The Supreme Court has now heard arguments of two cases concerning same-sex marriage. I have been listening and reading a lot of argument on the subject. I have views as well, and those who have read some of my posts can probably guess which way I lean on such a subject. Before I talk about my position on the subject directly, however, I think it is a good idea to talk about how and why the argument has evolved and what kinds of arguments can be exposed as bad kinds of arguments. To be fair, for those who wish to stop reading and get angry and are just waiting for the chance, I think it is only fair to let people choose their own spouse to the same degree that others do, which is to say that if I can marry my sweetheart, you should be able to marry yours. I cannot marry just anybody, so neither can you, but the difference should not be about our difference. Neither of us can marry a close family member, neither of us can marry someone who is not a consenting adult, and we can look at those issues separately, because they are separate.
First, let’s set aside accusations of bigotry. I don’t claim that bigotry is not involved, but people can have bad reasoning without malice, and we all have prejudices as a part of our nature. Let’s stick with what the arguments are and whether they stand on their own or not. I welcome all to respond to any of these in the comments below, and any reasoned and civil comments will be approved.
The Nature Argument
Generally, the argument is that homosexuality is not natural. It is against God, or at least against nature. This argument may take one or more tacks. One is that God created us, and said homosexuality is an abomination which means he didn’t make anybody gay, they chose it. Another is that if people were born gay, that means that there is a gay gene, and that is impossible because gay sex does not reproduce. The first one may be fundamental to faith, but politically, it should be irrelevant. See my other discussions on Separation of Church and State as to why, or we can get into that in the comments anyone wishes. As to the idea that evolution is so precise as to weed out extraneous nature, that is just observably false. Men would not have nipples if nothing in nature would be passed on if it did not increase survival directly. Men have nipples because men and women are alike in more ways than they are different, and to the extent that each of us inherit traits from both father and mother in ways that make us different from each does not prevent us from being born, or from having siblings with combinations that do lead to procreation. It also does not prevent anyone from wishing to procreate despite their attractions or lack thereof. For all we know, aunts and uncles play a much bigger role in the survival of a clan than we imagine.
Homosexual behavior is observed in nature through any number of species. Science texts from years past may show a bias toward the above assumptions when they describe this behavior as not really being about homosexuality, but rather some dominance behavior, which it may also be.
The significance of the question of nature lies in the follow up question of whether it is a choice to be sexually oriented toward homosexuality. In this question, it is simple-mindedness to think that anecdotal evidence can answer this, or that there is a yes/no answer for all. Sexuality is not an all-or-none thing. Each of us has many layers to our sexuality. There is the level of desire for intimacy that we often associate with romantic love, and there is raw sexual desire, and there is a continuum of states between them. Erotica, for example, is at the raw desire end. You don’t think about marriage or children when your mind is in that mode. It does not define your sexuality, but it is a part of it. Availability has a lot to do with this type of sexual desire. The “beer goggles” effect has been shown not to make people look more beautiful, but rather to shift the sexual desire to emphasize availability as what is attractive at the moment. People in prison with only those of their same sex may still be driven to satisfy this erotic need without ever developing romantic love. They do not become homosexual in their nature, they simply engage in homosexual behavior. They don’t want to marry each other based on erotica. When yet another prominent evangelist is discovered with a male prostitute, it does not mean he is secretly gay, it means he dabbled in the erotica of forbidden sex. That is why he may be able to genuinely be “cured” of it through faith. He can reject the desire because it does not really define his sexual orientation, just his curiosity.
When we point to someone who chooses to indulge in this behavior and say “See? I told you it was their choice!”, or if some celebrity says “yes, I chose to do this”, that does not preclude the possibility that many others, millions of them, even if a small percentage of the population at large, actually experience an orientation toward their own sex at all of the layers, from romantic intimacy to erotic desire. Those who just want to have sex with a bunch of people are not the ones who settle down to start a family together. The evidence that strongly supports a native inclination to permanently mate with persons of the same sex in a segment of the population, beyond all of the science (of which there is plenty), is this desire. Very few of us choose to marry just for sex, particularly in this age where marriage is not necessary for sex. We marry for family.
I do not “desire” sex outside of marriage, probably because I am happily married, but that does not make me devoid of sexual urges. They are just balanced against the bigger picture of my relationship with my wife. I desire NOT to damage all of the rest far more than having any desires to cheat. My love is not a choice, even if my behavior is, but my love affects my behavior significantly. The role of choice is the lesser one from the role of what kind of relationship I am inclined to have. I am inclined to love someone like her, which makes the other choices natural for me. What is natural for me is not natural for everybody. That does not make me inherently more moral, just lucky in love.
