Frank Turek: Specialist in Special Pleading

Special pleading is a logical fallacy in which one makes an argument that would apply perfectly to an analogous situation but refuses to apply it there. Frank Turek proves himself a master of that fallacy with his arguments against same-sex marriage. He offers five reasons the 14th Amendment “can’t possibly demand gay marriage.” Let’s go through the key arguments, then I’ll show the special pleading.

The Supreme Court is about to decide if the 14th Amendment to the United States Constitution requires the states to redefine marriage to include same sex relationships. There are several reasons why the answer is no.

The most decisive of these reasons is the fact that when the 14th Amendment was passed in 1868, homosexual behavior was a felony in every state in the union. So if the 14th Amendment was intended to require same-sex marriage, then every state in the union intended to throw the new couple into prison as soon as the marriage was consummated!

But the same thing is true about interracial marriage, which was illegal everywhere in 1868. So if Turek is going to apply this reasoning consistently, he must also believe that Loving v Virginia, which was based entirely on the 14th Amendment, must have been wrongly decided.

Some may say, “Who cares what they believed in 1868 about homosexuality? We’ve evolved since then.”

That’s addressed by the second reason: Laws and words have specific scopes and meanings. They don’t have unlimited flexibility as liberal justices tend to think. Neither the intent nor the text of the Constitution requires the states to redefine marriage. If the people of the United States have “evolved” on the issue, then the Constitution provides them with a very clear and fair way for the document to intelligently “evolve”—they need to convince a supermajority of federal and state legislatures to amend the Constitution. That’s the very reason our Constitution has an amendment process!

If we fail to use the amendment process and permit judges to substitute their own definitions and judgments for what the people actually meant when they passed the law in the first place, then we no longer govern ourselves. Why vote or use the political process if unelected justices strike down our laws and impose their own as they go? In fact, why have a Constitution at all? If it’s “evolving” or “living,” then it’s not really a collective agreement of the people—it’s a pretext that allows judges to invent rights and impose any moral (or immoral) position they want against the will of the people.

Again, this same argument must apply to interracial marriage as well.

Third, the 14th Amendment was intended to prevent states from discriminating against newly freed slaves. At that time blacks and women didn’t even have the right to vote, yet no court ever thought it could use the “equal protection” clause to change state voting laws. So why do some district courts think they can use it now to change state marriage laws? Are we to believe that “equal protection” does not guarantee a woman’s right to vote but does guarantee a woman’s right to marry another woman?

Okay, so the meaning of a law is determined solely by the intent of those who wrote the law. Let’s keep that in mind.

Fourth, despite all the talk about equal rights, everyone already has equal marriage rights. Every person has the same equal right to marry someone of the opposite sex. That law treats all people equally, but not every behavior they may desire equally. If people with homosexual desires do not have equal rights, then people with desires to marry their relatives or more than one person don’t have equal rights. The “born that way” justification doesn’t work either because that same justification could make any desired arrangement “marriage,” which means the logic behind it is absurd. The Court needs to acknowledge the fact that natural marriage, same sex-marriage, incestuous marriage, and polygamous marriage are all different behaviors with different outcomes, so the law rightfully treats those behaviors differently while giving every citizen the equal right to participate in marriage, whatever its legal definition is.

This exact same argument was, of course, made in Loving. The state of Virginia argued that the law banning miscegenation treated all people equally — everyone was equally free to marry someone of the same race and not to marry someone of another race.

Finally, the states make marriage law, not the feds. The U.S. Constitution says nothing about marriage.

So again, if this argument is going to be applied consistently, Loving had to have been wrongly decided. So what does he say about that ruling?

While the Supreme Court did overturn Virginia’s ban on inter-racial marriage, it did so because Virginia discriminated on the basis of race, which is precisely what the 14th Amendment was intended to prevent.

But go back to his third argument. Not only did no one at the time the 14th Amendment was written and ratified believe that the Equal Protection Clause was intended to overturn laws against interracial marriage, the framers of that amendment explicitly told the public that it would never be used to do so. In fact, that’s almost certainly the only reason it was ratified. If the public at the time had thought that it would be used to strike down the ubiquitous state laws against interracial marriage, which had overwhelming support, they would never have achieved the numbers needed for ratification.

All five of these arguments apply just as well to interracial marriage as they do to same-sex marriage. All five of these arguments were used against interracial marriage when the Supreme Court considered such laws in 1967. By any coherent argument, the Supreme Court was intervening in what was traditionally a state power (defining marriage) when the Constitution said nothing about it, on the basis of an interpretation of the 14th Amendment that was repeatedly, specifically and publicly denied as the proper interpretation by those who wrote the amendment, when everyone was equally free or unfree to marry members of one group but not another, and in specific contradiction to the laws that existed at the time of ratification.

