With a Supreme Court decision on marriage coming up this summer, there’s an almost palpable sense of fear among defenders of marriage that the day the Court rules on it will be the day we will finally lose.
I think that date is off by years. The day we lost was when we decided to persuade the country that gay marriage was wrong. It was a no-win battle from the beginning. That’s not because we were making the wrong case, but because we accepted the engagement on the wrong terms: terms that were so stacked against us as to be impossible from the beginning. Our defense was good, but we needed to play on both sides of the ball. We missed an opportunity to take the offense when we could have. It’s all about the burden of proof in the marriage debate.
Let me begin my explanation by reflecting with you on how the game (if I may call it that) has been played. It’s been something like this:
Think of some gay or lesbian couple you know, perhaps someone in your neighborhood, or connected to your family or your workplace. If you don’t know anyone like that in real life, surely there’s one you can think of from television or the movies.
Think of their love and devotion for one another. Think of the strong mutual commitment they’ve made, and the stigma they’ve borne to live it out. Think of their deep investment in each other’s lives. Visualize one of them in the hospital (or in hospice, even), with his or her partner watching faithfully, caringly, at the other’s bedside.
Now, why shouldn’t they be able to get married? Seriously, why not?
Do you have an answer to that question? I do. I have a whole list of answers: good, solid, rational ones, rooted both in the Bible and in sound natural-law philosophical reasoning. They haven’t been enough, though. No matter how many of us made that case, it was never enough.
In retrospect there was never any chance it could have been enough. No matter how good, our reasoning could never have reached the level of proof. Proofs are for mathematics and pure logic, not for complex social and relational matters like marriage.
And make no mistake: nothing less than proof could have carried the day. Anything less, and the other side has a way out. We argue that marriage is for one man and one woman, and the other side asks us about polygamy in the Bible and patriarchal societies. That’s easily answerable, but not to the level of unassailable proof. It comes back, again and again, a talking point for same-sex marriage proponents to continue poking us with.
We make our case that marriage is for the purpose of building sound and stable future generations, and the other side asks why we allow elderly men and women to marry. We can answer that one, too, but again, not so well that it won’t pop up again.
And even if we had reached a level approaching proof in our answers to those questions, still our opponents would have brought up other talking points, resulting in a great, unending game of fragenblitzen, by which an argument is “won” by delivering more quick objections than the other has time to respond to.
There is simply no proving that marriage isn’t for same-sex couples. It’s not that our position is lacking from a rational perspective, it’s that proofs are for mathematics and pure logic, and persuasion involves more than rational discourse. Look again at what I reminded us of above, on how the game has been played. Think of the pictures I invoked in your mind. Can you find any reason to explain why same-sex couples should be able to get married? Do you see any reasoning there at all?
The entire SSM juggernaut has been built on imagery and emotion. Sound reasoning has been hard to find. Their most effective slogan, “marriage equality,” certainly comes up empty. Everyone believes in marriage equality up to some defined boundary, and no one believes in marriage equality beyond some defined boundary. Our disagreement has never been about equality, but about the limits to equality. Let me say it again: marriage equality has never been the issue. It’s always been the boundaries around of what counts as marriage. (I happen to believe our boundaries are a lot more reasoned and a lot less arbitrary than SSM proponents’ boundaries.) And yet they use the slogan. Why? It’s not because they believe in equality any more than we do. They use it because it’s rhetorically effective among those who accept it without thinking.
That’s their best slogan. Rationally speaking, it has nothing going for it. If their best is that bad, is there any at all reason for gay marriage? Sure, I can think of reasons for same-sex couples to want financial or healthcare benefits and privileges like married couples have. I can think of reasons, some weaker, some stronger, to grant some of those privileges. But it’s hard to think of any reason to call their unions marriage.
The Burden of Proof in the Marriage Debate
There’s another reason slogans like “marriage equality” are working for the other side. We’ve taken a defensive stance, as if gay marriage were right unless it was proved wrong. This was a huge strategic error, certainly, but it was also an error with respect to reasoned debate. Here’s why. SSM proponents have put a positive, affirmative claim before the public: marriage should no longer be just for men with women, but also for same-sex couples. As the ones making the claim, they should have owned the burden of proof.
