bookmark_borderAn Invitation to William Lane Craig

An Invitation to William Lane Craig

On May 23 and June 9, respectively, the Secular Web published revised versions of two of my three essays on the kalam cosmological argument that had previously been published on that website. Today, I have sent an e-mail letter to Dr. William Lane Craig requesting that he publicly respond to these essays for the reasons set forth in that letter. A copy of that letter appears below. The reader will please note that I informed Dr. Craig in my letter that I would post (or attempt to do so) on the reasonablefaith.com and the secularfrontier blogs. I very much hope that the reader of this post will read my two essays on the philosophical aspects of the kalam cosmological argument.

My letter reads as follows:

Dear Dr. Craig:
June 29, 2014
Perhaps you may have personally noticed, or your attention has been called to the fact, that updated/revised versions of two or my three essays on the kalam cosmological argument are now available on the Secular Web. They are “The Kalam Cosmological Argument: the Question of the Metaphysical Possibility of an Infinite Set of Real Entities” [2002, updated May 23, 2014], accessible at http://infidels.org/library/modern/arnold_guminski/kalam.html, and “The Kalam Cosmological Argument: The Question of the Metaphysical Possibility of an Infinite Temporal Series” [2003, revised June 9, 2014[, accessible at http://infidels.org/library/modern/arnold_guminski/kalam2.html. For the reasons set forth below, I cordially invite you once more to publicly respond to my theses concerning the philosophical aspects of the kalam cosmological argument.

My writings make it abundantly clear that I agree with you that the typical ways in which the application of Cantorian transfinite arithmetic to the natural world are attempted generate counter-intuitively absurd consequences—consequences which justify the rejection of the metaphysical possibility of an infinite temporal series of infinite or finite duration. The reason for this outcome is that the typical ways in question presuppose that denumerably infinite sets[1] of natural entities or of temporal events are necessarily equipollent, i.e., that there must be a one-to-one correspondence between the members of any two denumerably infinite sets of real concrete entities or of events. This presupposition in turn is ultimately grounded upon the flawed notion that real infinites are similar in all relevant aspects to mathematical denumerable infinites. I argue in my two essays why at least some denumerably infinite sets of entities or events are metaphysically possible—or, at least, that the metaphysical impossibility of such sets cannot be legitimately grounded upon transfinite mathematical considerations. In short, the philosophical kca fails for the reasons set forth in my two essays.

In my e-mail to you, dated 27 January 2014, I wrote (with added matter within brackets):

It behooves me to also call your attention to the following. Quentin Smith [your frequent collaborator and/or sparring partner], then editor of the philosophical journal Philo, wrote in his acceptance letter (07/2002) of my first KCA paper: “Your paper has been studied thoroughly for some time and there is agreement that it is at least an under-cutting defeater of Craig’s beliefs about real infinites, probably even an overriding-defeater. More importantly, it introduces a novel metaphysical theory of the relation of transfinite arithmetic to concrete reality.” In a follow-up message Smith remarked; “We liked your paper…. My second KCA paper (“The Kalam Cosmological Argument Yet Again [etc]”) was submitted to Philo but, alas, not accepted. Quentin Smith, however, in his email of 10/04/2003 wrote that only 12 papers of about 200 submissions can be accepted for publication in an issue of Philo. He wrote: “The readers liked it and found it plausible …..[A]lthough your paper made it into our top 20, it did not quite make it into our top 12 that we will publish. Nonetheless, I liked reading your article, as did the others.”

The world wonders why you have not yet answered me since my two essays in question were peer-reviewed and present a persuasive challenge to your version of the kalam philosophical cosmological argument.[2] This is all the more puzzling since, unlike so many naturalist critics of your version of the kca whose views on the matter you have chosen to publically consider, I am a very commonsensible naturalist. Thus I adhere to the A (dynamic or tensed) theory of time (together with the notion of absolute simultaneity); as well as to the first premise of the kca (i.e., everything [i.e. every concrete, natural or supernatural, entity] that begins to exist has a cause [for its beginning]), as foundational properly basic beliefs. I emphatically reject epiphenomenalism and the physical closure principle. I would classify myself as an interactionist property dualist since I know that some of my so-called intentional states (e.g., purposes, beliefs) are causally efficacious by virtue of their mental content. However I am quite willing to acknowledge that a person who holds to something like the spiritual but naturally generated emergent self as described by William Hasker can be properly classified as a metaphysical naturalist (and could possibly be even a commonsensible one at that), provided that he also holds that this emergent self does not survive death. Like you, I agree that with the notion of a first philosophy that includes synthetic propositions constituting the foundational principles upon which the presuppositions of the natural sciences and inference in everyday life are based. And like you, I hold that the opinion that it is true, or even metaphysically possible, that the natural world has an uncaused absolute beginning is one that is counter-intuitively absurd in excelsis. On the other hand, of course, I maintain that the history of the natural world which is constituted by or that includes the history of this physical universe consists of denumerably infinite series of events of infinite duration. So I again challenge you to seriously consider and comprehensively respond to my two essays recently republished on the Secular Web.[3]

Sincerely yours,

Arnold T. Guminski

[1] A denumerably infinite set, whether of mathematical or real entities, is any set the members of which correspond one-to-one to the members of the infinite set of natural numbers (i.e., 1,2,3,….)

[2] The Secular Web editors deemed the original version of my second essay to have been peer-reviewed. However the just revised version of the essay was peer-reviewed by an anonymous referee for the Secular Web.

[3] In the interest of arousing public interest in my challenge to you, I am concurrently posting this letter on the reasonablefaith.com forums blog and the Secular Web blog (http://www.patheos.com/blogs/secularoutpost/).

bookmark_borderMore Reflections on Gay Marriage as a Possible Constitutional Right

