Same Old Same Sex
Down below there's a bit of a discussion on gay marriage. Thought I'd bring it up here.
Reader Larry King notes he asks those in favor of SSM if they'd think it's okay to have polygamy and incestuous marriage. I note when they hear this it sounds like a smokescreen argument because denying gays the right to marry seems to them deeply unjust, while the other examples are stuff no one is interested in doing; in other words, Larry's argument is a slippery slope claim balanced against a denial of a basic right, and in such cases you usually go with the right.
Larry responds he doesn't see it as slippery slope. If gay marriage is a right, then you have no place to stand to claim the other things (particularly incestuous marriage) aren't. That the arguments used against something like incest (religious objection, genetics) no longer apply.
So here's my response:
Let's deal with the slippery slope argument first. Slippery slope arguments aren't hopeless, but they're much less likely to be accepted when balanced against a basic right.
Are you making a slippery slope argument? Yes. The courts declare (and we're talking about courts here--the popular vote argument is even harder for your side) it's sexual discrimination to not allow you to marry a person of whatever sex you want. After that, you go to court and say "I want to marry my brother, and you can't stop me because I can marry whoever I want." The court will say you couldn't marry your sister before, and now let us note you can't marry your brother either, because the anti-incest laws are still in effect and aren't based in same sex marriage justifications. We still have marriage as a basic right, and have made sure there's no sexual discrimination or sexual orientation discrimination, but what's that got to do with stopping incest?
As for the particular arguments about what will come next if we have SSM, are you claiming religious people believe incest is bad only because that's what their particular scriptures tell them? Because those scriptures say a lot of things that majorities of those people don't believe any more or won't enforce in law.
The state (for better or worse) has always had a strong interest in how families run and has regularly treated relatives differently from strangers. I'm not even saying this is how the law should be, it's just what is. Recognizing this status is part of having a smooth running society, they'd claim (and the right to have a family as a distinct thing might be just as much a right as the right to marry). Allowing siblings to marry, leaving aside the genetic arguments (which may or may not have been important in the past) could rip apart families and other associated relationships. Even if you then ban sex for underage siblings (and how do you do it?--people can get married in their mid-teens) you'd have a situation where sexually active teens are living under the same roof for years. I doubt you could stop them from having sex, and it would presumably put more stress on the situation if you tell them just hold on till you're 18 and anything goes. Also, you have the problem of parents having "affairs" with their kids, now that they know they can eventually marry them. The courts and most people recognize the family unit as a special thing, and allowing incestuous relations could help blow that apart.
I might add that the disgust factor you've mentioned is, indeed, considered by some judges (on both right and left) to be sufficient to base laws upon. (I remember a case--I think it was about First Amendment protection for nude dancing--where Justice Scalia said if we allow this, then we'd have to allow tens of thousands of adults renting a baseball stadium so they could cavort naked--apparently the specter of a bunch of adults with their things hanging out was so self-evidently horrible that he didn't need to explain why this was a bad thing.)
The arguments against polygamy are even stronger, I'd say. It would allow the rich and powerful--especially men, since that's how it usually works--to get many wives and leave plenty of poor and otherwise troubled men out in the cold, leading to an unjust and unstable arrangement. (Gay marriage arguably has this threat, except that they're a small minority, and male and female homosexuals will somewhat balance each other out, and presumably are less likely to want serious heterosexual marriages to begin with.) Furthermore, society's interest in marriage is in having two people in a close relationship, not having a guy get one girl pregnant and then seeing how many more he can rack up.
I'm not saying everyone has to accept these arguments. I'm saying they're serious arguments, or at least arguments that are taken seriously, and not ones that'll be overturned just because SSM is made legal. Why was homosexual marriage illegal? At least in part because for a long time there was a tradition that found homosexuality itself evil and repulsive. Once that changed, and homosexuality was normalized, the disgust factor against homosexual marriage disappeared (or started to) and the arguments against it started to sound to many like bigotry. I suppose it's possible the same will happen for incest, or polygamy. But the response to that is we'll worry about that in the future--right now let's be more inclusive in allowing this blessing known as marriage.
posted by LAGuy @ 12:01 AM
12 Comments:
Ah, the biology wars.
