Friday, May 16, 2014

Two (bad) ways to argue against marriage equality

It's been a big week for marriage equality (and I just haven't had time to write about it), but I saw two stories on Slate this morning that I really wanted to address. The first is piece by David S. Cohen, a law professor at Drexel University School of Law, called "The Worst Argument Ever Made Against Gay Marriage." Over the last twenty years, I have heard a lot of arguments against same-sex marriage. Not just unconvincing, but ones so devoid of any coherence that you wonder why a sane person would ever make one.

My favorite bad argument against same-sex marriage is the "bisexuals argument." I see it a lot in comment threads on the Internet. It goes something like this:
If gay men are allowed to marry other men, then bisexuals should be allowed to marry one person of each sex.
Yeah, that makes a lot of sense. And by "a lot" I mean "not a single bit." Are we even assuming that straight men are incapable of finding more than one woman attractive at a time? Nah.

So with the bar set that low, can Professor Cohen go even lower? Yeah, he can. In part because the argument he's highlighting wasn't made by a random commenter on an Internet thread, but by David Oakley, who is representing the Virginia clerk who refused to issue a marriage license to a same-sex couple. This was made in a court.

Oakley made the (irrelevant, as judge noted) point that there is no deeply rooted tradition of same-sex marriage. Judge Roger Gregory said that same was true of interracial marriages at one time. Here's Mr. Oakley's response:
There is a history, prior to the Jim Crow era laws, the anti-miscegenation laws. The idea of interracial marriage was not prohibited. It still fit within the fundamental right of marriage, the idea of a man-woman marriage. Before Virginia passed those affirmative anti-miscegenation laws, it might not have been the social norm, but people certainly could have married, and indeed did marry, across racial lines. Pocahontas married John Rolfe in the early 1600s and their marriage wasn’t declared unconstitutional.
So is he claiming that the current Virginia statute while prohibiting same-sex marriage doesn't prohibit "the idea of same-sex marriage"? This moves from the nonsensical to the incoherent. And it was made in court.

Yesterday (seriously, I cannot keep up with the same-sex marriage news on Slate, let alone everywhere else), John Culhane, a professor at the Health Law Institute at Widener University School of Law, wrote that when Pennsylvania was asked to defend its ban on same-sex marriage in court, they essentially said:


Professor Culhane writes that the attorney for Pennsylvania's governor
stood on the position that it wasn’t up to the state to put forth any evidence to justify the law and that the plaintiffs had failed to justify their position that the asserted rationales weren’t persuasive.
Evidence? We don't need any evidence. What is this? Some sort of courtroom?

Professor Culhane's conclusion is
So it’s come to this: The state’s reasons for opposing same-sex marriage are now unspeakable.

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