As of the writing of this blog, it was several weeks ago that gay marriage was legalized by the U.S. Supreme Court. In a 5-4 decision, it was found that gay marriage is constitutional and that there is no legal basis for not allowing same sex couples to be legally married to each other.
Much discussion has gone back and forth between those who are for and those who are against same sex marriage after this ruling fell into place, some of it very worth-while and some of it very harmful and hurtful.
What I would like to focus on in this particular post is the actual opinion piece itself written by the Supreme Court, and in particular the arguments that Justice Kennedy and the four other Supreme Court Justices who favored legalizing same sex marriage provide to defend their claim.
If you have not done so yet I recommend reading the entire opinion here. I'm sure many people have not done so, but it is important and necessary to understand the reasoning behind the 5 justices' decision to vote in favor of legalization and the remaining 4 justices decision to dissent from it.
So what are the arguments that Justice Kennedy gives us to explain why same sex marriage should be legalized? In brief, he argues that there are 'four principles and traditions' that show that 'the reasons marriage is fundamental under the Constitution apply with equal force to same sex couples' (Obergefell v. Hodges, Opinion of the Court, p. 12). Thus, these four principles and traditions are crucial to Kennedy's arguments; if they truly do apply, under the Constitution, to marriage of opposite sex couples and same sex couples have these same four principles in their relationship then, so the argument goes, there is no legal reason to deny the right to marry to same sex couples. Let's break these principles down and see if they make sense.
1. AUTONOMY
'A first premise of the Court's relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy' (p. 12). Kennedy brings up a case that legalized interracial marriage in part on this very basis of autonomy (p. 12). Quoting a state Supreme Court, Kennedy continues that the '"decision whether and whom to marry is among life's momentous acts of self-definition"' (p. 13). 'There is dignity' he says later, 'in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices' (p. 13)
There is at least one major problem with the implementation of this principle, which is that it assumes too much. For instance, the legal right for people of different races to be autonomous in their marriage choice is brought up numerous times in this particular section. The parallel is implicit, but obvious. However, such a parallel needs more of an argument than this based on the very words quoted above. Kennedy gives us no distinctive reason why the same logic cannot be applied to only two men or two women. Why isn't there dignity in the bond between 1 man and 2 women or 1 woman who wanted to marry herself? Why wouldn't the decision of 5 men to marry each other be, for them, among life's 'momentous acts of self-definition'? There is nothing in the statements made by Justice Kennedy concerning autonomy that are applied to same sex couples that cannot also be applied to polygamous couples or any other combination of people who seek to become married.
Keep in mind what I am arguing here. I am not saying that the legalization of same sex marriage will lead down a slippery slope. I am saying that Kennedy's argument is a logical fallacy that, when applied consistently, proves much more then what he, and virtually everyone else for that matter, would like it to prove or thinks it should prove. This principle of autonomy that Justice Kennedy uses here to support same sex marriage can be applied to literally any form of relationship, including those relationships that virtually everybody understands to have no right to marriage.
2. INTIMACY AND COMMITTMENT
'A second principle in the this Court's jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individual' (p. 13). Kennedy explains this more in depth, articulating that marriage 'offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other' (p. 14). He then goes on to argue, 'As this court held in Laurence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made same-sex intimacy a criminal act...But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty' (p. 14).
The main problem with this argument is that it commits the same mistake as the previous argument concerning 'autonomy' does. Kennedy talks in this section about marriage being between two people, but based on statements made in this very opinion about how the institution of marriage is subject to change, no reason is given as to why it must be between two people. Why not three? Everything mentioned in this section about 'hope of companionship' and 'intimate association' exists in relationships consisting of more than or less than two people.
3. PROTECTION OF CHILDREN
'A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education' (p. 14). 'By giving recognition and legal structure to their parents' relationship, marriage allows children "to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives"' (p. 15). Taking this and adding that same-sex couples raise children in nurturing and love homes, Kennedy concludes that 'excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser....The marriage laws at issue here thus harm and humiliate the children of same-sex couples' (p. 15).
