The Perils Of Marriage And The Slippery Slope Argument As A Logical Necessity

Two different conceptions of marriage have arisen lately originating from two conflicting premises over which the debate on same-sex marriage rages. We analyze this with respect to the 14th Amendment Equal Protection clause.

The first premise holds that the marital relationship is presumed to be one that is, basically, sexual in nature and linked to biology and procreation. This presumption is well entrenched in Western culture and its history, as well as in the histories and cultures of other civilizations. The legal understanding of the marital relationship, then, has been based upon this cultural understanding, which in turn has drawn upon the scientific understanding of the sexual relationship between men and women as it concerns their biological roles and procreation. That is why marriage law, as well as a good many other laws, have never treated the sexes as equal, because scientifically speaking, they are not.¹

This position under Equal Protection analysis necessarily precludes the equality of same-sex couples to opposite-sex couples, however, for the following reason: Insofar as marriage is an individual right that permits one individual to marry another, then in order for same-sex couples in a romantic, sexual relationship to be equal or similarly situated to opposite-sex couples in that same relationship, it would be necessary that men and women in their romantic, sexual relationships be sexually equal and similarly situated to each other. But they are not. The biological roles, the functions they serve, and the situations of men and women are distinct, different and not equal. Thus, insofar as marriage presumes a sexual relationship, and men and women in a sexual relationship are not equal to each other, then same-sex couples cannot be equal to opposite-sex couples, and thus, cannot not pretend to marital equality under the Equal Protection clause.

In order to establish equality between the sexes would require another basis than the romantic, sexual relationship, and same-sex marriage advocates have seized upon the abstract principle of "equality before the law" to do this.

However, because of the sexual inequality of men and women, and coupled with the necessity to establish legal equality between them in order to validly argue under the Equal Protection clause the eligibility of a person to marry a same-sex partner, the argument premised on "equality before the law" must exclude gender and the sexual relationship from any presumption about the marital relationship. It has to assert, instead, that marriage is merely a civil contract covering two people in a domestic relationship. That is, it turns marriage into "just any, old, ordinary contract", whose only purpose might be to allow married couples to enjoy the rights, privileges and benefits of being married couples, as some have asserted,

But this stratagem of denaturing marriage of its presumptively sexual nature by eliminating any considerations of sex and gender,  rendering romantic, sexual relationships irrelevant, and considering only the civil status of persons,  creates a dilemma that is made evident with this question:

What is so special about couples in a non-sexual relationship that they should be entitled to a special legal status conferring so many rights, benefits and privileges?

This question has no good answer except one: Nothing!²

What are the implications for the future of marriage if it is based on the second premise? Evidently, it will make polygamy and intra-family marriage much more likely, because it turns out that there is nothing any more special about couples in a non-sexual relationship than there is for three or more people or close family members in a similar, non-sexual relationship that any of these should be entitled to a special legal status conferring its many rights and privileges. So, if couples are arbitrarily accorded the right to marry for no special reason at all, then under the 14th Amendment Equal Protection Clause, other relationships must be entitled to this same right on the same basis that they, too, are nothing special at all.³

In summary, a legal understanding of the marital relationship that excludes gender and sex in order to assert the equality of the sexes, such that it must deny any presumption of a romantic and sexual nature to the marital relationship, precludes a scientifically based understanding of the marital relationship that necessarily does include gender and sex, and recognizes the inequality of the sexes. And conversely, a scientifically based understanding of the marital relationship that must necessarily include gender and sex, and recognizes the inequality of the sexes, precludes any legal understanding that excludes gender and sex, and asserts the equality of the sexes in order to achieve the goal of establishing equality among same-sex and opposite-sex couples.

In a nutshell, the marital relationship based on the scientific understanding of the sexual relationship, and the legal understanding of marriage equality, are mutually exclusive and incompatible, and can coexist only if logic and reason are discarded.

The situation, then, is that we either retain the presumption of the sexual nature of the marital relationship, in which case marriage remains exclusively to opposite-sex couples, or else we eliminate that presumption in order to establish legal equality between men and women in order that persons might acquire a legitimate right to marry a same-sex partner. But desexualizing marriage by eliminating that presumption will, also, make marriage a right to a much broader class of human relationships, including intra-family relationships and polygamous or polyamorous ones. Or, this could be the basis of eliminating civil marriage altogether. Once marriage is no longer linked to the sexual relationship and procreation, it should logically lose its governmental interest.

That’s it. It’s either one of those three rational alternatives, or discarding reason and logic altogether.

