Friday, December 03, 2004

Hateful Things

As promised yesterday, here's my response to the hateful Op-Ed published yesterday in the student newspaper, altered to blog form. The newspaper printed someone else's letter -- I get the impression that a lot of people wrote angry letters about the piece.

Mr. VerStandig,

First, you say:

After all, the clear message behind the gay marriage movement is that the legislation of morality is thoroughly unacceptable.

This is wrong. If it can even be truly said that there is a single message, it would more likely be that it is immoral to treat people differently under the law because of who they love. As for the legislation of morality, we do it all the time. I don’t think you will find any gay-marriage advocates who also say that prostitution or rape, as moral issues, should not be illegal.

Second, you advance the implicit premise that the purpose of marriage is procreation throughout:

But since homosexual couples are incapable of natural procreation, it would seem that there is no longer a decent rationale for the barring of marriage between gay, incestuous couples.

This is a faulty premise. We do not now, nor have we ever, banned non-procreative straight marriages. Employing your slippery-slope logic, the inevitable legal outcome of a procreative-only marriage policy would be an outright ban on non-procreative heterosexual marriages. Isn’t it in fact the case that there are many heterosexual marriages that are based entirely on companionship and economic arrangements? Should these be illegal to prevent an inevitable slide to gay marriage, thence incest, and perhaps thence bestiality? Furthermore, it clearly doesn’t follow that one form of non-procreative marriage necessarily leads to all others. That’s like arguing that when we decriminalized sex before marriage, we started down a slippery slope to legalized prostitution. After all, since one form of adultery was legal, it was inevitable that all others would be too, right?

Third, you argue that the chain of events will follow this sequence: gay marriage leads to gay incestuous marriage leads to straight incest. Then you go on to encourage gay civil unions. Isn’t it true that by your reasoning, gay civil unions could lead to gay incestuous civil unions, which could lead to straight incest? What is it about civil unions versus marriage that allows the state to stop the slide to incest in the case of the latter, but not the former?

Fourth, here you argue that the Supreme Court’s decision not to review the Massachusetts Supreme Judicial Court (SJC) gives hope to those waiting for legal authorization for incest:

But now that the United States Supreme Court has declined to review the Massachusetts high courts’ controversial 4-3 ruling that opened the door for gay marriages in the New England state, there may be hope at last for those just dying to go to bed with a relative.

It’s simply not true that the Court’s refusal to hear a case is somehow equivalent to an endorsement for that case’s outcome. In this case, the SJC decided their case on state constitutional grounds. Unless there is a federal constitutional provision that supercedes the state constitution, USSC has no power to review. Can you think of a federal constitutional provision that applies? If you can, you might want to assist those who filed the appeal; they chose the infrequently utilized “Guarantee Clause” of the Constitution (arguing that the SJC’s interpretation of the state constitution infringed their right to a republican form of government). As even a cursory study of federal Constitutional Law will reveal, the Guarantee clause is rarely used, and has never to my knowledge been successfully used for the purpose of overturning a state supreme court’s interpretation of their own constitution. The Court rightly declined cert., since they would otherwise spend the next 20 years reviewing every state Supreme Court decision someone didn’t like. There are a host of other good legal and policy reasons that the Supreme Court didn’t get involved at this stage, and they no way preclude the Court’s future involvement.

This is not meant to be an exhaustive list of the faulty premises, logical fallacies, and legal misstatements you made in your piece. They are merely the most substantial.

BUMP AND UPDATE: It occurs to me, of course, that the writer engaged in a form of straw man argument. Mr. VS: When attacking the arguments of others, it's better when you don't construct their arguments anew out of whole cloth. It was deceitful to say that anyone except right wing ideologues argued anything that you said they did.


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