Same-Sex Marriage Attorney Dodges Easy Question From Justice Alito

The Supreme Court is currently hearing arguments for and against same-sex marriage. The issue is a cultural pivot point, after which we will move in one of two very distinct directions.

The beating heart of the argument against legalizing same-sex marriage is the following question: If same-sex marriage is acceptable, what else is acceptable?

On Tuesday, Justice Samuel Alito questioned the attorney on the side of same-sex marriage, Mary L. Bonauto, in a way that forced her to defend her position:

Alito: “Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?”

Bonauto: “I believe so, Your Honor.

Alito: “What would be the reason?”

After Bonauto gave an extraordinary non-answer, Alito pressed again:

Alito: “…And let’s say they’re all consenting adults, highly educated. They’re all lawyers. What would be the ground under — under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?”

Bonauto: “Number one, I assume the States would rush in and say that when you’re talking about multiple people joining into a relationship, that that is not the same thing that we’ve had in marriage, which is on the mutual support and consent of two people. Setting that aside, even assuming it is within the fundamental right —

Alito: “But — well, I don’t know what kind of a distinction that is because a marriage between two people of the same sex is not something that we have had before, recognizing that is a substantial break. Maybe it’s a good one. So this is no — why is that a greater break?”

Bonauto went on to claim that familial disruption, medical emergencies, and custody issues would be the main problems, thus really avoiding the question.

In her answer, Bonauto invalidated her own argument. She claimed that states would rush in and say that a four-person marriage was outside the scope of how marriage has always been defined. Alito then threw Bonauto’s answer right back at her, saying that gay marriage is also a break from a millennia-long historical norm.

Alito was on the right track, but since Bonauto was intent to argue medical and custody issues in order to skirt the actual intent of the question, Alito should have pivoted to a question about a quad-marriage in which all four participants were the same gender, thus cutting through all of Bonauto’s kicked up dust.

If one is going to argue a point, one must be willing to extend it to its logical conclusion. To argue in favor of gay marriage is to say that consent is foremost, supplanting gender as a primary factor in the definition of marriage.

Proponents of traditional marriage argue that gender is primary. Proponents of gay marriage argue that gender is irrelevant, citing mutual consent between two adults as the baseline for what should constitute marriage.

But to argue that consent is the primary factor in marriage, in “different love,” is to open up the definition of marriage beyond simple same-sex unions. Those arguing in favor of gay marriage should know this, as Alito clearly does. Perhaps they do, but are too afraid to roll out their argument to its logical end.

If consent is the defining legal factor in marriage, then any adult should be allowed to marry whomever they want, so long as the other adult is at or above the age of consent. Given this, a sister and brother should be allowed to marry, as should two brothers, a father and son, a mother and daughter, and a mother and son. For that matter, polygamy, bigamy, and polyamory should be legal as well. So long as everyone involved in the marriage is consenting, there is no logical argument against it.

I’d like to see an advocate of same-sex marriage show the courage of their convictions and publicity acknowledge and embrace this extension of logic. But they won’t—and there are two possible reasons for this. Either they don’t understand the logic behind the argument, or they are afraid that acknowledging such an argument would undermine the national effort to legalize same-sex marriage.

Be brave, advocates. The argument is already out there, you just need to embrace it.