Almost five years after California’s Proposition 8 was passed, you might be wondering why we gay people keep on beating a dead horse. The truth of the matter is this: We just enjoy beating off anything, horses and other animals included. I’m joking of course, although some of the arguments surrounding same-sex marriage are so fallacious in nature that it’s almost hard to tell the difference between sarcasm and a legitimate position on the issue. The idea that same-sex marriage will suddenly lead to, say, legalized bestiality is an example of the slippery-slope fallacy Jay Heinrichs illustrates in his book Thank You For Arguing: What Aristotle, Lincoln, and Homer Simpson Can Teach Us About the Art of Persuasion. It is my hope that this rhetorical analysis will shed light on such fallacies present in today’s debate over same-sex marriage and help you, the reader, understand the reasons why the gay community is fighting so hard against Proposition 8 and other measures that deny us the right to marry.
Before getting into the fallacies, however, I feel a quick overview of Proposition 8 is in order, because believe me, it’s far from old news. In November 2008, in the state of California, a ballot measure was proposed and ultimately passed called Proposition 8 which amended their state constitution: “Only marriage between a man and a woman is valid or recognized in California” (Text of Proposed Laws, 128). Obviously widespread protests ensued, especially since California had been performing same-sex marriages for some time. A couple years later, August 4, 2010, Judge Vaughn Walker overturned Proposition 8 in Perry v. Schwarzenegger claiming that it violated the Equal Protection clauses of the U.S. Constitution. Then another two years after that, February 7, 2012, the Ninth Circuit Court of Appeals deemed Proposition 8 to be unconstitutional, affirming Judge Walker’s ruling. As of Tuesday, March 26, 2013, the U.S. Supreme Court is currently hearing arguments for and against Proposition 8. That’s right, I said March of this year. And a ruling is expected by the end of June. You really can’t get more current than that. So in favor of adding my voice to the arguments surrounding this controversial issue, I would first like to explain what a fallacy is and identify a few of them from Heinrichs’ text, illustrating each with popular arguments against same-sex marriage. I will then take a look at the official briefs to the court, both for and against, being considered by the Supreme Court right at this moment, pointing out any logical fallacies and identifying the rhetoric techniques at play. Finally, I will add my own two cents to the piggy bank of equality and explain why I personally am against Proposition 8... if anyone is still listening by that point.
Jay Heinrichs, in chapter fourteen of his book, says, “In rhetoric…there really are no rules. You can commit fallacies to your heart’s content, as long as you get away with them” (138). Frankly, I’m not okay with letting people get away with fallacious arguments, so let’s delve into what Heinrichs terms “The Seven Deadly Logical Sins” (137). The first sin is called The False Comparison, and it occurs when the examples don’t hold up, either because they were grouped into the wrong categories or appealing to popularity or just a false analogy altogether. For example, speaking on the importance of defending traditional marriage, Rick Santorum said in a radio interview: “This is an issue just like 9-11… We didn’t decide we wanted to fight the war on terrorism because we wanted to. It was brought to us. And if not now, when?” (Santorum). You see how he tries to somehow lump terrorism and same-sex marriage into the same category? It’s a false analogy that can strike fear in a lot of listeners, which is what Santorum wants.
The second sin is The Bad Example. A bad example could include hasty generalizations, which are very common in any argument. “Gay men are pedophiles” is a generalization because it “reaches vast conclusions with scanty data” (Heinrichs 144). Rare instances of gay pedophiles do not validate the connection between the two. Similarly lacking in evidence, the third sin, Ignorance as Proof, is when someone assumes that if you can’t prove it than it must not exist, or if you can’t disprove it, then it must exist. Supreme Court Justice Antonin Scalia fell into this fallacy during the Supreme Court hearing on Proposition 8, March 26 of this year: “There’s considerable disagreement among—among sociologists as to what the consequences of raising a child in a—in a single sex family, whether that is harmful to the child or not… There’s no scientific answer to that question at this point in time” (Scalia, Prop 8). So because he believes no evidence exists showing gay parents are good, then they must be bad? “The examples—or lack of them—don’t support the choice,” says Heinrichs (145).
