imo…

  22. You misrepresented the argument by comparing complexity. He doesnt give a flying fuck about complexity. That is a strawman. His argument is that humans deserve protection. Period.

    I happen to agree, at least with the form of the argument. Abortion arguments are a subset or murder arguments. Murder involves people, not animals.

    I oppose cruelty to animals, I only see three reasonable reasons to kill them:

    Defense (or yourself or other animals)
    Ickyness (spiders and etc)
    Tastyness (Cows, pigs, more pigs, the animal bacon comes from, some more pigs, chickens, bison, swine, fish, shrimp, some other slimy shellfish Im not sure is really alive, toucans, koala, monkeys, etc)

  23. I’m afraid complexity of something, whether it be capacity to experience pain, engage in thought, exercise autonomy, etc., is about the only thing that can be used in conferring moral weight on life.

    That is your argument, not Max’s. So it is meaningless in our argument. Whether you are right or wrong has no bearing on the strawman you set up. Its like making a utilitarian argument with me.

  24. If you are going to mock me, you need to do it for supporting an immoral means, not because the end result of my idea isnt the most utilitarian.

  25. And I’m afraid “potential capacity” is pretty much not going to do the work that needs to be done. If it were the decider then we could eat terminally ill infants, or Santeria priests could sacrifice them.

    For the record, I don’t practice Santeria.

    And I aint got no crystal ball either…

  26. MNG,

    I happen to find the potential capicity argument stupid myself. That is perfect reasonable to mock Max for.

  27. “His argument is that humans deserve protection. Period.”

    That’s right. And it’s an indefensible argument. And that’s my point.

    Sorry, you don’t get to get out of this, and neither does Max, by a retreat into the silly land of deontology.

    Deontology doesn’t mean you don’t have to provide reasons for your non-utilitarian stands. It just means that your reasons are categorical.

  28. And Max regularly seriously argues for strong rights for absurdly simple forms of life.

    This is misrepresenting Max again. H argues for strong rights for absurdly simple forms of humans.

  29. You see, if you or Max say “humans deserve protection” then I get to say “why.” And if your answer can apply to animals, well, then the jig is up. One answer that even the deontologist can’t get away with is “well, because they do.”

  30. Deontology doesn’t mean you don’t have to provide reasons for your non-utilitarian stands.

    I have always said that between two moral means, I have no problem with choosing the one that leads to the best end. I reject any immoral means however.

    I always provide reasons – the means of getting there is immoral.

  31. Max say “humans deserve protection” then I get to say “why.” And if your answer can apply to animals, well, then the jig is up.

    Max’s answer is pretty clear and doesnt apply to animals. The fact that you mocked it doesnt matter.

  32. Kant for example was deontologist. He said lying is wrong. It’s always wrong, consequences are irrelevant (that’s the deonotology). But if you asked him “why is lying wrong” he would give a reason (that it would be irrational, one could not even state the moral rule “everyone should lie” without breaking it). He can’t just say “cuz it is.”

  33. haha, you say this or that is immoral, but what if I say “why?”

    Max actually has no answer at all. He says “human life deserves respect.” If you ask why, he just says “because it does.” That is just repeating himself and is actually no answer at all.

    Thats kind of my point.

  34. MNG,

    Isnt Max Catholic? I thought he made the argument you mocked at 12:10?

  35. In fact, there are two layers to this. The second layer is that Max’s post mockes a previous poster that said that killing non-human life for rituals is wrong. Max mocks this by substituting hunger as the motivation instead of rituals. But of course Max doesn’t beleive that hunger as motivation makes killing right, he would oppose me eating a terminally ill infant (btw-I bet they are quite tasty too). He thinks the mere fact the life is not human justifies the killing. And he has no answer for why that is so.

  36. There are also plenty of atheist, meat-eating supports of the nonaggression principle, so either they are all hypocrites or there is a generally agreed upon distinction between humans and animals.

  37. And he has no answer for why that is so.

    Bullshit. Im pretty sure his answer is “because God gave man dominion over the animals”.

