Rowe on a Novel Argument Against Gay Marriage

Jon Rowe has a couple of posts up about a breathtakingly bad argument for why Congress has the authority to ban gay marriage under the 14th amendment. The argument is made by Austin Bramwell in this article from the American Conservative magazine. Here is the argument as Bramwell states it:

It isn't true that only a constitutional amendment can stop the courts from imposing gay marriage. On the contrary, Congress can stop the gay-marriage movement cold by passing a simple statute. That statute need say nothing more than "No State shall define marriage as anything other than between a man and a woman."

Surprising as it may at first seem, Congress derives the power to pass such a statute from the Fourteenth Amendment. The argument goes as follows: Section 5 of the Fourteenth Amendment gives Congress "the power to enforce, by appropriate legislation, the provisions of this article." It is well-settled that the Fourteenth Amendment protects the fundamental right to marry. States may not violate this right by redefining marriage as something other than it really is. Therefore, Congress can pass a statute underscoring the correct definition of marriage.

How someone can make such an argument with a straight face is beyond me. The first premise is of course correct, that among the privileges and immunities of citizens of the United States is certainly the right to marry. It's the second premise that is completely illogical, the notion that Congress would be protecting that right by preventing gays from marrying. It relies on the same logical slight of hand that conservatives always play when discussing this question, where they just leap directly from "marriage is good" to "therefore we must protect marriage" without ever bothering to make the causal link between gay marriage and any alleged harm to already existing marriages. They can make no logical argument for why allowing gays to marry would in any way harm marriages between straight couples, nor can they point to any evidence that it has ever done any damage where it is already allowed in other nations. So they just skip over that part and hope no one notices.

But in this case, in order to use Bramwell's argument, not only would they have to show that allowing gays to marry would harm marriage, they would have to show that it would damage the right to marry. One cannot even conceive of a possible argument one could make for that conclusion. Allowing gays to marry does not, by any stretch of the imagination, take away or diminish the right of straight couples to get married. But Bramwell gives it a brave try anyway:

Similarly, if marriage were redefined to include gay relationships, straight married couples would lose the unique burdens and privileges that come with traditional matrimony. Marriage is a public act: by redefining marriage to be what it is not, states would violate the right of all persons to receive the social benefits and uphold the social expectations of being wedded to a human being of the opposite sex.

Wow. If we're going to base such a law solely on the "unique burdens and privileges that come with traditional matrimony", then this argument applies just as well against interracial marriages. After all, there was a tradition banning miscegenation that went back centuries. One could just as logically argue that by allowing marriages between blacks and whites deprived white couples of the "unique burdens and privileges that come with traditional matrimony" by changing that tradition and therefore the very definition of marriage. Heck, one can even picture the people making this argument in the 50s and 60s using scare quotes when talking about interracial "marriages"; after all, they're not real marriages, which tradition holds uniquely to be a union between a man and a woman of the same race.

When he makes the argument that gay marriage would "redefine marriage to be what it is not", all it really means is "to be what I don't want it to be" or, at the very most, "what tradition has always held it to be". But that's a dangerous road to go down for the conservatives here, as one could as easily point to centuries of tradition banning inter-religious marriages as well, or interracial ones, or for that matter to polygamist traditions that can even be traced to the bible itself.

The bottom line is that allowing gay marriages doesn't hurt straight marriages in the slightest. There is simply no rational argument to be made for why it would do so, which is why they have to resort to such bad arguments in the first place. Because frankly, I don't think they really mean it. They don't really believe that allowing gay marriages would hurt straight marriage. They don't really think that anyone is going to stop loving their spouse, or stop taking care of their children, or for that matter not get married just because gay couples get to do it too. They just feel the desperate need to make some practical argument against gay marriage because they know that the real reason for their opposition, which is primarily bigotry or just a general fear of change, doesn't hold much weight in court.