Two fallacies in the same sex marriage debate

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For some reason, visitor Bill Garnett and the NOVA TownHall constable on patrol, Jack, have been debating in the comments section of a month-old post here. Reading their exchange evoked a couple of thoughts I'm going to jot down here, both to invite further discussion and get Bill and Jack back on the front page, in the interests of social order.

To get the context, please read the last 5 or so comments in that post.

Bill seems to mean well but he has fallen for the fallacious argument that the burden of proof is on people who don't think the definition of marriage should be changed. It's very clever, but it's not true.

Same sex marriage did not exist anywhere in the world until about 10 years ago, and during that time the evidence of it's effect on society is incredibly sparse. There's hardly sufficient data to analyze the impact in Europe, and there's pretty much zero data in the U.S.

Proponents of same sex marriage actually have quite a mountain to climb in order to make the case it will not have a negative impact on society because they don't have any evidence to support their claim. They're saying, let's change the institution that's been around for a really long time, in order to try something that's never been done before. Not an easy sell if you look at it rationally.

I'm not saying it can't be done, and I personally don't have a dog in this fight because my dogs are all busy elsewhere. But it's a tough sell.

So instead they have managed to reframe the debate as one in which people who don't want marriage redefined are obstructing social progress, and must now justify themselves. Very smart, but totally illogical.

Another fallacy that needs to be exposed is the idea that arguments against same sex marriage based on religious belief are irrelevant. In the exchange linked to above, Bill's argument in favor of SSM is based on religious belief precisely to the same extent as Jack's argument against it.

In fact the "relativity of belief" rule holds for everyone with a position on same sex marriage - even the atheists. Do we say that because atheists deny the existence of God their views on all topics related to government and society are beyond critique? Of course not. A person can be wrong or right, especially about moral questions, whether they believe in God or many gods or no god at all.

It's most useful to drop the term "religious" altogether. If person A says, I oppose SSM because it is a sin, and person B says, I am in favor because I believe it is not a sin, or there is no such thing as sin, both people are making statements based on their respective personal beliefs, and both have equal standing in the debate.

The argument is made, and I generally agree, that it is not our government's job to suppress "sin" or enforce morality - despite the fact that the vast majority of laws do exactly that. Maybe it's more accurate to say it is not ALWAYS our government's job. For Christians, in whom the law is supposedly "written in your hearts," there probably ought to be a bias against making government the sin police except in order to preserve life, liberty and social order (the latter two being areas that can be invoked both for or against the state's sanctioning of same sex marriage). If Christians want to see less sin around them, they should probably do a better job evangelizing and getting that law written in more hearts.

More on this topic later.

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13 Comments

zimzo said:

Thank you very much, Joe, for bringing this thread, which I had missed, to my attention. Bill Garnett is my new hero.

And let me also say before I return to my usual mode of snarkiness and provocation that as much I disagree with you, Joe, on so many issues, I do admire the fact that you seem at least to be willing to listen to the other side and are even open enough to praise a good argument that you disagree with, which is a rare quality especially today. Most important of all, as wrong-headed as you often are, you are a gentleman, and for that I give you a virtual bow.

Now as an example of the opposite kind of person, this thread provides ample demonstration of why I prefer as much as possible except when gripped by absolute exasperation to avoid engaging Jack, who depite his frequent protestations of being the victim of ad hominem attacks seems to have no problem in referring to gay people as the perpetrators of "AIDS, herpes, and a host of other nasty diseases" and who despite constant labeling of people who present facts that don't jibe with his world view as "liars" seems to believe that the Old Testament and the Quran require its adherants to perform animal sacrifices and believes the principle of a "wall of separation between church and state" a phrase popularized by Thomas Jefferson in his Letter to Danbury Baptists and a princliple that underlies the Virginia Statute for Religious Freedom, which he authored, is somehow communist or that this phrase appears anywhere in the Soviet Constitution, which is a myth propagated by Pat Robertson that has no basis in fact whatsoever (and no Jack I am not going to waste any time "proving" that assertion for you because I am not a research service and most people have the ability to Google, which you apparently lack).

Now, Joe, I have a very simple question for you. You keep talking about how gays want to "redefine" marriage. Can you tell me where in the Virginia Code marriage is actually defined? I see that there have been statutes defining what marriage is NOT but I don't believe the code actually defines what marriage is. I believe, in fact that Virginia law traditionally left it up to religious institutions to solemnize marriages for which the state then issued licenses, demuring only in the case of marriages that were explicitly prohibited. If that is the case, how can something that has never actually been defined be redeined?

Oh, come on. I'm no specialist in Virginia law but I'll also guess it doesn't bother to define "the wheel" or "assault" either.

So if some Three Stooges fan got elected governor and tried to say "from now on you can hit a guy in the head with a brick and this shall not be considered 'assault'" this would be considered a redefinition of assault.

"Marriage" has only meant the union of a man and woman so of course it has been defined, and of course changing this definition means it would be "redefined."

