Justice Samuel Alito asked a question during oral argument in the Prop 8 case on Tuesday that expressed one of the most commonly heard arguments used against marriage equality: It’s just too risky, how do we know it isn’t going to be very bad for society?
“Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.
“But you want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet? I mean we — we are not — we do not have the ability to see the future. On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?”
There’s so much that’s wrong with the premise of this question. Let me spell out all the problems:
1. Yes, traditional marriage is a good thing for society. But no one is proposing to do away with traditional marriage and there isn’t an argument that is the least bit coherent or plausible for why allowing gay people to marry would do anything to harm traditional marriage at all. It isn’t as if straight people are going to suddenly decide that they’re gay or that they shouldn’t get married just because gay people are now given the same opportunities.
2. If his argument is a serious one — if the Supreme Court can’t tell the future so it can’t know whether this will all turn out to be good or not — why doesn’t that same argument apply to the voters or elected officials? Seems to me that’s an argument against trying same-sex marriage at all, no matter how the decision is made. The voters are no more psychic than the Supreme Court justices.
3. This same argument could be used, indeed was used, against interracial marriage 50 years ago. Like same-sex marriage, interracial marriage had been forbidden for eons and had only recently begun to be allowed in some states. All sorts of terrible outcomes were alleged to result from allowing interracial marriage (none of them accurate, of course).
4. We don’t decide that it’s okay to violate someone’s rights just because we think it’s possible that it could lead to negative results, especially without a coherent argument for a causal link to those bad things. This same argument would invalidate pretty much every civil rights advance in history. Desegregation was new and untried and opponents made all kinds of arguments for why the result would be horrible, yet the Supreme Court ordered it anyway (and rightly so). Free speech can lead to a whole range of negative things, but we don’t void the First Amendment as a result except in very, very narrow circumstances where there is strong evidence of a direct link to something bad happening that cannot be tolerated.
As with nearly every argument against marriage equality, this is not a serious argument but a pretext, an argument that takes the place of the real position the person making it holds — which is that gay people simply don’t deserve equal rights because EWWWWWWWWWW.