Saturday, May 12, 2012

A Lesson in Sophistry: Why laws against same-sex marriages are not like laws against interracial marriage

One of the arguments made by opponents of the traditional view of marriage is that laws that effectively prohibit same-sex marriage are like laws that once prohibited interracial marriage. In fact, one of the commenters on this blog is particularly fond of this argument

The only problem with that argument is that the two things are entirely different, legally and philosophically. The purported justifications for "miscegenation" (laws against interracial marriage) were completely different from those for traditional marriage laws.

The question of whether people of different races should marry was about whether marriage laws should apply to people in a mixed race relationship, while the question of whether two people of the same sex can marry was about whether such a thing is even possible, given the definition of marriage. The first was a question about ethics: should the law be applied to mixed race marriages; the second was about epistemology: can the law apply to same sex-couples.

The two questions are not only different questions, they are different kinds of questions: The question in miscegenation laws was who should be able to marry, not about what marriage is.

They were also different as a practical matter in relation to the operation of law: Given the definition everyone was agreed on, any prohibition on interracial marriages involved an additional law, while any prohibition of gay marriage only requires keeping the current ones. Stopping interracial marriage involved changing the law; stopping same-sex marriage involves keeping it the same.

In their paper What is Marriage? Sherif Girgis (PhD. candidate, Princeton), Robert P. George (Professor of Jurisprudence, Princeton), and Ryan Anderson (Ph.D candidate, Notre Dame) put it as follows:
Opponents of interracial marriage typically did not deny that marriage (understood as a union consummated by conjugal acts) between a black and a white was possible any more than proponents of segregated public facilities argued that some feature of the whites‐only water fountains made it impossible for blacks to drink from them. The whole point of antimiscegenation laws in the United States was to prevent the genuine possibility of interracial marriage from being realized or recognized, in order to maintain the gravely unjust system of white supremacy.9  
By contrast, the current debate is precisely over whether it is possible for the kind of union that has marriage’s essential features to exist between two people of the same sex. Revisionists do not propose leaving intact the historic definition of marriage and simply expanding the pool of people eligible to marry. Their goal is to abolish the conjugal conception of marriage in our law10 and replace it with the revisionist conception. [See footnotes below]
Opponents of current marriage laws will continue to repeat these arguments of course, but they are based on a flawed interpretation of history and law, and are at bottom an emotional appeal that attempts to hijack the visceral repulsion most people have to racism in order to direct it toward the traditional and historical idea of marriage. They will probably have some success in doing it too.

That's the thing about sophistry: It works pretty well, practically speaking. But if it does work, it won't be because the argument is a sound one, because it isn't.

9 See Loving v. Virginia, 388 U.S. 1, 11 (1967).

10 Throughout history, no society’s laws have explicitly forbidden gay marriage. They have not explicitly forbidden it because, until recently, it has not been thought possible. What is more, antimiscegenation laws, at least in the United States, were meant to keep blacks separate from whites, and thus in a position of social, economic, and political inferiority to them. But traditional marriage laws were not devised to oppress those with same‐sex attractions. The comparison is offensive, and puzzling to many—not least to the nearly two‐thirds of black voters who voted to uphold conjugal marriage under California Proposition Eight. See Cara Mia DiMassa & Jessica Garrison, Why Gays, Blacks are Divided on Prop. 8, L.A. TIMES, Nov. 8, 2008, at A1.

13 comments:

KyCobb said...

You are wrong on two points Martin.

First, the same justification was given for both anti-miscegenation laws and the ban on same-sex marriage: the Bible. Preachers such as Jerry Falwell insisted race-mixing was against God's will as expressed in the Bible.
Second, your claim about laws is simply wrong. There was no opposition to anti-miscegenation laws when they were enacted, so laws had to be changed to make mixed-race marriages legal. And stopping same-sex marriage where it is now legal involves enacting a constitutional amendment to prohibit it, as California did and as Mitt Romney wants to do with the US Constitution. Prohibitions on mixed-race and same-sex marriage both involve overcoming prejudices reinforced by some religious sects so that people have the freedom to marry their loved ones.

Marriage has been repeatedly redefined across history. If you don't think so, try to purchase a 12 year old girl from her father with a herd of cattle to be your second wife.

Martin Cothran said...

KyCobb,

Let me address those two arguments:

1. The argument that interracial marriage is against God's will is not an argument about the definition of marriage any more than the stricture against children dishonoring their parents is an argument about the definition of children (or parents). The definition is given, not disputed.

