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.

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12 Comments.

  1. Why does government – especially in a modern secular State – sanction marriage at all? Traditional religion has the need to control reproduction and inheritance. But today being a ‘bastard’ in the traditional sense of the word, does not prevent inheritance.

    I know this is on a tangent from the original question which is really about fairness and equality in contemporary society.

  2. Dennis Sceviour

    Dave,
    The government may not be sanctioning marriage. The government has to recognize marriage status for the purpose of divorce since some religions do not sanction divorce. The issue is not one of morality (or “the consequences of allowing” as Mike puts it), but of legality (or to “violate the constitution”).

  3. Mike,

    “However, Alito’s remarks could be taken in a somewhat different manner”

    Seems they are explicitly given in that manner, because in the quote he does not appeal to tradition as a reason, but mentions it in the lead up to his main argument, that not being able to see into the future does not allow him to decide that it is beneficial or harmful, and therefore the correct course, for now, is to leave it up to other jurisdictions – left for the people, either acting through initiatives and referendums or through their elected public officials.

    I don’t know US law, so the following occurs to me.

    What is the United States Supreme Court supposed to be doing here? Legally, is it required for the United States Supreme Court to consider the future benefit or harm? Is that what they are actually considering when they review this, in terms of an appeal to consequences, or are they supposed to be considering the legal justification, such as legal parity.

    If torture of heterosexuals by the state was already legally sanctioned and a proposal was put forward that gays too should be subject to torture, it clearly wouldn’t be beneficial for gays that such a change in the law be made. But would Justice Alito be required to consider only the legal parity of the matter, or the benefit or harm it might cause?

    So this ….

    “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.””

    … seems to me to be the only significant issue. In that case is Justice Alito going beyond his remit? I don’t know him, but if he’s anything like Scalia then is he letting his homophobia out: http://www.youtube.com/watch?v=0aXczS1t5EM

  4. Ron Murphy,

    In this case, the legal question seems to be whether or not the two laws violate the constitution. The consequences of allowing it would not be relevant to this matter.

  5. Dennis,

    True-the state does have to deal with marriage because it has been woven into the laws.

  6. I’d have to agree with Ron – I honestly don’t know that you’ve got warrant – on the basis of what you’ve actually quoted to suggest one might peg an argumentum ad antiquitatem on Alito.

    The “somewhat different manner” in which Alito’s remarks could be taken seems to be pretty clearly the manner in which they should be taken – he couldn’t, due to a lack of data, render a decision based on an assessment of the effects of the institution on whether bars to gay marriage were unconstitutional right across the USA – what he wrongly seemed to think was at issue.

    In fact, from what I can tell from the transcripts, the case being made by the ‘pro-gay’ side is narrower – that if a State allows civil unions (and most of the trappings of marriage with it) it is unconstitutional for it to disallow recognising it as ‘marriage’. Arguments to consequence would come in (though I’d give them little credence myself) when trying to establish a material difference between same-sex relationships and heterosexual relationships (primarily as far as the upbringing of children goes). I think they are trying to leave that option open for less progressive states to try and make that case. In places like California, so the argument goes, they have already effectively conceded that there isn’t one.

  7. Alito on Same-Sex Marriage | Talking Philosophy

  8. Dennis Sceviour

    Jim P Houston,
    If there is no credence to a consequentialist argument, then does that not limit the Supreme Court to deciding a matter based strictly on constitutional violation?

  9. It definitely does not seem like an appeal to tradition argument, but it does seem as if the issue is being skirted.

    Alito does make a good argument insofar as no one knows what the consequences of same-sex marriage will be due to its recent integration in other places around the world. However, the idea of homosexuality is not new, and there have been same-sex couples with long, successful, and happy relationships. Could it not be argued (as you mention Mike), that possible consequences may be extrapolated from that history?

    Alito’s argument is reminiscent of the moral argument of same-sex marriage; that because homosexuality is immoral, gay people should not be allowed to marry one another. Thus it can be concluded that morality is a requisite for marriage. If understanding the consequences of any and all actions and law is required prior to such decisions, then we would never have laws, and no action would ever be taken. The argument seems to be this: We do not know the outcome (z) of x and y, so the decision to implement x and y is not likely. Having never put x and y into action, z cannot be known. If we followed this line of thinking, we would ever get anywhere?

    It is possible that because other states have allowed for same-sex couples to get married, Alito argument is, ‘let us play the wait-and-see’ game, but a more likely scenario is that he does not want to bear the weight of responsibility of having part in such a divisive issue (on either side).

    If consequences are of importance to the issue of same-sex marriage, would it be unreasonable to also consider the consequences of straight marriage? Over 50% of straight marriages end up in divorce, and a large number of those marriages involve children. Research shows that while common, divorce can have negative consequences for children. Additionally, should the possible consequences of denying same-sex couples the right to get married also be taken into account?

    If data is needed to assess the constitutionality of laws, why not draw that parallel to the issue of gun-control? After all, we have hundreds of years of data. We are well aware of the consequences of guns, yet the right to bear arms remains a constitutional right, and people are fighting tooth and nail to keep it so. If the constitution must be based on data and consequence, then shouldn’t all the articles it is comprised of, be subjected to the same scrutiny by the highest level?

  10. Dennis, presumably the court can consider consequences when this is relevant to the case. In the case of DOMA and Prop 8, the main concern seems to be whether the laws violate the constitution or not. The fact that Alito does not know the future does not seem to bear on whether or not the laws are constitutional.

  11. “If there is no credence to a consequentialist argument, then does that not limit the Supreme Court to deciding a matter based strictly on constitutional violation?”

    Hi Dennis,

    Consequentialist arguments are relevant to the matter of deciding whether discrimination against a group *is* a constitutional violation – the Supreme Court upheld the constitutionality of affirmative action programmes on that basis.

    I just meant to make the narrow point that I don’t think that the consequentialist arguments against gay marriage that the ‘representatives’ of ‘less progressive’ states might be at liberty to offer aren’t, to my mind, at all credible.

    Personally, I would like to see bans on same-sex marriage go the way of bans on inter-racial marriage but sadly there seems to be zero prospect of the Supreme Court issuing such a wide decision at this juncture.

  12. Dennis Sceviour

    Mike,
    Alito’s point may be more than there are traditions in marriage. Perhaps the point is that once the general laws are written down it becomes extremely difficult to retract. The same point applies for judicial decisions and interpretations. I am in favour of not adding any new laws on anything, just abrogation. Therefore, Alito’s tradition argument can serve that purpose.

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