A Philosopher's Blog

Alito on Same Sex-Marriage

Posted in Ethics, Law, Philosophy by Michael LaBossiere on March 27, 2013
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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.

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40 Responses

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  1. FRE said, on March 27, 2013 at 3:53 pm

    One of the stated objections to same-sex marriage is that two persons of the same sex cannot produce children. To be consistent, those who use that argument should also push for legislation requiring that that opposite sex couples who cannot bear children should be prohibited from marriage and that if a couple has not produced children within a few years of marriage, the marriage should be annulled.

    • Christienne Coutts said, on March 27, 2013 at 4:09 pm

      I’ve brought that same point up myriad times when discussing gay marriage with people who oppose it–or use “procreation” as the primary virtue of heterosexuality. I then add that my husband and I have been married for twelve years and, by choice, have no children. And by remaining childless by choice, we’re even more insidious because we have working parts but choose not to procreate. HUH OH. Where do we fit in on the sin spectrum? Maybe we should just head for the Netherlands.

      • Michael LaBossiere said, on March 27, 2013 at 8:51 pm

        That is indeed insidious. Or even sinsidous…

        From a logical standpoint, the debate on this issue is one sided-the stock arguments against same sex-marriage are usually fallacies (like appeal to tradition), based on false premises (that gay marriage will damage straight marriage), or just weak.

        The best arguments against same sex marriage are arguments against marriage in general.

        • WTP said, on March 28, 2013 at 1:50 pm

          Heh. Yeah. There’s more fallacies in the various arguments on this page than I can shake a stick at. The Law is not a tool for people to use to get what they want. Alito’s arguments are in the context of the issue before the court. You are all making straw men arguments in favor of gay marriage and not addressing what the specific issue is. Does anybody here know AND understand this specific issue on which Alito was speaking? At this time there are TWO issues before the court regarding such.

    • Michael LaBossiere said, on March 27, 2013 at 8:44 pm

      Quite right. If the principle is that those who cannot procreate cannot marry, then this would need to apply to everyone.

  2. ajmacdonaldjr said, on March 27, 2013 at 4:15 pm

    Subversion refers to an attempt to transform the established social order and its structures of power, authority, and hierarchy.

    Subversion (Latin subvertere: overthrow) refers to a process by which the values and principles of a system in place, are contradicted or reversed.

    More specifically, subversion can be described as an attack on the public morale and, “the will to resist intervention are the products of combined political and social or class loyalties which are usually attached to national symbols.

    Following penetration, and parallel with the forced disintegration of political and social institutions of the state, these loyalties may be detached and transferred to the political or ideological cause of the aggressor.”

    See: http://en.wikipedia.org/wiki/Subversion

    • FRE said, on March 27, 2013 at 5:12 pm

      If there are any gay men or women trying to subvert anything, surely they are in a minority.

      • Michael LaBossiere said, on March 27, 2013 at 8:46 pm

        True-most people, gay or straight, just live normal lives and have no desire to engage in subversion.

    • biomass2 said, on March 27, 2013 at 9:50 pm

      “Subversion (Latin subvertere: overthrow) refers to a process by which the values and principles of a system in place, are contradicted or reversed. ”

      “But the very social system of the South was subverted by emancipation and Reconstruction, and social institutions that had governed the South were no longer relevant. “

  3. TJB said, on March 29, 2013 at 10:35 am

    Is there any reason incest should not be permitted in a same sex marriage?

    • Michael LaBossiere said, on March 29, 2013 at 10:55 am

      Why would same-sex marriage allow incest anymore than different sex marriage? That is, if allowing different sex couples to marry does not permit incest, then why would permitting same-sex couples to marry permit incest? As such, any reasons (other than the genetic defect reason) that forbid incest in different sex marriages would apply to same sex marriages as well.

      I would infer that we would still frown upon incest even if the two people were fully genetically tested and it was found they would produce perfectly healthy and normal babies.

      • TJB said, on March 29, 2013 at 11:09 am

        So you are appealing to tradition?

      • Michael LaBossiere said, on March 29, 2013 at 11:14 am

        Not at all.

        My point is just this: The question “Is there any reason incest should not be permitted in a same sex marriage?” would seem to be a case of innuendo, implying that allowing same sex marriage would be comparable to allowing incest or would at least remove any reason to not allow incest. My response is that allowing same-sex marriage of non-related people no more permits incest than does allowing the marriage of different sex people.

        I shall ask “Is there any reason incest should not be permitted in a different sex marriage?”

      • WTP said, on March 29, 2013 at 11:14 am

        Plural marriage, in or out?