    I dont wish to speak for Max, but I think Im right.

  38. “Isnt Max Catholic?”

    That question is like “isn’t Pat Boone white?”

    Of course I don’t see how this helps him as I’ve never heard a sensible Catholic answer for their special place for human life at even its most simplest forms. It usually has to do with 1. because it’s human (which as I’ve already said isn’t even an answer at all) 2. God/Bible said it was/they have souls or 3. the man with the red slippers says so.

  39. Max’s post mockes a previous poster that said that killing non-human life for rituals is wrong.

    Reading is fundamental. She said all killing of animals is wrong unless it is to end the pain and suffering of the animal.

    So she opposed killing animals for food too. I thought his post was a perfect mocking of that statement.

  40. MNG,

    Because God said so is a very sensible answer if you believe in God.

  41. “there is a generally agreed upon distinction between humans and animals.”

    And of course, this would be no justification either, right? That the distinction is commonly made.

    I mean, generally most people think minimum wage laws quite justified, etc.

  42. robc
    Surely that poster thought ending an animal’s life to make food was wrong too, right?

  43. generally most people think minimum wage laws quite justified

    Not to people who support the nonaggression principle, which was the only people I was discussing.

  44. “Because God said so is a very sensible answer if you believe in God.”

    It’s a nonsensible answer for those who don’t, or even those who say they have a different God who says differently on the matter, or the same God who says differently.

    It’s also a non-answer for the reasons Plato explained long ago in his discussion over whether something is good because the gods say it is so or not.

  45. robc
    You don’t seriously think the criteria for deciding the justness of an action is “that which supporters of the non-agression principle come to a common agreement about” do you? C’mon, let’s not waste too much time over this point.

  46. Surely that poster thought ending an animal’s life to make food was wrong too, right?

    It was unclear to me whether she did or didnt. She didnt declare her moral vegetarianism.

    She either made a statement without thinking of all the consequences (common) or she thought it applied to food too (possible).

    Max’s post does one of two things, if she was in the first group, it points out the error of her argument. If in the 2nd group, it allows her a chance to respond and clarify that she is in that group and is a consistent idiot that I can ignore. 🙂

  47. So mocking that poster with the hunger/food angle was missing the point big time…

  48. You don’t seriously think the criteria for deciding the justness of an action is “that which supporters of the non-agression principle come to a common agreement about” do you? C’mon, let’s not waste too much time over this point.

    Why not?, seems almost a definition of “libertarian consensus” (as little as that is possible). And this is a libertarian website, so arguing from an assumed position of “libertarian consensus” (okay, I have trouble typing that without laughing) seems reasonable to me.

  49. I think those like me and you are worse off than her in that we eat calf meat but not infants without being able to offer a rational or sensible reason why the former is ok and the latter is not…

  50. MNG,

    So mocking that poster with the hunger/food angle was missing the point big time…

    I never said Max was the sharpest bulb in the deck.

  51. MNG,

    without being able to offer a rational or sensible reason why the former is ok

    Calves are tasty. I already covered my reasons.

  52. You wouldn’t find that to be an argument from popularity fallacy?

  53. “Calves are tasty. I already covered my reasons.”

    So I can totally eat infants if they are tasty?

  54. You wouldn’t find that to be an argument from popularity fallacy?

    Have you seen libertarian vote totals? Its in no danger of that fallacy. 🙂

  55. So I can totally eat infants if they are tasty?

    Only if you leave out my murder argument above.

  56. I eat meat because I’m weak like that…I was raised eating it, it tastes so good, it’s readily available, the alternatives suck, my society doesn’t bar it or censor it…But intellectually I think its wrong…

  57. MNG,

    Advantage me. I think meat was meant to be eaten.

  58. I think your murder argument is no argument. Since murder is another way of saying “wrong killing” or “human killing” your just begging the question to say “it’s wrong to kill humans because its murder.”

  59. “I think meat was meant to be eaten.”

    Yeah, but you can’t seem to say why, or even if it was “meant” to be eating why that makes it moral.