All that work, and all you really needed to do was remark that it's about offspring. It's not relevant that some don't have offspring or that people may have other motivations.
Can it be about the rest of that crap? Sure. But why don't you remark on the idea of corporate parents? THat's more likely, I'd say, to be a next step. Maybe it's similar to polygamy.
In any case, we're moving well beyond this. As biology becomes more manipulable, it becomes less relevant (or at least, familiar manifestations of it become less relevant).
Good or bad, depends on what you want, I suppose. It looks grim to me.
That's a good point. The state has a strong interest in non-screwed up offspring. Knowing your dad or mom or brother or sister has designs on you, designs that are legal, hurts that family unit and could make people grow up bent. Polygamy also could set up a weird situation, though it's a little harder to justify banning it.
A couple points of fact that I disagree with:
The courts declare (and we're talking about courts here--the popular vote argument is even harder for your side) it's sexual discrimination to not allow you to marry a person of whatever sex you want.
I agree that in certain cases, courts have ruled that SSM must be legal on the narrow grounds that to do otherwise is sexual discrimination. In such cases, the logical result would be for SSM to be forbidden in exactly those situations that heterosexual marriage is forbidden (incest, underage, polygamous, etc.). And I concede that to suggest that such a narrow ruling might "lead" to additional changes in the law is indeed a slippery-slope argument.
However, not all of these cases have been decided on such narrow grounds. For example, Lawrence v. Texas (which, admittedly, concerned homosexual activities rather than marriage), did not use gender-neutrality in its decision at all, but instead used the right of competent adults "to engage in intimate, consensual conduct", and the absence of any "legitimate state interest which can justify its intrusion into the individual's personal and private life".
And when the decisions are written this way, there is no slipperly slope needed. SCOTUS is proclaiming the existence of a right possessed by all competent adults, and obviously incest and polygamy cannot cause someone to lose such an inalienable right.
LvT did invoke due process, but not in terms of gender equality but rather in terms of equality between heterosexuals and homosexuals.
Why was homosexual marriage illegal? At least in part because for a long time there was a tradition that found homosexuality itself evil and repulsive.
This seems to be an ahistorical perspective. Until very recently, homosexual marriage was not permitted by law, and yet it would be misleading to say that it was "illegal" -- since there were no laws against it either. Rather, marriage was universally understood to be a compact between a man and a woman. Indeed, even in polygamous cultures, polygamy consisted of multiple distinct compacts, each between one man and one woman (unlike, say, the "group marriage" favored by some polyamorous groups today).
So the question of whether gay marriage was "legal" or "illegal" under American laws in the year 1950 is like asking whether it is legal or illegal for a flying saucer to travel 57 miles per hour while hovering over the Ventura Freeway. It is neither legal nor illegal, since the law doesn't treat that case. The California Vehicle Code presumes that "vehicle" is a car or truck or motorcycle, and the marriage law presumed that marriage is a contract between a man and a woman.
I have no objection to the idea that laws must change as society changes. But the means by which we measure changes in society should be the votes of everyone in that society -- not the personal preferences of judges who claim to represent the people, but amazingly time after time end up deciding that "the people" want exactly what the judge happens to want.
Excellent points, LK. I am constantly amazed thatthe debate jumps over the initial assertion (premise) that SSM are somehow illegal. As you point out, in the 1950s, there was no law outlawing sam sex marriages. It was understood that whatever two people of the same sex might have, it wasn't a marriage by definition.
It took Lawrence v. Texas to make clear that the relationship between two people could not be interfered with or banned. That decision is not about marriage.