P.S. A virtual bow to you also, sir. So here we are, a couple wrongheaded guys acting like we're in Victorian England.

Jack said:

Zimzo: Lying again, I see. You took my quote out of context, because in the SAME SENTENCE, I blamed sexual immorality, by BOTH homosexuals and heterosexuals.

Still in lying mode, Zimzo, I suppose you never bothered to look at the USSR Constitution (http://wiretap.area.com/Gopher/Gov/World/ussr77.con), in which Article 52 states: "In the USSR, the church is separated from the state...." You do not bother to prove ANY of your assertions, because you cannot. This latest refusal is no suprise.

Now to your last lie (for this post anyway), that marriage is not defined in VA law. The following sections refer to "husband and wife":

20-82, 20-88.59I, 20-89.1, 20-91(9)(a), 20-97.4, 20-118, 20-146.31.2.D, and 20.158.

The following reference a "surrogate and her husband":

20.156, 20.159 through 20-163, and 20-165.

NOWHERE in VA law does it say "husband and husband" or "wife and wife." Thus, implicitly, VA code defines a marriage as between a husband and wife. Don't try to say a husband can be female, or a wife male, since Webster's defines husband as "a male partner in a marriage ," and wife as "a female partner in a marriage."

Oh, yes, one more lie: "I believe, in fact that Virginia law traditionally left it up to religious institutions to solemnize marriages for which the state then issued licenses."

I'll give you this one. Because you qualified the sentence with "I believe," then I will say that you did not lie, you're just wrong. The license must come first, or the priest is not permitted to solemnize the marriage.

VA Code 20-13: "Every marriage in this Commonwealth shall be under a license...."

VA Code 20.14.1: "Every marriage license issued under § 20-14 shall constitute authority for a period of only sixty days from the date of issuance for the solemnization of a marriage of the licensees."

As you see, the solemnization must occur AFTER the license is issued.

(And I didn't use Google, either, I used ask.com. Ask.com does not support censorship in China.)

Jack said:

P.S.: I assume you're so exasperated with me because I always catch your lies.

Jonathan said:

Joe says:

"Proponents of same sex marriage actually have quite a mountain to climb in order to make the case it will not have a negative impact on society because they don't have any evidence to support their claim. They're saying, let's change the institution that's been around for a really long time, in order to try something that's never been done before. Not an easy sell if you look at it rationally."

So your telling people to vote NO on the gay-marriage amendment?

Jack said:

I don't see how you come to that conclusion, Jonathan. Please elaborate on your logic.

Jack said:

Liberals Crushing Debate

When you cannot win an argument, you have to censor the other side, eh, Jonathan?

http://www.townhall.com/columnists/KevinMcCullough/2006/08/27/why_liberals_are_crushing_dissent

Jonathan, not sure how you would get to that conclusion from what I wrote. I'm not telling anyone to do anything at this point, I'm just having a conversation.

I think the way people will vote will depend on their assumptions and desires. I think this is the most interesting angle to discuss the issue from.

zimzo said:

The reason assault and battery is not specifically defined in the Virginia Code is that it was previously defined in English common law from which the code derives, namely the "an intentional harmful or offensive contact" or the "apprehension" thereof. Society has agreed on that definition for centuries and the only comment the Virginia code makes on that definition is to protect teachers and other school personnel from being charged for assault and battery in the reasonable prosecution of their duties. Otherwise, there is a broad consensus on the definition.

But when it comes to marriage under English Common law, the definition has undergone dignificant changes. In fact, the definition usually relied on in Great Britain and British Commonwealth countries is the one Lord Penzance formulated in Hyde v Hyde and Woodmansee in 1866, to wit that marriage is "The voluntary union for life of one man and one woman, to the exclusion of all others." Obviously, this definition was formulated long after English common law had any influence on Virginia code and we can see already that even this definition has undergone a significant alteration in that the legalization of divorce makes the phrase "for life" no longer necesarily true.
If you look at Commentaries on the Laws of England, by Sir William Blackstone, probably the most well-known treatise on English common law published in 1765 we also see an institution that looks far different from what marriage looks like today. The definition of marriage under English common law according to Blackstone was a union of husband and wife where "the very being or legal existence of the woman is suspended." Again, this definition has undergone extreme alteration. We no longer see marriage as the forfeiting of legal standing under the law by women.

In other words the idea that the definition of marriage has not changed in hundreds of years is a false one. In the intervening years Virginia code made quite a few chnges to the concept of marriage including outlawing interracial marriage in 1791. The age of consent, the definition of bigamy, the definition of incest have all undergone changes under Virginia code. The 1967 case Loving v. Virginia, which outlawed anti-miscegenation laws and which anti-gay marriage activists do their best to try to get people to ignore, was significant because it represented the first time a state marriage law was invalidated by the Supreme Court, which if you are going to invoke slippery slopes is clearly where this slippery slope began. In that case and subsequent cases the Supreme Court rules that marriage was a "fundamental right."