    Worse, you seem to miss the point that humans are, well, made of meat.

  60. MNG,

    I can make a God or Natural Law argument against murder. Either way, while it may be a logical fallacy, the fact that all cultures consider some sort of murder to be wrong argues that there is a Law against it, whether from God or Nature. The details differ (even cannibals have rules against murder, they just dont extend to outsiders) but the basic principle is universal.

    Not all logical fallacies are fallacies. The appeal to authority is a logical fallacy, but they are often right. Its a logical fallacy but not a statistical fallacy. 🙂

  61. Worse, you seem to miss the point that humans are, well, made of meat.

    When a lion eats a man, I see nothing immoral about that.

  62. But a man eating a man is, right?

    Why? Because most cultures agree it is?

  63. MNG,

    You arent Socrates, Im not going to derive natural law against murder for you.

    Eating a scavenged man that is already dead might not be immoral, like the soccer team in the Andes.

    Because most cultures agree it is?

    That is a piece of evidence that you have correctly determined the natural law.

  64. Well, since I tend to agree with Bentham that the concept of natural law is nonsense, we probably won’t solve this anytime soon!

    This is a classic case of my general beef with natural law, that it just blesses what people have always done…

  65. Why is murder wrong?
    Natural Law Exponent: “Well, it seems to be both popular and longstanding to see it as so, so it must represent some natural law.”
    What’s this natural law?
    Natural Law Exponent: “Well, its the law of right and wrong, as cosmically understood but at times unjustifiable by our mere mortal reason”

  66. “It is not enough for the knight of romance that you agree that his lady is a very nice girl-if you do not admit that she is the best that God ever made or will make, you must fight. There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk. It seems to me that this demand is at the bottom of the philosopher’s effort to prove that truth is absolute and of the jurist’s search for criteria of universal validity which he collects under the head of natural law.” Oliver W. Holmes

  67. ‘Care to tell us why uni-cellular life that happens to be human warrants more moral weight than much more complex non-human life? “Just cuz?” Or do we just jump straight to “cuz the Bible tol’ me soooo.”‘

    Did Hippocrates read the Bible? You know, Hippocrates of the Hippocratic Oath, which forbids doctors from assisting in abortion? If believing in the Bible is the only possible explanation for being prolife (I should say, pro *human* life), then I suppose you will cite your evidence that Hippocrates, the pre-Christian pagan, was somehow tainted with the Christian virus.

    ‘And Max regularly seriously argues for strong rights for absurdly simple forms of life. Therefore his mocking of someone who argues for even bare rights for exponentially more complex forms is truly ballsy imo…’

    Does the smell of burning straw stimulate you that much?

    Cheryl Jewhursr’s asserted that religiously-motivated animal sacrifice should be illegal because ‘There is no way to end an animal’s life humanely unless it is to end the pain and suffering of the animal.’

    If this is an argument for ‘bare’ animal rights, then how should we characterize your position – even more bare? Correct me if I am mistaken, but you appear to think it’s OK to kill an animal in order to eat it. That’s not about ending the pain and suffering of the animal, it’s about ending *your* hunger. It’s pretty ballsy to take an animal-rights view which is more extreme than yours and hold it up as some kind of minimalist argument.

    Or perhaps it’s your assertion that it *is* wrong to kill animals for food, and that your lapses in this area are sins which you repent in sackcloth and ashes (‘I eat meat because I’m weak like that…I was raised eating it, it tastes so good, it’s readily available, the alternatives suck, my society doesn’t bar it or censor it…But intellectually I think its wrong’). But even if you belong to the ‘meat is murder’ brigade, you would have to be pretty ballsy to hold up your views as a mainstream defense of ‘bare’ animal rights.

    But none of this has to do with the present case. We’re not dealing with a community which bans the slaughter of animals for food. We’re dealing with a town in Texas. Dude, *Texas.* Trust me, they allow the slaughter of animals for food. The local government in this case asserted a compelling interest in public health and preventing animal cruelty in order to justify its restriction on Santeria sacrifices. They did not invoke a general interest in prohibiting *all* animal slaughter except for the purpose of putting the animal out of its misery.

