Critiquing the Case for Same-Sex Marriage

Matthew Flannagan is a Pastor at Takanini Community Church; Madeleine Flannagan is a Lawyer at Coast Legal. Together they blog at MandM.

Equality and Non-Discrimination
According to the General policy statement of the Marriage (Definition of Marriage) Amendment Bill (“the Bill”), the justification for affirming same-sex marriage as a human right is the notion of equality and non-discrimination. The General policy statement provides: “This Bill amends the Marriage Act 1955 (the principal Act) to ensure that its provisions are not applied in a discriminatory manner”; it goes on to state, “Marriage, as a social institution, is a fundamental human right and limiting that human right to 1 group in society only does not allow for equality.”

The problem is that the Bill itself goes on to apply the provisions in an unequal and discriminatory manner.

Schedule 2 of the Bill provides a list of prohibited degrees of marriage; fifteen different classes of people are explicitly excluded from being able to marry. Further, the General policy statement and sections 4 and 5 of the Bill explicitly exclude unions where there are more than two people.

The Bill does this regardless of whether such unions are consensual, and the parties in question love and are committed to each other. It does this despite Sections 4 and 5 each repeating the idea that marriage should have no regard for “sex, sexual orientation, or gender identity.”

In doing this the Bill itself blatantly and explicitly applies the law in a discriminatory manner, it limits “the human right to marry” to only 2 classes of people in society, while excluding many more.

If equality were a valid basis for rejecting the Marriage Act as it stands then it is an equally valid basis for rejecting the Bill. Proponents of the Bill cannot have it both ways; the appeal to equality either refutes both or neither.

The drafters of the Bill clearly recognise that it is not unjust to legislate Marriage in a discriminatory manner. They make it clear, by the inclusion of Schedule 2, that they do not really believe that all classes of people should be allowed to marry if they want to; further they make it clear and that sexual orientation is a legitimate ground for marriage discrimination.

Of course one can gerrymander the position and claim that it is not unjust to apply the law in a discriminatory manner; rather, it is only unjust to do so when the union in question has only two partners and is not between people in the sorts of relationships the law restricts (which, incidentally, parallel the relationship restrictions prohibited in the bible identically). But if one does this then it is apparent that the only reason for adopting this modified position is that it both allows same-sex marriage and avoids other counter examples above.

The reasoning then is circular; one adopts the premise because it fits the preordained conclusion and then argues for the conclusion on the basis of the premise. The arguer assumes what he attempts to prove and commits the fallacy of petitio principii.

Slogans that people have a right to marry whomever they love are just that, slogans. People do not have a right to marry whomever they love. If someone loved their sister or brother, or mother, or loved their two best friends, they do not, in virtue of that fact, have a right to have the state solemnise or recognise these relationships as marriage. Nor does the Bill enable people to marry whomever they love.

Analogy with Inter-Racial Marriage
At this point, some play the race card. The state would act unjustly if it refused to recognise someone’s union on the basis of their partner’s race. It is argued that refusing to recognise someone’s union on the basis of their partner’s sex is analogous to this, and so it is unjust for the same reasons.

The analogy is questionable. First, it assumes that discrimination on the basis of race is on par with discrimination on the basis of sex. It is not. If a mall had racially segregated toilets that would be an outrage, but having separate toilets for the sexes simply upholds privacy. Refusing pregnancy services to people on the basis of their race would be racist, but refusing pregnancy services to men is sensible.

The point is that there are important physiological differences between men and women that justify treating them differently in various contexts that are not present between races, so racial and sexual discrimination is not on par. Until proponents of this Bill are willing to offer pregnancy services to men and prosecute all mall owners that have male and female toilets, we can safely put to one side the idea that discrimination based on a person’s sex is on par with racism.

Further, anti-miscegenation laws differ in important ways from the prohibition on state recognition of same-sex marriage. Advocates of the former object to someone’s union because their partner is of a different race; the thinking is that people of different races are physiologically different, they come from different clans or ethnic groups. The position is based on the idea that other races are inferior; it is part of a broader attempt to keep people of different races apart to avoid the inferior contaminating the superior.

Whereas those opposed to same-sex marriages object to someone’s union because their partner is the same-sex. Like the prohibition on incest, the issue stems from the physiological similarity between the couple. The objection arises because the couple are from the same group as each other. This means the rationale is very different; the position is not based on the idea that other sexes are inferior, neither is the intent to keep members of the same-sex separate to avoid contamination. On the contrary, it is based on notions of other sexes being equal and complementary.

Imposing views on others in a Pluralistic Society
Other slogans fare little better. It is argued that the Marriage Act presupposes a controversial moral position that homosexual conduct is wrong, which many people now reject in a pluralistic society. One cannot, therefore, impose it on others who do not share that view (but apparently one can impose the view in reverse).

The problem is that the Bill also presupposes a moral position which many today reject: that consensual adult incest, polygamy and polyandry is wrong. Under this Bill the state will not recognise such unions even though some in a pluralistic society accept these practises.  If this Bill passes then the new law will be imposed on others in the same way the present law currently is.

Again, if this argument refutes the status quo then it refutes the Bill.

Rejoinders to the Incest, Polygamy, Polyandry Argument
Above we have offered arguments that reference incest, polyandry and polygamy. Note: we are not here making a prediction; our argument is not that if we recognise same-sex marriages then inevitably, at some point in the future, the state will pass laws recognising incestuous, polyandrous or polygamous unions.

Rather, our point is that several of the major arguments for same-sex marriage employ premises which, if true, logically entail that incest, polyandrous and polygamous unions should be legally recognised; those who make arguments from equality, non-discrimination and pluralism are rationally committed to this conclusion.

It is true that legislators are unlikely, in the present climate, to recognise such unions and do not advocate doing so – Schedule 2 being Exhibit A of the case in point. This, however, is the point, their actions in doing so show that their stance is irrational. When the topic is not same-sex marriage they recognise that these arguments do not work, and they do not advocate acting in accord with them. If they are to rationally advocate for same-sex marriage proponents need to offer different arguments – ones that are sound!

Many people will undoubtedly respond with outrage and will apply derogatory labels to us over this blog post. They re-join that sex with member of the same-sex is totally different to incest or polyandry or polygamy; they will point to features of these practises which mean there is good reason to not recognise them in law.

None of these responses will be adequate. Expressing outrage is not an argument, it is simply an expression of dislike for another’s position; casting labels is not an adequate response either, doing so commits the ad hominem fallacy. The issue is not whether you like what we say but whether our arguments are sound.

Pointing to differences between incestuous and same-sex unions also misses the point. We never said that homosexual conduct was like incest in all respects. We pointed out that the premises of the arguments in question commit one to drawing conclusions about incest; this is not the same thing.

Finally, pointing out that there are good reasons for not recognising incestuous, polyandrous or polygamous unions, actually proves, rather than rebuts, our argument. Those who make this point illustrate that one can legitimately discriminate against sexual practises and sexual orientation. They show that one can discriminate against people on the basis of how many partner’s they have and on the basis of whether the partners are of the same kin as them – same-sex relationships between relatives cannot be state sanctioned. They hold this position despite the fact that such unions may be loving, consensual and between adults.

This shows that the issue is not equality, discrimination, love or consent. It is about whether good reasons exist independently of these features for the prohibition in question (apparently social norms based on biblical texts amount to good reasons in any context other than same-sex relationships). Consequently, appealing to these features as though they themselves provided good reasons is a red herring and it is not good enough to justify a law change


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