1. My first two posts on same-sex marriage (12-10 and 12-18-2012)[i] were intended to  show that for the time being it is very unlikely that the Supreme Court will hold that there is some broad fundamental liberty-right to marry; i.e., one which includes as a component the right to marry a person of either gender, and as such is embodied by the due process clauses of the Fifth and Fourteenth Amendments.[ii]  My reason for this conclusion is that the hypothetical fundamental liberty-right in question, with its radically altered meaning of “marry,” would probably (and surely should) not be deemed by the Court as having been deeply rooted in this nation’s history and tradition; or so rooted in the traditions and conscience of our people as to be ranked as fundamental; or so implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed (Washington v. Glucksberg; 521 U.S. 702, 722 (1997)) —even after giving due allowance for the development of relevant judicial principles and doctrines; especially so since the legal authorization of same-sex marriage by any state is indeed of very recent vintage (i.e., 2003).[iii]  And furthermore, if my analysis is sound, it is highly unlikely that the Court would rule that a legislative denial (whether by virtue of a federal or state statute, or of a state constitutional provision) of a claimed right of same-sex marriage fails to satisfy the ordinary test of the federal constitutional validity of legislation applicable to non-fundamental rights (including immunities from discrimination) , i.e., the rational basis test. According to this test, the challenged legislation must be rationally related to a legitimate governmental purpose.[iv] 
2. I had hoped to devote this post exclusively to equal protection issues pertaining to the two cases now pending before the Supreme Court. However, I now think that it would be better for me to further discuss why the extant federal constitutional liberty-right to marry should remain in place and its relation to the fairly novel claim that there is a fundamental right to be free from discrimination based upon a homosexual orientation manifested in behavior.
3. Consider some questions that a well-informed, pro-gay marriage supporter might pose:  “Well what about interracial marriage? Did not the Supreme Court hold in Loving v. Virginia, 388 U.S. 1 (1967) that the Virginia ban on interracial marriage violates, not only the equal protection clause, but also the fundamental right to marry embodied in the due process clause of the Fourteenth Amendment? Is it not the case that the Court thereby ruled that the anti-miscegenation laws of fifteen other states were unconstitutional?  Is it not true that after the California Supreme Court’s decision in Perez v. Sharp, 32 Cal.2d 711 (1948), holding the California  miscegenation laws to be invalid on state constitutional grounds, fourteen other states (including Maryland which did so while the Loving case was pending) subsequently overturned their anti-miscegenation laws before the Loving v. Virginia decision? So Is it not true that before Perez decision in 1948 thirty of the forty-eight states had anti-miscegenation laws in force? Indeed, had not the United States Supreme Court in Pace v. Alabama, 106 US. 583 (1883),[v] strongly Indicated that miscegenation laws were valid? So is not the right to marry persons of the same gender so similar to the right to marry a person of another race that the Court would be justified in ruling that the due process clauses embody the former as also a component of a broader fundamental right—one in which “marry” has an expanded meaning.?  To all the questions, save the very last, I can only answer: “Of course, yes.” But there still remains a crucial difference between interracial marriages, in which case “marriages” is understood to essentially involve a union of two persons of opposite gender, and intergender marriages, where “marriages” is morphed to bear another and altogether novel meaning.
4. Here, I pause to remind the reader that it is only in very recent times (i.e., 2003) that same-sex marriage was first authorized by a state thanks to judicial construction of the state constitution in Maryland. And today, the overwhelming majority of states plus the D.C. and the two commonwealths (43/53) do not authorize same-sex marriage. Nothing has happened in the last several decades that warrants the conclusion that our federal constitutional law has been radically changed with respect to the status of traditional right to marry. Similarly, nothing in the last several decades has happened that warrants the conclusion that any rights to be free from discrimination based upon one’s behaviorally manifested homosexual orientation should be deemed to be fundamental because it is suspect in the same sense as race, color, ethnicity, and similar birth status.  Nothing has happened that warrants us in saying that it would be legitimate for the Court to override something as deeply rooted in the traditions and conscience of the American people as the notion that the traditional marriage constitutes the foundation for any claim that there is any fundamental ‘right to marry’, embodied as such in the due process clauses of the Fifth and Fourteenth Amendments, or that there is a fundamental right to be free from any discrimination based upon a behaviorally manifested homosexual orientation, embodied as such by the equal protection clause of the Fourteenth Amendment and the equal protection component of the Fifth Amendment.
5. However, something very important had happened in the nineteenth century that radically changed the status of ‘persons of color’—notwithstanding the fact that the widespread ban on interracial marriage was then deeply rooted in our nation’s history. The Supreme Court in the infamous Dred Scott Case (Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) had ruled (among other things)  that free, native-born Blacks were not, nor could they ever be, citizens of the United States because of their inferior and degraded caste status based upon their race and color. According to the Court, free Blacks “can … claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States” (ibid., 405). Thus, they were not constitutionally entitled to “the rights of man and the rights of the people.”  (Ibid., 409). (I suppose Taney meant the specific rights of the First, Second, and Fourth Amendments.) It was because of that inferior and degraded caste status that all slave states and most free states had prohibited intermarriage between Whites and Blacks. (Ibid., 408-09, 413-14.) According to the Court, were native-born free Blacks citizens of the United States, then they would have been exempt from discriminatory laws and practices that were the badges and incidents of an inferior and degraded caste status based upon race and color. (Ibid., 416-17.)
6. Recall that the Thirteenth Amendment (1865), thus before the adoption of the Fourteenth Amendment (1868), had abolished slavery, and arguably had nullified all the legal disabilities which were the essential badges and incidents of slavery. However, it was much disputed whether the Civil Rights Act of 1866, which had declared that virtually all native-born persons (with certain exceptions) are American citizens and entitled to certain civil rights, was constitutional with respect to its applicability to the states—or had even constitutionally altered the status of free, native-born Blacks as to their status as nationals but not citizens of the United States. The adoption of the Fourteenth Amendment, however, indeed radically altered the constitutional status of native-born Blacks. First, citizenship clause overruled Dred Scott decision insofar as it held that native-born Blacks were not, and could not become, American citizens. (The Slaughter-House Cases, 83 U.S. (Wall.) 36, 72-73 (1873.) Second, the Court declared in Strauder v.West Virginia, 100 US. 303, 307-08 (1880):

 The words of the [Fourteenth] Amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race—the right of exemption from unfriendly legislation against them distinctively as colored; an exemption from legal discrimination, implying inferiority in civil society, lessening the security of their enjoyment of the rights that others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.

7. It was by virtue of the Fourteenth Amendment that the right of persons (otherwise qualified) to racially intermarry became a component of the fundamental right to marry.  Unfortunately, it was almost a century before the Court ruled in Loving v Virginia, 388 US 1 (1967) that persons cannot be constitutionally forbidden from racially intermarriage by virtue of the equal protection and due process clauses. Thereby the Court commendably continued to undo the damage due to its pernicious, crabbed notion of what constituted racial equality as codified in its separate-but-equal rulings.[vi] However the Court was quite accurate in noting that “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States” (ibid., 10). Since the fundamental right to marry in state cases is embodied by the Fourteenth Amendment’s due process right, this right in federal cases is equally embodied by the due process clause of the Fifth Amendment. Moreover, the holding in Loving, insofar as it is based upon the equal protection clause of the Fourteenth Amendment in a state case, equally applies to a federal case because the Fifth Amendment due process clause has an equal protection component of the same potency as the equal protection clause in racial discrimination cases. (See Bolling v. Sharpe, 347 U.S.497 (1954), decided on the same day as Brown v. Board of 347 U.S. 497 (1954), in which the Court ruled the federal government could not operate racially-segregated schools any more than could the states because “[i]t would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”[vii])
8. What is frequently overlooked is the following. In 1866-68, during the process of ratifying the Fourteenth Amendment, there were thirty-seven states in the Union. (It was only in 1876 that Colorado became the thirty-eighth state.) There were eleven states in the Confederate States of America (i.e., AL, AR, FL, GA, LA, MS, NC, SC, TN, TX, VA) After the Fourteenth Amendment was submitted to the states for ratification in 1866,  Tennessee (TN) adopted that amendment in the same year and was thereafter admitted to representation in the Congress. The other ten ex-Confederate states each rejected the proposed amendment in 1866. However, the 40th Congress, dominated by Republicans, inaugurated the era of Congressional Reconstruction (1867-77), imposed military rule over then ex-Confederate states (but not the already restored TN) and required them to ratify the Fourteenth Amendment as a condition for being practically restored to the Union (including representation in the Congress). Ratification by twenty-eight states was constitutionally required; there being thirty-seven states in the Union. The amendment was deemed a part of the Constitution by the Congress on July 21, 1868 and so certified by Secretary of State Steward on July 21 of that year. All ten former-Confederate, congressionally reconstructed states in turn ratified the amendment during the period April 6, 1868-February 18, 1870. As of 1875, seven of these states (i.e., AL, AR, FL, LA, MS, SC, TX) had abrogated anti-miscegenation laws either by statute or judicial decision. Eleven ante-bellum free states (i.e., CT, IA, IL, KS, MA, MN. NH, NJ, NY, PA, VT, WI) as of 1866-68 did not have anti-miscegenation laws.. Illinois abandoned its anti-miscegenation law in 1874. So for some time (circa 1875), nineteen of the thirty-seven states (i.e., a majority in the Union before the admission of Colorado in 1876) did not have anti-miscegenation laws. Bear in mind, that the well-informed legislators and voters of the ten former-Confederate states in question knew exactly why their states initially rejected (in 1866) but then subsequently ratified the Fourteenth Amendment (1868-70): to wit, that the proposed Fourteenth Amendment would overturn the Dred Scott doctrine that native-born Blacks were not, and could not be, American citizens; together with the corollary that native-born persons of color were not constitutionally entitled to be free from invidious discrimination as to civil rights and benefits due to an inferior an degraded caste status based on their race and color—including the bar to interracial marriage with Whites. The adoption of the Fourteenth Amedment radically changed the fundamental law of the land with respect to persons of color notwithstanding the deeply-rooted institutions assigned to them an inferior and degraded legal status. But with the rise and until the demise of separate-but-equal jurisprudence, there was a widespread reluctance to concede that anti-miscegenation bans were predicated upon a constitutional theory inconsistent with the Fourteenth Amendment’s nullification of the doctrines of Dred Scott concerning the ante-bellum legal status of native-Blacks, denying them the status and the essential rights, privileges, and immunities of American citizenship.[viii]
9. My thesis is that a special freedom from discrimination based upon behaviorally manifested homosexual orientation is not per se a fundamental freedom-from right—quite unlike the freedom from invidious discrimination based upon race or color. It is utterly far-fetched to hold that the status of having a homosexual orientation manifested in behavior is sufficiently similar to an inferior and degraded caste or class status based upon race or color, or some other similar birth status to warrant a different conclusion. On the other hand, freedom to marry (in the traditional sense), a fundamental personal right embodied by the due process clauses, encompasses the right to marry of adult person to marry another person of the opposite gender of his or her own choice, whatever the sexual orientation of either party, whether or not behaviorally manifested. There are also freedom-from rights against discrimination necessary to safeguard fundamental liberty-rights embraced by the due process clauses; as well as the ordinary immunity against any governmental discrimination that fails the rational-basis test of validity. Among the fundamental liberty-rights embraced by the due process clauses is the right not to be subject to any governmental infringement with respect to intimate, noncommercial sexual association and conduct by consenting adults of either gender in the privacy of a home (or a functionally equivalent place), unless the particular infringement is narrowly tailored to serve a compelling state interest.[ix]
10. Moreover, not to be forgotten, there is a broad constitutional freedom from such governmental discrimination with respect to civil rights and benefits that is arbitrary or incompatible with the dignity of all free persons that obtains by virtue of the universal civil freedom established with the adoption of the Thirteenth Amendment (abolishing slavery), which establishment radically transformed the fundamental law of the land (i.e., the fifth amendment due process clause).[x] Thus each due process clause embraces a fundamental freedom-from-invidious-discrimination right applicable to all free persons regardless of their individual physical or mental attributes including abilities or disabilities, as the case may be (e.g. sexual orientation, weight, height, skin or hair color, intelligence quotient, etc.).
11. In any event the decision in Lawrence v. Texas does not provide any substantial plausible basis for the argument that the due process clauses embrace a fundamental right to marry understood to extend to couples of the same gender. As the Court explained:

