[Note: This is a post I wrote in 2005, which I think is relevant enough to be worth reposting here.]
As we’ve been told often by same-sex marriage opponents, the historical definition of marriage has never changed and must never be allowed to change, or else civilization will collapse. (I’m exaggerating their views, but only very slightly). Marriage is, and has always been, about “heterosexual intercourse, child bearing, and child well-being.”
Roderick Long (who is, by the way, a genuine libertarian feminist) points out an opinion written by Judge Valentine of Kansas in 1886, ruling that a couple was not married:
In my opinion, the union between E. C. Walker and Lillian Harman was no marriage, and they deserve all the punishment which has been inflicted upon them. … In the present case, the parties repudiated nearly everything essential to a valid marriage, and openly avowed this repudiation at the commencement of their union.
So what, according to this legal ruling in 1886, was “everything essential to a valid marriage?” Roderick describes the objectionable parts of their ceremony:
What “essentials” had the couple repudiated? In their marriage ceremony Harman had declined not only to vow obedience to her husband (such a vow being repugnant both to her feminism and to her libertarian anarchism) but also to vow love unto death: “I make no promises that it may become impossible or immoral for me to fulfill, but retain the right to act, always, as my conscience and best judgment shall dictate.” She also declined to submerge her individuality in another’s by taking her husband’s last name: “I retain, also, my full maiden name, as I am sure it is my duty to do.”
Walker for his part vowed that “Lillian is and will continue to be as free to repulse any and all advances of mine as she has been heretofore. In joining with me in this love and labor union, she has not alienated a single natural right. She remains sovereign of herself, as I of myself, and we … repudiate all powers legally conferred upon husbands and wives.” In particular he repudiated any right as husband to control his wife’s property; he also acknowledged his “responsibility to her as regards the care of offspring, if any, and her paramount right to the custody thereof should any unfortunate fate dissolve this union.” Harman’s father added: “I do not ‘give away the bride,’ as I wish her to be always the owner of her person.”
So she retained her own identity, her own name, and reserved the right to divorce if need be; and he refused the traditional husband’s right to rape his wife, control her property, and own any children of the union.
(Man, they sound cool!)
In 1886, the idea that a woman owned herself, even when married, and had the right to not be raped was a radical redefinition of marriage, so much so that a court refused to acknowledge it as a marriage at all.
As Roderick points out, if tradition determines what makes a legitimate marriage, then virtually no current marriage in the US is legitimate; coverture laws no longer exist, for example, and nearly all the states have fully outlawed marital rape (although of course it still happens).
Since tradition must always be respected, on what grounds would SSM opponents have allowed marital rape to be outlawed, or coverture laws to be undone?
Categories: Marriage
In my view this case is about women’s rights, and is not related to the SSM argument.
The whole rape thing smells like fresh herring to me.
But Barry is pointing out how the courts viewed marriage and why it existed. The reason marriage protects women and children is because they were viewed as powerless property and someone had to take care of them. This romantic, nostalgic notion of the origins of marriage run head first into the legal reality that marriage existed to protect property and create a system to care for women who had no legal control over their lives. if not a husband, they’d be the responsibility of their fathers and still–in many cases–be unable to have property passed onto them.
I agree with Barb and Any Mouse.
This seems only extremely tangentially related to SSM.
Reaching back to 1886 to find a case to make an argument that doesn’t really have anything to do with the subject at hand seems a bit desperate.
[In my view this case is about women’s rights, and is not related to the SSM argument.]
The case is about marriage and the way it has changed over time. It is directly relevant as was detailed in the original post. If you would care to detail how it is not related I would be pleased to hear it. As it stands your dismissal is meaningless.
[The whole rape thing smells like fresh herring to me.]
This is another meaningless statement. Are you arguing that martial rape was not legal? Do you mean red herring? The post makes an argument – do you have a response that is not nonsense?
[This seems only extremely tangentially related to SSM.
