No, You Don’t Have the Right to Marry Whomever You Love

Rob Tisinai

January 30th, 2013

Self-described Catholic blogger Brandon Vogt recently published Rebuttals to arguments for same-sex marriageHe tries to disprove 10 common same-sex-marriage arguments, but merely highlights the most common mistakes of his own camp. I’m addressing each of his 10 points in  separate posts as a kind of back-t0-the-basics review of our opposition.

Vogt’s finally on to something with his third rebuttal. He finds a straw man and digs his pitchfork in with gusto:

3. Everyone has the right to marry whomever he or she loves.

Though catchy, few people truly believe this slogan. Most of us acknowledge there should be at least some limitations on marriage for social or health reasons. For example, a man can’t marry a young child or a close relative.

Oh lord — I agree with Vogt! I don’t think an adult should be allowed to marry a child, and when we say everyone has the right to marry whomever he or she loves, we do nothing but set ourselves up for an obvious rebuttal. It’s not just sloppy rhetoric, it’s rhetoric few people believe, rhetoric that just makes us look dumb. It also allows people like Vogt to rip apart the straw man and pretend we don’t have deeper and more substantive arguments for marriage rights.

Instead of that catchy, damaging slogan, I’d rely on Olson and Boies opening argument from the Prop 8 trial:

  1. Marriage is a vitally important good.
  2. Excluding same-sex couple from marriage excludes them from that good, and in fact does them harm.
  3. Proposition 8 perpetrates this harm for no good reason.

That last item is crucial, and it explains why we don’t let adults marry children, who lack the experience or even the basic neural development needed to understand a life-long commitment or to protect themselves from an exploitative adult.

I’ll admit that this 3-point series of propositions doesn’t trip off the tongue as smoothly as the slogan I’m rejecting, so how about this:

If you’re going to deny me the right to marry the person I love, you’d best prove a good reason why!

That’s a statement I can stand by. It has good intuitive appeal, it puts the burden of proof on the other side, and if they ask why that burden lies with them, I can just answer:

Because it’s a free country.

And that’s the crux of it. Which explains why Vogt is just offering up a crock when he says:

So, the real question here is not whether marriage should be limited, but how. To answer that, we must determine why the government even bothers with marriage. It’s not to validate two people who love each other, nice as that is. It’s because marriage between one man and one woman is likely to result in a family with children. Since the government is deeply interested in the propagation and stabilization of society, it promotes and regulates this specific type of relationship above all others.

Sorry, Vogt. In a free country we don’t justify our rights by pointing out their benefit to government or society. It’s the other way around: Government and society exist to secure the rights of individuals, to create an environment that protects our rights of life, liberty, and the pursuit of happiness. You’d imagine that our most vocal opponents (those dwindling conservatives and Tea Partiers still against same-sex marriage) would be the first to take this to heart, but they seem to forget their own rhetoric when it comes to the gays.

That’s enough to wipe out Vogt’s argument, but he says a couple more things worth demolishing. First:

To put it simply, in the eyes of the state, marriage is not about adults; it’s about children. Claiming a “right to marry whomever I love” ignores the true emphasis of marriage.

Here Vogt makes the great mistake so common to his side: He thinks that just because the welfare of children is a true purpose of marriage, it must be the true purpose, as if there exist no others worth considering. And that doesn’t follow at all. Marriage is about adults, too — a fact our opponents always promoted until they started casting around for new ways to work against our rights. As Maggie Gallagher herself wrote long ago:

Marriage is a powerful creator and sustainer of human and social capital for adults as well as children, about as important as education when it comes to promoting the health, wealth, and well-being of adults and communities.

She even called this adult-based case for marriage “equally significant” as the one based on children.

(In case you’re wondering, yes, I do plan to flog this statement of Maggie’s until the marriage debate ends. Neither Maggie, nor Brian Brown, nor anyone else associated with NOM should be allowed to ignore it. In fact, I hope everyone throws Maggie’s research at them until they’re forced to deal with it).

And finally, Vogt gives us this:

Notice that nobody is telling anyone whom he or she can or cannot love. Every person, regardless of orientation, is free to enter into private romantic relationships with whomever he or she chooses.




I’ll pass over the Protestants and Muslims who call for the criminalization of our relationships and focus on the faith I was brought up, Catholicism. Vogt is Catholic blogger. Not a blogger who happens to be Catholic, but a man whose Catholicism is central to his writerly identity. As such, he ought to know a bit more about the Holy See’s stance on whether a person should be “free to enter into private romantic relationships with whomever he or she chooses.”

While the Vatican doesn’t think we should face criminal penalties merely for being homosexual, it’s always drawn a careful distinction between homosexual persons and homosexual acts. And when it comes to those acts, here’s its response to a UN resolution on decriminalizing homosexuality:

Second, for the purposes of human rights law, there is a critical difference between feelings and thoughts, on the one hand, and behavior, on the other. A state should never punish a person, or deprive a person of the enjoyment of any human right, based just on the person’s feelings and thoughts, including sexual thoughts and feelings. But states can, and must, regulate behaviors, including various sexual behaviors.

And the Holy See goes on to cite laws against acts of pedophilia and incest as clear precedents for such regulation, without explaining that connection, that offensive logical leap.

Of course, we’ve gotten off track here. Vogt’s “We still let you hook up as long as you keep it private,” in no way justifies a ban same-sex marriage. It’s just an irrelevant detour. Sorry, Vogt, but from beginning to end, you’ve made a mess of this one.

Tomorrow: Will same-sex marriage hurt all those decent straight people?