The statutes [in Bowers and Lawrence] do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. [539 U.S. at 567]
[The Lawrence case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. [Ibid., 578]

Justice Sandra Day O’Connor, in her concurring opinion based her concurrence in the Court’s judgment solely upon equal protection grounds, maintaining that the government may not validly criminalize homosexual but not heterosexual non-coital intercourse. However, she declared:

That this [Texas sodomy] law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. [Ibid., 585]

12. Given the foregoing, the cardinal issue in same-sex marriage cases is whether governments are constitutionally obligated to give formal recognition to same-sex marriages or the functional equivalent (i.e., provision for equal rights and benefits other than the designation of  “marriage”), which recognition would necessarily have many serious fiscal and other consequences. And, in this connection, it may be asked would the justices be prepared and willing to overturn the now well-established rule that the federal and state governments are not constitutionally required to publicly fund abortions or to permit the use of public facilities and publicly-employed staff in abortions—notwithstanding the constitutional right that having abortions are to be free from undue governmental burdens. See Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980); Webster v. Reproductive Health Services, 492 U.S. 490 (1989); Rust v. Sullivan, 500 U.S. 173 (1991). In short, entitlement to a constitutionally-protected right to be free from coercive infringement does not entail entitlement to have the government provide public funds, facilities, or staff needed to exercise that right. It is significant, for our purposes, to note that Justice Kennedy shares this view. In my next post, I shall discuss equal protection issues (the only nonprocedural issues under review) as they pertain to the two cases now pending before the Supreme Court
____________________________________________________________________________

Note [i]. Minor stylistic and other changes have been made with respect to the two preceding posts in the interest of harmony and accuracy.  Throughout my posts I consider only governmental coercive or discriminatory action.
Note [ii]. The Fifth Amendment’s due process clause provides in part: “No person shall … be deprived of life, liberty, or property, without due process of law.” (1791) (The Fifth Amendment due process clause applies only to the federal government and not, therefore, to the states. It does not have an explicit equal protection clause. However, the Supreme Court has ruled that the Fifth Amendment due process clause has an equal protection component of equal (and even more for a few federal purposes) potency as the equal protection clause of the Fourteenth Amendment.)                                                                                                                                                                                 Section 1 of the Fourteenth Amendment provides:  “All persons born or naturalized in the UnIted States and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (1868)
Note [iii].  See Lawrence v Texas, 539 US. 558, 578-79 (2003): “They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”
Note [iv].  For readers interested in well-reasoned expositions of why a ban on same-sex marriage satisfies the rational basis test, see, for example, the plurality and concurring opinions in Hernandez v. Robles, 7 N.Y.3d 338, 356-67 and 367-79 (855 N.E.2d 1) (New York Court of Appeals, 2006)  (http://www.nycourts.gov/reporter/3dseries/2006/2006_05239.htm); and also the dissenting opinions in Perry v. Brown, 671 F.3d 1052, at 1100-1113 (9th Cir., 2012) (now sub nom, Hollingsworth v. Perry, No. 12-144, cert. granted Dec. 7, 2012)  http://www.ca2.uscourts.gov/decisions/isysquery/436f323b-5e40-411a-9026-98fa59ffb645/1/doc/12-2335_complete_opn.pdf) and in Windsor v. United States, (now sub nom., United States v. Windsor, No. 12-307  (http://www.ca9.uscourts.gov/datastore/general/2012/02/07/1016696com.pdf).
Note [v]. The Court in Pace upheld a statute providing for more severe penalties for fornication and adultery involving a White-Black couple than for intraracial fornication and adultery). The Court overruled Pace in McLaughlin v. Florida, 379 U.S. 184 (1964), without ruling on interracial marriage. McLaughlin involved a statute prohibited cohabitation of a Black and White couple, but not other cases of cohabitation (i.e., habitually living in and occupying the same room in the nighttime) involving intraracial couples.
Note [vi].  See, e.g., Pace v. Alabama, 106 U.S. 583 (1883) (holding that a statute prohibiting a white and colored persons from living together in adultery or fornication is not invalid because it prescribes penalties more severe than those in which the parties are both of the same race); Plessy v. Ferguson, 163 U.S. 537 (1896) (holding that a statute is valid that provided separate but equal accommodations on railroads for Whites and Blacks). In Plessy, the Court disingenuously explained that the provision of such accommodations did not suggest that one race was inferior; this obtained only because one race chose to think of the law in this way.
Note [vii].  What is most puzzling about the Court’s current jurisprudence respecting freedom from invidious racial and ethnic discrimination (and other equally similar kinds of discrimination) is its strange failure to have adequately taken into account the joint impact of both the citizenship and the privileges or immunities clauses of the Fourteenth Amendment.Concerning this and other relevant matters, see my The Constitutional Rights, Privileges, and Immunities of the American People: The Selective Incorporation of the Bill of Rights, the Refined Incorporation Model of Akhil Reed Amar, Dred Scott, National Citizenship and Its Implied Privileges and Immunities, the Second Amendment Right, and Much More.(2009), 70-80, 87-101, 187-92. I argue in my book that the immunity from invidious discrimination against members of an allegedly an inferior and degraded caste status based upon race or color as to civil rights and benefits is among the constitutional immunities that are presupposed by the privileges or immunities clause of the Fourteenth Amendment. However, I reluctantly agree as a pis aller [i.e., a stop-gap measure] that the due process clauses of the Fifth and Fourteenth Amendment, and the latter’s equal protection clause, provides the theoretical basis of an otherwise welcome change in constitutional jurisprudence.
Note [viii].  Strikingly illustrative of this phenomenon pertains to the Indiana Supreme Court. That court had first ruled in Smith v. Moody, 26 Ind. 299 (1866) that native-born Blacks were American citizens (explaining that the citizenship clause of the 1866 Civil Rights Act was merely declaratory), but that Indiana legislation banning immigration of Blacks was unconstitutional given the doctrine of Dred Scott. But the same court subsequently ruled in State v. Gibson, 36 Ind. 389 (1871), that the Indiana miscegenation statute was valid notwithstanding the Fourteenth Amendment (which was needed “to confer the right of citizenship upon persons of the African race, who had previously not been citizens” (ibid., 392). The Indiana court declared that “to assert separateness is not to declare inferiority in either [race].” Ibid. 405.
Note [ix]. Lawrence v. Texas, 539 U.S. 558 (2003). I thoroughly disagreed with the Supreme Court’s decision in Bowers v. Hardwick, 478 U.S. 186 (1986)(overruled by Lawrence), upholding a state statute criminalizing anal and oral intercourse (or more exactly, “any sexual act involving the sex organs of one person and the mouth or anus of another[.]”), as applied to intimate homosexual conduct by consenting adult males in the privacy of a home. I therefore welcomed the holding in Lawrence and its rationale insofar as it extended the constitutional right of privacy insofar as it is fundamental to noncommercial, intimate, sexual behavior of consenting adults in the privacy of their home. But I disagree with the Court’s opinion insofar as it take sides in the so-called culture-wars by assuming that governments are constitutionally obliged to treat participatory homosexual and heterosexual behavior or relationships as equally morally good or socially desirable (especially if widely and notoriously manifested), all other things being equal. A person may quite consistently hold that consensual, noncommercial, intimate homosexual participatory behavior in the privacy of a home is immoral but that such behavior, in the absence of aggravating factors, should not constitutionally be subject to governmental prohibition or impediment. It was, I believe, extremely unfortunate that no justice in Bowers or Lawrence expressly maintained this position. I beg the reader not to read into the foregoing any notion that I myself adhere to any moral rules concerning sexuality based upon supernatural revelation, or  any particular non-theological moral philosophy (e.g., Thomistic natural law theory) according to which the only morally legitimate participatory sexual conduct is that which involves married same-sex couples and which excludes non-coital intercourse. As a matter of fact, I most emphatically disagree with both of these views. Finally, the reader is again reminded that to hold that such-and-such a right should not be deemed fundamental and embodied as such by the due process clauses, or the equal protection clause, does not foreclose holding that it should be embodied in a statute (or a state constitutional provision) for public policy reasons. See Guminski, The Constitutional Rights, Privileges, and Immunities, supra, at 187-92, for a fuller discussion of the constitutional issues discussed in this note.
Note [x].  Civil Rights Cases, 109 U.S. 2, 20 (1883):“[T]he Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflect character also, establishing and decreeing universal civil and political freedom throughout the United States.Meyer v. Nebraska, 262 U.S. 390, 399-400      (1923): “[T]he liberty guaranteed [by the due process clauses] …. denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men… [T]his liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.” [Added emphasis in bold.]
 