  4. TJB said, on March 29, 2013 at 11:21 am

    No innuendo. Incest is problematic genetically, but for unions that cannot produce offspring I don’t see any reason for it not to be allowed.

    • Michael LaBossiere said, on March 29, 2013 at 11:29 am

      Well, it would eliminate the genetic argument. Of course, different-sex couples that are not fertile would also eliminate that as well.

      My main argument against incest rests on the fact that it is usually a case of victimization (a parent molesting a child, for example). But, of course, this is not so much an argument against incest, but the molestation, etc. However, I would be hard pressed to come up with a good reason against it if those involved were consenting adults and no harm would be done to anyone. I would find it deeply offensive, but I have no moral right to forbid what does no harm to me or others. No matter how much it might ick me out and no matter that I think that people should not do that.

      • FRE said, on March 29, 2013 at 1:53 pm

        One would suppose that the victimization argument would not apply to brothers or sisters of approximately the same age.

        • Michael LaBossiere said, on March 29, 2013 at 8:21 pm

          I don’t think age would be a completely decisive factor. After all, a person can victimize a person of the same age. For example, college students do victimize each other even when they are about the same way.

          • FRE said, on March 29, 2013 at 10:47 pm

            That’s a valid point. Presumably in a “traditional” marriage of a man to a woman, both of whom are of legal age and approximately the same age, there could also be victimization. That is more common in countries where there is money exchanged as part of an arranged marriage.

            It is unclear how it would be possible to eliminate the possibility of victimization. If one of the persons misrepresented himself or herself to the other, one could assert that victimization has occurred. It could even take a while for the victimized person to discover the victimization.

            • Michael LaBossiere said, on March 30, 2013 at 6:18 am

              Some thinkers have argued that traditional marriage is victimization. Some argue that women are the victims, while others claim that traditional marriage makes both people into victims. I was victimized by my divorce-I had paid for just about everything but had to hand over half. Prenups are probably a great idea unless the couple is balanced exactly at 50-50.

  5. WTP said, on March 29, 2013 at 10:20 pm

    Plural marriage? I understand that I don’t exist, but the idea of plural marriage certainly does.

  6. FRE said, on March 30, 2013 at 2:36 pm

    Plural marriage creates unacceptable problems.

    There have been, and probably still are, groups of people here in the U.S. that practice plural marriage, always multiple wives per man. However, as it works out in nature, men and women exist in almost equal numbers. Therefore, if many men had multiple wives, not all men could have a wife. That’s why in groups that practice polygamy, excuses are used to force young men out of the group. That is an especially serious problem when the group prevents men from acquiring the ability to support themselves.

    It should be obvious that polygamous marriages would not work on a large scale. Whether they should be illegal is another matter.

    • WTP said, on March 30, 2013 at 3:09 pm

      I agree that they are a problem and generally a bad idea. But one could make the argument that most men are not worthy of female attention, thus if two or more women wish to marry one man, why should that be illegal? And in regard to gay marriages, it’s a rather moot point.

  7. FRE said, on March 30, 2013 at 4:59 pm

    Polygamy is a valid issue, but in those countries where it is permitted, monogamy is still the norm, i.e., most men still marry only one woman. Those men who do marry more than one women generally marry only two women or, at the most, four, although there are places in Africa were men who can afford to sometime have more than four wives. In many places a man needs permission from his current wife (or wives) to marry another woman, but there could be a question about the validity of the permission.

    I don’t know what would happen if it were legal here in the U.S. or whether it is reasonable for the law to be involved. Of course that’s a different matter from same-sex marriage and the two should be considered separately. Probably there is little demand for it, although that should not be the only consideration. Social justice, the effects on the marriage partners, the effects on the children, and the effects on other people would all have to be considered. I doubt that there could be an objective discussion of this in legislative bodies.

    • WTP said, on March 30, 2013 at 5:08 pm

      Depends. Is the issue before the court same-sex marriage or is it govt defining marriage? If the latter, it’s not a separate issue. If the former, what barrier might there be to plural marriage and could those in favor of it have a case based upon how this/ these decision/s is/are made? And more to the point of this post attacking Alito, could that not be one of his concerns in how he arrives at, and more importantly, writes his decision?

      • FRE said, on March 30, 2013 at 5:23 pm

        I see the issue as same-sex marriage rather than the government’s defining marriage. Courts, especially the Supreme Court, generally try to make decisions as narrow as possible; later decisions sometimes expand the original decision. Also, the issue of same-sex marriage is somewhat less controversial than the government’s defining marriage so the risk of a backlash would be lower than for redefinition.

