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Worth reading


In which I go looking for arguments against gay marriage

"Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself." -- Dr. Martin Luther King, Jr., Letter from a Birmingham Jail

Third in a row on the marriage issue. No one is offering any arguments against gay marriage. So now I have to go look for some of my own. I am reminded of a story that Dr. Ballard, my high school debate coach, told about a student of hers back in The Day, when they had to debate abortion. This kid was unwilling to take the pro-choice position because of Strongly Held religious beliefs, and so when she had to go on the opposite side, she did so through a puppet. She did not do very well.

In debate, you do have to come up with good arguments regardless of your feelings about either side. And part of the reason I asked for arguments-- ok, the only reason-- against gay marriage is that I want to know how to counter them, should I hear them. Truth is, I have been pretty sure that the issue boils down to "they are different from us and we want to discriminate against them". I still am, but I decided to go looking for arguments against it anyway.

The first one is what the smartest sounding opponents use. It really isn't an argument, and more is a theory that good arguments DO exist out there for what they think marriage is, which is a sort of "Imagined Communities" idea of marriage. I'll call it the "Leave it to Beaver" argument, and it is well embodied by Ross Douthat in the New York Times.

So what are gay marriage’s opponents really defending, if not some universal, biologically inevitable institution? It’s a particular vision of marriage, rooted in a particular tradition, that establishes a particular sexual ideal.


The point of this ideal is not that other relationships have no value, or that only nuclear families can rear children successfully. Rather, it’s that lifelong heterosexual monogamy at its best can offer something distinctive and remarkable — a microcosm of civilization, and an organic connection between human generations — that makes it worthy of distinctive recognition and support.

Look, he seems to be saying, there is some je ne sais quoi of Natural Marriage (the preferred term for Straights Only, apparently, which ignores inconvenient unions such as Michael Jackson's and Strom Thurmond's second marriage) that should be preserved. Other arguments haven't worked, but there's got to be one that will! Work with me! He concludes by saying that "a culture in which weddings are optional celebrations of romantic love, only tangentially connected to procreation, has no business discriminating against the love of homosexuals." This is true, Ross, and that ship has sailed.

Second, "think of the children". If you Google "best arguments against gay marriage" your first result is an interview with Rick Santorum. (Let that sink in there for a second, Dan Savage fans). Here's the crux of his argument:

What society should be about is encouraging what's best for children. What's best for children, we know, is a mother and a father who are the parents of that child, raising that child in a stable, married relationship, and we should have laws that encourage that, that support that.

What you're talking about with same-sex marriage is completely deconstructing marriage and taking away a privilege that is given to two people, a man and a woman who are married, who have a child or adopt a child. We know it's best for children and for society that men and women get married. We know it's healthier. We know it's better for men. We know it's better for women. We know it's better for communities.

Now, here are the problems with the "think of the children" argument. One. Society is not about what's best for children. This is what we call a warrantless claim. But let's say it is, for the sake of argument. So two, do we "know" that a mother/father married relationship is what's "best" for children? In fact, this claim was put on trial in Perry, and the science is in: heterosexual married households do no better than homosexual households. In fact, the evidence shows that, in fact, the gays are better at raising normal kids. So Santorum's argument is an argument from faith, not from truth: he doesn't know any of those things he says he does in that quote, and until there's a shred of evidence for it, "think of the children" is just not going to fly.

Finally, one sees a lot of the slippery slope argument. If we allow the gays to marry, then won't we have to allow polygamy? Why not marry a horse? Won't this mean we have to recognize pederasty? Ok, the last two are plainly stupid arguments (but one sees them, even on one's Facebook page) and are obvious to rebut: marriage requires consent, and neither horses nor children can consent to marriage. Why not polygamy? The biggest legal benefit that marriage offers is divorce-- having a legal forum that will decide the separation of a legal union. Polygamy truly does mess with the fundamental nature of legal marriage-- its bilateralism. Sure, one can have a lawsuit against multiple sides, and impleaders and third party plaintiffs and all of that, but for legal simplicity it makes the most sense to keep family court as bilateral as possible. In other words, if you recognize polygamy you have to do a lot more than simply recognizing an equivalency between couple A and couple B-- you have to recognize something more like a corporate entity, and getting society (through the courts) involved in that is a lot more complicated. So it's not hard to stop the slippery slope argument.