 

 

bookmark_borderWhy Strong Pro-Gay Marriage Supporters Should Still Be Worried; Or, It’s A Long Way To Tipperary

     In my initial post on same-sex marriage (“One Reason Why Strong Pro-Gay Marriage Supporters Should Be Worried” (12-10-2012) I claimed that the Supreme Court in Lawrence v. Texas, 539 US. 558 (2003) heavily relied upon (perhaps I should have just said “gave much weight to”) the decisions of the European Court on Human Rights (ECHR) with respect to consensual homosexual conduct. The point that I wanted to make was that, given that this claim was true, the Court should also heavily rely upon (i.e., give much weight to) the decisions of the ECHR denying that the right to same-sex marriage is fundamental—especially because forty-one States (plus the District of Columbia, and the Commonsealths of Puerto Rico and the Northern Mariana Islands), and the United States itself, do not legally authorize same-sex marriage.
 
     I am grateful to rg57 for writing: “I think you’re overstating the weight given to ECHR. The decision in Lawrence  referred to ECHR only ‘to the extent Bowers [the case being overridden] relied on values shared with a wider civilization’ and for ‘The sweeping references by Chief Justice Burger to the history of Western civilization.’’’.:Alas, what I should have done my first post, but egregiously failed to do, was to have also included the following passage from the Court’’s opinion in Lawrence, 539 U.S. at 576-77 (bracketed matter added): 

The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. [Matter pertaining to developments in American jurisprudence omitted.]To the extent, Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The [ECHR] has followed not Bowers but its own decision in Dudgeon v. United Kingdom. [Further citations to ECHR decisions omitted.] Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct.  [Citation omitted.] The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

     So, besides undercutting Chief Justice Burger’s reliance on “values we share with a wider civilization,” the Court in Lawrence deemed the constitutional law of the Council of Europe concerning private homosexual conduct as providing a substantial factor, albeit not dispositive, supporting its holding respecting private homosexual conduct. I

     Well, let us just suppose that I had indeed overstated the weight given in Lawrence to the decisions of the ECHR. Nevertheless the fact is that Justices Kennedy, Ginsburg, Breyer (who were in the Lawrence majority). and Sotomayor (all sitting justices) maintain that it is quite legitimate for the Court to consider  foreign law in determining the meaning of constitutional provisions pertaining to individual rights.

     For example, the Supreme Court in Roper v. Simmons, 543 U.S. 551 (2005) (http://supreme.justia.com/cases/federal/us/543/03-633/) ruled that the Eighth and Fourteenth Amendments prohibit the execution of a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime. The Court, in an opinion by Justice Kennedy (joined by Stephens, Breyer, Souter, and Ginsburg) declared:   

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10–11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. **** It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

     And in the more recent case, Graham v. Florida¸ 560 U.S. ___ (2010) (http://supreme.justia.com/cases/federal/us/560/08-7412), the Court ruled that juvenile offenders cannot be sentenced to life imprisonment with parole for non-homicide offenses. The Court declared (in an opinion by Justice Kennedy, joined by Justices Stephens, Breyer, Ginsburg, and Sotomayor):     

     The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.

     Yes another factor should be considered. There are thirty States with constitutional bans on same-sex marriage. A constitutional ban on same-sex marriage signifies a judgment that any right to same-sex marriage is not fundamental. Eleven other States have statutory bans; as do the Commonwealths of Puerto Rico and the Northern Mariana Islands. Of the ten jurisdictions (nine States and the District of Columbia) that legally authorize same-sex marriage, three (i.e., Massachusetts, Iowa, Connecticut) do so either by virtue of novel judicial interpretations of state constitutional provisions. The other jurisdictions (six States and the D.C.) do so as a matter of statutory law. All this is of great significance because it is one thing for a State to legally authorize same-sex marriage by virtue of a constitutional provision, and quite another to do so only by virtue of a statutory provision. The significance of the difference cannot be plausibly minimized. To authorize same-sex marriage only by statute presupposes the power of the jurisdiction to repeal or modify the authorizing statute. The status of the right in question, therefore, cannot be regarded as being one that is fundamental in the jurisprudence of that jurisdiction. Therefore, either a statutory authorization of or a ban on same-sex marriage perhaps may well signify a judgment that the right to same-sex marriage is not fundamental. So it follows that a Court holding denying that the right to same-sex marriage is a federal constitutional right would not lack “respected reasoning to support it”—domestic or foreign.