There are two issues with this argument. One of them is (you guessed it) the same as with the other two principles. If children have three parents, don't they 'suffer the stigma of knowing their families are somehow lesser' because their parents are unable to legally marry? Based on the way Kennedy words his argument, there is no justifiable reason why his logic cannot and should not apply to such a scenario.
The second issue with this argument is that it commits another logical fallacy known as an appeal to consequences. It is a type of red herring fallacy in which a person seeks to reveal positive or negative consequences of a particular action to support their conclusion, even though such consequences do not necessarily prove such a conclusion. There are many laws, after all, that end up creating negative consequences to various groups of people. Some of these laws change because of that, but it is always combined with an implicit argument that the law has an obligation, for one reason or another, to protect such people in a particular way. The Court has no obligation, for instance, to make marriage between three people legal simply because children might feel a certain harm as a result of their three parents not being allowed to legally marry; other argumentation would have to be provided in such a case to warrant the legalization of marriage between three people. The same applies to same-sex marriage. Just because a negative consequence may come about as a result of same-sex couples not being able to be legally married, that does not necessarily mean that same-sex marriage should be made legal. Kennedy needs to, at the very least, add more to this in order to make it a valid argument.
4. SOCIAL ORDER
'Fourth and finally, this Court's cases and the Nation's traditions make clear that marriage is a keystone of our social order' (p. 16). 'Just as a couple vows to support each other' Kennedy says, 'so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union' (p. 16). Kennedy then states that 'there is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of there exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more then just material burdens' (p.17).
There are three problems with the use of this final principle. One is that Kennedy, for the fourth time, does not apply his argument where it must logically go. Everything argued here can apply to three people who all want to marry each other, or one person who wants to marry herself, and nothing that Kennedy says disputes that.
Two, he repeats another fallacy that he committed in his previous argument by arguing about the 'harm' that befalls same-sex couples as a result of not having various social benefits that opposite-sex married couples have. Do such bad consequences necessarily mean that same-sex couples should have the right to marry? Three people who want to become married to each other suffer from the same bad consequences; does that mean that they should be given the right to marry?
Lastly, it begs the question, a logical fallacy where an argument assumes the very point that it is trying to prove. Kennedy does this by stating that 'there is no difference between same- and opposite-sex couples with respect to this principle', but he does not prove that. In fact, this is the very thing that the Court is trying to figure out, if same-sex couples should be treated equally in the social order with opposite-sex couples in marriage by having the legal right to marry. Thus he simply asserts the very thing that the Court is trying to prove in order to...prove his point.
These are the four principles that Kennedy argues to show that the right to marry is a right that should apply to same-sex couples. And as you can see above, these four principles do nothing to support such a conclusion. Thus, Kennedy's ideological and philosophical arguments do not hold up at all under basic scrutiny.
Now Kennedy does go on to discuss the 14th Amendment, as well as the Equal Protection Clause and the Due Process Cause that are used throughout the case to establish a right to marry for same-sex couples; he even goes into previous court cases that successfully argued in changing marriage laws as a result of these two clauses. However, there is not enough information presented in the opinion statement to flesh out the argument in its entirety (though aspects of it are present in the summary that Kennedy makes when comparing discussing the previous court cases); one must refer back to what was argued in the courtroom in order to get a better understanding of this. To me this is a shame because Kennedy could have made his argument much stronger in his opinion statement if he focused more on this argument rather than on the weak Principle argument.
It was my contention that Kennedy and the other four judges that sided with him on this issue did not provide any good or valid arguments in favor of legalizing same-sex marriage, and I feel like I defended it well. But I would simply like to add that while I, as a Catholic, do not support the legalization of same-sex marriage one does not have to hold to that position in order to agree with my argument in this post. In fact, there are many people on the internet and the blogosphere who are in support of same-sex marriage that agree with me in saying that Kennedy argued poorly in his opinion statement.
Let that be a testament to the importance of arguing well for all of the beliefs that we hold near and dear to our hearts. For if we cannot, then maybe that is a sign that we need to change our position on the matter.
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