Reaching back to 1886 to find a case to make an argument that doesn’t really have anything to do with the subject at hand seems a bit desperate.]
A third dismissal without argument. An argument was clearly made that tradition is a poor defense for refusing legal protections to any couple that wants to marry. This is why you are loosing the debate.
“Reaching back to 1886 to find a case to make an argument that doesn’t really have anything to do with the subject at hand seems a bit desperate.”
Oh really? LOL.
We’ll all keep that in mind the next time family scholars who oppose SSM refer back to marriage’s “historical and traditional roots.”
The point that a few commenters would rather not acknowledge is that opponents of SSM refer to “traditional marriage”. In the US, until a few decades ago, “traditional marriage” meant that in fact and in law, the wife was inferior to – and in many ways, the property of – her husband.
It is intellectually dishonest to oppose SSM by calling on ‘millenia of tradition’ or ‘traditional notions of marriage’ while pretending that a modern, 21st-century marriage is ‘traditional’ as long as it consists of a husband and a wife.
To say that “traditional marriage” merely refers to one male and one female spouse is like saying that “Moby Dick” is about nothing other than a whale hunt.
this piece is like saying you can’t be in favor of even some minimal form of gender roles in parenting without advocating spousal abuse, which i’m sure the author, as a fanatical gender-doesn’t-matter feminist, probably agrees with
why doesn’t this blog have more people on the anti-SSM side who call out how dumb these sorts of arguments are? you let these guys blast you as modern-day George Wallaces while Blankenhorn&co.’s primary concern isn’t winning the argument but distancing themselves from those icky Christians.
IDP, I’m not sure where you are getting your first point. Gender roles in a marriage, or in parenting, that the people involved choose for themselves are very different than unequal roles imposed as a matter of law. Barry is talking about the fact that, until quite recently, separate and unequal gender roles were not merely an option but thought to be part and parcel of what marriage really is.
Nobody has suggested that people should be forbidden to choose gender roles (mild or otherwise) within their marriage. The difference is that, at least in the US, those are choices and do not have the force of law.
Reaching back to 1886 to find a case to make an argument that doesn’t really have anything to do with the subject at hand seems a bit desperate.
Not really. One of the arguments against same-sex marriage has been the “separate spheres” argument—that men and women are very different, and as such need one another to “complete” each other—fill in the gaps that the other doesn’t have and thus have a “whole” relationship. That isn’t operable any more. Men and women (married or not) pretty much lead the same daily lives; there is nothing even remotely resembling separate spheres in today’s world. Since heterosexuals have already proven that it is possible to have healthy marriages without separate gender roles, it only stands to reason that same-sex couples could also have healthy marriages without separate gender roles.
Seems to me that a lot of folks will perceive this argument as an attempt to hijack the women’s movement.
I don’t understand that argument, Barb. Social movements don’t exist in a vacuum or a moment in history. So the civil rights movement borrowed from the women’s movement (and vice versa). The law that was created by these efforts has impacts beyond the specific facts. So if someone is arguing that marriage is (A) but we have historical analysis and legal decisions that suggest marriage is (B), that isn’t something that only applies to feminist thinking, but also race-based civil rights and LGBT civil rights.
I don’t treat the desire to marry a same-sex partner with the same gravity as a woman’s right to not be raped or a black person’s right to not be lynched. I don’t believe I’m alone in this.
Unfortunately, I used up my 3 allotted comments, so I’ll just have to leave it at that.
“Seems to me that a lot of folks will perceive this argument as an attempt to hijack the women’s movement.”
Which folks?
I doubt feminists would it see it that way. As a feminist, I am critical of the way opponents of SSM gloss over the problematic, sexist aspects of “traditional marriage,” painting this image of “traditional marriage” as this beautiful, near-utopian institution that mustn’t ever be tampered with.
Well, as Barry’s post demonstrates, marriage has been tampered with. A lot. And, in my opinon, for the better- since marital rape is outlawed and coverture eliminated. When opponents of SSM say they must defend “traditional marriage” and bemoan the way marriage is changing, it’s not always clear which traditions they are bemoaning the loss of.
