Do Supreme Court justices understand the reasons for traditional marriage?

This article from the Public Discourse takes a look at the oral arguments from the same-sex marriage case in progress at the Supreme Court.

Here’s the list:

  • Error Number One: Massachusetts Marriage Rates Have Stayed the Same
  • Error Number Two: Because Some Men Leave Their Wives and Children, Marriage Does Not Help Keep Fathers Around
  • Error Number Three: The Purpose of States’ Recognizing and Regulating Marriage is to Bestow Dignity on Couples
  • Error Number Four: The Only Harm to Legalizing Same-Sex Marriage Is Making Marriage More Adult-Centered
  • Error Number Five: There Is a Parallel between Brown/Loving and Lawrence/Obergefell
  • Error Number Six: Age Restrictions on Marriage Are Equivalent to the Definitional Element of One Man and One Woman

One of Obama’s Supreme Court picks is showing herself a poor thinker:

Error Number Two: Because Some Men Leave Their Wives and Children, Marriage Does Not Help Keep Fathers Around

Justice Sotomayor also committed what is commonly referred to as an exception fallacy. This is where someone reaches an overall conclusion about a group on the basis of a few exceptional cases. Thus, when Mr. Bursch was making the argument that redefining marriage to include same-sex couples will disconnect marriage from the long-held norm that the institution binds children to their biological mother and father, Justice Sotomayor responded:

Marriage doesn’t do that on any level. How many married couples do fathers with the benefits or the requirements of marriage walk away from their children? So it’s not that the institution alone does it and that without it that father is going to stay in marriage. He made a choice . . . Some mothers do the same thing.

This is a classic example of the exception fallacy. Of course some men and women walk away from their marriage and their children. But that is the exception, not the rule, and it is certainly counter to the social norm of marriage that gently pushes parents to stay together and raise their children.

It is rather shocking that a justice of the United States Supreme Court would claim that “on any level” marriage does not have that effect and longstanding purpose. It is also disappointing that she would commit such a basic error of logic.

I often encounter the problem among people with no math background. You cite statistics about what outcomes are expected, and they reply with an exceptional outlier to refute the argument. I’m troubled that Supreme Court justices lack the ability to reason in this way, though.

Here’s another pretty obvious mistake:

Error Number Four: The Only Harm to Legalizing Same-Sex Marriage Is Making Marriage More Adult-Centered

Several justices struggled to see how redefining marriage in genderless terms would cause any harm or have any impact on the institution of marriage. As Mr. Bursch correctly but incompletely argued, legalizing same-sex marriage will alter the institution to be primarily concerned with fulfilling the desires of adults rather than the needs of children.

But that’s not all. As the 100 Scholars of Marriage made clear in their amicus brief, several other important and beneficial social norms will be eroded, if not erased, by same-sex marriage, including:

– Gender-diverse parenting: the norm that children both need and deserve to be raised by a man and a woman, not only because of what they learn from interacting with a parent of each sex, but because men and women parent and interact with their children differently, providing distinct but complementary benefits. By its very structure, same-sex marriage eliminates this norm and its attendant benefits to children.

– Biological bonding: the norm that marriage binds children to their biological mother and father in a family unit. Same-sex marriage and parenting, by definition, means that at best only one of a child’s biological parents will be in the home. While death, divorce, or parental delinquency create exceptions, elevating the exception to the norm undermines that norm and the benefits it produces.

– Postponing or channeling procreation: the norm that procreation should only responsibly occur within the stable bonds of marriage. Same-sex marriage is not, and biologically cannot be, about procreation. By redefining marriage in this way, the institution becomes less about being the socially recommended “place” and “time” where procreation is recommended.

– Placing social value on raising children: the norm that society values and needs children to be born and raised by their parents. Again, same-sex marriage is not primarily about procreation, and its acceptance attenuates this norm for the institution as a whole. Of course, same-sex couples can adopt or one member of the couple can reproduce with someone of the opposite sex, but these are secondary purposes and behaviors.

What impact will the weakening or elimination of these norms have on the institution of marriage, and thus the behavior of society? Put another way, as Justice Breyer asked, “what’s the empirical connection?”

Well, the last major alteration to the institution of marriage—no-fault divorce—did have unintended negative consequences, reducing marriage rates and increasing divorce rates more than expected, with children and women suffering the consequences. Additionally, the Netherlands, the country that has had same-sex marriage the longest, after controlling for other factors, has experienced a drop in opposite-sex marriage rates among young women after adopting same-sex marriage.