The Definition Argument
Another argument is in the fear that if we allow the definition of the word to change, some bad effects will ensue. The idea is that when we say “marriage”, everyone knows we are talking about men and women. This argument has a lot of problems, and most of them fall under the category of “say anything; don’t worry if it is right”. Look at history. Look at Scripture. All through everything for as far back as you go, people know what “marry” means. People know that it is a formal arrangement to form a family and establish an estate. We don’t let brothers and sisters marry, but we know what it would be if they did. We might say “he is not married to her because he never divorced his first wife” and not be confused that this was a legal matter, not the definition of marriage itself. The fact that we know what we mean when we say “it is not right to let two men marry each other” says that we have no problem at all understanding what it would mean to say two men were married to each other. The definition argument is simply bogus. The question is not whether it is a marriage, it is whether it is a legal marriage or a valid marriage, and in all cases, the noun is “marriage” and it has the same meaning it always did, and if none of us are confused by what we are saying, then the definition of the word has not changed in any meaningful way, only the examples of the definition have changed. The definition of “husband” or “wife” has no legal significance beyond “spouse”, since men and women are equal in a marriage today. The words are customary, but not legally significant in family law. Inasmuch as the word “marriage” in family law is defined to different sex couples, it is nothing more than institutionalized legal restrictions on marriage, not definitive linguistics that control reality.
The Slippery Slope
A favorite argument to limit same sex marriage is the slippery slope argument. In this argument, we must overlook fairness concerns because if we do not, we will have to address other concerns, and before you know it, a lot of things we don’t want will come along. For example: If anyone should be allowed to choose their own mate, why just one? Why not several? Or “why just people, why not goats? Why not brothers and sisters?” The fallacy of this kind of argument is twofold: 1) that we should be unfair lest we find other ways to be fair, or 2) Since these things are alike in one way, they are alike in all ways and we can’t have one without all of the others.
The first fallacy I would address is that maintaining the status quo of injustice is every justified by concerns that it might make it harder to maintain the status quo on other injustices. Not that those restrictions on other kinds of marriage are inherently unjust, but only that injustice never justifies more injustice. If you are sincere in wanting to open marriage up to others, then you will have no fear in examining the claims of injustice that may be related, but if you are not, then should have a reason why those restrictions are not unjust. The mere idea that one may follow from the other just because both are restricted is simply embracing ignorance of the differences as being superior to understanding.
For example: If the argument for same-sex marriage is assumed to simply be that people should have a right to choose their own mate, then the same argument means that people should be able to choose any mate at all without restrictions of any kind, so anyone could marry a child or an animal. Obviously, heterosexual marriage between adults and children is highly restricted, and marriage between humans and animals is just legally absurd, but the expressed fear is that the state’s absolute right to arbitrarily restrict marriage is at stake.
Slightly less absurd, but still no less a fallacy is the idea that if we allow the right to choose a mate, this is the same as letting more than two persons mate. This argument is based on the complexity of legal marriage and relies on creating a diversion by presenting that complexity as simple. Plural marriage is bad, the reasoning goes, so we can’t let that be a choice. The short answer is that if plural marriage is bad in some way that does not apply to same-sex marriage, then the restriction will have its own justification without a need for restricting same-sex marriage, and if whatever is bad does apply to same sex marriage, then talk about what that is that is bad now, don’t kick it down the road for some later case about plural marriage, and if it is not bad, then the objection is irrelevant.
But for those who fear that plural marriage is illegal for good reasons that nobody talks about anymore and maybe there is something to it hiding in the shadows, let me provide some background on the issue.
On Freedom and Regulation
As Americans, we often talk about how free we are. We talk about it so much that we are raised to believe that we are extremely free. Since we believe we are free, when we see ways in which we are not free, we assume that we just don’t understand freedom. I am not knocking America. America is a land with a lot of freedom, but our cognitive dissonance on what freedom is threatens our freedom every day. For example, there was a time when the idea that the federal government could tell you that you can’t ingest alcohol or drugs was unconstitutional. That is why it took a constitutional amendment to outlaw it. Little by little, however, prohibitions against “immoral” behavior have lasted long enough to make it seem normal to prohibit other “immoral” behaviors, until the idea that you can and should legislate morality becomes commonplace. Prohibition, however, is the opposite of freedom. Forcing someone to behave in a certain way is the opposite of letting them choose how to behave.
