Correcting the record

I know I said that “all you need to know about [Martin] Cothran” is that he managed to misidentify both my employer and my profession and then repeat those easily corrected errors many times.

But it turns out there’s more to Cothran. Sure, he’s bigoted, has an odd fascination with the word “faggot,” and writes for both the Disco. Inst. and the Kentucky affiliate of Focus on the Family. But he also teaches logic at a private school in Kentucky.

To really get to know him, then, we need to see how he employs logic in his arguments against marriage equality.

In one of several febrile posts issued over the weekend (when I was at San Francisco’s Green Festival, seeing, among others, Cornell West), Cothran attempts to demonstrate how logic works.

He begins with a passage that relies solely on the argumentum ad hominem to dismiss the language of the ballot initiative, language stating that Proposition 8 would (and does) “ELIMINATE[] RIGHT OF SAME?SEX COUPLES TO MARRY.” This, I argued, suggests that that right existed before, since otherwise the sentence would be nonsensical. Given that the duly-elected Attorney General of the State drafted that description, and that the state’s courts agreed that it was accurate, it is a bit odd that Cothran’s only response is that the Attorney General is “the guy the late Mike Royco [sic, it's actually Royko] dubbed ‘Gov. Moonbeam.’” I could write a long post about how the argumentum ad hominem is invalid and inappropriate, but I’m sure you already know better, and if Cothran doesn’t, he’s already ignored every other extant source on logic, and will surely ignore my explanation also.

What follows is an uninformative exercise in question-begging, where Cothran assumes that marriage is defined in a way that excludes same-sex couples, when that is actually the claim at issue. I will omit a detailed account of why this is logically inappropriate on the same grounds.

We will also ignore this uninformed passage:

A lot of people don’t understand how amendment ratification works. A bill is drafted with the actual constitutional language and state legislators approve or disapprove it. In Kentucky, you also have to include in the bill the language that is to appear on the ballot. Often the fight is over how the ballot language is phrased, since the ballot language can hold the fate of the amendment all by itself regardless of what the amendment actually says. How it is in California, I don’t know, but apparently the process is more lax if it allows someone to change it on the way to the ballot the way Brown did.

This is not how it works in California. The state legislature passed two different bills allowing marriage equality, which the Governator stated that he supported, but which he vetoed for reasons that were never quite clear to those of us who aren’t in the Republican base. The proposition was put on the ballot by a petition process, the same way that propositions were put on the ballot in 1986, when Cothran lived here. One hopes that when he teaches “Latin, Logic, Rhetoric, and Classical Studies,” he actually bothers to do some research before he tells the kids something.

I will also pass over his claim that Prop. 8 was redundant. After all “A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary.” 153 Va. 332, 149 S.E. 541 (1929). Cothran’s claim “that the California law is redundant,” is therefore wrong, unless there is no other reading possible. There is, so he is wrong.

I could, then, take this passage and declare victory. The California hate amendment and the Virginia hate law are the same, and both display bigotry:

In other words, the language is indeed the same, but in the Virginia case it is clearly not redundant, but in the case of the California language it just as clearly is. Somehow Rosenau sees that as a contradiction when it clearly is not. One is forced to be redundant when language is being attacked by people for their political purposes.

What really struck me, though, was this passage:

I’m not denying that the California law is redundant, even though it is phrased in a similar way to Virginia’s. The Virginia law was clearly not redundant, but meant to prohibit something that was already going on (and in fact had commonly gone on throughout history) which met with some new level of societal disapproval in Virginia. The California law had to be passed in order to restate what had always been understood to be the case (that marriage means a relationship between a man and a woman), but that special interests groups were wanting to change–by redefining words instead of passing new laws.

Cothran is not a teacher of American history or of current events, so his errors here are forgivable to the extent that ignorant bloviation is ever forgivable.

But saying that interracial marriage was already going on and was common throughout (Virginia) history is false, as is the implication that the California law simply restated a long-standing policy excluding same-sex couples from the right to marry.

As a quick check with The Great Gizoogle would have revealed, laws forbidding interracial marriage in the United States date back to the time before the Revolution. Maryland criminalized such marriages in the 17th century, as did the French Louisiana Territory as of 1724. Such marriages were legal under Spanish rule, and after the US took control of Spanish territory, some black wives were dispossessed upon the deaths of their white husbands. As Wikipedia points out, post-Independence anti-miscegenation laws were widespread, and typically justified on the basis of creationist ideas about Ham’s Curse. The Supreme Court upheld such laws in 1883, ruling that “the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment,” so it wasn’t discriminatory. Ugh.

It is unquestionably true that interracial marriages persisted outside the jurisdiction of these bans, just as gay marriage persists in Massachusetts, Connecticut, Belgium, Canada, Norway, Spain, the Netherlands, and South Africa today. Just as gay couples today who move from Massachusetts to California lose their married status, interracial couples who married legally in the District of Columbia lost their married rights upon entering Virginia. While we can be glad that gay Californians do not face the jail sentences imposed on the Lovings, that’s cold comfort. In every other sense, the differences Cothran claims to have identified turn out not to actually exist.