The truth is, no one knows for sure what the effect will be—but it clashes with history, common sense, and theory to assume it will be innocuous.

The norm of gender-diverse parenting is important, because fathers and mothers are both needed.

Look at this abstract from a very new study to see why:

The association between family structure instability and children’s life chances is well documented, with children reared in stable, two-parent families experiencing more favorable outcomes than children in other family arrangements. This study examines father household entrances and exits, distinguishing between the entrance of a biological father and a social father and testing for interactions between family structure instability and children’s age, gender, and genetic characteristics. Using data from the Fragile Families and Child Wellbeing Study and focusing on changes in family structure by age (years 0–9), the authors show that father exits are associated with increases in children’s antisocial behavior, a strong predictor of health and well-being in adulthood. The pattern for father entrances is more complicated, with entrances for the biological father being associated with lower antisocial behavior among boys and social father entrances being associated with higher antisocial behavior. Child’s age does not moderate the association; however, genetic information in the models sharpens the findings substantially.

Biological fathers need to present in the home.

It doesn’t look like we will get a good legal decision on this case. The leftist judges are just not thinking clearly.

11 thoughts on “Do Supreme Court justices understand the reasons for traditional marriage?”

  1. The logical fallacy in your argument is that by preventing same sex marriage, you will change heterosexual behavior. Already 40-50% of US marriages end in divorce, and 30-40% of children are raised by single or separated parents. (These are ballpark figures; I haven’t done more than a brief scan of statistics in Google. My point, however, is that while it might be a minority, it is a SUBSTANTIAL minority that can’t be blown off as unimportant.)


    1. Those of us who oppose same-sex marriage also oppose no-fault divorce and out-of-wedlock childbearing. We aren’t defending the current form of marriage in the culture. We’re defending the real thing – which is permanent, exclusive, oriented toward family life, and involves sexually complementary spouses (i.e. one man and one woman) who engage in a comprehensive union.


      1. Even Jesus didn’t force his values on anyone. He invited people to follow him. I believe that your efforts to force your perception of Biblical values on all citizens by force of law, regardless of whether they share your values or your perceptions, runs directly counter to the Christian message. Further, given that Jesus is not recorded as having said one single thing on the subject of homosexuality, I find the prevailing obsession with the subject among certain Christian groups quite extraordinary.

        Liked by 1 person

        1. I’ll just quickly reply to the Jesus never said anything about homosexuality with this:


          If you’ve ever said that homosexuality is a sin, there’s a good chance that someone tried to correct you with, “Jesus never said anything about homosexuality.” It doesn’t matter what Bible verse you believe bolsters your claim, they believe that Jesus’ silence on the matter trumps all other considerations. But there are a number of reasons why this objection doesn’t work.

          First, it’s not certain that Jesus never said anything about homosexuality. The Gospel writers didn’t record everything that Jesus said – only what they thought was important to their audience. Indeed, most of what Jesus said (and did) was never written down. John 21:25 says, “And there are also many other things which Jesus did, which if they were written in detail, I suppose that even the world itself would not contain the books that would be written.” It’s possible Jesus did talk about homosexuality, but the Gospel writers didn’t feel it was necessary to include it in their accounts.

          Second, it’s clear what Jesus would say about homosexuality if asked. Jesus was an observant Jew who, like all Jews living under the Old Covenant, was bound by the Mosaic Law. That’s why He often referenced it (e.g. Jesus references the two greatest commandments in Matthew 22:37, 39). Therefore, if He was asked what He thought about homosexuality, He would have cited the Levitical prohibitions (Leviticus 18:20 and 20:13) that unequivocally state that homosexual behavior is a sin.

          Third, Jesus did not speak about every immoral behavior. Should we infer that drunkenness, child sacrifice, and neglecting the elderly are appropriate since Jesus never said anything about them either? That’s absurd. Jesus addressed moral issues as they arose in conversation with His disciples and opponents. And even then, not every discussion was documented by the Gospel writers.

          Fourth, the argument that Jesus never said anything about homosexuality presumes that the words of Jesus are more authoritative than the words of Scripture elsewhere. But it is the Holy Spirit – God Himself – who inspired all of the Bible, including epistles like Romans, 1 Corinthians, and 1 Timothy where homosexuality is addressed. Moreover, Jesus and the Holy Spirit co-exist in the Godhead and have been in perfect and eternal communion from eternity past. Therefore, we can be confident that Jesus agrees with what the Holy Spirit revealed about moral issues in the Bible.

