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Howard Schweber

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Same Sex Marriage: the Worst Argument in the World

Posted: 10/20/08 04:54 PM ET

Last week the Connecticut Supreme Court ruled that the state must extend the legal status of marriage to same-sex couples. Their argument involved a determination that homosexuals constitute a quasi-suspect class -- a question the U.S. Supreme Court has gone to nearly incredible lengths to avoid addressing -- but I'm not really interested in that at the moment. Instead, it's the dissenting arguments that intrigue me. Debates about same-sex marriage seem to inspire really, really bad arguments, and I thought I would take a moment to review a couple of them.

One of these Really Bad Arguments is captured in the phrase "Defense of Marriage." The idea, of course, is that allowing same sex couples to marry threatens the marriages of mixed-sex couples. As a member of a mixed-sex marriage myself, I have to confess that I have never been able to ascertain the nature of the threat. (The only explanation I can come with, actually, is one that I call the "wow, I could have had a V-8!" principle.) An equally silly version says that I will take my own marriage less seriously if too many other kinds of people are allowed to have them. The idea, of course, is the idea of exclusivity: who wants to be a member of a club if just anybody can join? The further assumption is that the mixed-sex couples around me are all the Right Kind of People, while the same-sex couples clamoring to get married are not the sort of people with whom I would want to be associated. Okay, never mind any thoughts about the average intelligence, decency, and good will of same-sex couples seeking to marry. Trust me: as I look about the country, there is absolutely no danger that extending the prerogative of marriage to new classes of people can possibly diminish the regard I have for the class of Married Americans.

Then there is the argument from "nature." This one is bad on so many levels. For one thing, homosexuality is difficult to describe as "unnatural" given that animals practice it with some regularity. But another, more serious, argument is this: animals are governed by nature. Humans are governed by reason, and law. The Hebrew Bible God gives the Israelite a single injunction: "Justice, justice, you shall pursue," not "Nature, nature, you shall pursue" (a rather more Aristotelian position, and one forever diminished by Hume's demolition of the is/ought distinction. "There is a special place in Hell," said Bertrand Russell, "for those philosophers who have refuted Hume." It was in a different context, but Russell had a point.

But the Really, Really Bad Arguments are the ones that try to define marriage as being about having children and the reason from there. To see just how bad these arguments are, one has to go through it step by step, in each of its two iterations.

Version 1 -- the first Really Really Bad Argument -- goes like this: Marriage exists in order to "privilege and regulate procreative conduct." "The long-standing, fundamental purpose of our marriage laws is to privilege and regulate procreative conduct . . . [therefore] persons who wish to enter into a same sex marriage are not similarly situated to persons who wish to enter into a traditional marriage. The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry." Those are the words of Justice Zarella, dissenting in the Connecticut case. Note that he does not say "procreation," he says "procreative conduct."

What's odd about this formulation, of course, is that is not about childrearing, nor even about procreation. After all, same-sex couples procreate, they just employ different mechanics. In other words, this argument is not about either children or procreation, it's about sex. Which puts the proponents of this position in the extraordinary position of arguing that allowing couples to marry encourages them to engage in sex, and withholding the privileges of marriage will discourage sexual activity. Never mind anti-sodomy laws; to "privilege and regulate procreative conduct" would require laws against contraception fornication. (Otherwise one has the difficult task of explaining why this particular form of non-procreative conduct is the subject of regulation when all the others are not.) As someone once said of Rick Santorum, this argument reflects the finest minds of the 14th century.

But that's still not the worst argument! It is the second version of the argument about children that has the distinction of being the absolute Worst Argument in the World (with apologies to Keith Olbermann.) This is the argument that goes "it is better for children to have two parents of different sexes, marriage is about creating an environment for raising children, so that's why same-sex couples should not be allowed to marry."

The reasoning in this argument is so bad I don't know where to begin. Take the arguments about the data. Proponents of this position cite data that they claim shows that the ideal child-rearing environment includes a mixed-sex couple (not a trio or a committee) of parents. The data is disputed: other data show that children raised by same-sex parents show no higher rates of social pathology than other children, and the studies that are cited tend to be mysteriously lacking in methologies. But just for the sake of argument, let's assume that it is, indeed, the case that all things being equal the ideal environment for childrearing is a mixed-sex couple. The problem is that the claim absolutely has to include that implied clause, "all things being equal." Except that all things are never equal. We can take it as given that children are not better off with a man and a woman in the house than with two men or two women if in the case of the mixed-sex couple one of those adults is a child molester, a child beater, a raging alcoholic or drug addict while in the case of the same-sex couples none of those things are true. We can say the same thing about unwanted children, children born into families that cannot afford to care for them, children born to neglectful parents.

We do not say that people who are child molesters, child abusers, drug addicts, or neglectful parents may not procreate. We don't even say that such persons may not marry, on the theory that this will dissuade them from procreating. Think about the case of unwanted pregnancies. One thing you know about the child of a same-sex couple is that their parents want them. That's in some contrast to children -- oh, how did Shakespeare put it? -- "within a dull , stale, tired bed . . . got 'tween asleep and wake." (It's the same thing with overseas adoptions. If you fly to China, spend three weeks, and then make that whole flight back with a baby screaming in your ear, when you get home you know you *wanted* that baby.)

Wait, though. The argument turns out to be even worse than that. The whole point of this logic is that if a certain class of people will be sub-optimal parents, we are justified in denying them the legal privileges of marriage, right? Which makes sense only if we assume that not being allowed to be married will make them less likely to raise children (just as the argument for "privileging and regulating" sex assumed that not being married cuts down on sexual activity.) The thing is, we are not talking about a pool of existing children who might be assigned to one set of parents or another, as in the case of an adoption regulation. If the idea is that same-sex couples should not be allowed to marry so that they will be discouraged from having and raising children, the implication is that the children those couples might have if they were allowed to marry are better off NEVER HAVING BEEN BORN AT ALL.

Yup, I have thought about it carefully and I have decided. This really is the worst argument I have ever heard.