Yet Turek doesn’t want to admit that because the public overwhelmingly believes that Loving was the right decision and if he is seen as disagreeing with them, it will undermine their ability to accept his argument. So he engages in dishonest special pleading. Imagine my total lack of surprise.

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  • http://twitter.com/#!/TabbyLavalamp Tabby Lavalamp

    I always wonder if the people making the “everyone has the same right to marry someone of the opposite sex” argument recognize how ridiculous it is?

  • John Pieret

    Laws and words have specific scopes and meanings. They don’t have unlimited flexibility as liberal justices tend to think.

    Here’s the 14th Amendment, Section 1:

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    What flexibility is there to those words? Are LGBT people born or naturalized in the United States not citizens of the United States and of the State wherein they reside? Isn’t being treated equally with other citizens one of the privileges or immunities of being a citizen? If state or Federal governments give rights to straight people who enter into a contractual arrangement with someone they love … such as tax breaks, automatic inheritance, the right to visit their partner in a hospital and make medical decisions for them, the right to adopt their partner’s child, and some 1,000 other rights, benefits and responsibilities that straight people have with their “married” partners, is it not a denial of the equal protection of the law to deny the same rights, benefits and responsibilities to gay people? Is not the use of the law to differentiate between gays and straights a denial of the due process the law is supposed to grant all citizens?

    Yes, the people who wrote those words into the 14th Amendment didn’t think out all the ramifications of them (or actively denied those ramifications in order to get votes). But they were GREAT words! They are words that any decent person should be proud to live by! They are the words that have taught us that segregation was wrong; that anti-miscegenation laws were wrong; that throwing people in jail just because of who they love is wrong.

    It is not the failure of the courts to hear and heed those words that is the problem. It is the failure of the likes of Frank Turek to understand and honor them that is the problem.

  • Michael Heath

    Tabby Lavalamp writes:

    I always wonder if the people making the “everyone has the same right to marry someone of the opposite sex” argument recognize how ridiculous it is?

    It’s been my observation that they don’t realize how idiotic this argument is. Instead they think it’s a perfect example of their being great critical thinker with an uncommon dose of common sense. Ya know, just like Sarah Palin and Ted Nugent.

  • hunter

    Framing the issue as “the federal courts forcing the states to redefine marriage” shows up Turek’s arguments as bogus from the get-go. No one is forcing the states to redefine anything. It’s purely an Equal Protection issue.

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    I’m actually kind of tired of this, as right as you are, Ed.

    Fuck this. In court, I want marriage to be fought as gender discrimination, because it fucking it. In the social context, however, I want the real argument to come to the fore:

    Can the court founded by Ballard, McGown, Ross and Wilson ban discrimination between two differently religious people?

    Can you make access to the benefits of legislation passed by state legislatures and/or congress dependent on conformity to religion?

    If yes, how the fuck does that square with the 1st amendment?

    If no, why the fuck are you on about being forced to support “immoral behavior”. Christian churches have spent a lot more time and effort and words over the centuries opposing religious views about the validity of pagan worship or the reality of other gods than they ever have railing about pee pees touching. Commandment number 1, jerk face: if that isn’t sufficient basis for you to ban any Buddhist or (yes, I recognize the irony, but think from their perspective:) Muslim from getting married according to state law, then what the fuck are you doing trying to justify it based on a passing mention in Romans by one fucking guy who doesn’t even claim to be writing down a Jesus-quote? Leviticus? You want to justify throwing queers out of the country or at least denying rights based on Leviticus 20? Yeah, when was the last time a Christian in the country set up a red tent in the back yard?

    When you drive Schick and Norelco out of business for supporting the terrible crime of shaving or Playtex for making it possible to, gasp! hide one’s menses so as to cause a husband to, all-unknowing, touch a woman while she’s unclean, businesses who have made names for themselves on the basis of products designed to thwart God’s Levitical will, you might…just might have the barest beginnings of a basis for citing Leviticus in a court of law.

  • Donnie

    @1Tabby Lavalamp says

    March 20, 2015 at 12:20 pm

    I always wonder if the people making the “everyone has the same right to marry someone of the opposite sex” argument recognize how ridiculous it is?