Priya Lynn

January 30th, 2013

Great job, Rob! I really loved that part on the “purpose” of marriage.

Ben in Oakland

January 30th, 2013

“To put it simply, in the eyes of the state, marriage is not about adults; it’s about children. Claiming a “right to marry whomever I love” ignores the true emphasis of marriage.”

This is dishonest to the core.

No law in any jurisdiction anywhere in the United States, and probably anywhere inthe world, requires procreation for a marriage to be valid. Marriage occurs AMONG ADULTS, long before children occur, are planned for, or even considered. Likewise, in the United States, there exists not a single law which requires marriage when children are produced. Heterosexuals can continue to pop them out with abandon, and for no other reason than this: THEY CAN.

And no one will say boo about marriage.


January 30th, 2013

Great Series.


January 30th, 2013

The correct statement should be “A person should be free to marry whomever he or she chooses, provided the other party agrees.”

The law does not require two persons applying for a marriage license to love each other. Indeed, the law cannot compell love nor can a license-issuing official assess whether or not two people love one another.

The law addresses whether or not the two people are capable of giving consent. That is why there are age limits — children are presumed to be unable to give consent to enter into the civil contract of marriage. In my state, a license-issuing official is required by law to deny a license when one of the applicants appears inebriated. The assumption is a drunk / high person cannot give consent.

If a man and a woman are legally eligible to marry, whether or not they truly, truly love one another is not a question the state can ask. For that matter, it is not an assessment the church can make either. I’ve known people who truly, truly love each other who are really, really toxic to each other and should have never gotten married.


January 30th, 2013

I find Vogt’s statements questionable also in light of the fact that Catholic bishops in Uganda have supported the anti-gay bill there, without Vatican censure, and the Pope has met with Ugandan leaders behind this effort. Apparently in some parts of the world (where they can get away with it) it’s perfectly fine to persecute gays as far as Catholics are concerned, just as long as it’s not on OUR streets (yet) and frighten OUR horses. Third World nations? Meh. Not so important.


January 30th, 2013

Governments recognize marriage because that contract creates a new legal relationship as strong, if not stronger than, a relationship based on blood. By recognizing the relationship the government ensures appropriate distribution of property in the event of death or dissolution of the relationship. These property rights exist whether children result from the marriage or not – or even if children precede the marriage (yes, I’m talking to you Maggie). Were my widowed 72-year-old father to marry tomorrow, his new wife would automatically supersede my sister & I in terms of health decisions, etc.


January 30th, 2013

“Every person, regardless of orientation, is free to enter into private romantic relationships with whomever he or she chooses.”

Pretty funny that he responds to a catchy-but-overbroad characterization of our argument for the right to marriage with an almost identical catchy-but-overbroad characterization of the right to a romantic relationship. Wait a minute, Mr. Vogt — pedophiles are not, and should not be, free to enter into private relationships with whomever they choose! I guess any argument Mr. Vogt might choose to make in defense of any particular romantic relationship is now invalid.

Rob Tisinai

January 30th, 2013

Nice catch, Carrie!

Timothy Kincaid

January 31st, 2013

Perhaps the stupidest part of “right to marry who I love” is the “who I” part. No one, not one person, has the right to marry who they love.

Miles Standish did not have the right to marry Priscilla Mullen. John Hinkley did not have the right to marry Jody Foster. And none of the truly tacky contestants on The Bachelor have the right to marry the man they, well, whatever.

The right to marry who you love implies slavery, ownership. We do not have that right.

To marry, we must have consent. A man does not “marry the person I love”, but rather they marry each other. Vows are made on both sides. They form a legal unity from what each brings.

And that is one reason why children cannot marry. They cannot consent. We recognize that a child lacks adequate cognition and so a child cannot enter an enforceable legal contract.

Priya Lynn

January 31st, 2013

That consent is required goes without saying Timothy.

Timothy Kincaid

January 31st, 2013

Well, no, Priya Lynn. It doesn’t go without saying. Which is precisely why I’m saying it. If it went without saying, then none of the silly non-consent arguments would be presented.

If one can “marry the person I love” that turn of phrase presumes that it is “I” who does the marrying. Consent is not present (with or without saying) in that phrase.

And the whole question of children is still present in that presumption. “Well, you can’t marry a child even if you love her!!” presumes that the will of the adult is the only thing in question.

Similarly “you can’t marry your horse” or “you can’t marry your desk” or “you can’t marry your box turtle” ignore that marriage is not a singular decision.

All of these arguments are predicated on the presumption that a person (usually a man) marries something. That is a false presumption.

We would never say that in business “I can partner anyone I want”. That makes no sense. A partnership requires an agreement between more than one party.

So too with marriage.

When we take “I” to “we”, then all those child/animal/inanimate object issues are illustrated as being just as silly as they are.

But you may now have the last word.

Priya Lynn

January 31st, 2013

Well, maybe it doesn’t go without saying for you but I’m sure for the vast majority of people it does.

Rob Tisinai

January 31st, 2013

For too much of history (and in too many parts of the world today), the consent of the woman/girl/child has been largely irrelevant.

Dan Savage has a great video where he makes the point that same-sex marriage is a natural consequences of marriage redefinitions made by STRAIGHT people in the West (especially the easing up of legally-imposed gender roles).

Priya Lynn

January 31st, 2013

“For too much of history (and in too many parts of the world today), the consent of the woman/girl/child has been largely irrelevant.”.

True, but with rare exceptions we’re not in one of those parts of the world.

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