2. In order to make your second argument you had to misinterpret what I said. A standard marriage law that is not a miscegenation law has to be changed to become a miscegenation law whereas a standard marriage does not have to be changed to become a law excluding same sex couples.

You implicitly acknowledged this by saying "Marriage has been repeatedly redefined across history."

Your chief problem in this comment is that you either are incapable or unwilling to acknowledge the fairly straightforward distinction between the nature of a law and the extension of a law. In fact, you switch off between the ideas as it benefits your case.

Singring said...

This is simply hilarious: grown and (apparently) educated men arguing that one of the most prominent moral issues of the day be decided by what the definition of a word is. 'Marriage is marriage and that is that'. As if it were that simple.

That it isn't that simple can be very easily illustrated:

Martin, if your only objection to homosexual marriage is indeed the fact that it would be called a 'marriage' which, in your view, it cannot be - then would you support civil unions among homosexuals (as recognized by the government) that were legally identical to a marriage between a heterosexual couple in every respect?

This is a very simple yes/no question. I would be intersted in the 'whys and wherefores' of your answer, but it would be nice just to get a simple yes or no.

Martin Cothran said...

Singring,

Are you seriously arguing that definitions do not matter in the law?

Singring said...

'Are you seriously arguing that definitions do not matter in the law?'

Nope. I'm just amazed that law students and professors are implying that definitions in law are immutable - that's what lawmakers are for - you know, the people we elect.

More specifically, I asked you if you would oppose civil unions for gay couples if they were not called 'marriages' in the law, but 'civil unions' - but would in all other respects be legally identical to a marriage.

That's a simple yes/no question.

The funny thing is: I know you won't answer that question. Because this is about much more than just word games.

KyCobb said...

Martin,

You may choose to cast the argument as one about definitions, as though the meanings of words don't evolve all the time. The reality is most people who oppose same-sex marriage do so because they think it flouts God's will, just as their grandparents said mixed-race marriages were against God's will. The fact is your attempt to avoid making this a theological issue by claiming Webster's dictionary is immutable is just plain silly.

Martin Cothran said...

Singring,

The funny thing is: I know you won't answer that question.

I can easily answer the question: No.

You seem to be assuming that the argument from what marriage actually is is my only reason for opposing same sex marriage. But, of course, your assumption is wrong.

Like that's never happened before.

Lee said...

> You may choose to cast the argument as one about definitions, as though the meanings of words don't evolve all the time.

If meanings evolve over time, why assume they always evolve in the direction you like?

You seem to feel same-sex marriage is a Constitutional right.

Maybe the term "Constitutional right" has changed over time.

If no other definition can be counted on, why that one?

KyCobb said...

Lee,

Are you proposing that we adopt a L'Académie Française for English to try to maintain the purity of the English language?

Lee said...

> Are you proposing that we adopt a L'Académie Française for English to try to maintain the purity of the English language?

Why should definitions always change in a manner that best suits your political agenda?

You do realize your case that same-sex marriage as a civil rights issue collapses if the definition of marriage stays the same, don't you?

Of course you do.

Singring said...

'You seem to be assuming that the argument from what marriage actually is is my only reason for opposing same sex marriage. But, of course, your assumption is wrong.'

I wasn't assuming that at all and I can easily show you by quoting my own words from earlier posts:

''Marriage is marriage and that is that'. As if it were that simple.
That it isn't that simple can be very easily illustrated:'

'The funny thing is: I know you won't answer that question. Because this is about much more than just word games.'

So you see, I was perfectly aware that there were other reasons for you to oppose gay marriage/civil unions, I just wanted you to illustrate that this entire spiel about legal definitions is purely ridiculous and a screen conservatives like to hide behind. This entire blog post is there for indeed sophistry.

'I can easily answer the question: No.'

Thanks for answering Martin, I wasn't expecting that frank admission that this entire 'marriage' definition argument was completely specious.

So then let's get down to the actual reasons you oppose gay marriage. What would those be?

One Brow said...

Martin,

There are same-sex marriages in a variety of countries, including the USA. Since they do exist, they can exist. Therefore, any argument that they can not exist exist is unsound based on evidence.

Now, if you can make an argument that there is some feature of marriage that requires having different sexes, besides simply requiring different sexes, I'd be curious as to what that is. I still haven't seen one.

KyCobb said...

Lee,

"You do realize your case that same-sex marriage as a civil rights issue collapses if the definition of marriage stays the same, don't you?

Of course you do."

No, you are confusing semantics with reality. When states defined marriage as being between one man and one woman of the same race, that didn't magically make the case for the civil right to mixed race marriages collapse.