     Somewhat similar considerations apply to public opinion polls. One cannot at all infer that the majority of surveyed Americans would now say that the Court should hold that there is a federal constitutional right to same-sex marriage just because a majority of Americans for the time being say that they support same-sex marriage without further qualification. Clearly, it is only if someone says that the right to same-sex marriage should be a federal constitutional right that we may conclude that that person would say that the right is fundamental for federal constitutional purposes. It would be interesting to see the results of a fairly conducted public opinion poll in which the public was asked whether they would approve of the Supreme Court ruling that the right to same-sex marriage is a federal constitutional right; i.e., one that is binding upon not only the United States, and its possessions, territories, and the District of Columbia, and all the fifty states—the public being informed that forty-one states, plus the two commonwealths,  constitutionally or statutorily ban same-sex marriage. As far as I know, no such public opinion poll has been conducted. So public opinion polls thus far conducted on same-sex marriages should at most minimal significance for the Court.

     Liberty-Rights specified in the Bill of Rights (Amendments I-VIII) are incorporated by the Fourteenth Amendment (1868). These liberty-rights are: religious freedom, freedoms of speech, press, and assembly, and the right to keep and bear arms. There are other liberty-rights deemed to be fundamental by virtue of the Due Process Clauses of the Fifth and Fourteenth Amendments. These liberty-rights include (but are not limited to) certain rights pertaining to marriage, contraception, early-term abortion, consensual, noncommercial homosexual conduct by adults in the privacy of the home or its functional equivalent, parental control of education of children). The latter class of liberty-rights are (or should be) chiefly grounded not upon public policy considerations but rather upon the basic exigencies of human dignity and which are, as I would put it, the essential badges and incidents of free persons within the United States or subject to their jurisdiction..As the Court explained in Washington v. Glucksberg, 521 U.S. 702, 722 (1997) (op. by C.J Rhenquist, with O’Connor, Scalia, Kennedy, Thomas concurring):

[T]the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” [citations omitted].(“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,” [citation omitted].[Note*]
_________________________________________________________________________________

Note *: I do not read Justice Kennedy’s opinion for the Court in Lawrence as being inconsistent with the just-quoted passage. In Lawrenece Kennedy remarked: 539 U.S. at 578-79:”Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

_______________________________________________________________

     So it is of great importance that any liberty-right must be fundamental in the requisite sense. However, what is the requisite sense in any particular case can be admittedly a matter of acrimonious debate among the justices, other jurists, and legal commentators. I need not further address this matter here. It suffices for my purposes to point out that four sitting justices (i.e., Roberts, Scalia, Thomas, Alioto) are certainly going to rule that the right to same-sex marriage is not a federal constitutional right, that homosexuality is not the basis of a so-called suspect class for equal protection purposes, and that DOMA is valid. With respect to the other sitting justices (Kennedy, Breyer, Ginsburg, Sotomayor, Kagan), I cannot but think that one or more of them will in all probability conclude (or should conclude) that the right to same-sex marriage is not fundamental in the requisite sense (whatever that might be) if only for the reasons I have set forth in this and my initial post. It seems incredible that a majority of the Court would rule that the right to same-sex marriage is fundamental given the rulings by the ECHR on this matter and the fact that the overwhelming majority of American jurisdictions, including those that only statutorily authorize same-sex marriages, implicitly reject the thesis hat the right to same-sex marriage as fundamental. Given the foregoing, strong pro-gay marriage supporters should brace themselves for an unwelcome outcome. Yet, I admit that all things are possible since some justices forget from time to time that it is the Constitution that he or she is expounding.
 
[originally posted December 18, 2012; updated February 4, 2013]

bookmark_borderOne Reason Why Strong Pro-Gay Marriage Supporters Should Be Worried

Whether the United States and the States should authorize same-sex marriage, in my opinion, should remain a matter of federal legislative public policy, and of state constitutional law and/or legislative public policy. Therefore, I strongly oppose the thesis that the United States and/or the states as a matter of federal constitutional law are obliged to authorize same-sex marriages or their functional equivalents. I also oppose the repeal of DOMA (Defense of Marriage Act) by Congress, or its whole or partial nullification by the courts.
So what I would like now is call the readers’ attention an important matter bearing upon the future federal constitutional status of same-sex marriages, now sub judice in Hollingsworth v. Perry, No. 12-144, and United States v. Windsor; No. 12-307.
The matter in question is suggested by the Supreme Court’s opinion in Lawrence v. Texas, 539 U.S. 558, 573 (2003) (http://www.law.cornell.edu/supct/html/02-102.ZO.html). In this case the Court held that a Texas statute making it a crime for two person of the same sex to engage in certain intimate sexual conduct violated the Due Process Clause. The Court accordingly overruled Bowers v. Hardwick, 478 U.S. 189 (1986). Justice Kennedy, speaking for the majority (i.e., himself, and Stevens, Souter, Ginsburg, and Breyer), declared (bracketed matter added):

Of even more importance [referring to the famous Wolfenden Report of 1957, which lead to the repeal by the British Parliament of laws punishing homosexual conduct in 1967], almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H.. R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

Given the heavy reliance in Lawrence upon the decision of the ECHR concerning private, consensual homosexual conduct, Justice Kennedy and the other sitting justices would now be remiss were they not to take into account in Hollingsworth v. Perry and United States v. Windsor recent relevant decisions of the European Court of Human Rights. That court has held that the right of men and women of marriageable age to marry and to found a family, as guaranteed by Article 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms, was not violated by Austrian law that denied the legal possibility of same-sex marriage. Schalk and Kopf v. Austria, Application no. 30141/04, 24 June 2010 (final 22 November 2010) [http://www.unhcr.org/refworld/docid/4c29fa712.html ]. That court also ruled that the denial of same-sex marriage by Austrian law did not constitute unreasonable discrimination in violation of Article 14 of the Convention, taken in conjunction with the requirement in Article 8, that there shall be no interference by public authority with the right of a person to respect for his private and family life unless such interference is in accordance with the law and is necessary in a democratic society of certain specified interests.

The ECHR in Schalk and Kopf observed:
27. Currently six out of forty-seven member States grant same-sex couples equal access to marriage, namely Belgium, the Netherlands, Norway, Portugal, Spain and Sweden.
28. In addition there are thirteen member States, which do not grant same-sex couples access to marriage, but have passed some kind of legislation permitting same-sex couples to register their relationships: Andorra, Austria, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Luxembourg, Slovenia, Switzerland and the United Kingdom. In sum, there are nineteen member States in which same sex couples either have the possibility to marry or to enter into a registered partnership (see also the overview in Burden v. the United Kingdom [GC], no. 13378/05, § 26, ECHR 2008).