As society has changed the notion of marriage has changed. In many states the Lord Penzance idea that marriage is by definition to the "exclusion of all others" has changed with the idea of no-fault divorce in which adultery is no longer a factor. Some states recognize cohabitation as granting certain marriage-like rights and others recognize common-law marriage. In Virginia, however, adultery and cohabitation are both illegal and can be prosecuted under law. Perhaps while you're fretting about enforcing immigration laws because of your great regard for the sanctity of law, you might want to pressure law enforcement authorities to start enforcing those laws. And even as Virginia and a number of other states for the first time specified gender requirements for marriage, society has also shifted on that question. If we are going to invoke Webster's for definitions, you might want to check out its definition of marriage: "a (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage."

The notion that "gay marriage" has "never been tried before" is also not true. Same-sex partners are already living together, owning property together and raising children and they will continue to do so whether this amendment passes or not. Whatever harm you might think would be done to society won't be stopped by this amendment and should already be occurring. All that will happen is that certain legal and financial rights will be much more difficult to obtain. If you want to put a stop to something that is already happening it seems to me you should have a rationale for doing so. And gay couples have not suddenly sprung up in the last 10 years. Gay couples have existed for millennia. They existed in ancient times, biblical times and in many cultures around the world, including the U.S. In fact, in Boulder, Colorado in 1975 a county clerk finding no law forbidding same-sex marriage issued legal marriage licences to six couples until an "activist" judge overturned them. So the idea of gay marriage is not as recent as you might think even in the U.S. So if any harm has been done it has yet to be demonstrated. Gay relationships are hardly a recent experiment.

And yet the real issue before us has nothing whatsoever to do with "redefining marriage." Marriage has been "redefined" many times in Virginia over the centuries. There is already a law on the books preventing recogntition of gay marriage and courts around the country have resisted efforts to overturn such laws. Even the most ardent supporter of this amendment would have to agree that the Virginia court is not more likely to overturn this law than the New York court. The sole purpose of this amendment is to make it more difficult for the legislature, local governments and private businesses to grant some rights that married couples enjoy to BOTH GAY AND STRAIGHT COUPLES, such as health insurance and contract and property rights. This draconian intrusion into people's private relations is being done under the guise of defending the institution of marriage from a non-existent assault. What's more this attempt to prevent gays from securing certain rights will have the effect of punishing straight couples as well. It seems to me that if one is claiming its necessary to pass an amendment to the Bill of Rights to the Virginia Constitution, which would be extremely difficult to overturn once it's passed, the proponents of this amendment must make a strong case for why such a draconian measure is necessary. After all, they are the ones who want to change the status quo, which is that gays cannot marry and cohabitation of straight, unmarried people is against Virginia law.

Jack said:

Zimzo:

You bring up "the 1967 case Loving v. Virginia, which outlawed anti-miscegenation laws and which anti-gay marriage activists do their best to try to get people to ignore...."

I do NOT ignore it. Here's how the cases differ. Previous to this decision, the pool of parnters from which one could choose a spouse differed, depending one one's race. Now, every man has the same rights I do -- to marry any unmarried, unrelated female who will have him. That a man cannot find a female who would have him, or is disinclined to do so, is a personal problem, not a violation of equal rights.

"The sole purpose of this amendment is to make it more difficult for the legislature, local governments and private businesses to grant some rights that married couples enjoy to BOTH GAY AND STRAIGHT COUPLES, such as health insurance and contract and property rights."

As is pointed out in the A.G.'s opinion, affirmed by the House and Senate, the Amendment would change no existing laws. Under existing law, a company MAY grant domestic-partner benfits. If gay marriage rights were "found" by some judge, ALL companies would be FORCED to grant such benefits. What about the rights of the shareholders not to be forced to pay to support sinful behaviors?

"An amendment to the Bill of Rights to the Virginia Constitution... would be extremely difficult to overturn once it's passed."

The requirements for removing something from the Constitution are the same as for getting it in there in the first place. The Marriage Amendment would only be difficult to remove if it had great public support, which you say it does not.

The reason for the Amendment is MA. We're just heading off the lawsuit so it doesn't happen here.

David said:

"As is pointed out in the A.G.'s opinion, affirmed by the House and Senate, the Amendment would change no existing laws."

Jack,

I'm sorry, I know this is a popular talking point - but the problem is, it isn't true. The AG admitted, when confronted with the actual language, that the amendment DOES extend beyond what is in existing law. Since the meeting at which he made this admission was hosted by NoVa town hall, I'm sure there are more than a few readers and contributors who heard him.

It's no longer acceptable to repeat this - it's been refuted by the AG in front of 100 people.

Your reference to "sinful behavior" is gratuitous. That is your opinion, and nothing more.

Jack said:

David:

Please go to the latest post, where Joe deals with Zimzo's post, and where the discussion has moved.

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