Gay Marriage & Emotional Appeals: Can Bad Logic Make Good Law?
By Ken K. Gourdin
While I can understand why leaders in the Church of Jesus Christ of Latter-day Saints might oppose civil unions as being “marriage-lite,” I am unaware of any official pronouncement from the Church opposing them, or any official encouragement by the Church of its members to do so. Thus, I am not opposed to civil unions for gays. However, I do find the evolution in attitudes toward marriage interesting: amidst the sexual revolution of the ’60s and ’70s, the rallying cry of cohabitating couples was anti-marriage: “We don’t need a mere piece of paper to legitimize our unions,” they said. Now, gay marriage backers say exactly the opposite.
While I am not a lawyer, and while I have not studied the issue in sufficient depth to comment in detail, I do know that, while the law does treat formalized marriages the same as it treats their informal counterparts in many ways, it does not do so in all material ways. This is the rejoinder with which gay marriage backers would meet my ironic observation in the preceding paragraph about the varying significance of that “mere piece of paper.” I get that. But whatever we call their unions, once gay partners receive all of the benefits of marriage (at least, all of the material ones) is there anything left to support their argument for universal legalization of gay marriage beyond an emotional appeal? I wonder.
It’s true that, while I consider myself a reasonably empathetic person, I cannot fathom the pain that gays have experienced and do experience, both individually and as couples, in being treated as “other.” But I don’t know whether that, alone, is a good enough reason to turn thousands of years of historical and legal precedent on its head. In logic, such an appeal to emotion, without more, would be considered a fallacy. If such reasoning is not sufficiently sound to be used for everyday purposes, I wonder why so many lawyers and judges who have considered the question of whether gay marriage ought to be legalized consider it sufficiently sound to be used for legal purposes.
Many have argued that treating gay marriage different than traditional marriage is a violation of the Constitution’s Equal Protection clause. But I once had a professor (although he was a political science professor and not a law professor) explain that “equal protection” means treating similar cases the same, while treating different cases appropriately different. Sure, determining what constitutes an “appropriate difference” is messy business. Sure, people who are treated differently (Equal Protection clause notwithstanding) are apt to get their feelings hurt (and to suffer worse harm). But the ideas that the law can or should level every inequity potentially is much more dangerous than the inequity itself. As attempts effectively to implement recent legislation show, mere good intentions alone may be insufficient to forestall unintended consequences.