 Significantly the Schalk and Kopf opinion explained in paragraph 46 that because “the Convention was a living instrument which had to be interpreted in present-day conditions, [the ECHR] had only used that approach to develop its jurisprudence where it had perceived a convergence of standards among member States.” The concurring opinion by Judge Malinverni (joined by J. Kovler) pointed out, moreover, “the Court cannot, by means of an evolutive interpretation, ‘derive from [the Convention] a right that was not included therein at the outset.’”
The Schalk and Kopf decision was recently confirmed by the ECHR in Affaire Gas et Dubois v. France, application 25951/07, 14 March 2012 [final June 15, 2012; http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-109571#{“itemid”:[“001-109571”]} ]. In this case, the court held that, under the circumstances, the refusal of French public authority to allow a woman to adopt her same-sex partner’s child was not discriminatory. The court noted in paragraph 66 that Schalk and Kopf held that the Convention did not impose on governments the obligation to open marriage to a homosexual couple.
Currently, among the forty-seven members of the Council of Europe, there are now eight countries that authorize same-sex marriages (adding Denmark and Iceland). An additional fourteen have a form of civil union or registered partnership for same-sex couples. Twenty nine countries do not legally recognize same sex marriages; and of these eight have constitutional bans. (http://en.wikipedia.org/wiki/Recognition_of_same-sex_unions_in_Europe; see http://hub.coe.int/ for list of member states of Council of Europe; accessed February 03, 2013).
Let us now consider the United States. Nine States and the District of Columbia have legalized the right to same-sex marriage. Ten States recognize some form of same-sex civil unions or its functional equivalent. Thirty States have constitutional bans on same-sex marriage, of which ten constitutionally even ban same-sex civil unions or their functional equivalent. Eleven States statutorily ban same-sex marriage. (See http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States for a useful summary.) It seems to me that if the District of Columbia is included in the tally of relevant jurisdictions then we should also consider the two American commonwealths; i.e., Puerto Rico and that of the Northern Mariana Islands. Neither jurisdiction legally recognizes same-sex marriages. True, the Northern Mariana Islands has a population of about 54,000; but some members of the Council of Europe.also have relatively small populations (i.e., San Marino—c. 34,000, Lichtenstein—c. 36,000, Monaco—c. 33,000). It is also instructive that the Netherlands was the first member country of the Council of Europe to have legally recognized same-sex marriage when it did so in 2001; and Massachusetts was the first state to have done so in 2003—and that was by judicial fiat.
Since the European Court of Human Rights has held that the right to same-sex marriage is not a fundamental human right, the United States Supreme Court should give this fact great weight since the Supreme Court’s opinion in Lawrence had relied so heavily upon the decisions of the ECHR holding criminalization of consensual, private homosexual conduct as violating fundamental human rights.
Given the foregoing, strong pro-gay marriage supporters (i.e., those who maintain that the Supreme Court should rule that there is a federal constitutional right to same-sex marriage) should not be too surprised were the Court to disappoint them in this matter. In fact, they should be rather worried. Arguments proffered to show that it would be a good thing for American governments to recognize or authorize same-sex marriages may be insufficient to persuasively show that such governments are obliged to do so as a matter of federal constitutional law.
[originally posted December 10, 2012; updated February 4, 2013]

bookmark_borderA Brief Comment on Mark Nowacki’s Recent Book on the KCA

When I learned in November 2006 that Prometheus Press would soon publish The Kalam Cosmological Argument for God [TKCAG] by Mark R. Nowacki, I immediately placed an order with Amazon Books. I was therefore very pleased to have finally received my copy in the first week of August of this year despite several unexplained deferments of the publication date. I had been looking forward to reading TKCAG because of my own keen interest in the KCA, as is evidenced by my article on that subject (“The Kalam Cosmological Argument: The Question of the Metaphysical Possibility of an Infinite Set of Real Entities”) that appeared in Philo 5 (2002): 196-215 (thereafter electronically published [2003, updated 2005] by the Secular Web, as well as by two follow-up articles on that website[1]). I am now in the course of writing a review article of Nowacki’s concededly interesting book for eventual submission to some philosophical journal. However, as an interim measure, I write this blog to call the reader’s attention to a serious defect in Nowacki’s book—one that concerns me personally.

The reader will indulgently understand my eagerness in first checking whether Nowacki cited and discussed my articles in his book.[2] I discovered that he cited (only) my Philo article and referred to it (TKCAG, p. 122) in his statement of an objection to KCA:

What the KCA thought experiments directed against the actual infinite teach us is that any attempt to straightforwardly apply Cantor’s theory to the real world is misguided. Rather, when discussing the possibility of an infinite multitude of real entities, we should adopt a version of Bernard Bolzano’s theory of the infinite, wherein both the principle of correspondence and Euclid’s principle hold true. Once a Bolzano-inspired account of the infinite is adopted, the absurd consequences drawn in the various KCA thought experiments are dissolved and an infinite multitude of real things is shown to be possible.90

The statement of this objection is immediately followed by Nowacki’s Response.[3] But first I quote his endnote 90 (TKCAG, p. 152): “Although Guminski does not acknowledge an intellectual debt to Bolzano, this is the central objection raised in [Guminski’s Philo article].”[4] Nowacki clearly insinuates that I was aware that I have an intellectual debt to Bolzano based allegedly upon the ground that my objection to the KCA is “a Bolzano-inspired account of the infinite,” and that I nevertheless failed to acknowledge this debt in my article. Let me assure the reader that not only I was (and still am) unaware of any intellectual debt to Bolzano but that I deny that my thesis set forth in my Philo article was in any way inspired by Bolzano. Quite apart from Nowacki’s implied charge of a breach of duty on my part, the very fact that he professes to see my article as being a “Bolzano-inspired account” discloses how egregiously he misunderstands my position. And the result is that his value of his book is vitiated to the extent that he systematically fails to accurately take into account my thesis of how the Cantorian theory of the actual infinite can apply to the real world without generating counterintuitive absurdities.

Before describing what Nowacki means by a “Bolzano-inspired account of the infinite,” I shall first summarize my account of the matter. According to the Cantorian theory of transfinite arithmetic, the cardinal number of the set of natural numbers cannot itself be a natural number (as there is no highest natural number) but rather it is a transfinite number, i.e., אo (read alelph-zero–the lowest transfinite number). The set of natural numbers is a denumerable infinite, and so also is any other actual mathematical infinite corresponds one-to-one with the set of natural numbers. So, for example, the set of negative numbers (i.e., (….,-5,-4,-3,-2,-1}) corresponds one-to-one with the set of natural numbers by virtue of a rule (i.e., z=-n). But, mirabile dictu, the set of all even natural numbers also corresponds one-to-one with the set of natural numbers, of which the former is a proper subset, by virtue of a rule (i.e., e=2n). Two actual infinites are said to be equipollent when their members, by virtue of some rule, are in one-to-one correspondence.[5] The principle of correspondence is that two sets have one and the same cardinality if and only if they are equipollent.[6] Moreover, if two mathematical infinite sets A and B are each equipollent to mathematical infinite set C then A and B are mutually equipollent. Thus the principle of correspondence obtains in the domain of pure mathematics according to Cantorian theory.

According to the standard view, with which I agree, were an actual infinite of concrete entities or events instantiated in reality, then this infinite must be denumerably so. However, in my view, the principle of correspondence does not fully obtain with respect to real infinites (i.e., an actual infinite of concrete entities or events instantiated in reality). That is to say: any real infinite (e.g., our hypothetical set of infinitely many humans each with two and only two hands) is equipollent with the set of all natural numbers (and therefore with any other denumerable mathematical infinite); but surely the set of infinitely many humans is not equipollent with the set of infinitely many human hands—although the latter set is also equipollent with the set of all natural numbers and therefore with any other denumerable mathematical infinite. Accordingly, two real infinites that are not equipollent with each other nevertheless have the same cardinality because each is denumerably infinite.

In his Response (TKCAG, pp. 122-23), Nowacki asserts that Bolzano’s theory of the infinite is such that both “the principle of correspondence and Euclid’s principle hold true.” But Nowacki’s principle of correspondence appears to be simply a definition of equivalence (read, if you please, equipollence). On the other hand, I use the term principle of correspondence to refer to the proposition, sounding in pure mathematics, that two infinite sets have one and the same cardinality if and only if they are equipollent (i.e., equivalent according to Nowacki). Now, subject to correction, I understand that Bolzano held that two mathematical infinite sets (e.g, the sets of all natural numbers and that of all even natural numbers) do not have one and the same cardinality even though they are equipollent.[7] But that, as the reader can well see, is not my position since both sets have the same cardinality by virtue of being equipollent. Again, in my view, although two real infinites necessarily have the same cardinality if they are equipollent, there may be two real infinites (e.g., the set of infinitely many humans each with two and only two hands and the set of their infinitely many hands) that are not equipollent even though they have the same cardinality.[8]

What I have proposed is that the instantiation of Cantorian theory in the real world need only involve the po
stulate that any real infinite of concrete entities or events necessarily is equipollent with the set of natural numbers and thus has the cardinality of that set (i.e., אo). Doing so serves, as I argue in my article, to preclude counterintuitive absurdities. However, the hypothetical instantiation of Cantorian theory involving the postulate that real infinites are to be deemed as having all the properties of mathematical infinite sets inevitably leads to the generation of counterintuitive absurdities—including those pertaining to Nowacki’s hyperlump thought experiments insofar as these are based upon transfinite mathematical considerations.