So, if folks try to paint a post like this as an attempt to hijack “the women’s movement,” I think that narrative would come from those who are not feminists or involved in “the women’s movement.” Much in the way that some white opponents of SSM claim that the LGBT community is “hijacking the black civil rights movement.”
I am suspicious of the concern there. I admit it. To me, both claims look like attempts to vilify the LGBT community and to dismiss people’s legitimate critiques.
(I’m not saying that’s your or anyone’s intent, just that that’s what it looks like from my perspective. I just don’t see opponents of SSM regularly talk about women’s rights. If they do, it often comes in no other context than criticizing or mocking feminism. In a previous comment thread, a man called a feminist woman “kooky,” within this thread another person called a feminist “fanatical.”
Neither seriously addressed feminist argumentation, they just engaged in petty name-calling, working under the assumption that Everyone Knows Feminism Is Dumb And Wrong. So, you know, that’s why when someone expresses concern about how Barry’s post might be interpreted as “hijckacking the women’s movement,” it’s incredibly difficult to take that concern seriously).
Barb,
This line of thinking is ludicrous. It’s not a competition to see who is the most oppressed. The right for a gay man to marry his partner may not be as important as the right of a black person not to be murdered. But the right of a gay person to not be murdered is equal to the right of a black person to not be murdered, and both are equal to the right of a woman to not be murdered.
The right of a gay man to marry his adult male partner _is_ equal to the right of a heterosexual woman to marry her adult male partner, and that’s why this is a civil rights issue.
Gay rights are civil rights, and human rights, just as women’s rights and minorities rights and rights for the disabled are civil rights and human rights. We need not allow oppression to continue for one group because another group was oppressed in a different way.
Would you argue that we don’t need to care about women making equal pay for equal work because some states were sterilizing the disabled against their will? Can you see how your argument was ludicrous?
All this really shows is that arguments from tradition are like just about anything else, and just about any other kind of argument: they can be overapplied, and at the other end too summarily dismissed. And that too many people erroneously believe that to demonstrate overapplication constitutes as an argument for total dismissal.
R.K.,
Are you saying that logical fallacies such as appeal to tradition are too easily dismissed by people who don’t think logical fallacies are reasonable arguments?
The probably with appeals to tradition, and with other fallacies like “slippery slope” arguments, is that they don’t actually make the case that the arguer thinks s/he is making. The argument that you are making–that we should apply logical fallacies carefully–strikes me as more troubling than the fallacies themselves. You seem to be saying, “Even though I agree that there are situations where we should not apply bad logic, it’s okay to apply bad logic when we’re taking about SSM.”
Are you saying that logical fallacies such as appeal to tradition are too easily dismissed by people who don’t think logical fallacies are reasonable arguments?
Phil, I’ve already dealt here with the fallacy that because a type of argument cannot be used as proof of a position, it therefore cannot be regarded as a factor to consider either. And I’ve discussed this at some length in regard to tradition before, as you know.
Do you agree that ad hominem arguments are also fallacies? If so, do you also believe they should never even be factors to consider when weighing out arguments? Even if made by someone like Fred Phelps or Paul Cameron?
http://www.hoover.org/publications/policy-review/article/8020
R.K.,
Logical fallacies are bad arguments. We could define an argument as a reason to do something (or a reason not to do something.)
So, it really depends on what you mean when you say “factor to consider,” doesn’t it? If you are making a decision, then you should list all of the arguments for and against that decision, and then you should eliminate all of the bad arguments. Bad arguments are arguments that don’t make their case, R.K. So if an argument is a logical fallacy, and thus a bad argument, it doesn’t make its case, and it should eliminated as a factor to consider when one is making a decision.
Bear in mind, eliminating an argument does not automatically mean that we accept that the argument is false or that its opposite is true. We just cross it off the list and look at good arguments.
