Alito on Same Sex-Marriage

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The United States Supreme Court is now considering a case involving same-sex marriage which has once again brought this matter into the media spotlight.

My view is and has been that legitimate marriage is essentially a legal and economic contract between two consenting adults. Because of this, I have argued in For Better or Worse Reasoning at length in favor of legalizing same-sex marriage. Jokingly, I have also suggested that people who dislike homosexuality should be for gay marriage because this would inevitably lead to the suffering of gay divorce.

Recently, Justice Alito had the following to say about the matter:

Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.

But you want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet? I mean we — we are not — we do not have the ability to see the future. On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?

It is tempting to see Alito as committing an fallacious appeal to tradition. After all, one of the stock “arguments” against same-sex marriage is to appeal to claim that traditional marriage is, well, traditional.  This a fallacy that occurs when it is assumed that something is better or correct simply because it is older, traditional, or “always has been done.” This sort of “reasoning” has the following form:

1. X is old or traditional

2. Therefore X is correct or better.

This sort of “reasoning” is fallacious because the age of something does not automatically make it correct or better than something newer. This is made quite obvious by the following example: The theory that witches and demons cause disease is far older than the theory that microorganism cause diseases. Therefore, the theory about witches and demons must be true.

This sort of “reasoning” is appealing for a variety of reasons. First, people often prefer to stick with what is older or traditional. This is a fairly common psychological characteristic of people which may stem from the fact that people feel more comfortable about what has been around longer. Second, sticking with things that are older or traditional is often easier than testing new things. Hence, people often prefer older and traditional things out of laziness. Hence, Appeal to Tradition is a somewhat common fallacy.

It should not be assumed that new things must be better than old things any more than it should be assumed that old things are better than new things. The age of thing does not, in general, have any bearing on its quality or correctness (in this context). In the case of tradition, assuming that something is correct just because it is considered a tradition is poor reasoning. For example, if the belief that 1+1 = 56 were a tradition of a group of people it would hardly follow that it is true.

Obviously, age does have a bearing in some contexts. For example, if a person concluded that aged wine would be better than brand new wine, he would not be committing an Appeal to Tradition. This is because, in such cases the age of the thing is relevant to its quality. Thus, the fallacy is committed only when the age is not, in and of itself, relevant to the claim.

One final issue that must be considered is the “test of time.” In some cases people might be assuming that because something has lasted as a tradition or has been around a long time that it is true because it has “passed the test of time.” If a person assumes that something must be correct or true simply because it has persisted a long time, then he has committed an Appeal to Tradition. After all, as history has shown people can persist in accepting false claims for centuries.

However, if a person argues that the claim or thing in question has successfully stood up to challenges and tests for a long period of time then they would not be committing a fallacy. In such cases the claim would be backed by evidence. As an example, the theory that matter is made of subatomic particles has survived numerous tests and challenges over the years so there is a weight of evidence in its favor. The claim is reasonable to accept because of the weight of this evidence and not because the claim is old. Thus, a claim’s surviving legitimate challenges and passing valid tests for a long period of time can justify the acceptance of a claim. But mere age or persistence does not warrant accepting a claim.

However, Alito’s remarks could be taken in a somewhat different manner. Rather than interpreting this as an indirect appeal to tradition, Alito could be seen as arguing that he does not have enough information to properly assess the consequences of same-sex marriage because it has not been around long enough for its consequences to have been properly assessed. Thus, Alito concludes that since he cannot see the future it follows that the decision on the matter should be left to the people.

This reply does have a certain appeal. After all, determining the consequences of same sex-marriage will take time. Part of this involves the obvious fact that consequences have to occur before they can determined and it will take time for the consequences to play out. Part of this is also the fact that a proper assessment of such a matter takes time to conduct.

That said, this seems to be more of a concern about scientific methodology (or moral assessment) rather than a concern about the matter of constitutionality. After all, determining whether or not denying same-sex couples the right to marry is unconstitutional does not seem to require assessing the consequences of allowing same sex-marriage. Assessing it ethical, in terms of an appeal to consequences  would  obviously involve considering the consequences-but this is a rather different matter than sorting out the constitutionality of the matter.

The key question, as I see it, is not “what might be the consequences of allowing same-sex marriage” but “does denying same-sex couples the right to marry violate the constitution?” I am, of course, inclined to answer the second question with a “yes.” To borrow from and modify Kant’s view, we do not need to wait and see the consequences of same-sex marriage in order to determine the constitutionality of the matter.

There is also the obvious response that we can predict what is likely to occur in the case of same sex marriage. After all, we have centuries of information available about marriage and same-sex relationships and we can make inferences from that evidence. To borrow an idea from Mill, when considering the consequences we would not be setting out into a vast unknown. Rather, we would be setting out on a sea that we have charts and maps for. Laying aside the metaphor, we have a reasonable idea of the consequences of allowing same-sex marriage. The main one would, of course, be that we stop denying people a legitimate right.