The story in Calfornia is relatively straightforward, and given Cothran’s confusion, may be worth revisiting.

Until 1977, Calfornia law defined marriage as “a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary.” The legislature then spent several decades futzing with that language, trying to wedge gender-specific terminology into a gender- and sexuality- neutral definition of marriage.

Then, in 2004, Mayor Gavin Newsom of San Francisco ordered the county clerks to issue marriage licenses without regard to sexuality. About a month later, a court issued a stay, preventing such marriages, but that didn’t resolve the status of people who had been married during that period, nor those standing on line when the order was issued. Six months after the first marriage licenses were handed down, the state Supreme Court ruled that the Mayor exceeded his authority as head of the city and county of San Francisco, and that marriages performed during that month of freedom were void.

People whose apparently-legal marriages had been taken by that ruling then sued, and were joined by people who were standing in line and could not be married because of the court order, and other people who were blocked from their right to marry by the mere fact of the ban. The next year, State Assemblyman Mark Leno filed a bill which would restore the older, gender-neutral definition of marriage. The bill passed both houses of the state legislature, and was vetoed on the grounds that, pending suits over the constitutionality of an earlier anti-gay proposition, the bill was either redundant (if the proposition were overturned) or unconstitutional (if it weren’t). A second bill legalizing gay marriage was vetoed on the same grounds in 2007.

At the same time, the lawsuits by people married in early 2004 continued through the courts. A lower court judge ruled that “no rational purpose exists for limiting marriage in this state to opposite-sex partners.” He further ruled that the analysis could not be “an abstract logic exercise whereby the court determines whether the challenged law makes sense. The issue under the rational basis test in this case is whether there is a legitimate governmental purpose for denying same-sex couples ? the right to marriage itself.” He referred to attempts to justify the marriage ban by saying that similar rights and responsibilities flow from the state’s domestic partnership law, saying that “the idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal.”

He didn’t stop there, though. The proponents of marriage equality argued that the state laws’ gender-specific language was unacceptable because of its discriminatory treatment on the basis of gender. Opponents of equality in marriage insisted that the laws did not “discriminate upon gender because the prohibition against same-sex marriage applies equally to both genders.” The same argument succeeded in the US Supreme Court in 1883 when applied to race, but had failed in 1967 (as well as in Calfornia’s landmark 1948 case overturning race-based restrictions on marriage rights). The court ruled that the gender-specificity of the law was discriminatory and unconstitutional (violating the state Constitution, not the federal Constitution).

This ruling was, of course, appealed, and the case wended its way through the courts until May 15, 2008, when the State Supreme Court basically agreed. The court ruled that the right to marry is a “basic civil right,” and that there had to be some good reason to restrict it from certain people. Good reasons can be given for preventing children, close relatives, etc. from marrying, but restrictions based on gender and sexual identity were not sufficient. Opponents of marriage freedom asked the court to stay its ruling until after the elections when Prop. 8 was on the ballot, but the court refused, making the ruling effective on June 15, 2008 at 5:00 pm. San Francisco, Oakland, and other registrars of voters stayed open late that night to begin issuing legal and valid marriage licenses.

Cothran dismisses all of this history as “just because a politician says so.” But no. Marriage freedom in California was derived from basic human rights, and was established through the actions of elected officials and the courts, just as the right for interracial marriage was established. That’s not the say-so of a single person, it’s the way every right, from free speech to private use of contraception, has been defended.

It is worth noting, of course, that the state’s ruling only speaks to what the county and state registrars must/may do. The Catholic Church does not recognize marriages where one person has ever been divorced before, while Episcopal priests were performing religious marriages between same-sex couples before any state granted legal recognition to those marriages. The Catholic tradition’s definition of marriage is not threatened by that state court’s ruling an more than it is threatened by the existence of civil divorce law. Conflating religious definitions with the state’s definitions does no one any good.

i-90cd67fa6d9507320c8cae964ed48d52-marriageprotest.jpgThere is no question that the same-sex marriages performed between June and November were legal. Whether they are still legal is ambiguous. Proposition 8 reinstates a ban on gay marriages, but leaves the issue of retroactivity somewhat vague. The Attorney General has declared no intention of treating those people as having had their marriages annulled, but suits are under-way to force a mass-annullment of 18,000 marriages.

Suits are also pending which would declare Prop. 8 unconstitutional. We can hope that they will succeed, but I’m not optimistic. The outpouring of support for marriage equality, and against forced divorce, across the country is encouraging. I was proud to stand with so many people against hatred and bigotry in front of San Francisco city hall on Saturday, and I look forward to a greater celebration when, through court order or a new ballot initiative, all people are free to marry their loved ones, without regard to gender or sexuality.