The fourth sin, The Tautology, “…basically just repeats the premise” (Heinrichs 146). As Heinrichs explains it, “The proof and the conclusion agree perfectly, and there lies the problem. They agree because they’re the same thing” (146). An example would be, “Homosexuality is wrong because it is a sin.” If you notice, not a lot is being said here. The fifth sin, The False Choice, is when two questions are lumped into one or a false dilemma is presented with only a couple of options when in reality there are many. Senator Michelle Bachmann, for example, creates a false dilemma when she says: “It isn’t that some gay will get some rights. It’s that everyone else in our state will lose rights. For instance, parents will lose the right to protect and direct the upbringing of their children” (Bachmann). Let me get this straight (no pun intended), if gay people gain rights then straight people lose rights? It is not a choice between one or the other!
The sixth sin, The Red Herring, is a pretty simple one to understand: it’s a distraction. The distraction can either be something completely unimportant or it can even be a switch to an easier target—the straw man tactic. A pretty out-there example of a red herring came from, once again, Supreme Court Justice Antonin Scalia in 2003 during the Lawrence v. Texas case dealing with a Texas law that criminalized homosexuality. In response to a lawyer saying privacy—including the privacy to have sex with whomever one wanted to—was a fundamental right, Scalia responded, “Suppose all the states had laws against flagpole sitting at one time, you know, there was a time when it was a popular thing and probably annoyed a lot of communities, and then almost all of them repealed those laws. Does that make flagpole sitting a fundamental right?” (Scalia, Lawrence v. Texas). Um… nobody’s talking about flagpoles, sir. Stop trying to distract us with nostalgic methods of protest!
Our seventh and final sin, The Wrong Ending, is the one I see most often in arguments against same-sex marriage. As Heinrichs explains it, “…if we do this reasonable thing, it’ll lead to something horrible” (151). He calls this sin the “slippery slope” (Heinrichs 151) and one of its variations is the argument that gay marriage will inevitably lead to inter-species marriage or polygamous marriage or marriage of a man to his favorite pair of sneakers. I do love me some new shoes, but not enough to book a church. In the May 11, 2009 episode of The O’Reilly Factor on Fox News, host Bill O’Reilly got into an argument over same-sex marriage with analyst Margaret Hoover:
O'REILLY: You'd let everybody do whatever they want?
HOOVER: That's the slippery slope argument. That's if you allow one thing to happen,
O'REILLY: Hoover, you would let everybody get married who want to get married.
You want to marry a turtle, you can (O’Reilly).
Yep, Bill O’Reilly thinks gay marriage will lead to man/turtle marriage. I mean, really? A turtle? Or how about this quote from Daniel Heimbach, senior professor of Christian ethics at Southeastern Baptist Theological Seminary: “If marriage is radically redefined as a way of just affirming loving feelings of attraction, then equality will require allowing people who love dogs to marry dogs. And people who love ice cream to marry ice cream” (Heimbach). So as you can see, my opening horse joke is really not that far off.
Now that Heinrichs has explained some common fallacies and I’ve put them into context for you, I would like to talk about the current Proposition 8 hearing at the Supreme Court. I have had the opportunity of inspecting two briefs made to the Supreme Court, and I don’t mean polka-dotted men’s briefs from American Eagle. No, no, these amici curiae briefs were much more political and a lot less fun. The first brief was written by the Obama Administration arguing against Proposition 8; the second brief was written by a group of churches—including the Church of Jesus Christ of Latter-day Saints—and argues in defense of Proposition 8. I would like to put the two official statements into a conversation, if you’ll permit me, so that we can see just how these arguments are playing out in the courtroom.
