The Deeply Flawed Logic of the Gay Marriage Dissenters

The dissent from the Supreme Court’s decision on gay marriage — otherwise now simply known as marriage — is to be expected. Any decision will have its fans and detractors, and there is nothing wrong with that. The trouble happens when political figures and even Supreme Court justices make statements that knowingly or unconsciously pervert logic and indulge in flawed rhetoric to support a conclusion that their emotions, not their minds, demand.

Mike Huckabee states in a blog post that he “will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. … The Supreme Court can no more repeal the laws of nature and nature’s God on marriage than it can the law of gravity.”

Huckabee’s views are foolish on many levels. He assumes that marriage has always been defined in the way he thinks, even though his chosen religion only has a deity appearing several thousand years ago, with marriage being far older and having taken many forms in different places and times. In parts of the Old Testament itself, we see that marriage could be between a man and multiple women. He might argue, as some Christians do, that there are further refinements in the book, meaning that polygamy is not allowed. So, was it people who changed their minds or God? In either case, clearly that line of religious thought tacitly accepts that the definition of marriage can, and even must, sometimes change.

Same sex unions have also existed throughout history, in ancient Greece and Rome, for example, as there has always been a civil concept of marriage, largely driven by considerations of property and inheritance. The same-sex variety eventually was pushed out of the way by views that marriage and sex should be associated only with procreation, which itself was closely connected to the idea of agrarian life, business, and property.

They may be a religious definition of marriage — that can vary widely by religion. But, in addition, to refuse to accept judicial rulings, no matter how much we disagree, and to brandish the language of historic open revolt is to claim the right to overturn the institutions that allow this country to exist. It is to say that the same rules binding people unwillingly to decisions that Huckabee happens to like, even when made narrowly, don’t apply to him. It is to declare himself above human law, even though in the Bible he claims to worship there was a clear indication that there are two worlds — that of people and that of god — and that individuals had responsibilities to each.

In other words, Huckabee puts himself above the government, above the Constitution, and above the Bible. He wants to be a divine and omnipotent interpreter who gets to uniquely decide what is and is not allowed. This is hardly what you want in someone who wishes to be President and swear an oath to uphold the Constitution and the rule of law.

And then we have more logical fallacy and foolishness from the opposing side of the court. Chief Justice John Roberts writes, “Under the Constitution, judges have power to say what the law is, not what it should be….” Is he arguing that the courts cannot say a law is not in keeping with other laws? The minute you allow a decision to rule on the constitutionality of a law and how it must be applied, you agree that courts can say what the law should be in the context of a greater legal framework, including the Constitution.

Perhaps Roberts would have been happier had the Court said the laws allowing only straight people to marry be struck down, leaving the states to scramble and write new laws while halting all marriages in the interim. Would he have had the same opinion had a state said that only people with naturally brown or black hair be allowed to marry, despite the many state-provided benefits now conferred on those people but not on any whose hair was blonde or red? It is legal discrimination, without a pressing state interest, over who is allowed to benefit from a given institution.

Why wouldn’t the same reasoning apply to a family of three or more adults raising children, as he asked? Because the right is a contractual one between two parties, not among multiple parties, and so far as that goes, the two-person limit is inherent in the right, with plural marriage beyond the scope. Why doesn’t he concern himself with minors marrying? Because he knows that is settled law and upends his argument. Why not argue that separate but equal might be a reasonable approach, other than the fact of its previous dismissal as constitutionally unsupportable?

“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept….”

One might say that four dissenters are simply unhappy that their vision of marriage wasn’t secured as a matter of constitutional law. The issue has not been stolen from the people. It has been preserved beyond the whim of partisan politics.

And then we have Justice Antonin Scalia’s raging, bitter, and sarcastic response in which he states that the “Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” This from the man who decided that he could toss part of the wording of the Second Amendment because it wasn’t supposed to mean anything anyway. I guess we can’t all be spiritualist mind readers.

The world will go on, but the people who dislike the outcome must, for the sake of society and governance, step back and accept defeat the way their political opponents repeatedly have had to. Sometimes the world changes and not always to one’s liking. Adults deal with the new state of things. Overgrown petulant children stomp their feet and cry.