    As for the cruelty issue, the town stipulated in court that ‘Defendant [the town] has no evidence that the Plaintiff [the Santeria priest] ever caused any animal on his premises to suffer any cruelty or harm, other than the killing of the animal.’

    So unless the killing of animals (except to end their suffering) is so wrong in itself as to justify a flat ban without any exceptions at all, then we have to consider the religious-freedom arguments.

    Robc,

    ‘I happen to find the potential capacity argument stupid myself. That is perfect reasonable to mock Max for.’

    Please refresh my memory – when did I use this argument?

    (But thank you for defending, if not my pro-human bias, at least for defending the logical coherence of my position in that respect).

    ‘Bullshit. Im pretty sure his answer is “because God gave man dominion over the animals”.’

    Now that you mention it, that’s a good reason. Of course, you could cite other reasons, too, and I suspect that carnivores of all religions (and non-religions) do so. So it’s not simply call a Christian peculiarity.

    [MNG quotes from Oliver Wendell Holmes’ attack on the natural law]

    I know Holmes rejected the idea of natural law. This may help explain why he was so enthusiastic for the idea of compulsory sterilization (not just believed it was constitutional, but that it was a good idea). A natural law exponent wouldn’t do that.

    Compare and contrast:

    The U.S. Supreme Court’s 1927 Buck v. Bell decision, where Holmes enthusiastically endorsed the idea of eugenic sterilization:

    ‘We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough.’

    Pope Pius XI’s encyclical Casti Connubii

    ‘Public magistrates have no direct power over the bodies of their subjects; therefore, where no crime has taken place and there is no cause present for grave punishment, they can never directly harm, or tamper with the integrity of the body, either for the reasons of eugenics or for any other reason. St. Thomas teaches this when inquiring whether human judges for the sake of preventing future evils can inflict punishment, he admits that the power indeed exists as regards certain other forms of evil, but justly and properly denies it as regards the maiming of the body. “No one who is guiltless may be punished by a human tribunal either by flogging to death, or mutilation, or by beating.”‘

    I guess I will go for the natural law rather than the positivist ideas of Oliver Wendell Holmes, Jr.

    (Oh, by the way, see this Reason article on the disreputable background of the Buck v. Bell case)

    Reason discusses the Buck v. Bell case, where Holmes enthusiastically endorsed the idea of eugenic sterilization.

  68. Looks like Mad Max just handed MNG his lunch*.

    (*unfortunately it was ME on a french roll!)

  69. Max
    It’s a bare defense of animal rights because it only gives the command of not causing pain to them.

    “A natural law exponent wouldn’t do that.”

    There are many horrible things that have been done in the name of “natural law.” The idea that what you think is right is ordained by God or the cosmos has not exactly always led to good results when found in folks in power… The only issue the Court looked at in Buck was, was due process satisfied? As they had no substantive due process theory back then, they noted the process afforded Buck and had to pass on it. That’s judicial restraint.

    Look MAx, we’ve been through this, you can quote from papal declarations and point to Hippocrates, but when challenged you’ve never been able to answer the basic question I put forward above as to why uni-cellular life that happens to be human is to be morally valued over exponentially more complex life that happens not to be human. If you’ve got some new revelation since our past discussions on this please enlighten us all, but given in your long winded post you avoided the issue again I imagine that hasn’t changed…

  70. MNG,

    You continue to speak from a specifically human perspective. Only human beings would base their ethics on articulated reason, argument and discussion. Other animals don’t engage in debate and discussion – other animals don’t blog. So you’re using a specifically human method of discourse to challenge my preference for human beings over other animals.

    ‘The only issue the Court looked at in Buck was, was due process satisfied? As they had no substantive due process theory back then, they noted the process afforded Buck and had to pass on it. That’s judicial restraint.’

