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:
HOOVER:
I don't buy into the slippery slope argument at all.
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,
then another thing, and another thing.
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.
Works Cited
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.