As the discerning reader readily sees, mathematical platonists need not justly be apprehensive about the full application of the principle of correspondence within the domain of pure mathematics notwithstanding that two real infinites have the same cardinality even were they not to be equipollent.

Well, it is not my intention to presently refute Nowacki upon any substantive issues concerning the merits of the KCA. I just want to point out how he has entirely missed his mark by having confounded my account of the infinite with any supposedly Bolzano-inspired account of the same. But I am nevertheless grateful for this opportunity to affirm my thesis that the instantiation in the real world of the Cantorian theory of transfinite arithmetic does not entail that the common cardinality of two real infinites necessarily precludes their nonequipollence.

[1] The two follow-up Secular Web articles are “The Kalam Cosmological Argument Yet Again: The Question of the Metaphysical Possibility of an Infinite Temporal Series” (2003, updated 2005), and “The Kalam Cosmological Argument as Amended: The Question of the Metaphysical Possibility of an Infinite Temporal Series of Finite Duration” (2004, updated 2005). All three articles can be accessed at www.infidels.org/library/modern/arnold_guminski/.
[2] I take here the liberty of noting that Quentin Smith (then editor of Philo), in his email accepting my first article in 2002, remarked that my thesis as to how Cantorian theory applies to the real world “is at least an under-cutting defeater of Craig’s beliefs about real infinites, even an overriding-defeater. More importantly, it introduces a novel metaphysical theory of the relation of transfinite arithmetic to concrete reality.”
[3] The Response reads: “There are a number of reasons why Bolzano’s theory of the infinite did not find general acceptance. A brief discussion of some of the difficulties with Bolzano’s theory may be found in chapter 1, section 4.2.3.3; two additional rejoinders to the objection are as follows. First, a Bolzano-inspired account of the infinite would be rejected by mathematical platonists who, were they to accept it, would be forced to admit that their abstract yet metaphysically real sets do not behave in the way that Cantor’s theory claims they do. For platonists, accepting Bolzano would be tantamount to admitting that Cantorian transfinite mathematics is simply false as an account of the actual infinite. Second, a Bolzano-inspired account of the infinite does not dissolve all of the counterintuitive absurdities that KCA thought experiments have brought to light. For example, adopting Bolzano’s perspective does not dissolve the shape-related difficulties treated in the hyperlump thought experiment (described in chapter 5).” TKCAG, pp. 122-23.
[4] TKCAG, p. 152 (bracketed matter added).
[5] In my Philo article, I explained why I prefer to use the term “equipollent” instead of “equivalent” or “equipotent” to define the relation of one-to-one correspondence. 5 Philo at 198 and 210 n. 15. The term “equivalence” is ambiguous because it could either be synonymous with “equipollent” or because it obtains when two sets have one and the same cardinality. Nowacki remarks (p. 81 n. 41): “More recent writers on set theory are apt to substitute equipollent or equipotent where Cantor and Craig use equivalent.” In his The Kalam Cosmological Argument (New York: Harper & Row Publishers, Inc., 1979), p. 154 n. 7, William Lane Craig observes: “Despite the one-to-one correspondence, Bolzano insisted that two infinites so matched might nevertheless be non-equivalent.” Quite obviously, by “non-equivalent” Craig here means something other than the absence of a one-to-one correspondence between two infinites.
[6] Nowacki appears consistently, and if so mistakenly, to use the term “principle of correspondence” to refer only to the definition of “equivalence” (i.e., “equipollence”). See, e.g., TKCAG, pp. 40-41, 49-51. But clearly Georg Cantor defined the relation of “equivalence” (i.e., “equipollence”) to refer to the situation when “it is possible to put [two aggregates M and N], by some law, such a relation to one another that to every element of each one of the corresponds one and only one element of the other.” Georg Cantor, Contributions to the Founding of the Theory of Transfinite Numbers (tr. & ed. P.E.B. Jourdain) (New York: Dover Publications, Inc., 1955), pp. 86-87. Cantor proceeds to formulate “the theorem that two aggregates M and N have the same cardinal number if, and only if, they are equivalent” (i.e., “equipollent”). Ibid., p. 87. “Thus,” Cantor wrote, “the equivalence of aggregates forms the necessary and sufficient condition for the equality of their cardinal numbers.” (Ibid., pp. 87-88. This, in my opinion, is what should be understood by the term the principle of correspondence.
[7] Nowacki refers to this point in chapter 1, section 4.2.3.3, where he writes: “Bernard Bolzano sketched the rudiments of a theory of the infinite that allowed for different sizes of infinity based on the part/whole relationship instead of the principle of correspondence.106” Nowacki, p. 50. See also TKCAG, p. 93 n. 106 where Nowacki approvingly quotes from A.W. Moore’s The Infinite (London: Routledge, 1995), p. 113): “On Bolzano’s view there just were fewer even natural numbers than natural numbers altogether, irrespective of the fact that they could be paired off.”
[8] The reader should be in mind that the thought experiments about real infinites of simultaneously existing entities or events in this (or some other) physical universe (e.g., the infinitely many rooms in Hilbert’s hotel or the infinitely many books in Craig’s library) prescind from issues relating to the factual possibility of such infinites upon grounds other than those relating to transfinite mathematical considerations. The reason for this anomaly is that proponents of the KCA, such as William Lane Craig, want to show that every real infinite, whether or not of simultaneously existing entities, is metaphysically impossible. If this showing is made, it then follows (according to Craig et al.) that any infinite temporal series of events is metaphysically impossible. However, the reader is invited to consider the case of infinitely many physical universes (none of which being spatially related to an
y other), each of which includes finitely many humans each with two and only two hands. This latter scenario is free of issues of factual possibility except those arising from transfinite mathematical considerations.

bookmark_borderA Metaphysical Naturalist Manifesto

Keith Parsons, in his inaugural blog, declares that he is “new to this whole blogging thing, but [he] thought [he] would start off with a big post”—and thus provided us with his “Atheist Manifesto.” He expressed the desire “to hear what some of you think, and maybe get some others to submit their own manifestoes.” Well, what follows is my manifesto since I too am new to this whole blogging thing and thought I should also start off with a big post.

By metaphysical naturalist I mean someone who holds either that supernatural agents do not exist, or that their existence is antecedently improbable and that this antecedent improbability has not yet been satisfactorily overridden or discharged by available plausible evidences and arguments. What is a supernatural agent? It is any (physically) disembodied personal being such as God (as conceived in traditional theism), demi-gods, angels, and disembodied souls (i.e. spiritual substances which at one time animated human bodies). [The term disembodied person is qualified by a parenthesized “physically” so that the term supernatural person embraces persons who animate bodies (i.e., spatially extended substances) but are imperceptible (via ordinary sense perception) to humans or animals.] Although Keith Parsons refers to himself as being an atheist,[1] his published writings disclose that he is a metaphysical naturalist—as I use the term.

Now there are metaphysical naturalists and metaphysical naturalists; just as there are theologically conservative Christians and theologically conservative Christians. By all this I mean that there may be, and indeed are, some very sharp differences of belief or opinion among metaphysical naturalists just as there are among Christians. I do not regard someone as being a philosophical or ideological ally or a fellow team member, just because he is a fellow metaphysical naturalist. Of course, we can all profit from intellectual discourse, whether or not with naturalists or Christians of whatever school, or with other ists.