    Did you actually read the *Buck v. Bell* quote? Have you studied the life of Justice Holmes? Have you looked into the kind of opinions the Supreme Court was handing down in the era of Buck v. Bell? The Supremes did, in fact, believe in substantive due process, then as now.

    And if you think Holmes was motivated by judicial restraint, compare and contrast his *Buck* opinion with, say, his *Lockner* dissent, in which he says that a maximimum-hour law is constitutional. His Lockner dissent was a model of judicial restraint, unlike Buck. Did Holmes say that maximum hour laws were constitutional because it is better for all the world that workers get treated humanely than that they get exploited? No, Holmes said that it wasn’t his business to impose any particular economic theory on the states.

    Contrast this with his *Buck* opinion, where he actually *approves* the law he is upholding (“better for all the world,” etc.). Holmes’ private correspondence shows that he actually approved the eugenics laws. Whereas with *other* decisions of his, his private correspondence shows that he was simply doing his duty as a judge while disagreeing with the government conduct he was upholding.

  71. Fuck you, MNG, and tangentially, robc. Look what the fuck you started Mad Max on.

  72. “So you’re using a specifically human method of discourse to challenge my preference for human beings over other animals.”

    haha, in other words, as usual, you cannot give a characteristic that unicellular human life has that multi-cellular non-human life does not that gives the former moral weight that does not belong to the latter. That we discuss the issue in terms supplied by our human faculties is irrelevant, the moral correctness of something certainly exists outside of our own mental concepts of it (my, who would have thought you were some kind of Neitzchian subjectivist Max!).

    “And if you think Holmes was motivated by judicial restraint, compare and contrast his *Buck* opinion with, say, his *Lockner* dissent, in which he says that a maximimum-hour law is constitutional.”

    Wow. Did you just say that? Both were models of judicial restraint: Virginia’s legislature had passed a sterilization law and New York had passed a maximum hours law; in both cases Holmes felt the will of the legislature should be deferred to, there being no specific provision of the constitution to the contrary he could find.

    This is how blindly (with your Catholic apologia blindfold on) you are stumbling around: Since Virginia provided heaps and heaps of process for Carrie Buck (physicians had to pass off on the sterilization, then she got an appeal with notice and counsel supplied, then she could appeal the appeal through the courts, etc) the only way Holmes (or anyone, remember that the decision was 8-1 and included some of the famed “natural law” proponents who invoked natural law concepts of freedom of contract later in Lochner; tellingly even the lone dissenter, Butler, likely driven more by his rogue Catholicism than by any legal ground to stand on, dissented in silence, offering up no counter legal argument whatsoever) could have struck the law is to find a “right to bodily integrity” as a substantive due process right. Of course this same right, found by later courts, is the one fanatical conservative Catholics like yourself lament as it is used as the basis for the rights to refuse medical treatment to hasten death and in abortion cases!

  73. And of course, as usual, there are the smaller but habitual dishonesties of Max, such as his Hippocrates discussion. Max doesn’t tell you that there is debate among scholars as to when the Hippocratic oath was created, and if it had anything to do with Hippocrates at ll, with some schools of thought saying as late as the 4th century AD. The abortion lines were certainly out of step with Greek society at large which sanctioned outright infanticide as well as fetal abortion (so much for natural law contentions that most cultures thought of abortion as murder, for a detailed discussion of the oft accepted view through history that the killing of a fetus was, at best, something short of the murder of a human being, just look at some of Blackmun’s footnotes in the Roe v. Wade case).

    http://www.hsl.virginia.edu/historical/artifacts/antiqua/hippocrates.cfm

  74. Just as President Obama ,Professor Gates and that redneck cop found common ground on our racist culture over a beer,perhaps Max and I could find agreement on his superstitious reverence for human life over a barbecue of retarded babies.

  75. MNG,

    Can you give me a reason why the number of cells in an organism matters?

  76. VGO
    Yes. I think that with complexity you start to get things like the ability to exercise autonomy and thought, the ability to experience pain and pleasure and utility, etc., that trigger moral respect.

