Justice Ginsburg – Eviscerate or Irrelevant?

Ian Millhiser has written an article titled “Justice Ginsburg Eviscerates The Case Against Marriage Equality In Just Five Sentences.” Here are the five sentences:

[Same-sex couples] wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.

There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t — wouldn’t fit into what marriage was once.

Millhiser summarizes, “Justice Ginsburg’s point was that, until surprisingly recently, the legal institution of marriage was defined in terms of gender roles.”

Here is Justice Ginsburg’s argument expressed as a syllogism:

  1. Marriage was complementary (dominant male and a subordinate female)
  2. Same-sex relationships cannot be complementary
  3. Therefore, same-sex relationships did not fit marriage

But now that marriage law has changed to egalitarian because of a Supreme Court case in 1982:

  1. Marriage is now egalitarian
  2. Same-sex relationships are egalitarian
  3. Therefore, same-sex relationships fit marriage

A question that should be asked when making an argument is would I buy the argument if it was used against my position. Asking this question helps to avoid bad, hypocritical arguments.

First, a SSM case was appealed to the Supreme Court in 1972. Advocates for SSM did not have a problem that this appeal occurred before the Court’s egalitarian ruling in 1982, only that the Court chose not to hear the case.

Second, most advocates for SSM are obliviously to the Court’s 1982 ruling. It is irrelevant to their view that same-sex relationships is a fit for marriage.

Third, gender roles have never been a criteria for entering marriage. No clerk has ever asked a couple, “do you meet the correct gender roles to be issued a marriage license?”

Fourth, if Justice Ginsburg believes same-sex marriage did not make sense under complementary marriage, then same-sex marriage does not make sense in a country where marriage has always been for opposite sex couples.

In conclusion, a better argument would have been:

  1. Marriage is for legal sexual relationships
  2. Same-sex sexual relationships were illegal in some states up until 2003
  3. Therefore, same-sex sexual relationships did not fit marriage nationally before 2003

But in 2003 the Supreme Court reversed its ban on sodomy from its ruling just 17 years earlier. I will conclude with a quote from every liberals favorite justice, Antonin Scalia:

“…if the court was not prepared to validate laws based on moral choices as it had done in Bowers [1986], state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would not prove sustainable.”




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