That’s the usual standard in debate, isn’t it? The side making the positive claim defends it and give reasons for it. Imagine how it would look the other way around: “The Keystone pipeline will be irretrievably bad for the environment. How do I know? Because you can’t prove it won’t be.” Or (equal time here), “The Keystone pipeline will be a net gain for human flourishing. I know it’s so because you can’t prove it won’t be.”
Does that seem silly? Then how about, “Gay marriage is right for our culture. I know it’s so because you can’t prove it won’t be.”
This was backward from the beginning, For a change as culture-shaking as same-sex marriage, we should have demanded reasons beyond imagery and emotion. This was such a deeply significant move, actually, we should have demanded something approaching proof.
Proofs are for mathematics and pure logic, though, not for complex social institutions like marriage. That’s undoubtedly why they haven’t really taken up that persuasive strategy.
A Case That Could Never Have Been Made
They would have had a hard time of it. They could hardly claim that same-sex unions should be called marriages because the essential nature of marriage rightly and inherently includes same-sex couple. An argument like that, coming as it does straight out of Aristotelianism (if not theism itself), would be as far as it could possibly be from most same-sex activists’ view of reality. The thought that marriage could have any essential nature at all is one of ours, not theirs.
They could hardly claim that same-sex unions should be called marriages “because the law says that’s what they are.” That goes nowhere toward explaining why the law should say so.
They would even have a tough time making a reasoned case that same-sex couples have a right to the same kind of relationship that married couples have always been able to enjoy. (This is a slightly more complex answer, but stick with me.) Same-sex marriage can only be the same kind of relationship as opposite-sex marriage if marriage itself is altered to become unlike anything it’s been throughout all of human history; in which case same-sex couples would have gained the right to a relationship that’s the same as nothing that’s ever been. The whole argument implodes.
Maybe they could recover one or more of those positive arguments for their position. But why should they care? They’ve been winning without any. Their imagery has been effective, for one thing. Besides that, they’ve been able to keep the burden of proof off their shoulders, and on ours instead.
Overstating My Case?
Am I being too rough on their side? Is it possible their strategy has been more rationally directed than what I’ve depicted here? You’re welcome to prove I’m wrong about this, but watch out: I can almost guarantee your reasoning will be some form of, “Gay marriage is right because you haven’t shown it’s wrong;” or else it will be an appeal to sympathy or other emotion
If that’s not convincing enough, then go to the source. Read their strategy, as it was summarized ahead of time, on the front end of their campaign. Ask yourself whether it was based more in reason or in manipulation of imagery and emotion. Ask yourself whether they followed that strategy, or whether (this is the test) they veered off it onto a more rationally-oriented track.
I know I’ve written something potentially explosive here. I invite you to prove me wrong. Let me remind you of this, though, by way of caution: if you react angrily to what I’m contending here, it won’t do much to support a case that your approach has been more rational than emotional. Just show me reasoning, if you have it, to demonstrate I’m wrong. I’ll learn from it and make the appropriate corrections.
What would have happened had we demanded that proof from them? It’s hard to say: they still would have had their imagery and emotional rhetoric working for them. And yet I wonder. I wonder about it even for this late stage in the debate. Maybe, in these last days of debate before the Court decision, conservative commentators—and counsel, too, before the Court—could call on the opposition to prove that same-sex relationships can be marriages. Maybe we could dare them to take the burden of proof upon themselves. When the other side brings the challenge, you can’t prove same-sex unions shouldn’t be called marriages, maybe we could answer by asking them to prove they can.
That wouldn’t be tit-for-tat, nor would it be “So’s your old man.” It would be a matter of recognizing who’s making the affirmative claim, and calling on them to give reasons to accept it as true.
And not just that: it would also be recognizing that the pleasant picture of the two gay men down the street is a pleasant picture. It isn’t a proof. It isn’t even a reason.
Related What is Marriage, If Marriage Equality is Real?