While some States in the United States have passed laws allowing same-sex marriage, other states have passed laws to ban it. Some states have even taken an extra step by amending the state constitutions to define marriage as being between one man and one woman. On May 8th, 2012 North Carolina voters went to the polls to decide whether or not their state constitution would be amended to “defend” marriage. While this matter is interesting from a legal perspective, my main interest is from a philosophical perspective, mainly regarding the quality of the arguments in favor of such restrictions on marriage as well as their ethics.
As I have done in other essays on the subject of same-sex marriage, I will quickly run through the stock fallacious arguments given for such laws. The first stock argument is that marriage between a single man and woman is a matter of tradition. This is, obviously enough, a fallacious appeal to tradition. The mere fact that something is a tradition hardly shows that it is right or correct. To use the usual counterexample, slavery was (and is in some places) a well-established tradition, yet this hardly serves to justify it.
A second fallacious argument is that marriage between a man and a women is what most people do, thus it is correct. In other words, it is a common practice and thus is right. Obviously enough, this is merely a fallacious appeal to common practice. There are, obviously enough, many bad practices that are quite common (like lying), but their being common does not make them good.
A third common fallacious argument is that most people believe that marriage should be between a man and woman. Even if it is assumed that this is true, this would still seem to be a fallacious appeal to belief. After all, the mere fact that most people believe something (like the earth being believed to be the center of the solar system) does not prove that it is true.
Now that the easy to dismiss fallacious arguments are out of the way, I can look at some of the other arguments that have been presented in support of such laws.
One stock argument is essentially an appeal to religion, specifically Christianity (at least the versions that forbid polygamy). The argument typically goes that since God married Adam to Eve, this defines marriage in the biblical sense. Those with clever wits often put it more rhetorically by saying that it was “Adam and Eve, not Adam and Steve.” Since marriage is defined by the Christian faith as between one man and one woman, that is what the law should be. As might be imagined, there are many problems with this.
One obvious legal problem is that to the degree the proponents of such laws claim that it is based on a specific faith, they are in danger of violating the first amendment of the United State constitution, namely the bit that “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” While I am not a constitutional lawyer, I would suspect that a plausible case could be made that creating a law explicitly based on a religion does involve the establishment of a religion. In addition to the obvious legal problems, there is also the moral concern regarding the imposition of a specific faith’s values upon the population as a whole. This would seem to be a clear and direct violate of religious liberty and thus would seem to be morally unacceptable.
A second obvious problem is that basing the law on a religious view would seem to require that this view be established as correct. After all, if it is claimed that marriage is such that it can only between a man and a woman because of what God wants, then it needs to be established that God exists and that this is what God, in fact, wants. Otherwise, the law would have no established foundation and would be as sensible as basing a law on a myth or fictional tale. Naturally, if it can be shown that marriage is between one man and one woman as a matter of metaphysical necessity, then that would nicely establish the foundation of the law. In fact, it would show that no such law would really be needed since no one else could, in fact, be married. To use analogy, we do not need laws that ban people from driving their cars faster than the speed of light-they simply cannot do this because of the nature of reality.
There are, of course, non-religious arguments for these laws. A rather common argument is that the laws are needed to protect the sanctity of marriage. The idea seems to be that allowing same-sex marriage would be harmful to marriage (and presumably the married) and thus, on the principle of preventing harm, same-sex marriage should be outlawed by a constitutional amendment.
One obvious point of concern is whether or not allowing same sex-marriage harms marriage and heterosexual couples. While, of course, it might upset them that people are doing something they do not like (getting married), that is obviously not sufficient justification. What would be needed would be objective evidence that same sex-marriage would do enough harm to marriage and married couples to warrant forbidding same sex-marriage. The evidence for this seems to be, obviously enough, sorely lacking and the burden of proof rests on those who would make an imposition on the liberty of others to show that such an imposition is warranted.
Intuitively, same-sex marriage would not harm marriage or married couples. After all, it is difficult to imagine what sort of damage would be inflicted. Would married couples love each other less? Would there be more cases of domestic violence or adultery? Would married parents be suddenly more inclined to abuse their children? None of this seems even remotely likely.
But, suppose it is assumed that marriage must be protected. If this is taken seriously, then it would certainly seem to follow that it would need to be legally protected from whatever might damage its sanctity. To use an analogy, laws to protect people from murder are not just limited to, for example, making it illegal to murder someone with aluminum baseball bat. Rather, it is the murdering that matters. The same should apply to marriage: if marriage must be protected by making it between one man and one woman, then surely it must also be protected against whatever would damage its sanctity. As such, it would seem equally reasonable to ban marriages involving any sort of person whose actions or nature might do damage to the sanctity of a marriage.
Intuitively, allowing immoral people to marry would seem to damage its sanctity. As such, people would need to establish their moral goodness before marriage and presumably any straying from the path of virtue (such as by having an affair or otherwise failing in their vows) would result in the marriage being suspended or even nullified. Naturally enough, people who intend to get married in the hopes of financial gain, from lust, or for any reason that would sully the sanctity of marriage would need to be prevented from getting married. Given all these dire threats to the sanctity of marriage, it would seem that if the matter is serious enough to warrant a constitutional amendment it would also warrant the creation of a full government agency to regulate and protect the sanctity of marriage. After all, if the defenders of the sanctity of marriage were content to merely prevent same-sex marriage, one might suspect that they were acting from mere prejudice against same sex couples rather than by a sincere desire to protect marriage. While this might seem as big government violating liberty, those supporting such laws will surely see that there is little difference between same-sex couples that they cannot marry because marriage must be protected and telling anyone who would violate the sanctity of marriage that they cannot marry. As such, more general restrictions on who can get married (such as people who are not morally good or who are not marrying purely from love) would seem no more (or less) unjust that preventing same sex marriage.
Naturally, being a person with a social conscience and a professional ethicist, I would be willing to accept the position of Marriage Czar and head up the Sanctity Defense Agency to ensure that marriage remains eternally pure and unsullied. No doubt I would have to spend most of my time dissolving existing pseudo-marriages, but I am sure people will thank me for this in the end.