The debate is whether the state should treat sam sex relationships, whatever they are called, the same way as it treats heterosexual relationships. I think the S.Ct. will ultimately use the same rational basis test it uses whenever Gov't seeks to treat citizens differently based on specific characteristics of those citizens. And here there is a slippery slope argument that makes a lot of sense. If there isn;t a rational basis for treating homosexual relationships differently than heterosexual ones, then I hardly see how polyamorous relationships, or incestual relationships (barring genetic arguments) are rationally treated differently. As it stands now, I do not think "communal" living arrangements are illegal anywhere, but the Fed. Gov't is not obligated to let all members of such relationships file a single joint tax return. However, the Fed. Gov't could allow such joint tax returns if it wanted to, for perfectly valid public policy reasons - just as it sould allow SSM to file jointly. It's just not a constitutional issue - its a political one.
LK: It's true that marriage wasn't on the same sort of legal footing it's on today since it (and related relationships) grew out of the only known way to make babies, something all societies must deal with. Different legal accoutrements grew up around it, but as long as marriage was tied to (or had some old memory of) the original point of making kids, it always had a man and woman in there somewhere. But in societies where they were repulsed by homosexuality, gay marriage was indeed illegal, except it's pointless to call it specifically illegal since homosexuality itself was wrong, so obviously the state wouldn't sanction it.
DG: This is not the first time I've heard you claim SSM is legal. If you keep maintaining that, all I can say is you are taking part in a debate that no one else seems to be having.
But in societies where they were repulsed by homosexuality, gay marriage was indeed illegal....
Yes, this is true. Indeed, you seem to be hinting at an even stronger assertion: If the overwhelm overwhelming majority of people in a certain political society consider some act to be horrifying, it is very unlikely that this act will be tolerated, either legally or socially. And I agree with you that this is a true assertion.
However, the converse is not historically true. There have been many societies in which homosexuality was either tolerated or fully accepted, by people of influence or even society as a whole: several of the Greek city-states, many parts of the Hellenistic world, the middle era of the Ottoman Turkish kingdom, many avant-garde regions of large European cities since the late 19th century. And yet even in these societies, gay marriage did not exist (and apparently was never even proposed).
Aside: Many postmodernists use this as evidence for the "social construction of gender". Thus, in the classical era, you can find a lot of discussion of male homosexuality, and some amount of discussion of female, but these were two different concepts. Indeed, the only document in the entire Hellenic, Hellenistic, and Roman period that treats the two together is chapter 1 of Paul's letter to the Romans. In other words, there was no linguistic or theoretical concept corresponding to our modern "homosexual" or "gay" (including both genders). A fortiori, the concept of "gay marriage" could not be expressed in their language.
So I think your point about "repulsion" is not as compelling as your point about the traditional importance of associating marriage with procreation. In most societies throughout history, "marriage" was reserved for relationships in which procreation was expected and desired (including polygamy), but not for those in which it was impossible or unwanted (including gay relationships and prostitution).
I essentially agree. I might even go further. Societies that built up legal systems around marriage saw it as a way of dealing with children and property. It was not primarily about love (even if a tradition of love was there). So while Greeks might think nothing of, say, gay soldiers, they'd still wonder what would a loving relationship between males have to do with marriage? In the ancient world, and well beyond, women (and children) were often seen as property of the man. No man is going to voluntarily be owned by another. (That would be an interesting legal battle--who gets the be the owner in the relationship).
But the notion of romantic love has been around a pretty long time too, and nowadays, with young people deciding for themselves when and who to marry, I'd say it's the essential ingredient of marriage--but it still comes with all that legal stuff attached. So in a society that believes a loving relationship is the essence of marrige, and isn't repulsed by homosexuality, it would figure that gay people would want to get the same deal that heterosexuals get.
I guess I am debating marriage as defined before government got into the business of licensing interpersonal unions. I would agree "gov't ame-sex marriage" is illegal in most states, meaning a gov't officer is not allowed to issue the license to two people of the same gender. But that is hgenerally my point - what are same-sex couples fighting for - the ability to live as spouses, or the ability to get that piece of paper. the have the former, so it must be the latter.
The next part of my argument, then, is that that piece of paper is not constitutionally guaranteed. Indeed, any state at any time could stop issuing those pieces of paper to all couple, and there would not be a Constitutional provision that was violated.
