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February 11, 2004

Smaller Hurdles to a Steamroller

Gabriel Rosenberg, with whom I had what turned out to be a preliminary discussion of the implications of the Massachusetts gay marriage decision for such next-step innovations as incest and polygamy has now expanded his thoughts into two posts. When it comes right down to it, while he has made some reasonable arguments — ones to which I may very well refer if things devolve so dramatically in the future — and considered various angles, the whole endeavor strikes me as beside the point.

The reason I say that is the tenuousness of the distinction between abstract contemplation and practical, political considerations. Look, even, at Dr. Rosenberg's closing sentence:

Of course, I believe the US Constitution's 14th amendment requires same-sex marriage everywhere, but until the time that is recogized I do not buy arguments that a federal marriage amendment is needed to avoid the chaos of differing state regulations.

So, he believes that one state's gay marriage laws ought to be federalized, and he would presumably oppose an amendment even if that proved to be the case, but he intends to dismiss arguments on behalf of the amendment until it is too late for them to have any chance of being put into effect. That's a bit like a supporter of abortion declaring in 1970 that the issue oughtn't be federalized until the Supreme Court writes the "right" into the Constitution.

I'm grateful to Dr. Rosenberg for his cordial interaction with me, thus far, so I hope he won't consider this to be a break in that standard, but I must say that his arguments throughout are typical of the strategy of the more intellectual of gay marriage's supporters. The strategy is merely to mollify concerns and to cast objections as unreasonable... until their objective is a fait accompli. A movement that has pushed its cause through the courts has almost no credibility to argue that further undesirable advances will find the way blocked.

Moreover, the arguments put forward for same sex marriage — issues of privacy, consensuality, discrimination, civil rights, personal love and humanity, practical necessity for mutual care — easily overcome the vague principles suggested as barriers to such things as incest and polygamy. This is true for the simple reason that almost none of the barriers — with the exception of parent/child incest — has self-evidently, or even arguably (in some cases), better foundation than maintaining the link between marriage, procreation, and child rearing.

Sure, a marital relationship would violate a sibling relationship, and even just the possibility of the former would have detrimental effects on the latter. But if marriage is only a public concern because it encourages stability and takes on some of the responsibility for mutual care — and if it is not the homosexual sex act, itself, that the government is encouraging via SSM — then it is difficult to see why a sibling relationship, in which the government currently expresses no, or minimal, public interest, couldn't simply be strengthened into a marital relationship. Dr. Rosenberg writes:

I should also note that it is possible to view the right to marry as a right as more of a right to designate someone as kin. Under this view a person wishing to marry kin is not being unjustly denied this right since they are already related.

As it happens, more rights and responsibilities accrue to "marital kin" than do to biological kin. The right being denied, therefore, is the right to designate a person as a kin of primary mutual responsibility. In short, while "role conflict" may be sociological and anthropological concern, the gay marriage debate, by its very approach, has stressed the public policy and legality concerns.

In light of the gay marriage issue, consider Dr. Rosenberg's mention that "some states allow first cousins to marry provided they are incapable of procreation"; with same-sex couples, this concern is entirely eliminated. More directly, the government's right to make judgments based upon what relationships are sexualized, or even whether sex can or cannot be presumed, is a central assumption under assault by the panoply of arguments being made for gay marriage. Thanks to such judicial decisions as Griswold (marital privacy with respect to contraception) and Lawrence (personal privacy with respect to sodomy), the moral and interpersonal aspects of public policy are of diminished applicability — a fact that bleeds into the legal concern.

A look at Massachuetts's laws concerning sex shows the related thinking and trends in thinking. Sodomy was a "crime against nature" (gay and bestiality) punishable with up to 20 years in prison or an "unnatural and lascivious act" (heterosexual) punishable for less. The 1974 case Commonwealth v. Balthazar restricted the illegality of the latter to public behavior, "inapplicable to private, consensual conduct of adults," with the former following by extension in a 2002 case.

Fornication was from the beginning a much lesser offense. In 1981, Fort v. Fort linked it with adultery and cohabitation: "The crimes of fornication, adultery, and lewd and lascivious cohabitation are never, or substantially never, made the subject of prosecution." Subsequently, a 1994 court questioned the fornication law's constitutionality.

The distinct track from sodomy, which won the race to full legality, is interesting. What's the main difference between sodomy and fornication, adultery, and cohabitation? The potential for conception outside of marriage. With the link between sex and childbearing eroding with relation to diminishing concern about fornication, a judgment in which a 1983 court upheld the constitutionality of the adultery statute would seem to come into question. Thus, just as sodomy laws ceased to be an impediment to gay marriage, laws against adultery and sexualized cohabitation may not long be an impediment to group marriage.

For its part, the wording of the incest statute is best seen in context of two points from Dr. Rosenberg:

So what specific role conflicts emerge from allowing polgyamy or incestuous marriage? Foremost is the legal right of a married couple to have sexual relations conflicting with the legal prohibitions of adultery and incest. ...

Some have argued that [taking on an additional spouse] would be okay if the old spouse consents. ... just how is the old spouse supposed to grant this consent? Tom wants to marry Sally, so he goes to Sue to ask for permission. I think it's reasonable to assume that just asking Sue could cause some problems in their marriage. Suppose Sue doesn't want to give her consent. She risks losing her spouse if she doesn't accede. I believe this is a case where consent can't freely be given. A similar issue of consent arises with regards to incest especially parent-child.