What kind of naturalist am I? I am (what I call) a commonsensible naturalist. So what is commonsensible naturalism? The term is inspired by Christian philosopher William Hasker’s article “What About a Sensible Naturalism? A Response to Victor Reppert”[2] By “sensible naturalism” Hasker means “a [metaphysical] naturalism that makes a really serious effort to accommodate, or at least to make sense of, our ordinary convictions about the mind and its operations-the things we all think we ‘know’ about the mind, when we are not doing philosophy.”[3] The notion can usefully be extended to those fundamental deliverances of natural reason which constitute first principles pertaining to such matters as our knowledge of the external world, other minds, memory, and causation. I prefer to use the term commonsensible instead of sensible naturalism because it is a metaphysical naturalist version of a foundationalist philosophy based upon common sense.

Metaphysical naturalists who reject a commonsense foundationalist philosophy (or any other first philosophy) may not like to be called non-sensible naturalists. But they are likely not to mind being called non-commonsensible naturalists; and perhaps some even might take pride in being so called since rejection of the so-called deliverances of a commonsense first philosophy is considered chic in some quarters.

I now should like to set forth some important components of commonsensible naturalism.[4]

First: an emphatic rejection of the principle of causal closure in the physical domain and its twin-sibling– epiphenomenalism, with an equally emphatic affirmation of mind-body interaction. In short, some physical and mental events or state are severally caused by some other mental events or states, whether qualia or intentional (i.e., having the quality of aboutness, e.g. volitions or purposings, beliefs, desires). To be sure, there are physical events, states, or processes necessary for mental events or states to be causally efficacious.

Second: an affirmation that human practical and theoretical reasoning encompasses more than just computational thinking–that mechanistic “manipulation” of information by logistical rules, whether or not accompanied by consciousness. But reasoning involves conscious apprehension of the logical relations among propositions, classes, and the like—so that we intuit, for example, that proposition r must be true because propositions p and q are true, and that their logical relation entails the truth of proposition r. We know, in some cases, that we believe proposition r to be true because we have apprehended the true logical relation subsisting between propositions p, q, and r, and that these propositions are true. Similar considerations apply, necessary changes being made, to inductive reasoning. Humans are unique among all sentient animals in having the power of propositional speech and reasoning.

Third: given mind-body interaction, the commonsensible naturalist might conceivably be an emergent substance-dualist—someone who holds that the mind is an emergent, immaterial entity produced by the human body (specifically the brain) when it becomes sufficiently configured in an appropriate way and which will cease to exist when the brain ceases to so configured. Another possible scenario, which I prefer, is that the human mind is the human brain which when appropriately configured has various mental powers or capacities (or the capacity to have such capacities), such as that of reasoning, imagining, perceiving, remembering, willing, and so forth. And there are other possible scenarios consistent with the overall view of the commonsensible naturalist that mind-body interaction obtains and that minds necessarily be embodied.

Fourth: commonsensible naturalism includes an acceptance of a first philosophy: namely metaphysically necessary synthetic principles or postulates (none self-evident in the usual strict senses or a falsifiable empirical generalization), which are presupposed and implicit in the making of our properly basic and incorrigible commonsense beliefs (such as the existence of the external world or of other minds), and in the making of generalizations and inferences in ordinary life, as well as in historical, scientific, and forensic inquiry. These first principles are what some call the fundamental deliverances of natural reason. [Among these principles is the causal principle that whatever begins to exist must have a temporally prior cause for its beginning. (I do not concern myself here quite different issues pertaining to epistemic or ontic determinism.) For the commonsensible naturalist, the cause for the beginning of any natural substantive entity in our universe is itself natural—and this applies as well to the universe as a whole if it is the case that it began to exist. That temporal series which includes (or is constituted by) the history of this universe is of infinite duration and consists of denumerably infinite natural events.[5]]

Fifth: commonsensible naturalism, as I use the term, involves acceptance of some version of the dynamic or tensed A-theory of time, according to which events are temporarily ordered by tensed determinations as past, present, and future, and so temporal becoming is ontologically objective (i.e., mind ind
ependent)—thereby rejecting the B-theory of time according to which events are only ordered by the tensiveless relations of earlier than, simultaneous with, and later then, such that temporal becoming is ontologically subjective (i.e., mind dependent).

Last, but not least, commonsensible naturalism is committed to some version of an (at least epistemologically) objective moral order (i.e., a natural morality), understood to embrace what are commonly understood among men and women of good will to be basic moral principles, precepts and norms universally binding on humanity for reasons other than being required by customary mores, or human or divine positive law, or as having been supernaturally revealed.

Keith Parsons invited comments with respect to his manifesto. Here are a few. At the outset, I should like express my appreciation for his scholarly articles, which I have often found very instructive and with which I agree on many issues.[6] Nevertheless, he is not a commonsensible naturalist. Quite evidently, he does not accept the principle that every natural event must have another event as a temporarily prior causal ancestor. Regretfully, he claims that “most people reply with amateur versions of the first cause or design arguments.” A reader might naturally infer or suspect (and, if so erroneously) that intelligent theists (William Lane Craig, for example) do not agree that to say that nothing existed before the big bang simply means “There wasn’t anything prior to the big bang.” Some readers might also erroneously think that intelligent theists (again Craig, for example) typically maintain the patently ridiculous position the first cause argument involves the principle that everything had to have a cause—rather than there must be a cause (but not necessarily a determinative one) for every beginning of the existence of a substantive entity. [Where Craig is definitely wrong, in my opinion, is that he holds upon philosophical grounds that any infinite temporal series (whether or not of infinite duration) is metaphysically impossible, and asserts that the Big Bang standard model confirms his thesis.]

Parsons appears to think it at least factually possible (based upon physical cosmology) that this universe had an absolute temporal beginning. However, the post by bpabbott is right on point when he declares: “due to the physical limitations of space and time, we are effectively censored from events prior to the big bang. Although, the events, following the big bang, exhibit no discernible effects respecting pre-big-bang causes, it is erroneous to infer/imply/assume there were no “pre-big-bang” causes.”

Parsons claims that our “common-sense intuitions simply might not apply to the realities studied by fundamental physics.” True enough; but some alleged realities of fundamental physics are (or may be) just theoretical constructs of a high-level scientific model highly instrumental in organizing and predicting observations. So it is just begging the question to assert that some theoretical constructs of fundamental physics denote realities. And then it is (or may be) the case that many commonsense intuitions are not indefeasible because they are not actually constitutive of a first philosophy. [Parsons evidently thinks that the proposition that one and the same electron can simultaneously be in two places is true. I believe it to be false—even though it is derived from a scientific model which is very useful in organizing and predicting observations.]

And here is Guminski’s complaint: It is unfortunate that metaphysical naturalism is so frequently expounded (whether explicitly or not) as necessarily incompatible with fundamental and indefeasible common-sense principles which reasonable men and women are not going to reject just because such principles are supposed to be inconsistent with the deliverances of some natural scientists and some philosophers of natural science. And here is Guminski’s major thesis: commonsensible naturalism has all the resources necessary to defeat the plausible claims and arguments of supernaturalists, including those of any positive religion such as Christianity.

[1] There are some atheists (whether they simply assert that they do not believe that God exists or instead positively deny his existence) who are not metaphysical naturalists because they believe that there are disembodied spirits—such as human souls while in a disembodied state.
[2] Philosophia Christi 5 (2003) 53-62.
[3] Ibid., 53.
[4] See my “The Moral Argument for God’s Existence, the Natural Moral Law, and Conservative Metaphysical Naturalism” (2004) http://www.theologyforum.net/ for a description of what in this article I call commensensible naturalism. Upon reflection, I have abandoned the word “conservative” as having been improvidently chosen.
[5] See my three articles on the Kalam Cosmological Argument (available on the Secular Web www.infidels.org/library/modern/arnold_guminski/index.shtml) in which I argue for the metaphysical possibility of an infinite temporal series of infinite duration consisting of denumerably infinite events.
[6] Unfortunately, Parsons mars his manifesto by referring to James Dobson as a “neanderthal…type.” Is this kind of public bashing of Dobson a good thing?