In the Brief for the United States as Amicus Curiae Supporting Respondents, written by the Obama Administration, it states the following: “The United States will address the following question presented by this case: whether Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment” (I). The brief then proceeds to outline their argument that Proposition 8 does indeed violate the fourteenth amendment by marginalizing same-sex couples. The document references an earlier merits brief, No. 12-307, that identifies classifications based on sexual identity as cause for scrutiny, then gives four reasons why heightened scrutiny should be given:
…(1) gay and lesbian people have suffered a significant history of discrimination in this country; (2) sexual orientation generally bears no relation to ability to perform or contribute to society; (3) discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic that defines them as a group; and (4) notwithstanding certain progress, gay and lesbian people—as Proposition 8 itself under-scores—are a minority group with limited power to protect themselves from adverse outcomes in the political process (Brief Supporting Respondents, 6-7).
It is quite apparent that the majority should in no way make decisions that affect the minority, and gay and lesbian citizens are put at an unfair disadvantage with Proposition 8.
The opposing side, the side whole-heartedly endorsing Proposition 8, argues back that this has nothing to do with any homophobia or discrimination towards homosexual Americans. In their brief, The Brief Amici Curiae National Association of Evangelicals, Etc. in Support of Petitioners, the group of religious organizations says the following:
And whatever the failings (past or present) of individuals within our faith communities, we are united in condemning hatred and mistreatment of homosexuals. We believe God calls us to love gays and lesbians, even as we steadfastly defend our belief and judgment that traditional marriage is best for families and society (18).
They also insist that “only a demeaning view of religion and religious believers could dismiss our advocacy of Proposition 8 as ignorance, prejudice, or animus” (Brief in Support of Petitioners, 2).
What, then, says that Proposition 8 is “best for families and society”? Is this not showing a prejudice towards certain kinds of families? Are gay couples incapable of raising children? The religious right likes to remind gay people that we cannot produce children biologically in same-sex relationships, but the anti-Proposition 8 argument asserts that regardless of the physical limitations, families can indeed thrive under same-sex parents:
The overwhelming expert consensus is that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents. In any event, notwithstanding Proposition 8, California law continues to grant same-sex domestic partners the full extent of parental rights accorded to married couples. In that context, the exclusion of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and child-rearing (Brief Supporting Respondents, 8).
If gay couples can still adopt and raise children, then Proposition 8 really isn’t protecting the families in the way that it claims it is. What’s really at stake here isn’t the children, but the word marriage: “Proposition 8, by depriving same-sex couples of the right to marry, denies them the ‘dignity, respect, and stature’ accorded similarly situated opposite-sex couples under state law…” (Brief Supporting Respondents, 11-12). In other words, while a civil union might legally function as a marriage, the fact that it’s not a marriage creates a social stigma. Kind of like the difference between a black drinking fountain and a white drinking fountain—while both quench the drinker’s thirst, we’ve come to find out that “separate but equal” isn’t necessarily true justice. We, as homosexuals, would like a chance to drink from the same fountain as our heterosexual counterparts.
Those defending Proposition 8, in their court brief, say that marriage is about family and not about “affirming intimate adult relationships” (Brief in Support of Petitioners, 10). Furthermore, they try to disparage the desire for a recognized relationship in two ways. One, they try to make the desire seem selfish and petty, and two, they insinuate that same-sex relationships are nothing more than a gimmick:
These competing visions [of marriage] overlap in some respects but are nevertheless in deep tension. One is inherently intergenerational; the other, primarily interpersonal. One is focused on children’s and society’s needs; the other, on the desires of the couple. The question before this Court is whether the Constitution imposes on the Nation a novel conception of marriage over the one that has endured in all societies for nearly all of human history (Brief in Support of Petitioners, 11).
What’s worse is that this statement falls under Heinrichs’ fifth deadly sin, The False Choice, because it labors under the idea that marriage is either one of two things—intergenerational or interpersonal—and never both. While no one’s denying that heterosexual marriages lead to offspring, this argument forgets that homosexual couples might also adopt and form families that will in turn prove to be intergenerational. And when a heterosexual couple decides to commit their lives to one another, before children are in the picture, is their union not on some level interpersonal? And furthermore, the choice isn’t between traditional marriage or nontraditional marriage—as if it’s one or the other and same-sex marriage will somehow take over and eliminate heterosexual unions—but rather it’s a choice between keeping the current limitations or expanding the benefits of marriage to all.