The first significant piece, here, is that the argument with respect to polygamy/adultery is circular. Unlike SSM/sodomy, adultery is defined by the marital relationship. Yes, wedding band — no, adultery. As for consent, the idea that the fear of losing a relationship constitutes loss of the ability to consent would cover any sexual act one could think to mention. With loosened public restraints on private sexual behavior, with the ease of divorce, and with the defining public interest in marriage being mutual care, the government's right to say "no" on behalf of Sue is a shaky matter, indeed.

As Dr. Rosenberg states, even just Tom's asking would rock the stability of the marriage... if Sue objects. But asking is not illegal, and extramarital affairs are barely illegal. Moreover, Sue can sleep with Sally just as well as Tom can, and if marriage is reduced to a set of privileges, responsibilities, and benefits bequeathed through public contract, then there's little reason to prevent a married couple — as a single public entity — from extending the contract to another person.

Now, here's Massachusetts's statute on incest:

Persons within degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void, who intermarry or have sexual intercourse with each other, or who engage in sexual activities with each other, including but not limited to, oral or anal intercourse, fellatio, cunnilingus, or other penetration of a part of a person's body, or insertion of an object into the genital or anal opening of another person's body, or the manual manipulation of the genitalia of another person's body, shall be punished by imprisonment in the state prison for not more than 20 years or in the house of correction for not more than 21/2 years.

Once again, with respect to the question of consanguineous marriage, we've got a circular dimension: if it's not forbidden as a matter of marriage, it's not forbidden as a matter of sex. Moreover, if the law against fornication is deemed unconstitutional, none of the enumerated sexual acts are forbidden of themselves — not the sodomy, for moral reasons, and not the intercourse, for reasons having to do with conception.

At the risk of tying the matter up too cutely, one can take the sentencing limit for incest as a final, poignant symbol. It is pretty much identical to the original sentencing limit for gay sex.

My objective with this post is not to argue that, if gay marriage is allowed, then polygamous or incestuous marriages ought to follow. It is also not to suggest that I disagree with Dr. Rosenberg's reasoning. However, the bottom line is that, if I can find these legal holes — without recourse to bookshelves of laws and legal precedent from which to pick and choose quotations — then some lawyer, somewhere, certainly can do much better.

The point is that our system has gone well beyond the point at which the judiciary can be trusted to judge the balance between private liberties and legitimate public claims to restrict them. That being the case, we who oppose gay marriage cannot afford to accept dubious reassurances from those on the other side that they'll be able to close the door to the courthouse behind them.

Posted by Justin Katz at February 11, 2004 1:15 PM
Marriage & Family

Wow. Quite a bit to cover and such a lengthy and thoughtful post. I certainly don't consider this a break in our cordial interaction. On the contrary, I thought all of our exchanges have been quite respectful and thought provoking. For now I just want to clarify a few of my positions. I'll try to address your concerns in the near future.

I do not believe one state's gay marriage laws ought to be federalized. I believe there may be a federal right to gay marriage. That right either exists or does not exist, but it is not contingent on whether any state itself legalizes gay marriage. The past history of differing state regulations with regards to cousin marriage leads me to believe a federal solution is not necessary for the sake of uniformity. If I became convinced that a federal solution was necessary, then I would support gay marriage being legal everywhere out of policy considerations. It's not a matter of wait until the court sees it my way.

I do think in a state, like AZ, where first cousins are allowed to marry provided they are unable to procreate, same-sex first cousins should be allowed to marry. The issue then isn't one of classifying based on sex, but based on ability to procreate. All nonprocreative first-cousins may marry.

I agree with you that the weakening of adultery and fornication laws weakens the case against polygamy. That is not to say the case is destroyed, though. I favor stronger laws (and mores) against adultery. I should note, though, that even where it is not criminilized it is still--I think--a cause of action for divorce. I believe it is important to consider the interpersonal aspects of public policy. I simply don't see any interpersonal effects of allowing same-sex marriage other than how we might relate to people of the same gender. I agree that the issue of sex and marriage with regards to polygamy and incest is rather circular. My point was that if one can prohibit the sex, one can also prohibit the marriage. The issue then becomes whether one can prohibit the sex.

Finally I don't want to close the courthouse door behind me (or behind others). I think anyone should have a right to state their case before a court of law. I just think the case for same-sex marriage is much stronger than the case for polygamy and incest in large part because the former deals with issues of gender whereas the latter deal with issues of family relationships. Furthermore, I don't think any precedent has been created to bolster the legal claims of those others. They can't use Goodridge to suport a claim that such laws deserve stricter scrutiny. All of their claims would be based on precedents that exist apart from same-sex marriage.

Posted by: Gabriel Rosenberg at February 11, 2004 2:10 PM

Hello Dr. Rosenberg,

I'm glad to hear that the post was taken in the spirit in which it was written. Three quick points:

1) As I said, I largely agree with your reasoning, here. The point is, however, that what you and I may or may not agree on is irrelevant. The push for gay marriage isn't happening in a sociopolitical void, nor is it going to affect an otherwise healthy institution. Social changes over the past century that have almost nothing to do with gay marriage, per se, will be that much closer to coalescing into a radically different society than the vast majority of citizens support (and that they shouldn't support if they do).

2) In that light, I'm mainly addressing those who might be lulled to inaction by arguments such as yours — as reasonable and intellectually sound as those arguments may be.

3) As for the side advocating for gay marriage, I personally would feel a lot more comfortable with their endeavor if it were pursued in a way that did not exploit what I consider to be a deplorable state of governmental imbalance, and if it were presented in conjunction with other marital reforms, such as harsher adultery laws and, most especially, tightened of divorce laws.

Posted by: Justin Katz at February 11, 2004 5:47 PM