Ignoratio. Charles Cooper, arguing yesterday to defend California’s Proposition 8 before the Supreme Court, embraced the old strategy of invoking unknown harms to come from allowing gay marriage. [Transcript HERE] Justice Kagan asks Cooper if allowing same-sex marriage hinders state interests. Cooper responds:
]Your Honor, we — we go further in — in the sense that it is reasonable to be very concerned that redefining marriage to — as a genderless institution could well lead over time to harms to that institution and to the interests that society has always — has — has always used that institution to address.
Kagan then asks Cooper to clarify. She asks:
What harm you see happening and when and how and — what — what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?
And then Justice Kennedy jumps in to encourage Cooper to concede that there are no actual harms done:
Well, then are — are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? So you’re conceding that.
But Cooper won’t back down. Just because he can’t name any harms or articulate how allowing gay marriage would cause heterosexuals not to marry, or have kids, or raise them right… won’t prevent him from saying bad things will happen.
The first one is this: expert acknowledged that redefining real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences.
But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there’s no way that she or anyone else could possibly know what the long-term implications of — of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.
First, a rule about properly run ignoratio. The argument from ignorance runs that because we don’t have evidence that p, not-p follows. There are two related conditions for using the form appropriately. In one case, it’s right when the principle that were p true, we’d already have clear evidence for it is true. For some things, absence of evidence is evidence of absence. The second condition is when those arguing for p have the burden of proof — that is when p’s being false clearly yields worse consequences from not-p being false. So when there are known harms to come from one error (taking p to be true when it is in fact false) but none clearly coming from another (taking p to be false when it is true), p has the burden of proof.
Now, take the SCOTUS case here. Who has the burden of proof? It seems, given the way the case is being handled, that the question is whether Proposition 8 denies rights to a group of people. If it does, then people have their rights stripped from them if the court strikes down the prior rulings holding it unconstitutional. If it doesn’t, then if the court upholds the prior rulings, then rights have been extended in a case where it’s not necessary. Those are the two errors possible. Which is worse? The former. Waving one’s hand and trying to imagine worse consequences doesn’t change that.
Enough about fallacies to close. Now a moment about moral reasoning. And conservatism. I simply abhor the way the conservatives argue about gay marriage. John’s last post shows the deep mendacity of the movement, and this moment in front of the court is another case of the moral cowardice shown by those against marriage equality. Since when do conservatives think that sacrificing the rights of a few to protect the bounty of the many is really acceptable?