If you cannot possibly make a case without resorting to logical fallacies, then you cannot possibly make the case. There is no harm done in eliminating the logical fallacies.
If, by “factor to consider,” you mean something that we can talk about while we’re trying to make a decision, that’s fine, as long as we all agree that it is not a relevant reason to consider in the decision-making process.
Ad hominem arguments are always bad arguments. They should always be crossed off the list with regard to making the decision to which the argument applies. That doesn’t mean we can’t talk about them, and it doesn’t mean that we can’t consider them when we are making a decision about the speaker.
For example, the fact that Paul Cameron is a liar does not automatically make every statement that Paul Cameron makes a lie. It would a logical fallacy to pretend that it does. But if I’m making a decision about Paul Cameron–like, whether to invite him to a dinner party, or whether to invite him to a conference–then it is legitimate to hold his ethical conduct against him for the purposes of that decision.
Your arguments with regard to marriage equality are not wrong because you are R.K. They are wrong because they are wrong.
So if an argument is a logical fallacy, and thus a bad argument…
No, only if asserted as proof, Phil.
For example, the fact that Paul Cameron is a liar does not automatically make every statement that Paul Cameron makes a lie. It would a logical fallacy to pretend that it does. But if I’m making a decision about Paul Cameron–like, whether to invite him to a dinner party, or whether to invite him to a conference–then it is legitimate to hold his ethical conduct against him for the purposes of that decision.
Let us say that Paul Cameron said something (potentially verifiable, not just an opinion) that if true, would be relevant to the debate, and if true would weigh toward his position on the issue. But let us say that you had no way, with what information you currently have, to verify whether what Cameron said was true or not. Now, the fact that Cameron said it would not prove that it is false. But are you saying that Cameron’s reputation would have no bearing whatsoever on the likelihood you would place on the statement being true or false? Would you expect juries to take this position when assessing witness credibility?
Let’s take another logical fallacy, post hoc, ergo propter hoc. The fact that event B followed event A does not, of course, prove that A caused B.
But what if in numerous separate cases, the same event A was followed by the same event B? Without sufficient information to examine all possible causative factors and rule them out, we still would not have proof that A caused B. Yet by your reasoning, the repeated cases of B following A would not even be factors to consider in assessing A when examining all other angles (and hence proving causation) is not possible. You are misunderstanding the idea of logical fallacy by applying the rules of proof to arguments which are not about proof but probabilities.
So, logical fallacies are good arguments when they are not asserted as proof, R.K? An argument is a reason to do or not do something. Somehow, a bad reason becomes a good reason if the speaker says, “Uh, I’m not saying this proves my point, it’s just something to consider?”
Phil, do you want to argue that parents who noticed long before the days of sophisticated medical knowledge (or who may still notice without having the knowledge) that children frequently got colds after going outside in cold rain without sufficient clothing were wrong to tell their kids to bundle up? How many more examples do you need?
Unfortunately this is just another example of “zero or 100″ fallacy (related to excluded middle), which might be defensible if humans really had 100 percent in the way of information and knowledge.
Oh, gosh, R.K.
Your larger point– that inductive reasoning has a place in arguing–is not unreasonable. But inductive reasoning is not always fallacious, and again, we can still identify good arguments and bad arguments.
But you could not have chosen a better example, from my perspective, to illustrate the points that we are making.
Yes, the parents who noticed that kids frequently got colds while going outside in cold were wrong to conclude that going outside in the cold causes colds. It doesn’t. Viruses cause colds, not insufficient bundling up.
Now, children who are insufficiently insulated can get hypothermia, which is also serious. So the parents were not “wrong” ethically or morally in asking their kids to bundle up. But the logic that led them to conclude that being cold or being cold and wet causes colds was faulty logic, and it led them to a conclusion that was factually incorrect.
Were you really serious about that? Really?
But the logic that led them to conclude that being cold or being cold and wet causes colds was faulty logic, and it led them to a conclusion that was factually incorrect.