(And this is a bridge too far, I suspect, but I don't feel like I have any really good arguments against polygamy. If people want to arrange their lives like that, I don't really care. The more society gets its big fat nose out of people's lives, as long as they aren't hurting others, the better. My argument above is outlining a rational basis for why a gay marriage precedent doesn't mean polygamy is next.)

There is much material, so much that I haven't even had the time to read most of, here. And please, if you come up with a reason why society should care to stop gay marriage, let me know. I can be convinced, but I've heard NO ARGUMENT that is at all legally permissible, let alone remotely persuasive. Not one. So please, if you want me to stop arguing against strawfigures, give me an argument.


Gay marriage, part two

This is a refinement of the previous post. For some time I've been looking for any good legal argument against gay marriage. By "good reason" I mean:

1. Can't be religious. The law does not care.
2. Has to articulate a permissible societal interest.
3. Has to actually have a chance of succeeding in furthering that permissible societal interest.
4. Has to be actually be demonstrably true.

This is my question I keep asking friends and family when the issue comes up, and I have been asking this for at least ten years. I haven't heard one. Anyone? Is there a single argument that isn't based on a religious text or "I think they're icky"? I am 100% honest in asking. Admittedly, I want to know so that I have an retort for it, but that's the problem: I can't debate gay marriage when there isn't a single legally permissible reason to deny it. So please, help me out.


Gay Marriage Throwdown

Ok, so here's my challenge to my friends that oppose the recent Perry v. Schwarzenegger proposition 8 ruling. What arguments do you have against this ruling? Let me set some ground rules here.

1. This is a legal case, in a US district court. So from that perspective, appeals to biblical authority aren't going to hold any weight, much as they don't in a US civil rights case.

2. This case was decided on (broadly speaking) two constitutional law provisions, so I'm looking for arguments that refute the constitutional law conclusions that were made. Broadly speaking, they are:

A. Equal protection. A law that seeks to enforce different standards against different groups must have a basis in law. There are three possible standards of review (yes, I'm paraphrasing a bit, in part):

i. Rational basis review, if the groups are not 'protected classes'. If I want to pass a law making people that skateboard automatic loiterers, and they challenge on equal protection grounds, that's going to trigger rational basis. This means that you have to demonstrate that the discrimination has a rational purpose to further a legitimate state end.

ii. "Heightened protection". If you discriminate against women, you have to do a bit better than show a rational basis for it; you need to show a compelling reason to further a legitimate state end.

iii. "Strict scrutiny". If you're discriminating against a protected class, you have to show that it's the only real way to advance a compelling state interest. Note that judge Graham made findings in all three situations, so feel free to argue for which of these three ought to apply, and why.

B. Due Process. Given that marriage is a fundamental right, what compelling reason does the state have in telling who they can or cannot marry? Bear in mind there is existing case law. Underaged marriage? Compelling, because underage people can't consent (parental consent can circumvent in some states). Incest? Compelling, because of public health reasons to avoid demonstrated genetic problems.

Adding to the problems for people against the decision is that the Court made extensive findings on many of the supposed reasons to satisfy rational basis review, and found them uncompelling. For example, the "think of the children" argument fails when peer-reviewed studies show that children who are raised by same-sex couples do as well (better, actually) than children raised by heterosexual couples. Also, a rational basis has been held to NOT include "because a majority of voters say so". That's not new law, it dates back to the Romer decision from 1996.

So let's hear it: what are the arguments against this decision? What rational reason does a state have to restrict marriage to heterosexual couples given the bounds of a legal case? A big plus would be if commentators would actually read the decision, linked above, so it's not just a big "well, this argument was considered and rejected" fest. If you did read it and think the argument shouldn't have been rejected, that's totally fair game, but let's be a bit smarter than the talking points and actually engage on the substance. I read the whole thing, and so can you!

Comments are open!

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