What the Media Isn’t Telling You Regarding the Judicial Arguments Over Same Sex Marriage

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There has been a lot of talk in the last week over the oral arguments presented for and against same-sex marriage before the Supreme Court.  Not surprisingly, the mainstream media is presenting the outcome as a foregone conclusion. There are no reasonable or logical reasons to be against it, we are told.

But, there is one main reason to be against same-sex marriage that the mainstream media simply won’t talk about.  And it is a reason I’ve mentioned numerous times on this website (e.g., see prior posts here and here), and that many others have also observed.

That reason is simply this: the logic being used to promote same-sex marriage could be used to support a variety of other sexually questionable forms of marriage.

If marriage is just about consenting adults that love each other, then why can’t a mother and her adult son get married?  Why can’t an adult brother and adult sister get married?  Why can’t a man marry three wives? Or a wife marry three husbands?

As I said in a prior post, “The logic used to justify homosexual marriage is like an acid that will eventually eat its way through every remaining sexual boundary in our culture. And pretty soon, there will be no boundaries.”

This very problem with the same-sex marriage argument was noted by several justices during oral arguments.  The mainstream media hasn’t talked much about this, but here is a transcript of the conversation.  Bonauto is the lawyer arguing for same-sex marriage and it is clear that she has no coherent answer to this problem.  My own comments are embedded in the dialogue in bright blue.

Justice Samuel Alito: Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?

Mary Bonauto: I believe so, Your Honor.

Alito: What would be the reason?

This is the question Bonauto has been dreading…

Bonauto: There’d be two. One is whether the State would even say that that is such a thing as a marriage, but then beyond that, there are definitely going to be concerns about coercion and consent and disrupting family relationships when you start talking about multiple persons. But I want to also just go back to the wait and see question for a moment, if I may. Because—

Notice how irrelevant the first response is: “One is whether the State would even say that that is such a thing as marriage.” This is a nonsense statement.  The whole issue is what logic the State would use to make such a decision.  To raise the question of whether the State would is just a diversionary tactic.

The issue of “coercion and consent” is also a red herring.  You will notice below that she just repeats this mantra with no explanation for what it means or for how it rules out other forms of marriage.  And, as you will see, neither Alito or Scalia even understand what she is trying to say.

How quickly she tries to change the subject shows that she realizes it is a problem for her view.

Justice Antonin Scalia: Well, I didn’t understand your answer.

Scalia rightly doesn’t understand her answer because she really didn’t provide one.

Alito: Yes. I hope you will come back to mine. If you want to go back to the earlier one –

Bonauto: No, no.

Alito: — then you can come back to mine.

Bonauto: Well, that’s what — I mean, that is — I mean, the State –

Alito: Well, what if there’s no — these are 4 people, 2 men and 2 women, it’s not–it’s not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let’s say they’re all consenting adults, highly educated. They’re all lawyers. What would be the ground under–under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?

Alito rightly won’t let this go. On a judicial level, the arguments for same-sex marriage will just lead to future court cases where those wanting polygamist marriage or incest marriage claim their civil rights are being violated.

Bonauto: Number one, I assume the States would rush in and say that when you’re talking about multiple people joining into a relationship, that that is not the same thing that we’ve had in marriage, which is on the mutual support and consent of two people. Setting that aside, even assuming it is within the fundamental right –

This is incredible.  Bonauto actually rejects polygamous marriage on the grounds that “that is not the same thing we’ve had in marriage.” In other words, Bonauto actually appeals to tradition–to the long history of the way marriage has always been.  But, this same rationale would lead one to reject same-sex marriage.  If we are talking about the history of the institution, then same-sex marriage has no chance.

Alito: But–well, I don’t know what kind of a distinction that is because a marriage between two people of the same sex is not something that we have had before, recognizing that is a substantial break. Maybe it’s a good one. So this is no — why is that a greater break?

Notice that Alito picks up on the inconsistency of her argument.  If the history of marriage is the standard, then that would not only rule out polygamy but same-sex marriage as well.  He is clearly confused by her reasoning when he says: “But–well, I don’t know what kind of a distinction that is because a marriage between two people of the same sex is not something that we have had before.”

Bonauto: The question is one of–again, assuming it’s within the fundamental right, the question then becomes one of justification. And I assume that the States would come in and they would say that there are concerns about consent and coercion. If there’s a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife? There are issues around who is it that makes the medical decisions, you know, in the time of crisis. I assume there’d be lots of family disruption issues, setting aside issues of coercion and consent and so on that just don’t apply here, when we’re talking about two consenting adults who want to make that mutual commitment for as long as they shall be. So that’s my answer on that.

All the talk of the complications over divorce is not a meaningful argument.  Divorce laws are always complicated–and yes, could be even more complicated in a polygamous relationship. But, is this really enough for the state to deprive people of their constitutional rights (assuming her own argument for a moment)?  If she is correct that consenting adults can define marriage for themselves, then the complications of divorce are not relevant. She is straining out a gnat, but swallowing a camel.

In the end, Bonauto simply does not have a coherent argument for why marriage should be changed for homosexuals, but not changed for polygamist and incestuous individuals.

And this simply shows what everyone has always known: homosexuals want to be able to redefine marriage for themselves, but don’t want to let others redefine marriage.  Which means they don’t want equal treatment, they want special treatment.

Author: Dr. Mike Kruger
Image: Found here

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