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.