Gay marriage is based on therapy

The US Supreme Court decision in favor of same-sex marriage was quite different from all the other court decisions in its reasoning. The others had long discussions of the state's compelling interest, or the social science research, or whether laws regarding sex or sex orientation deserve strict scrutiny, or whether gays and lesbians should be a protected class, or whether marriage laws were driven by anti-gay animus. The Kennedy opinion drops all of that nonsense.

The Supreme Court decided that marriage laws must be changed in order to force others to give equal dignity to gays and lesbians. This essay explains how it is all about feelings:

The argument in favour of gay marriage is based on therapy. It is based on an approach that seeks to reorder public policy in line with the subjective desires of individuals. This approach is profound because it talks a language alien to traditional public-policy formation.

The modern therapeutic discourse has three key features: it focuses on personal want; it sees individuals as vulnerable; and it is underpinned by emotional appeals. All of these features are at the forefront of the Supreme Court ruling.

Personal want

The first element of the therapeutic discourse, a focus on personal want, is apparent in the concluding paragraph of the Supreme Court’s judgement that made much of the petitioners’ case: ‘Their plea is that they do respect [marriage], respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilisation’s oldest institutions.’

The focus of this concluding passage is on personal want, hence the language of ‘their plea’ and ‘their hope’. Or as Chief Justice Roberts put it in his dissent: ‘The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to.’ Justice Alito, who also dissented, observed how the majority’s understanding of marriage ‘focuses almost entirely on the happiness of persons who choose to marry’. Within a therapeutic discourse, ‘I want’ can readily be translated into a legal right ‘to have’.

Individuals are vulnerable

However, a focus on personal want will only be persuasive if the individuals involved are portrayed as vulnerable. This second element of the therapeutic discourse is hinted at in the majority’s concluding paragraph, quoted above, which describes gays and lesbians as ‘condemned to live in loneliness’ if denied the right to marry.

The Supreme Court developed the theme of vulnerability by focusing on children. Children are always a good constituency for recognising therapeutic claims, because, in certain contexts, juveniles do have objective needs. So the majority claimed that the ‘marriage laws at issue here thus harm and humiliate the children of same-sex couples’. Without reform ‘children [would] suffer the stigma of knowing their families are somehow lesser’, apparently. By associating ‘children’ with the words ‘harm’, ‘humiliate’, ‘suffer’ and ‘stigma’, the majority were able to ally a child’s supposed vulnerability to the cause of gay marriage. This role was recognised by President Obama when he declared the court’s decision a victory for America. He said the judgement was ‘a victory for gay and lesbian couples… [and] for their children, whose families will now be recognised as equal to any other’.

Emotion

At a rational level, none of the above arguments makes much sense. ‘I want’ does not normally, in the public-policy context, equate to a legal right ‘to have’; gay and lesbian couples denied a right to marry are not ‘condemned to live in loneliness’; and the children of same-sex couples are neither harmed and humiliated nor stigmatised because their parents are not permitted to marry. But then the therapeutic discourse is not grounded in reason. Of course, the third element of this discourse, its emotional appeal, enables logical weaknesses to be overlooked.

This summarizes many things wrong with our society.

As goofy as this decision is, it is now a binding precedent on the federal courts. Maybe the men's rights activists should try using arguments like this. Don't fathers deserve equal dignity also?

The whole idea is crazy, that one man's opinion on the Supreme Court can cause "gay and lesbian couples… [and] for their children, whose families will now be recognised as equal to any other". No one gets any dignity from a court order.

I will leave it to others to make these arguments. I do not believe in therapism, or any of this nonsense.