        Many people here are quite erudite on the matter and are well aware that through history, marriage has greatly changed.

    • ajmacdonaldjr said, on March 30, 2013 at 6:20 pm

      The redefinition of the word “marriage” really does create a classic case of the slippery slope. Why not three people? or more? Why not lower the age of consent, which, traditionally, has been mush lower than 18? Why not make the age of consent 12 and allow men to marry as many 12 or 13 years olds as he wants? Who dares to find fault of pass judgement? Only the Morality Police. The pederasts have been saying they have rights too, and that the LGBT’s have dumped them for PR reasons.

      • Michael LaBossiere said, on March 30, 2013 at 8:48 pm

        The same question can be asked once we have one man marrying one woman. If we allow that, why not one man and two women? Why not one woman and an iPad or one man and a really big TV?

      • biomass2 said, on March 30, 2013 at 10:22 pm

        The slopes are slippery. But consider this. The age of consent could be 5 years of age, yet there would still be plenty of time for procreation after the amethyst anniversary. . . Or we could require a woman to be thirty or thirty-five years old before she could marry She could still pump out a few children before the ruby anniversary.

    • Michael LaBossiere said, on March 30, 2013 at 8:46 pm

      Polygamy is often associated with coerced marriage, sometimes involving children. There is also sometimes a cult association.

      Polygamy outside the US seems to mainly occur where their is a gross disparity between men and women, so one man can have many women as his property.

      What polygamy would be like in a free and equal setting would be a matter of some dispute. There are Sci-fi stories which have marriages with multiple participants in such settings…but that is, of course, fiction.

      • WTP said, on March 30, 2013 at 10:43 pm

        often associated…sometimes a cult association…seems to mainly occur… these are not solid arguments upon which to deny people thier freedom of choice. There are many and numerous exceptions to be considered. Again, more fallacies tan one can shake a stick at. It’s not that I support poligamy, nor oppose, it’s an obvious inconsistency in the philosophy of the original argument. Such an approach is typical of Mike’s sophistry. He does not approach a subject from a philosophical perspective. He first has an objective and then builds an argument to support that POV.

      • ajmacdonaldjr said, on March 31, 2013 at 7:33 am

        Unfortunately for the Christian supporters of traditional marriage the Bible’s Old Testament if replete with polygamy.

        • FRE said, on March 31, 2013 at 6:14 pm

          Quite true, and also forced marriages. The OT requires a young woman to marry her rapist.

            • FRE said, on March 31, 2013 at 7:02 pm

              I read about that case some time ago, but had forgotten about it. Unfortunately, many women in Afghanistan suffer similar plights. I guess that in some cultures, if a woman refuses a man’s proposal of marriage, all he has to do is rape her in which case she is forced to marry him.

              Some years ago, there was a similar episode on am American TV series; it may have been Gunsmoke or something similar. A hill-billy type of family had moved into town. One of the men in the family took a shine to the the leading lady of the program and kidnapped her, assuming that that way of acquiring a wife was just as acceptable there as it was from where he had come. She was briefly held prisoner, but fortunately she didn’t lose her “virtue.” It was, of course, essential for women to remain virtuous until marriage.

              In any case, there really is no such thing as “traditional” marriage since through the centuries, marriage has greatly changed, even during my own lifetime. When my parents married in 1935, it was assumed that if a woman was working, she would stop after marriage except in case of extreme poverty. When I was in grade school, junior high school, and high school, in Manitowoc, WI, female teachers, except for substitute teachers, could not be married.

              This video will provide some idea of what marriage was like in the 1940s:

  8. FRE said, on April 1, 2013 at 12:58 pm

    Here is a NYT article on another type of marriage, in Afghanistan:


    • WTP said, on April 1, 2013 at 1:15 pm

      It would be wrong to present this as a criticism of Islam, but it works more broadly as a criticism of marriage, yes.

      • FRE said, on April 1, 2013 at 1:26 pm

        I agree; it should not be seen as a criticism of Islam in general and I’m sure that the majority of Muslims would not approve of either forced marriages of marriages of pre-teens. Also, Islam is just as divided as Christianity.

  9. WTP said, on April 1, 2013 at 3:20 pm

    TJ/Magus, can I get a witness here? I fear that via the triple witching of absurdity, sarcasm, and April Fools’ Day I may have created some sort of critical mass of irony such that it has formed a black hole from which no logic can escape. We are all doomed.

    • T. J. Babson said, on April 1, 2013 at 7:35 pm

      You have entered the long sought after Total Perspective Vortex. Amazing…

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