In an article recently posted on The Public Discourse, James Phillips, an assistant professor of law at Brigham Young University, highlights and responds to errors made by pro-same-sex marriage justices Kennedy and Sotomayor. Phillips points out that there were 6 major errors in logic, precedent, and history made to support the passing of a same-sex marriage bill last week.
This post will outline these 6 errors, as well as the arguments against them.
Error #1: Massachusetts Marriage Rates Have Stayed the Same
Justice Sotomayor claimed that Massachusetts’ heterosexual marriage rates have remained constant since the state allowed same-sex marriage. If she had paid attention to an opposing amicus brief filed by 100 Scholars of Marriage, she would have seen that data clearly tells us otherwise, for instance:
Marriage rates have dropped by 8.9 percent since the state [MA] redefined marriage. And Massachusetts is not alone. The marriage scholars were also able to obtain data on opposite-sex marriage rates from three other states that have legalized same-sex marriage… Vermont (-5.1 percent), Connecticut (-7.3 percent), and Iowa (-9.2 percent).
Error #2: Because Some Men Leave Their Wives and Children, Marriage Does Not Help Keep Fathers Around
Justice Sotomayer argued that marriage between a man and a woman doesn’t actually increase the likelihood of creating a stable family life:
‘Marriage doesn’t do that on any level. How many married couples do fathers with the benefits or the requirements of marriage walk away from their children? So it’s not that the institution alone does it and that without it that father is going to stay in marriage.’
But as Phillips points out:
This is a classic example of the exception fallacy. Of course some men and women walk away from their marriage and their children. But that is the exception, not the rule, and it is certainly counter to the social norm of marriage.
Error #3: The Purpose of States’ Recognizing and Regulating Marriage is to Bestow Dignity on Couples
When Mr. Bursch brought forth the argument that the states are not in the marriage business to bestow dignity, Justice Kennedy expressed surprise at this, stating that he believed that whole purpose of “traditional marriage” was to bestow dignity on both man and woman. Now same-sex couples want that same “ennoblement.” But as Phillips explains:
Justice Kennedy was missing the point. He was confusing the reason that a couple may desire to be married with the reason that a state would want to recognize and regulate marriage. Those are distinct.
Even assuming, for the sake of argument, that states were interested in bestowing dignity on couples by allowing them to marry, that would be a means to enticing couples to marry. The end or purpose of encouraging marriage in this way would still be the fact that society—particularly children—benefits when men and women marry. It makes no sense for the state to go through the trouble and expense to regulate and subsidize marriage if the state gets nothing out of it in return—and it’s not simply about bestowing dignity on consenting adult love of all sizes and shapes.
Error #4: The Only Harm to Legalizing Same-Sex Marriage Is Making Marriage More Adult-Centered
When several justices struggled to comprehend how redefining marriage to genderless terms would impact and harm the institution of marriage, Mr. Bursch correctly, but incompletely, argued how it would change the focus of marriage from fulfilling the needs of children to fulfilling the desires adults. If marriage is redefined, then the norm of fulfilling a child’s need to be raised by a man and a woman in order to learn how necessary interactions from each one, would be eliminated. And this is only one effect.
Error #5: There Is a Parallel between: Brown/Loving and Lawrence/Obergefell
The time between the Supreme Court decision calling for desegregation of elementary schools, the famous Brown v. Board of Education, and the decision invalidating state laws that prohibited mixed-race marriages (Loving v. Virginia), was thirteen years.
But man-woman marriage has been the law in every state since the birth of the nation—and in every Western nation for millennia. As Justice Kennedy put it, “I don’t even know how to count the decimals when we talk about millennia.
Not all thirteen year periods are equivalent. They certainly are not here.
Error #6: Age Restrictions on Marriage Are Equivalent to the Definitional Element of One Man and One Woman
Several justices tried to form the analogy of recognizing exceptions to age restrictions to recognizing same-sex marriages. But as Phillips explained:
Not all exceptions are equal. Age has never been a part of the definition of marriage... There are two historical and universal components to the definition of marriage in the United States, and in the Western world: gender diversity and only two spouses, one man and one woman. All other features—age, race, religion, coverture, dowry—are not part of the fundamental definition.
The American people want our justices to base their decisions on facts, and not make such errors in their decision as outlined here. Since the citizens of the United States will have to live with this decision for the entirety of America’s future, it would be best if such a decision had a basis in not only what the public wants, but also the truth of such matters.
Source via The Public Discourse