Doing this is important because some bad arguments are delivered sincerely by politicians and pundits in the public sphere; and these arguments, despite their unsoundness, play a role in shaping or solidifying people's convictions. And even though anyone who isn't already a true believer can smell something fishy, in some cases it can be hard for the ordinary person to pin down and clearly explain what's gone wrong.
Occasionally I feel the need to present such arguments to my students. A few weeks ago, when discussing same-sex marriage in one of my classes, we were looking at an argument for same sex marriage that relied on the following premise:
Restricting marriage to heterosexual couples amounts to legal discrimination, and thus stands in need of a substantive justification--a compelling state interest, beyond majority preferences or sectarian religious beliefs, that could warrant the state in waiving the presumption of equality under the law.This premise strikes me as clearly true--and it seemed that pretty much everyone in the class agreed. Those who were opposed to same-sex marriage didn't deny that current practices are discriminatory. What they denied is that the discrimination is unjustified. They thought there were good reasons to exclude same-sex couples from the legal institution of marriage, but were prepared to concede that gays and lesbians were being legally denied something that the heterosexual majority enjoyed.
But I knew full well that there's an argument often repeated in the public sphere which challenges this--an argument which purports to show, not that the discrimination is justified, but that no discrimination is going on at all. So I threw it out there. Here's how the argument goes:
A law that restricts marriage rights to heterosexual couples is not discriminatory at all, because everyone in society has the same rights with respect to marriage that everyone else in society has, namely to marry someone of the opposite sex. No one is excluded from marriage. It's just that everyone in society faces exactly the same constraint on who they can marry. It must be someone of the opposite sex. So: no discrimination, and hence no need to justify the discrimination by appealing to some consideration that could warrant differential treatment.So what did my students say when I laid out this argument? Very little. I saw some eyes roll. One student said, "I refuse to dignify that argument with a response." They generally sensed it was a bad argument, but they weren't quite able to spell out where the argument goes wrong.
"But if you don't think the argument is convincing," I said to the student who refused to dignify the argument with a response, "you need to be able to explain why. Because this is a major public dispute right now. And not only are there people out there who are sincerely making this argument, but there are people whose prior convictions are being strengthened by it. Put simply, the argument sounds reasonable to them."
Of course, one person who delivers just this argument is GOP presidential candidate Michele Bachmann. Here's a video in which, among other things, she articulates precisely this argument in response to a high school student questioning her opposition to same-sex marriage:
So why is Bachmann's argument bad? (There's actually more than one bad argument in this clip, but I want to focus on the one about same-sex marriage.) The teenagers in the clip were persistent and courageous, but they didn't articulate the fatal flaw in Bachmann's argument with the kind of clarity that would expose it for what it is (maybe even to Bachmann herself).
And what's the fatal flaw? Put simply, the argument is premised on the assumption that everyone has the same sexual orientation. If everyone had a homosexual orientation, then a law restricting marriage to heterosexual couples would require that everyone marry someone they have no attraction to, cannot fall in love with, cannot sustain romantic feelings with, etc. Everyone in society would be equally denied access to a deeply valued social good, namely legal recognition and support for their intimate, romantic loving partnerships. No discrimination there--although we might wonder why the state would systematically deny everyone access to this social good. (I suppose if everyone had a homosexual orientation, the reason might have something to do with motivating reproduction in a world where no one is drawn to reproductive sex).
If everyone had a heterosexual orientation, then--once again--a law restricting marriage to heterosexual couples would be unproblematic. It would preclude everyone from doing something no one had any interest in doing in any event: namely, marrying someone they cannot be attracted to or cultivate romantic feelings for. It would be a kind of silly and pointless restriction, a bit like prohibiting people from eating unhealthy food they despise in contexts where courtesy doesn't demand it.
And, of course, if everyone had a bisexual orientation, then a law restricting marriage to heterosexual couples would put the same limitation on everyone (I've often joked that conservative Christians think everyone is bisexual--after all, they declare that "it's a choice"). We might wonder why this constraint should be imposed, but the constraint would not be discriminatory against any individuals (although it would still discriminate against couples who happened to be of the same sex, and thus would cause considerable pain when people had the bad luck of falling in love with someone of the same sex and then had to face the decision of whether to break up with someone they loved or go on with the relationship knowing they'll never have access to the social and legal goods of civil marriage).
But people don't all have the same sexual orientation. And so, legally limiting civil marriage to heterosexual couples means that heterosexuals are afforded access to a distinctive good (having their intimate romatic partnerships recognized and supported by the state) that is denied to those with a homosexual orientation. (Furthermore, the law creates a situation in which bisexuals are confronted with a potential life challenge--see above--that heterosexuals are immune from).
Of course, Bachmann claims that a homosexual orientation is something that can be "healed" through so-called reparative therapy or ex-gay ministries. The evidence hardly supports this claim. At best, gays and lesbians can be habituated to more effectively suppress their natural attractions and, perhaps, learn strategies for functioning sexually with people they are not attracted to. But that isn't conversion to heterosexuality. They remain persons with a homosexual orientation who are, we might say, better able to outwardly mimic the sexual lives of persons with a heterosexual orientation (but who, in mimicking this, cannot experience the inner satisfaction and relational intimacy that is possible for heterosexuals).
But suppose Bachmann is right. Suppose reparative therapy actually can succeed in turning a non-heterosexual into a heterosexual. Would it then be the case that restricting marriage to heterosexual couples is not discriminatory? No. It would still be discriminatory. Why? Because, in order to enjoy the distinctive social goods offered by the legal institution of marriage, those who happen to have a homosexual orientation would be required to do something that heterosexuals would not be required to do: They'd need to successfully undergo conversion therapy.
Heterosexuals who fell in love could head straight to the appropriate municipal offices to apply for a marriage licence. If civil marriage were available to same-sex couples, then gays and lesbians could do the same thing. But as it is in most states, they can't. Instead, they're denied the benefit of legal recognition and support for their intimate relationships unless and until (assuming, as Bachmann does, that this is possible) they achieve a successful "conversion" (and spend the time and other resources needed to achieve this).
Imagine, if you will, that public funding for attending state universities were only available to people who spoke English with an American accent. And suppose that there are accent coaches out there who have a track record of success in teaching this ability to those willing to invest the time and resources. Does the latter fact make the policy non-discriminatory? Of course not. Discrimination in the conferral of social goods based on one's accent remains discrimination even if it is possible, with time and effort, for those who have the "wrong" accent to change it.
None of this implies that discrimination is unjustified (although I think it is). But it does imply that to argue that there is nothing discriminatory going on is just misguided. Bachmann's argument is bad. No one should be influenced by it one way or the other. And so its badness needs to be explained, again and again if necessary, so as to shut down any power it might have to erroneously shape public thinking. Consider this my small effort in that cause--and feel free to direct others to this post if you'd rather not explain the badness of the argument yourself.