This morning NPR had a story about Indian men (east-asian Indians living in the US), who are getting married because in India, marriage has a very different role in society, such that even a gay marriage is better than not being married at all at age 40. The commentator suggested (I think tongue in cheek) that the time for arranged gay marriages in India may not be far off. Kidding aside, the point was for Indian social purposes, the gay marriage still served a purpose in Indian society - a purpose completely apart from gov't regulation of marriages.
In the US, there is no gov't purpose to license gay marriages. Personally, I hardly think there is a purpose for licensing heterosexual marriages either, and I would vote to end all marriage licensing. For specific gov't objectives (hospital visitation rights, inherritence rights, etc.), the gov't can directly address such issues with registries, without trying to make the definition of marriage become a catch all for all manner of unrelated gov't purposes.
I wouldn't mind if the state got out of the marriage business, but for now, that's the world we have to deal with.
Is there a right to marriage? I'd say yes. It's been mentioned in Supreme Court dicta and seems to me an obvious example of a tenth amendment right. Does it have to be a piece of paper? I don't know, but I do know that's how the state does it now, so I can understand that homosexuals feel they're second-class citizens if they can't get that piece of paper.
In a system where marriage is defined as something recognized by the state, without that recognition, you're just living together (even if you get all other legal powers attached to marriage). If this right--this piece of paper--were denied any heterosexual group that now enjoys it, they would be outraged. They'd also go to court. And they'd win.
The little piece of paper is denied to some heterosexual couples. First, related couples can't get it, and it varies from state to state how related you have to be (first cousins can't marry in some states) which demonstrates how the decision is arbitrary and not based on any clearly defined right.
Second, the age at which heterosexual couples can get the piece of paper varries from state to state. Does the Federal Constitution determine what age all states must license marriages, the way it apparently bars capital punishment below a certain age? If a state decided it wouldn't license marriages until age 25, would that be unconstitutional? What if the state allowed people to get married (ie in a church) but just wouldn't recoginze the marriages until the couple were 25?
3rd, two heterosexual people can't get married if one or both of them still have a piece of paper from another marriage. Is that unconstitutional? The State says you have to get a divorce before you can marry someone else - is that an impermissable burden on this constitutional right to marry? Before you answer that by saying there is a state purpose in encouraging monagamy, how about a couple that was common law married (ie no piece of paper) - have they lost their constitutional right to marry?
I believe the S.Ct. will hold there is no constitutional right to marry, though there is a constitutional right of association that the State cannot interfere with. And the state can discriminate among different "marriages" or associations, but only if their is a rational basis to do so (this being an extension of due process and equal protection, but not derived from any separate right, like a right to pursue happiness, as some opponents of DOMA have suggested).
I didn't deny there are rules limiting the right to marry. Indeed, that's why I noted if any heterosexuals "that now enjoy" the right lost it, they'd be outraged.
The argument today is whether homosexuals should be allowed to marry people of their choosing (but still following the limitations put on heterosexuals).
There are rights in the Constitution that are left up to the states to define. For instance, states pick electors for President, but each states gets to decide how to choose them. Let's assume you believe in the right to interstate travel. States can still make rules about what sort of vehicle you use, who can drive them, and whether tolls should be charged. But if the regulations are too burdensom, they could be sued for denying the right.
I have little doubt the present Supreme Court (or likely any near-future Court) will not find a right for same sex marriage, whether or not they believe in a right to marriage.
No man is going to voluntarily be owned by another. (That would be an interesting legal battle--who gets the be the owner in the relationship).
This was the view held by the patrician class in Rome. It was perfectly acceptable for a free man to have sex with his male slave, because society assumed that the freeman was the guy in charge. But if two free men had a sexual encounter, then both of them were held in scorn, because the neighbors would have no way of knowing which of them had "submitted", and thus they were both equally suspect.
So in a society that believes a loving relationship is the essence of marrige, and isn't repulsed by homosexuality, it would figure that gay people would want to get the same deal that heterosexuals get.
This makes sense. In that case, I might predict that when-and-if polyamory becomes widely regarded as an expression of love, poly relationships will be publicly supported. (I knew a few people in the poly scene in Seattle and one in the Bay Area, but I suspect that this wasn't a representative sample!)
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