Now, the final decision of the Supreme Court will not happen for another few months. So while we’re awaiting the verdict, let me appeal to your pathos for a second. Pretty please? It’s a rhetorical device I am unabashedly taking advantage of. You see, ever since I was a kid I was taught that when two people loved each other they got married. Sure, the "two people" were probably explained to me as "a man and a woman," but that didn't stop me from making the blonde Ken doll and the brunette Ken doll ditch Barbie and go marry each other. So when I grew up years later and realized I was gay, that notion of marrying the one I love didn't go away. And when Brian, my partner of almost five years, asked me to marry him I said yes. Actually, it was more of a squealing YES! It just seemed to be the natural progression of things. You meet, you fall in love, and you get married.
And although same-sex marriage is legal in the state of New York, where Brian and I tied the knot November 9, 2012, our marriage license doesn't mean anything in the state of Utah where we currently reside. And while we do not live in California, where the Proposition 8 battle is taking place, the outcome of this case will affect us and the nation one way or another. The ruling could entail a nationwide precedent that bars states from discriminating against same-sex couples if deemed unconstitutional. Or perhaps it will only affect California. But even so, a victory in one state could be the start of a ripple of change in other states as well. I hope for the day my marriage will be as valid as anyone else’s, because my marriage means more than anything to me. It means a lifelong commitment. It means the start of a family. It means all of the things that marriage means to straight couples. Nobody goes into marriage saying, "I'm only doing this for tax purposes and hospital visitation rights." No, they do it for love. And while those are the sorts of benefits that go unrecognized here in Utah, Brian and I still know in our hearts that we are married. And you know what? Being married is freaking awesome.
So even though Proposition 8 might seem old news to some, to those who it directly affects, such as me and my loving husband, the issue is far from over and done with. Democracy is an exciting thing, one where we can all voice our opinions; rhetoric gives us that voice. The way gay advocates phrase an argument—equality, civil rights, discrimination—is different than the way Proposition 8 supporters will say it—tradition, values, abomination. And while an argument might seem valid and appeal to our pathos or even our ethos, sometimes we don’t notice that the argument is flawed. The logos can be thwarted by a fallacy and while both sides are guilty of this, I believe the arguments against same-sex marriage equality are both more flawed and more damaging. So no, we gays will not stop beating this horse. We will not give up until we can stand as equals (although more fabulously dressed) alongside our heterosexual brothers and sisters.
Bachmann, Michelle. “Prophetic Views Behind the News” hosted by Jan Markell, KKMS 980-AM. 6 Mar 2004. Radio.
Brief for the United States as Amicus Curiae Supporting Respondents. No. 12-144. Department of Justice. Washington, DC. Feb 2013. Print.
Brief of Amici Curiae National Association of Evangelicals; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-day Saints; The Lutheran Church-Missouri Synod; The Union of Orthodox Jewish Congregations of America; The Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries in Support of Petitioners. No. 12-144. Salt Lake City, UT. 29 Jan 2013. Print.
Heimbach, Daniel. Marriage Amendment Protection Forum. Southeastern Baptist Theological Seminary, Wake Forest, NC. 28 Mar 2012. Speaker.
Heinrichs, Jay. Thank You For Arguing. New York: Three Rivers Press, 2007. Print.
O’Reilly, Bill. The O’Reilly Factor. Fox News Network. New York City. 11 May 2009. Television.
Scalia, Antonin. Supreme Court Hearing on Proposition 8. Washington DC. 26 Mar 2013. Speaker.
Scalia, Antonin. Lawrence v. Texas, 539 U.S. 558. Washington DC. 2003. Judge.
Text of Proposed Laws: Official Voter Information Guide. “Proposition 8.” Sec. 7.5, Pg. 128. Draft copy.