    So if someone asks me why it wrong to kill a human adult I can easily say it is wrong because it causes that person pain, it disrespects his sutonomous wishes or his rationality (these are probably linked as Kant proposed), etc. Note though that I have to admit that with most complex animals killing would be wrong for the same reasons (though of course to a lesser degree; I don’t claim any complex animal life is worth the respect that complex human life is because the latter register much higher on all of my criteria).

    A one celled embryo cannot exercise autonomy or rationality, it cannot be said to feel pain in any meaningful way, (not only does it not have brain, it doesn’t even have nervous system), etc., therefore it need not be accorded the moral weight one would give an adult human or pig, chicken or what have you that does register on those criteria.

    Killing things happens every time you take a step, breathe air or rub your skin. But life low in complexity has such little moral weight that we rightly don’t sweat it much.

    Because some life low in complexity happens to have a DNA structure similar to me and you is no good reason to treat it differently.

    I hope I answered your question satisfactorily.

  77. So the number of cells really doesn’t in itself warrant moral respect, what warrants that respect is autonomy, rationality, feeling of pain, etc., and the number of cells (complexity) is important in every life form we know of in contributing to those.

    Hypothetically, if we were to find in space or somewhere an organism made up of few cells but which exhibited autonomy, rationality, a meaningful capacity to feel pain, etc., then it would warrant moral respect to the extent it exhibited these characteristics. But in the life we know on earth simple life forms (whether possessing human DNA or not) usually register incredibly low on these criteria, if at all…

  78. Consider that according to Max’s criteria of something being human making it worthy of moral respect were we to discover complex life forms in space, say Klingons, then they would warrant no moral respect and we could torture them, eat them, etc., with nary a moral concern (after all, they are most certainly not human). Certainly that’s absurd, and so is Max’s position on this issue. According to my position, if they exhibited autonomy, rationality, ability to experience pain, etc., at levels matching ours then we would have to accord them matching moral respect. That of course makes sense.

  79. “Ending an animal’s life for such a stupid reason as religious sacrifice IS animal cruelty. Freedom of religion should not include the right to slaughter animals indiscriminately. There is no way to end an animal’s life humanely unless it is to end the pain and suffering of the animal. Where is this bozo getting his animals from? As long as it’s not your backyard, who cares right?”

    this is complete crap. i am a law enforcement officer in the state of WA. let me tell you the law here. it is legal to kill any animal you OWN as long as you do it humanely. you don’t need ANY reason. it is perfectly legal to take your pet cat, dog, or whatever into the back yard and euthanize it. as long as you do it HUMANELY. all this priest wants is the same rights as everybody else.

    do you know what texas’ law is? i doubt it. if texas allows such (non-cruel) slaughter, as i would bet it does for goats, then the reason for the slaughter is likely irrelevant under the law. and rule of law matters.

    i don’t like the fact that people can legally take fido into the back yard and dispatch him (if they are in an “open shoot” area, they can use a firearm fwiw), but legally- they can. certainly a priest doesn’t have fewer rights than joe sixpack.

  80. “So if someone asks me why it wrong to kill a human adult I can easily say it is wrong because it causes that person pain, it disrespects his sutonomous wishes or his rationality (these are probably linked as Kant proposed), etc. Note though that I have to admit that with most complex animals killing would be wrong for the same reasons (though of course to a lesser degree; I don’t claim any complex animal life is worth the respect that complex human life is because the latter register much higher on all of my criteria).

    “A one celled embryo cannot exercise autonomy or rationality, it cannot be said to feel pain in any meaningful way, (not only does it not have brain, it doesn’t even have nervous system), etc., therefore it need not be accorded the moral weight one would give an adult human or pig, chicken or what have you that does register on those criteria.”