    My response to people who make this argument? No, heterosexual couples are awarded special rights because they are allowed to marry the person that they love. Gays and Lesbians are asking for the same, special rights that heterosexuals enjoy. I love turning conservative logic around.

  • kenn

    …then the Constitution provides them with a very clear and fair way for the document to intelligently “evolve”—they need to convince a supermajority of federal and state legislatures to amend the Constitution.

    Yeah, well, good luck with that. Thirty-seven states now allow gay marriage. Thirty-eight states are needed to ratify an amendment. Do the math, Frankie.

  • gshelley

    I know that most people who aren’t obsessed with States rights and the 10th amendment, think that the ninth means there are rights not mentioned that the founders recognized.

    Did they believe there may be rights they did not acknowledge but that people in the future would? Did they have some idea of how many people would need to recognise something is a right for it to be one? i assume there must have been some disagreement over some of the bill of rights (though it is possible every right listed was agreed by everyone)

    Was there an expectation by the founders that future generations would interpret everything the way they did, or did they set it up so that people would have flexibility?

  • arakasi

    If the drafters of the 14th Amendment had intended it to only apply to mean that blacks born in the US were citizens and had the same rights as whites, then they could have said exactly that. Instead, they went with the very broad “all persons” wording. They may not have forseen many of the specific cases that the 14th has been applied to, but it can’t be argued that they intended a narrow interpretation

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    @gshelley, #8:

    First some background, in response to this:

    I know that most people who aren’t obsessed with States rights and the 10th amendment, think that the ninth means there are rights not mentioned that the founders recognized.

    Did they believe there may be rights they did not acknowledge but that people in the future would? Did they have some idea of how many people would need to recognise something is a right for it to be one? i assume there must have been some disagreement over some of the bill of rights (though it is possible every right listed was agreed by everyone)

    It might help to look at the text of the amendments:

    Amendment IX

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Amendment X

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    But what does that mean?

    Plain reading – most wouldn’t quibble with my language but that my text de-emphasizes or over-emphasizes certain reasonable interpretations of the original language:

    9: There are things in law that are rights, but that aren’t mentioned herein. Those rights are not less enforceable for failing to be written out longhand in this document.

    10: The powers of government are split between the feds and the states. Some things are given directly to the feds. These areas are not to be touched by the states. Some things aren’t said to belong to the feds, but are prohibited to the states. Those areas are not to be touched by the states. Some things will inevitably come up that are not specifically in this constitution. If it isn’t previously covered, we want you to know that the concerns here were for detailing the federal government. If it isn’t an area not to be touched by the states, then nothing prohibits the states from exercising power in that area save the rights of the people themselves.

    Even my 10 could be shortened a bit, though I felt I needed all that space. But given an existing understanding of the meaning, I think it can be summed up:

    10 Every legitimate governmental power is granted to government. Powers to the feds are listed explicitly, or by excluding the states from that area. By implication, what is left of legitimate governmental power belongs to the states.

    But we want to call attention to the fact that we are only delegating legitimate uses of government. The people still have rights. We don’t mean to say that anything the federal government does NOT do can then be done by the states. That leads to absurdities like states thinking it’s okay for members of state legislatures to go axe-murdering people for failing to blow the governor, because that peasant had not yet been axe-murdered by the feds for failing to blow the president.

    Okay, that second version (third if original language is a “version”) isn’t shorter.

    It is, however, more fun to read.

    Did they believe there may be rights they did not acknowledge but that people in the future would? Did they have some idea of how many people would need to recognise something is a right for it to be one?

    Does that help?

    to go on with your specific questions:

    Did they believe there may be rights they did not acknowledge but that people in the future would?

    The legally savvy did. Certainly the drafters did, even if the founders more broadly did not all understand that. The 9th would be reasonable (in intent and wording) even in the context of contemporaneously-acknowledged rights that weren’t listed in the Constitution – such as rights as common law, or rights at equity.

    The drafters certainly knew that well-established rights are based on precedents, and that those precedents are specific to specific cases and therefore to specific dates of origination. It could not have escaped them that they were leaving the door open for judicial interpretation. In fact, regardless of how the less-savvy saw the 9th, I would guess that leaving the door open was an important part of constructing a constitutional court system that could reasonably stand up against the legislative and executive branches as its own balancing weight and/or check.

    Did they have some idea of how many people would need to recognise something is a right for it to be one?

    Originally?

    Four.

  • Anri

    Someone should point out to this guy and his ilk the the typical Islamic theocracy allows all of it’s citizens the identical right to worship Allah. So, no problems with religious freedom there, right?