No freedom is absolute. In general, the greatest net balance of freedom occurs when everyone is free to do anything that does not impede the freedom of others, and where freedoms are in conflict, balance between them. For example, murder infringes on another’s freedom to live, so no one should be free to murder, since murder is less necessary to life than living. People should not be free to steal because the freedom to keep property is more important to a stable society, etc. A society based on freedom does not accept authority for the sake of authority, but authority of mutual protection of freedom. Democracies and Republics, therefore, are not about morality, but freedom.
But freedom is not just a negative concept. Do whatever, whenever, but there is a positive aspect, too. I may not have a law against travel, but if I have no money, I can’t travel anyway. So for mutual freedom, we may balance between having rights and having abilities. For example, if we all give up some property in taxes, we all get back more freedom if we collectively dig a well, or pave a highway. Or we may all have more freedom from fraud if we give up a little freedom of expression such that we can’t each make up what an “ounce” means to suit ourselves.
So we have laws that curtail or promote freedom in both the positive and the negative. We grease the wheels of commerce or we deter harmful actions through civil and criminal laws. Between civil and criminal laws, we have a fairly complex set of standards that allow for stability while, hopefully, maximizing freedom. We standardize how we settle disputes of standard types, such as who gets to inherit what, and when is it even inheritance and not just no longer sharing because one died, who gets the kids if we split up, who is my advocate in a medical emergency, etc.
Throughout history, we have had marriages between individuals and between one man and as many women as he could afford to procure. In this country, we do not choose to recognize the latter for the purpose of our standards in family law. We have both civil and criminal statutes pertaining to people who marry more than one person. I will try to explain why this complexity makes the question of plural marriage significantly different from the question of same-sex marriage. The criminal statutes against bigamy and polygamy are of two basic types. There are states that consider it a criminal offense merely to marry more than one person at a time. However, most criminal law is concerned with fraud associated with bigamy or polygamy. If a person fails to divorce before marrying someone else, then on the civil level, the second marriage is not a legal marriage. If they present themselves fraudulently as legally married, it is the fraud, not the marriage that is illegal. As many people who choose to live together and share parenting tasks and share love partners among the consenting adults as want to can do so and it is not a legal matter. They can even make contracts and wills and powers of attorney between themselves that give them most of the benefits of a legal marriage. Many argue that homosexual couples can do the same thing, and they are correct. But there is a reason why it is unreasonable to expect homosexuals to be forced to, and not unreasonable to expect plural marriages to be forced to: The difference between a same-sex couple and a heterosexual couple is legally trivial while the difference between any plural marriage and any couples marriage is not.
When two people marry, they establish a next-of-kin relationship that is supreme in the eyes of the law. If you cannot speak for yourself, your father, mother, brother, sister, son and daughter may all be there, but your spouse is the one who can make your decisions. In Texas, a community property state, if you stipulate in your will that your spouse gets everything in accordance with the law, then your community property is not inherited, it just has one less owner, so there is no probate, no inheritance tax, and the other relatives have a really hard time contesting it successfully, because the spouse is the one. At the same time, men and women have equal rights in marriage. Whether you are “husband” or “wife” in custom, you are legally “spouse”. It does not matter if you are the male or the female, and it does not matter if your spouse is the male or the female. There is no requirement or expectation that joining in marriage can or will produce offspring. In short, the only legally significant different between homosexual and heterosexual couples is the restriction in issuing the license or calling it valid. No other aspect of family law needs to be accommodated to allow for marriage equality.
Plural marriages have no single supreme next of kin. There is no standard by which one combination of participants could be compared to another combination. At this level of family law, the freedom not to use the standard structure implies the responsibility to define your own structure and defend it legally as needed. You should be free from harassment as long as you do not falsify or misrepresent your status, particularly to fraudulently claim abandonment by a spouse with whom you still share a family in order to receive welfare. Is there room to allow for plural marriages of some sort within the law? No doubt. Is that relevant to whether someone should or should not support same-sex marriage? Not at all.
So there you have it. I did not go into the silly arguments people quote in favor of same-sex marriage, largely because I seldom hear them repeated, but I have heard people who have no more clue what they are talking about than many opponents, but like them just want to say something. I would be happy to entertain other arguments for or against. That is the kind of thing this forum is for.