    I’m new here, so I don’t know the niceties of your forum etiquette, but this seemed like an interesting discussion so here goes.
    Some things perhaps to consider:
    1. Should the potential to exercise rationality or autonomy weigh in to the decision-making process at all? Uninhibited, an embryo will grow to exercise these these traits. I’m no philosopher, nor am I very well-read, and so the following could be predicated upon a faulty assumption, but let’s try a hypothetical. Say there was a man who fell into a deep coma because of some rare disease. He lost all his memories, sense of self, etc. and doctors didn’t detect any brain activity, but the doctors knew that, as part of his condition, he was bound to wake up in say, nine months, if properly nourished and all that (set aside for a moment whatever libertarian impulse that may be asking questions like, “whose job is it to feed him? No one is obligated to feed him” or whatever). Would it be wrong to kill him under a utilitarian framework?
    2. It seems that you attack specie-ism prematurely. A sort of allotment of rights based upon species may not be a bad idea-a sort of piecemeal set of rights that progresses incrementally. After all, allotting rights based upon intelligence (of specific individuals) seems kinda slippery-slope to me. I mean, if we can do that, it isn’t so far-removed to imagine rights allotted to humans based upon levels of intelligence or what-not. Arguably, the more intelligent a person is, the higher his/her capacity is to exercise rationality and autonomy as well as to experience pain or pleasure. I don’t want to be burdened with more or less responsibilities in the eyes of the law than the next guy just because of our respective intelligences, as assessed by some outsider.
    Anyway, that’s just some things that were ambiguous or that seemed unaddressed in the conversation. My heartfelt apologies if these matters were already attended-to. Also, sorry about the quote not being italicized. I Can’t seem to get that to work.

  81. B
    1. Potentiality may be relevant, but I don’t think it helps much. Take for example a newborn who is immediately diagnosed as terminally ill, the poor child has only 12 months to live. That poor child will not develop the level of autonomy, rationality, etc., that a full grown pig would. However, I hope you would agree with me that the child deserves to be protected from ill treatment. So my question remains, why the child and not the pig? Potentiality can’t be the answer…I submit the answer is that they both deserve protection.

    2. You make good points, and the nature of autonomy, rationality, etc., are such that they exist on a continuum, so there may need to be some cut off after which everyone gets the same treatment, sort of like we do for picking an age after which everyone attaining that age can drive, vote, drink beer, etc. However, it would be crazy to lose cite of the criteria that informed and justified this cut off point: this is why we would deny the right to drive to a 16 year old that was very retarded (while most 16 year olds will possess the minimum amount of intelligence or whatever the retarded 16 year old may not).

    Either way, the differences in rationality, autonomy, etc., between, say Einstein and Sarah Palin are minute compared to the differences between a one day old human embryo and a full grown pig, enough to make speciesm at best a “rule utilitarianism” shot (and any good utilitarian knows rule utilitarianism makes no claim it’s prescriptions are correct, just convenient).

  82. MNG,
    1. I am genuinely curious as to how you might respond to the resolution I proposed. I am not trying to attack any conception of animal rights (it would seem, unfortunately, that I have no political home, in part because of certain conceptions I have about animal and fetus rights), and I fail to see how the response you posited is valid. Please clarify or qualify so that I might see the connection.
    2. Denial of driving “rights” to a retarded 16-yr-old is on the basis of endangerment, so I can’t really grant you that analogy.
    As for rule utilitarianism, it certainly presents some appeal when compared to cold util. Convienience is at least somewhat important in any normative eithical theory that doesn’t want its moral agents to be paralysed with inaction.

  83. MNG,

    So – not only am I a liar, I am also anti-Klingon! Is there no limit to my perfidy?

    If it is deceptive to date the Hippocratic Oath in ancient, pagan Greece, then the U.S. Supreme Court, in its Roe v. Wade decision, perpetrated a similar deception. The opinion simply assumes that the Oath emerged during the pagan era in Greece.

    As far as your bizarre contention that Justice Holmes was simply a neutral, judicially-restrained judge who didn’t care about eugenics one way or the other, a law professor who wrote a book about Justice Holmes says:

    ‘[Eugenics] was his only political cause and was obviously is in line with his Darwinism. Holmes’ eugenic views were in fact more extreme than those of other eugenics enthusiasts of his time. Others talked about sterilizing “imbeciles” while Holmes advocated executing unfit babies.’

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