Same-Sex Marriage and Due Process

A common argument used to justify the legalization of same-sex marriage is the equal protection language of the 14th amendment to the constitution.  As I understand it, the practical upshot is that if marriage to whomever you chose is a fundamental right, then the courts should use strict scrutiny regarding any law that restricts that right.  And in so doing, the state would need to demonstrate a compelling interest of the state for any such restriction.  This goes beyond a rational basis requirement – it must be compelling.  The argument would go something like this:

P1:  Marriage to whomever you choose is a fundamental right of citizens of the United States
P2:  Laws that prohibit same-sex marriage are a violation of this right
C1:  The courts should use strict scrutiny of these laws, and strike them down as a violation of the 14th amendment

The response is that marriage to whomever you choose is not a fundamental right.  If this were the case, marriage restrictions such as age, marriage to cousins (or even siblings), plural marriage, etc. would also violate such a right.  These examples (and others) show that marriage to whomever you please is not an fundamental human right.  This is why rational basis of the legislature should be used rather than strict scrutiny of the courts – because there is no fundamental human rights violation regarding marrying whomever you choose.

Same-Sex Marriage and Prophetic Fallibility

One justification for supporting Same-Sex Marriage for members of The Church of Jesus Christ of Latter-Day Saints is the argument from fallibility,  Leaders of the church have declared that sex outside of a marriage between a man and a woman is sinful behavior.  They have also encouraged members to support traditional marriage laws.  Those members who support same-sex marriage will often use what might be called an argument from fallibility to justify their disagreement.  The argument might look something like this:

P1:  The Prophets and Apostles are mortal men
P2:  Mortal men make mistakes
C1:  Prophets and Apostles sometimes make mistakes
C2:  Members of the church can support same-sex marriage and may be following God’s will in doing so (even from a ‘Mormon’ perspective), in spite of church leaders teachings to the contrary.

The response is that of course church leaders are fallible and can make mistakes.  This fallibility can be seen as an ‘upper limit’ to where prophets and apostles might not be considered mortal any longer.  Yet, if we believe these men are called of God there must be a ‘lower limit’ at which we might not consider them representatives of God at all.

There is a difference between some isolated statements by a few church leaders addressing a topic that is not a core belief, doctrine, or practice, and a consistent, unanimous message that is central to the restored gospel.  And marriage between a man and a woman qualifies as the latter (see The Family:  A Proclamation to the World).  And topics like explanations for the priesthood ban, or something like Adam-God theories would be examples of the former.

There should be no mistake about where church leaders are on this issue.  And faithful church members should not take their counsel lightly.  On this, or other topics.

Same-Sex Marriage and A Rational Basis

One argument for legalizing same-sex marriage is the claim that traditional marriage laws have no rational basis, and are instead motivated only be hate a prejudice.  The argument could be stated this way:

P1:  Traditional marriage laws have no rational basis and are motivated by hatred
P2:  Laws must have a rational basis
C1:  Marriage laws should be changed to include same-sex marriage

P1 ignores several rational arguments for not legalizing same-sex marriage.  There are several listed on the Discussing Marriage web site.  The primary one in my view is the promoting of permanence and fidelity in a traditional marriage with the potential of procreating.

Same-Sex Marriage and Humanism (It’s not about Love)

Another argument used to justify the effort to legalize same-sex marriage is the argument from humanism.  It is stated that without state licensed marriage, same-sex couples are doomed to a life of loneliness.  The argument would be something like this:

P1:  Marriage is necessary for loving, intimate, fulfilling relationships
P2:  Same-Sex couples also want loving, intimate, fulfilling relationships
C1:  Same-Sex marriage should be legalized

The response is that loving, intimate, fulfilling relationships do not require a government license.  Same-sex couples could have just such a relationship, whether the government licenses their relationship and calls it a marriage or not.

Same-Sex Marriage and Benefits

Yet another justification used for the legalization of same-sex marriage has to do with extending the benefits of marriage to same-sex couples.  These might include things like taxes, hospital visitation, inheritance, etc.  The argument would go something like this:

P1:  Traditional marriage couples enjoy certain benefits by virtue of being married
P2:  Same-sex partners should have these same benefits
C1:  Same-Sex marriage should be legalized

The response to this argument is that marriage is not necessarily the vehicle to such benefits.  These benefits could be granted through civil unions.  Thus the same benefits would be obtained without revising marriage norms or laws.

Same-Sex Marriage and Interracial Marriage

A new topic at Discussing Marriage explores the argument from interracial marriage.  I would summarize the argument like this:

P1:  Interracial Marriage was illegal in many states previously
P2:  Laws against Interracial Marriage were struck down appropriately
P3:  Bans against Same-Sex Marriage are similar to bans against Interracial Marriage
C1:  Same-Sex Marraige should be legalized

The response is that gender is an essential element in a conjugal view of marriage while race is not.  Thus, in this case, gender and race are of entirely different categories when it comes to marriage and marriage law.  To view additional explanation and references I would recommend the link above.

Same-Sex Marriage and the Separation of Church and State

Another argument used to justify the legalization of same-sex marriage is based on the separation of church and state.  A simple statement of this argument would be:

P1:  It is a religious belief that marriage should only be between a man and a woman
P2:  Making laws based on religious belief is a violation of the separation of church and state
C1:  Traditional marriage laws should be changed to include same-sex marriage

The response to this argument is that there are many non-religious reasons for maintaining traditional marriage laws.  Further, P2 is a misunderstanding of what the idea of separation of church and state is really about.


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