Originally posted by: ForThePeople
Here is an actual analysis of the gay marriage issue.
1) The Rule of Law and Theory of Jurisprudence
Before we even begin debating something as complex as the gay marriage issue we must address the fundamental questions of how the law works, that is, how the issue would be resolved under our system of justice (and, in fact, the way that the debate would be framed among legal scholars).
The first, and most important distinction in this debate, is the concept between an argument from utility and a rights based argument; or
utility claims and
rights claims.
A utility claim is one where the majority rules and the loser must accept it. A rights claim, on the other hand, is exactly the opposite - it asserts the right of a person to engage (or not engage) in an favored by the majority. A
right, then,
is the ability of the individual to stand against the wishes of the majority.
This point can be readily clarified if we look at the right to free speech - "freedom of speech" - which holds that you have a right to say whatever you want regardless of how many people disagree with you. To take another example consider the freedom of religion - the right to practice your religion as you see fit - which means that you cannot be compelled to believe or practice as a Christian (Muslim/Jew/etc) even if everybody else is a Christian and a law is passed claiming that Christianity is the only permissible religion. This - the will of the majority - would be ruled un-Constitutional as it clearly denies somebody else their right to freedom of religion.
As Dworkin reports - rights claims trump utility claims.
Let us now look at what has been proposed. We are told that Lousianna and Missouri have both passed voter based laws which make gay marriage illegal. You should immediately recognize this as a utility claim - "we are in the majority and we want it to be this way." It follows then that if a rights claim can be shown to support gay marriage the law, as enacted, cannot stand. The utility claim inevitably loses to the rights claim.
This would be exactly the same situation for any other time that a utility claim was asserted against a rights claim. "We, the majority, do not want black people to vote" lost to "I have the fundamental right to vote." "We, the majority, want segregated schools" lost to "I have a right to an education."
This is, in fact, already acknowledged by those who oppose gay marriage and who are actual actors in the debates - the legislatures, the lawyers, etc. They know that they will lose if they rest solely on a utility claim and for this reason the issue is discussed on the basis of rights. This is the reason that they don't say "our citizens want it this way" (a utility claim) but rather "we have rights as states to regulate our own laws without interference from the federal government" (a rights claim).
Those who will decide it know that they have to have strong rights claims to prevail against other rights claims.
It is for this reason that it simply doesn't matter how many people are against gay marriage - if one couple can demonstrate their right to married they will prevail.
2) The Slippery Slope Arguments
The next class of arguments that I hear against gay marriage are those known as slipperly slope arguments - if gay marriage is allowed then we will also have to allow incest, bestiality, etc.
Most of these are non-sense or demonstratably false. A marriage is a contract and fundamental to it is the that it must be entered into voluntarily and freely. We call this idea "informed consent," and do not recognize any marriage which was not voluntary or free. This is the reason that you can't marry somebody who doesn't want to marry you.
Bestiality - marriage between a human and an animal - is impossible because we do not consider the animal capable of consenting. Allowing gay marriage will in no way suddenly grant competency to animals, they will still lack the requisite consent to marry.
This is the same reason that we do not allow minors to marry (yes, I am aware that it is possible in limited circumstances, I mean the general idea). We do not allow minors to enter contracts, to marry, or to do a lot of things because we do not consider them capable of giving consent. We presume that a minor cannot evaluate the consequences, costs, etc and prohibit them until they reach the age of consent.
This, again, would not be changed in any way by allowing gay marriage.
The next evil that is supposedly unleashed by gay marriage is incest. I should first point out that incest is already illegal. Would the proponents have us believe that incest laws would be repealed by allowing gay marriage? No, they would still exist, it would still be illegal, and again nothing would be changed by allowing gay marriage.
3) The Naturalness Argument
Another of the arguments made against gay marriage is that it is unnatural. This makes me laugh because we live in a post-modern society where nearly everything is unnatural. Antibiotics are unnatural (and life ending infections are quite natural), computer chips are unnatural (while sand is natural), cars are unnatural, houses are unnatural, newspapers are unnatural, etc.