          Jesus’ scriptural silence on homosexuality is not relevant to the moral question. It seems like people are unwilling to accept what the Bible teaches when it conflicts with their own sensibilities.

          Regarding the forcing his values, you’re just wrong on that. Jesus is constantly telling people what they ought to do, and threatening them with eternal damnation if they don’t do it.

          Here are a few verses: (I couldn’t help but notice that you didn’t have any verses for your opinion of Jesus)

          Matthew 18:9
          And if your eye causes you to sin, gouge it out and throw it away. It is better for you to enter life with one eye than to have two eyes and be thrown into the fire of hell.
          Matthew 23:33
          “You snakes! You brood of vipers! How will you escape being condemned to hell?
          Mark 9:43
          If your hand causes you to sin, cut it off. It is better for you to enter life maimed than with two hands to go into hell, where the fire never goes out.
          Mark 9:45
          And if your foot causes you to sin, cut it off. It is better for you to enter life crippled than to have two feet and be thrown into hell.
          Mark 9:47
          And if your eye causes you to sin, pluck it out. It is better for you to enter the kingdom of God with one eye than to have two eyes and be thrown into hell,

          Here’s an example of one that gets called out especially – adultery:

          Mat 5:27-28
          You have heard that it was said, ‘You shall not commit adultery.’ 28 But I say to you that everyone who looks at a woman with lustful intent has already committed adultery with her in his heart.


          In Matt. 7:15 Jesus says, “Beware of the false prophets, who come to you in sheep’s clothing, but inwardly are ravenous wolves.”

          And another:

          Matthew 18:15-18New American Standard Bible (NASB)

          15 “If your brother sins, go and show him his fault in private; if he listens to you, you have won your brother. 16 But if he does not listen to you, take one or two more with you, so that by the mouth of two or three witnesses every fact may be confirmed. 17 If he refuses to listen to them, tell it to the church; and if he refuses to listen even to the church, let him be to you as a Gentile and a tax collector.

          That would be kicking the person out of the church.

          So yeah. Not exactly Mr. Sinning-is-fine-with-me, is he?

          The tolerance part of Jesus is that he was willing to associate with and speak to anyone, including sinners. But he never condoned what they were doing.


          1. My point is, Jesus allowed people to make a choice. Yes, the consequences of the wrong choice were horrible – but he permitted them to choose. He didn’t condone their sin, but he loved them and he spent time with them, in their homes, eating their food, permitting them to touch him. Love in action, not warm squishy feelings. He condemned the Pharisees, who burdened people with the Law and completely failed to understand grace.

            Everything you say may well be correct. But it completely misses the point of what it means to be a representative of Christ, and to serve the sinner.


          2. Making law against something still allows people to make a choice. It’s just that there are consequences for making some choices.

            Also, Jesus went after the Pharisees, not because they burdened the people with the law (God did that), but because they added to the law things that God did not say and because they were hypocrites in that they condemned people for doing the same things they excused themselves for doing.


        2. On the topic of Christians forcing their beliefs on people:

          On the topic of legislating morality:

          And as far as homosexuality goes, nobody is trying to make being homosexual illegal. They are simply making the argument that only marriages should be called marriage by the government and that marriage involves a man and a woman.


          1. Fully agree with your argument in the first two posts. The third post, however, is so full of logical fallacy that I’m trying to make up my mind to write a post in response. My blog is unashamedly focused on nonsensical, lightweight story-telling, and I’m not sure that I want to use it for something serious. On the other hand, the illogicality of your argument did make me very angry.


  2. Sotomayor knows she’s wrong (along with the rest of the left), she just doesn’t care. The agenda is to be pushed no matter what!

    Ever read these people claiming the Bible approves of gay marriage? There’s no way an intellectually honest person can read the Bible and come to that conclusion yet Tumblr is FILLED with morons claiming otherwise.

    It’s the failure of Christian parents that their children believe this nonsense.


  3. “The leftist judges are just not thinking clearly.” when do they ever? I think the phase ‘clear-thinking leftist’ might be an oxymoron. I will be very surprised if Scotus upholds same-sex marriage bans no matter how well we argue. They’ve dunk the leftist kool-aid and now we all get to watch Rome burn.


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