Thursday, June 27, 2013

A logical analysis of the Supreme Court's decision on Gay Marriage.

Bryan Cross writes:

The majority argument in yesterday’s Supreme Court decision regarding DOMA is primarily a legal argument, which I do not intend to address. But there is a related moral argument, which is relevant to the post above, and similar to the argument President Obama made in his second inaugural address, which I discussed in comment #57 above.
The argument goes like this:
(1) A law limiting marriage to the union of persons of the opposite sex restricts persons of the same sex from marrying each other.
(2) The legal restriction disallowing persons of the same sex from marrying each other injures and harms persons who wish to marry others of the same sex, depriving them of rights and responsibilities, while not injuring persons who wish to marry others of the opposite sex.
(3) A law is unjust if it injures or harms some persons and not others.
Therefore,
(4) A law limiting marriage to the union of persons of the opposite sex is unjust.
The argument is valid, but its soundness hangs on premise (2). Premise (2) presupposes that marriage is not a natural institution naturally limited to persons of the opposite sex, but can instead be whatever the civil law stipulates it to be, even including same-sex unions. As I explained in footnotes 5 and 7 above, only if marriage is in essence whatever the civil law stipulates it to be would it be harmful or injurious to some persons for the civil law to define marriage in such a way that those persons could not enter into marriage.
If, however, marriage is in essence a natural institution ordered to the procreative union between persons of the opposite sex, then the civil authority has no power to make marriage possible between persons of the same sex. And since no injury or harm is done to persons by not doing what one has no power to do, a civil law recognizing marriage to be only between persons of the opposite sex, and thus restricting persons of the same sex from marrying each other does not injure or harm persons who wish to marry persons of the same sex. So the argument above depends for its soundness on the presupposition that marriage is not a natural institution naturally limited to persons of the opposite sex, but is instead open to be whatever the civil law stipulates it to be. That presupposition, however, is precisely what is in question between the two sides of this dispute. (See, for example, this excerpt from Robert George’s Conscience and Its Enemies.) So the argument above fundamentally begs the question, i.e. presupposes precisely what is in question between the two sides.


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