We have already crossed that line and to pretend that naturalness is some kind of test for validity is to deny the very basics of our society. We live unnaturally and do so quite happily.
Consider, for example, Cyclo's two statements:
Are you going to go around and test every man and woman for fertility prior to their being married? Even if they are infertile, there is still a very good chance that they could, using their mutual germ cells, become pregnant using artificial methods.
homosexual acts are disordered, since they don't realize that Natural Law is, in fact, based on sound philosophical principles too complex to discuss in this format.
So Cyclo would allow us to do complicated medical procedures (very unnatural) yet not allow gay marriage because it is unnatural.
This all misses the more obvious point in the naturalness argument - it argues against itself by arguing for it.
The subject of unnaturalness is homosexuality itself, not the institution of homosexual marriage. By claiming that homosexual marriage is unnatural you are arguing the conjecture of a conjecture.
If you say "I have nothing against homosexuals but they should not be permitted to marry" you have already given up the position that it is unnatural. The only consistent argument would be "homosexuality itself is unnatural and therefore there should be no homosexual marriage." Unless you are willing to argue the second - especially in light of how ridiculous the test of naturalness actually is - your argument is nonsense.
4) Gay marriage vs. civil unions
Another argument offered against gay marriage is that it should be allowed but only in the form of a civil union or some other name.
This can be well summarized by the idea of "
separate but equal", an idea which should be laughable to anyone familiar with American legal history. By allowing civil unions but not marriage you are introducing a de facto distinction - venerating one while denigrating the other. The effect is to say that "you are not really married, you are just in a civil union."
This idea is against our basic ideas, as wrong in 1954 as it is now. By creating two distinct classes of marriage you are ridiculing one class as somehow inferior. For those who argue in favor of civil unions you must answer why, in fact, you are for everything except the name. The answer is apparent: it is in order to establish civil unions as something fundamentally different, which betrays the very "equality" of which you speak.
5) Ad hoc reasoining
The last inconsistency that I would like to point out is the massive amounts of ad hoc reasoning which go in to the debate. Ad hoc reasoning is when you come to your preferred position and then find arguments which support it rather than using arguments to support a position.
The unnaturalness argument above is an excellent example. People had decided that they were against homosexual marriage and would find reasons to support that position. Thus we have "gay marriage is unnatural, therefore it should not be allowed." This would lead to the rule that we should not engage in unnatural behaviors - something which is ridiculous, as argued above. Such a justification was chosen regardless of how reasonnable it was simply because it supported a pre-determined position.
This is the same reasoning that goes into Cyclo's "government should only support cost effective measures," or as he said it "The burden of providing a driving force for change is on the same sex marriage proponents. What does this union provide the American taxpayer as a return for their investment?"
This would give us the rule that government should only support cost effective measures. This is demonstratably wrong.
Consider, for example, the judicial system. Trials are expensive, as are public defenders and prosecutors. It is simply not cost effective to bankroll both sides of a legal dispute but yet we do it anyway. We do so because it says something about us as a people - not that we are a nation of laws, but that we are a nation of justice.
You can even go further and say that states which don't pay their fair share of taxes should have no right to argue at all (this, in fact, is consistent with Cyclo's claim). If this were the case the red states would have no voice at all and the issue would be decided by the blue states, where gay marriage is widely supported.
I guess the lesson is to not engage in ad hoc reasoning.
6) Other people's marriages
I think the last important point is that you simply have no standing to involve yourself in other people's marriages. In order to get involved in a legal dispute you have to have "standing" - be a party to the dispute - and unless you are one of the people involved you cannot get involved. This is why your heterosexual friends can marry people with whom you disagree - it is none of your business and no court is going to give you the power to interfere in their lives because you disagree with their choice.
I guess the lesson is that if you want to argue the issue you should argue it in terms of rights and forgo the "a lot of people don't like it" argument because that argument is bound to fail.
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