  1. #1 Gray Gaffer
    November 18, 2008

    I recently read a comment from the LDS crowd who financed Prop 8. It explicitly said this was a moral issue. IIRC, a moral issue is by definition a religious issue, and the 1st Amendment specifically forbids passing any laws about religious issues. So I am very puzzled that Prop 8 was even considered for the polls by the proposition vets. And that there is any doubt the Supremes will rule its passage unconstitutional.

  2. #2 Josh Rosenau
    November 18, 2008

    Moral != religious. Civil rights for anyone is a moral issue. For instance, I think it’s immoral to deny gay couples access to marriage. It isn’t a religious matter, though.

    Geoffrey Stone has an interesting look at how the separation argument might be made here:

  3. #3 Gray Gaffer
    November 21, 2008

    When used by a religious group, ‘moral’ is a religious term. They do not believe moral behavior is possible without religion. Otherwise they would not contrast moral against civil rights, terms which you are equating. Don’t forget, their tactic is to quietly redefine the English Language so they can use words in a way that lulls our suspicions.

    I can not think of any argument against GLBT marriage that does not invoke appeals to a “higher authority” – which by definition then is spiritual/religious in nature. They also appeal to ‘tradition’ but their idea of that is also religious in nature and is also fallacious. And why the Mormon’s chimed in so heavily for One Man One Woman is beyond me when their interest is One Man Many Women. Basically, the intent and implementation of Prop 8 was religious through and through, and intended to result in a governmental edict of a religious nature. They really want to get rid of the 1st Amendment so they can institute a religious government, and this looks to me like a test case to set a precedent that starts weakening it. So far successfully, I fear.

    The other argument against 8 I can think of, apart from separation issues, is that the Amendments’ spirit if not explicit wording is to preserve and extend the rights of people in the USA, not restrict or remove them. The only one that restricted them in the past (18) was rescinded (21).

  4. #4 Jimbo
    November 27, 2008

    ” I can not think of any argument against GLBT marriage that does not invoke appeals to a “higher authority” – which by definition then is spiritual/religious in nature.”

    Marriage was not originated as a “profession of love between two people”.. That’s a fairly modern(and extremely shallow and stupid) romanticized view of marriage. The tradition of marriage seems clearly to come from a societal need to provide for orderly aka “civilized” reproduction that would impart responsibilities and obligations on both parties by law, as well as benefits.

    You can engage in ALL the elements of marriage without an institution of marriage, but the institution of marriage holds the participants repsonsible to each other, their offspring, and society. This is an argument that does not require a “higher power”.

    That being said, that is the history of marriage. That does not mean it has to dictate the present or future of it, but it is a powerful argument that is actually not talked about much but holds more sway over more people, in my experience, than the “higher power” bit.

    Elton John is right IMO. Ditch the name marriage and push for a national civil union law that imparts all the same legal rights. That would be a much easier fight to win. If you can’t celebrate diversity and acknowledge that there is a fundamentally different character to a straight relationship, the ability to merge two different bloodlines into a totally new one, then don’t expect anyone to want to celebrate the diversity you’re a part of.

    I say this as someone who voted against prop 8 too, so don’t bother preaching to me. In my view the need to impart equal rights to gay couples over rides my ideal of having straight and gay marriage named differently, but in my ideal world, they should be named differently because they are different. And no, I don’t want to put stars on them like nazis did to jews or any other retarded things like that I’ve been hit with in response to this. Those arguments are odd coming from the “celebrate diversity” crowd. Seems only people who aren’t straight are allowed to celebrate their differences in that crowd. <— That needs to change if we are to establish true harmony and equality among all. Which is what I sincerely want.

  5. #5 Josh Rosenau
    November 28, 2008

    Jimbo, you are relying on a reproductive argument that is fundamentally flawed. I addressed it here:

    Not only can same sex spouses adopt (as can straight couples), thus blurring the “two different bloodlines” argument, there are things like sperm donors, who are relied upon by both straight and same sex couples.

    Furthermore, there are a nontrivial number of straight couples who chose not to have children (or who marry past the age of reproduction, or who cannot conceive for medical reasons). Yes, marriage rested on reproduction at one time, but it doesn’t anymore. I agree that the view of marriage as a union of two people who love each other is modern, but I don’t think it’s “shallow and stupid.” It is certainly not a contract to produce offspring, which your argument would imply.

    As for the civil union/Elton John argument, I fail to see how “separate but equal” would be a better solution for gay marriage. What benefit derives from creating a new institution that’s identical in most ways, but with a different name that indicates a different class of people?

    If someone were suggesting that the state should only grant civil unions, and religious institutions could grant “marriage” according to their own religious doctrines, I could see that. But “Separate Ö [is] inherently unequal,” as the Supreme Court wisely pointed out in 1954. The CA Supreme Court relied on that same logic, pointing out that the state already provided many of the benefits of marriage through its domestic partnership laws, and that there had to be a compelling state interest in distinguishing one sort of union of a loving couple from another in order to justify giving them different names. Finding no such compelling reason, they found it to violate the public’s civil rights by discriminating on the basis of sexuality.