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Interracial marriage not the same as same-sex

Date published: 7/2/2014

Learning to reason by analogy is one of the objectives of legal education. Analogical arguments are common in legal debates. It's not bad logic, but it's not the best, either. It's fairly good legal reasoning in that it assumes that similar cases should be judged similarly.

Virginia Attorney General Mark Herring filed a brief supporting Bostic v. Rainey, the case that challenges the state's ban on same-sex marriage that is currently awaiting further ruling in the Fourth Circuit Court of Appeals.

In the brief, the attorney general leaned heavily on the 1967 Loving v. Virginia case, in which the Supreme Court overturned Virginia's ban on interracial marriage. It's an example of analogical reasoning. Here is a different example:

Correct analogical reasoning: Two left shoes or two right shoes don't make a pair, thus two men or two women can't be a couple.

Incorrect analogical reasoning: It's wrong to ban interracial marriage so it's also wrong to ban same-sex marriage.

Interracial marriage is a heterosexual marriage and a same-sex marriage isn't. No one will argue that two left shoes make a pair, but some will argue that two men can be a couple.

Mr. Herring is a lawyer, so he knows the tricks of legal reasoning. He's a politician, too, and should know better than to mix law and politics.

There's been talk in the Virginia Legislature of impeaching Mr. Herring. It would serve him right for playing politics with the law.

This case is destined for the U.S. Supreme Court. The court will have a difficult time with this one. The court will be divided, and our culture will continue to be divided, as well.

John Sterne