Were you really serious about that? Really?
http://abcnews.go.com/GMA/OnCall/story?id=1308122
http://www.thrivingnow.com/stay-bundled-up-to-avoid-the-common-cold/
R.K.,
It looks like my last comment was held because of the links it contained.
ABC News reported this past November that the link between cold, wet weather and catching a cold was a myth. Intriguingly, Gawker also posted this afternoon that “cold weather causes colds” is a myth. (Since 1995, so have the web sites of the American Lung Association and the American Academy of Pediatrics.)
Of course, more relevant to the subject of this thread is how one would go about making a decision if there is a debate of fact. Do we compile the evidence and then eliminate the bad evidence? Or do we include bad evidence as a “factor to consider?”
But have they refuted the Oxford study?
Regardless, my linking to those threads was not merely to show that the question is still debatable (and that sometimes things are still debatable scientifically even when people think the debate is over), but to reinforce the question I asked, when they did not possess the scientific knowledge, were they wrong to base their decision regarding their children on what they did have, repeated observation…even if it was post hoc, ergo propter hoc, and even if it was not scientifically proven? Did it any less suggest the possibility of a link, whether the link was as thought or not? (Are you going to tell parents that they should not encourage their kids to dress warm enough, unless the temp drops to hypothermic levels?)
Long before the Surgeon General issued his report on the health dangers of cigarettes, my dad had insisted that smoking was bad for your health, because he’d seen too many smokers he’d known die of lung cancer or heart attacks. But this was just post hoc ergo propter hoc, a fallacy, and thus bad evidence. He was no scientist. (And besides, he died of a heart attack eventually even though he was not a smoker). Didn’t mean a thing. Just observing that more smokers died of lung cancer didn’t prove that smoking caused lung cancer or heart attacks or had anything to do with them, so it didn’t suggest the possibility of a link either.
Primitive cultures had no idea of the biological explanations for how reproduction took place. They just observed that repeatedly, women had babies nine months after having sex with a man. But this was just based on post hoc, ergo propter hoc, a fallacy, and thus bad evidence. Can’t draw a conclusion from that, can we? After all, they were just primitives with no sense of science. (And there were actually some cultures that never made the link). Didn’t mean a thing. Just observing that babies followed sex did not prove that babies had anything to do with sex, thus it didn’t even suggest the possibility of a link.
Maybe you are getting the picture. When B follows A in one particular case, it is a fallacy of post hoc ergo propter hoc to claim that thus A caused B. But when B follows A in many cases, it is not so fallacious to say that it suggests the possibility of a link. And the more often B follows A, the more logical it is to note that there is a possibility of a link.
Same with traditions. When a tradition exists in just one culture, it is a fallacy to say that therefore there must be a good reason for it, or that it therefore shouldn’t be abandoned. When it exists in many cultures, it is not so fallacious to say that it suggests the possibility that there may be a reason for it related to the culture’s success or survival, and that abandoning it may be risky. The more cultures that have the tradition, the more logical it is to say that it suggests the possibility of a purpose to it.
Of course it is ultimately possible that beliefs based on post hoc ergo propter hoc, or on tradition (which is related, as it often may well be based on p.h.e.p.h.), can be conclusively proven by science to be either true or false. When science really has all the data necessary to make the conclusion, and has conclusively and indisputably determined how to sort it all out.
And, of course, you’re going to argue that we’re already at that stage in our advancement. Or aren’t you? But in the meantime, of course, it’s 100 per cent proven, or it doesn’t mean a thing. I see.
This, of course, is not the same as the question Harris gets to in the link I provided above: whether or not the concept of tradition itself has a crucial role in culture. From what I’ve seen, Phil and many others here believe the entire concept of tradition is meaningless. I’m sure they will protest that they don’t mean that, but come on. Yes, that is exactly what they mean. Every generation (or maybe every individual) will form its own concepts independent of those before them.