******  Footnotes: *********

¹ The presumptively sexual nature of the marital relationship is, also, the basis for excluding persons of close parentage from marriage, as well as persons who have not yet reached the age of sexual maturity, that is, adulthood

² To invoke the romantic natures of the relationships of same-sex and opposite-sex couples when comparing their situations, and how these might be similar or equal, would provoke an inquiry into the nature and role of gender and sex, such that a contradiction arises when gender and sex must first be knowingly eliminated in order to establish the legal equality between same-sex and opposite-sex couples, then later on, must be conjured up when convenient, in order to argue for the equality or similarity of their respective romantic relationships. It is this sort of disdain for logic and reason that has been the pattern of late, and which has marked all of the court rulings in favor of same-sex marriage.

³ This argument is a fallacy, of course, and intended facetiously to mock the many vapid fallacies that pollute the arguments in favor of same-sex marriage.

Marriage Isn't The Fundamental Right You Think It Is

We have all heard that marriage is a fundamental right. No government can stop two persons from "marrying" each other. However, government licensing of civil marriage IS NOT a fundamental right when no license is required to exercise that fundamental right, which, in this day and age, is the case. What is this fundamental right to marry? Historically, in our our culture and civilization, it has been understood, basically, as the right of a man and a woman to live together legally in a sexual relationship and have children. The US Supreme Court has affirmed this principle in all cases concerning marriage. This has been extended in some jurisdictions to include most any persons irrespective of gender.

As a marriage license is no longer required to exercise the fundamental right to live together legally in a sexual relationship and have children, then civil marriage, which is a statutory scheme conferring special governmental rights, privileges and legal conveniences – and another animal entirely –  is entirely at the state's option. No state is obligated to license and provide the statutory scheme that is civil marriage, as these neither permit nor deny the fundamental right of persons to live together legally in a sexual relationship.  To argue that the fundamental right of marriage imposes an obligation on the states to license and provide a statutory scheme that legally recognizes and approves the sexual and romantic relationships of persons in a committed relationship is an evident contradiction.

So, marriage in the sense of persons living together legally in a sexual relationship and having children must be understood to be the real fundamental right of marriage, and not the right to a license and a statutory scheme. As licensing of this fundamental right is no longer necessary to provide legality, nor an access, nor a barrier to its exercise, providing a license to civil marriage and its incidences cannot be interpreted to be an obligation on the states. If a state does exercise the option to license people's sexual or romantic relationships, then it is the state that decides, within the constraints of the state and federal constitutions, the terms and conditions of licensing. 

To see another way of why obtaining a license to civil marriage and the rights and privileges this procures is not a fundamental right, let’s take these texts from Loving v. Virginia and Skinner v. Oklahoma and substitute in the place of "marry" or "marriage" the phrase "[obtain or obtaining] special governmental rights, privileges and legal conveniences", which is the essence of civil marriage today. One should quickly see how preposterous this conception of  the fundamental right to marry really is:

"The freedom to [obtain special governmental rights, privileges and legal conveniences] has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

"[Special governmental rights, privileges and legal conveniences] is one of the 'basic civil rights of man,' fundamental to our very existence and survival."

Taking a citation from the recent Wisconsin ruling, we get this:

Zablocki, 434 U.S. at 384 (“[The] right to [obtain special governmental rights, privileges and legal conveniences] is of fundamental importance for all individuals.”) 

Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974) (“This Court has long recognized that freedom of personal choice in matters of  [obtaining special governmental rights, privileges and legal conveniences] and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”) 

Loving, 388 U.S. at 12 (referring to [special governmental rights, privileges and legal conveniences] as “fundamental freedom”)

Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (right to [obtain special governmental rights, privileges and legal conveniences] is “central part of the liberty protected by the Due Process Clause”)

 In Loving, 388 U.S. at 12,[T]he Court went so far as to say that [special governmental rights, privileges and legal conveniences] is “one of the basic civil rights of man." 

Maynard v. Hill, 125 U.S. 190, 211 (1888) ([special governmental rights, privileges and legal conveniences] [are] “the foundation of the family.”) 

This is utterly preposterous and laughably so! But if one were to substitute something of the order of "living together in a sexual relationship and founding a family" in place of "marriage" or "marry", then there would be no absurdity whatsoever. Let's try that:

"[living together in a sexual relationship and founding a family] is one of the 'basic civil rights of man,' fundamental to our very existence and survival."

This makes sense; the others do not.

Denying a license to civil marriage is not an infringement of the fundamental right to marry when the exercise of this fundamental right does not require a license in the first place.