I’m a big fan of the CATO Institute and their perspective on constitutional government but no matter how much I may generally agree with them, that cannot give them a free pass to use use absolutely terrible logic to promote a position. You’ll have to take my word for it that I would dislike the use of terrible logic to promote a position I agree with but in this case Robert Levy uses this terrible logic in support of one of the worst ideas ever promoted in this nation (in my opinion – I recognize that is very subjective). With that introduction – lets break down the flawed logic in Marriage equality: religious freedom, federalism, and judicial activism.
Levy addresses what he calls “three jurisprudential issues that are central to the debate over same-sex marriage: religious freedom, federalism, and judicial activism.” Unfortunately those three jurisprudential issues are not the core of the debate over same-sex marriage. They are one step removed from the core of the debate but they are the focus of the legal wrangling because the proponents of same-sex marriage have declared the debate of the core issue, namely whether same-sex marriage is beneficial for society, to be resolved in the affirmative. This is a critical re-framing of the issue because if that core issue were truly resolved in the affirmative it becomes much easier to make the arguments in these satellite issues and thus produce the intended legal outcome for proponents.
In addressing the issue of religious freedom Levy makes his first major logical mistake with his statement that “the right to same-sex marriage is not a constraint on religious beliefs or practices.” The mistake is that this statement assumes that there is a right to same-sex marriage – an assumption that he has never even attempted to justify. The logically correct statement, in the absence of a justification for the assumption, would have been “a right to same-sex marriage would not be a constraint on religious beliefs or practices.” That statement is logically correct and would make the rest of his argument stand (waiting for some valid proof that such a right actually exists). It is true that a right to same-sex marriage need not constrain religious belief or practices but just because that is true does not provide evidence that such a right actually exists. He makes the same mistake again in his final statement that “Proposition 8, because it violates the Equal Protection Clause, cannot be allowed to stand regardless how large the majority that voted in favor.” Proposition 8 only violates the Equal Protection Clause if there is a fundamental right to marriage – which he obviously believes. The fact is that there is no right to same-sex marriage. In fact there is no right to heterosexual marriage. The fact that government recognizes any marriages is strictly extra-Constitutional. It could be argued that government should not recognize any marriages just as well as it could be argued that government should recognize any form of marriage, but it cannot be argued that there is a fundamental right to marriage.
Levy’s next logical mistake is in his argument on federalism. He correctly states that “States may not discriminate, without justification, by recognizing heterosexual but not homosexual marriages.” When he then attempts to prove that they have no justification for this discrimination between heterosexual and homosexual relationships he makes the mistake of arguing based on the margins of the statistical norms.
No justification has been shown. How about procreation? No. Infertile persons are permitted to marry even though they cannot procreate. Child rearing? No. Studies show that children do just as well when raised by same-sex parents. Promoting traditional marriage? No. Allowing gay marriages does not deter heterosexual marriages. Conserving government resources? No. The Congressional Budget Office found that recognizing same-sex marriages would save money. We’ll have fewer children in state institutions, lower divorce rates, and less promiscuity.
All of those statements sound true. Of course we do recognize the marriages of those who are infertile but it masks a fundamental difference between heterosexual and homosexual unions. I don’t have the statistics but I would be surprised if anything less than 80% of heterosexual unions included the raising of children as a central facet of the relationship at one time or another. Either they are raising children, or they have, or they intend to. Few heterosexual couples choose to get married unless they expect to raise children together as part of that relationship On the other hand, I would be even more surprised if more than 5% of homosexual couples ever expect that raising children will be a central feature of their relationship.
The unnamed studies he refers to showing that children raised by homosexual couples do just as well necessarily have a very small sample size and can hardly be considered a sound basis for making widespread social alterations through public policy.
While it is theoretically true that allowing same-sex marriages does not deter heterosexual marriages there are studies showing that the marriage rate in societies that allow homosexual marriage fall much further than the marriage rates in societies that recognize only heterosexual marriages.
Finally, the argument that “{t}he Congressional Budget Office found that recognizing same-sex marriages would save money. We’ll have fewer children in state institutions, lower divorce rates, and less promiscuity” is complete hot air. Not that the Congressional Budget Office has no such finding – I have no doubt that they have exactly such a finding. The problem is again that there is no reasonable sample size to draw such a conclusion. The conclusion is based on assumptions which are nothing more than conjecture and, like some of the critical assumptions under-girding the apocalyptic fantasies that are promoted by global warming evangelists, those assumptions would doubtless prove fatally flawed if truly tested in the laboratory of reality.
The central questions are what reason we have to recognize and support marriage in society and whether recognizing same-sex marriage would be similarly beneficial to society. If recognizing marriages is only a matter of convention then it should be done away. If there are benefits then the only reason that we should provide any recognition or support for same-sex unions is if they provide like benefits to society. If we really want to lean on the Equal Protection Clause here the way to do it would be to remove benefits or add penalties for those who claim marriage (heterosexual or otherwise) and then avoid those aspects of marriage that we have deemed beneficial. For example, if we deem stability to be one of the benefits of marriage that deserve government support we could penalize those who seek divorce within a specified time frame. That would be a good step backward.
Those who worry about eroding heterosexual marriage recognize that what passes for marriage today is only a shadow of the institution that has formed the foundation of civil society for all of recorded history. Those who have done their homework generally recognize that the erosion of marriage to today’s 50% divorce rates really took off when we removed the barriers to the dissolution of marriages. If proponents of same-sex marriage would like to use sound logic, or would like to argue in favor of granting benefits to same-sex couples that do participate in the benefits (such as social stability and child-rearing) that give us reason to support heterosexual marriage, or even if they would like to argue in favor of penalizing heterosexual married couples who do not provide any benefits more than the average same-sex couple we should be happy to entertain their perspectives and try to ensure that all citizens are treated equally before the law. So long as they insist on trying to change the law simply because there are some exceptions, or simply because we have already badly damaged the institution of marriage there is no reason to budge from our unequivocal support for only the union of man and woman.
