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July 12, 2004

History and the Rubicon

Most people who argue on behalf of same-sex marriage do so with laudable motivation. Believing the issue to mirror that of miscegenation, they wish to place themselves on the compassionate side of history. James Trilling illustrates this, in his recent Providence Journal piece, when he offers his vision of a future in which same-sex marriage has proven to have no adverse consequences for American society. Unfortunately, Mr. Trilling's scenario is not a "thought experiment," as he claims, but an exercise in imagination.

This is not to say that it couldn't prove true, but that it is no more certain than any other future that one could plausibly imagine. The relevant question is not the loaded one of whether readers wish to have judged the issue correctly, but whether Trilling's judgment is correct. I would suggest that it is not.

The most significant gap in the basis for his prediction comes with Mr. Trilling's assertion that contraceptives broke "the age-old equation of marriage and procreation." Unless one considers sex and marriage to be the same thing, it isn't enough to note that married couples can, or even do, use birth control. Suppose, for example, decades after the widespread infiltration of contraceptives into the society, the great majority of children were born to married couples and the great majority of married couples had children. Were this the case, one could say that — despite the disconnection of conception from sex — the culture still linked marriage and procreation.

And that is the case. In other words, the cultural presumption that children will be raised by their married biological parents is still sufficiently strong for same-sex marriage to be the alteration that breaks the link. And this realization has implications for society thirty or forty years hence.

The first probable consequence of such a break is embedded within the evidence that it has not yet been made: A large number of couples who give birth to children will not be married. Trilling's promise of God's forbearance notwithstanding, such a future is not one that we should hope ever to consider "normal."

The second probable consequence is evident on the new Massachusetts marriage licenses, which now officially join in matrimony Party A and Party B. During their run, same-sex marriages in San Francisco were between "applicant one" and "applicant two." Mr. Trilling, himself, refers not to his wife, but to his female "life partner." To circumvent the age-old understanding of marriage, the language shifts from that of tradition and family to that of contracts.

As much as Mr. Trilling may be correct to suggest that the civil and religious faces of marriage can be distinctly drawn, the line between them runs through the gray area of culture. Separated from the words "husband" and "wife," with all of the implications and responsibilities that those roles have accumulated over the millennia, the particulars of the agreement come into question. Why must Parties A and B be unrelated? Why not an Applicant Three?

Trilling dismisses the "extreme innovations" of incest and polygamy on the grounds that they aren't on the "political radar." Even limiting ourselves to the narrow screen that Trilling's radar must have, the same was true of same-sex marriage fifteen years ago — let alone thirty or forty. Imagine the reactions of the first interracial spouses or the first couples on the Pill had someone accused them of setting the stage for homosexuals to be married. I suspect that their reactions would have been a bit stronger than a reassurance that such an extreme innovation wasn't on the political radar.

Furthermore, if marriage is merely an agreement between (or among) enumerated parties, why can't they insist that its meaning is particular to their own purposes — to exclude monogamy, for instance. Of course, some people already do live according to loosened agreements. However, they do not substantially change the broader institution, in large part because they do not modify the common language under which they continue to be aberrations.

I won't mimic Mr. Trilling's attempt to draw your minds toward an imaginary future, away from the real questions that we face in the present. I won't presume to insist that, following my advice, "Humankind [will have] taken another small step toward maturity." But if maturity is a quality that we value, ask yourself this: If well-intentioned supporters of same-sex marriage are wrong about its consequences, will we have the fortitude or the wherewithal to make amends, or will we once again look to the past for blame and the future for responsibility?

There is no shame in having to explain to a "new generation," whose approval Mr. Trilling apparently desires, that you strove to preserve the health of the society bequeathed to them, even if time proves that it was never at risk. Better that than to be forced to confess that, in hurrying to be on "the right side of history," you put your children's children on the wrong side of the Rubicon.

ADDENDUM:
I originally submitted this, as either a column or a letter, to the Providence Journal under a pseudonym in the hopes that, even if the folks who run the editorial page have something against me, some response would be made to what was, by newspaper standards, a very long op-ed. Unless the Projo's sleuths figured out my subterfuge, some other factor must be keeping my arguments out of its pages. As for the possibility that I've blown my cover, well, I was a bit uneasy about the dishonesty anyway — but not as uneasy as I am about the one-sided nature of the debate.

Posted by Justin Katz at July 12, 2004 11:38 AM
Marriage & Family
Comments

It's not for lack of making clear and understandable points. Capital dissection!

Posted by: Jeremiah at July 12, 2004 3:05 PM

"Imagine the reactions of the first interracial spouses or the first couples on the Pill had someone accused them of setting the stage for homosexuals to be married. I suspect that their reactions would have been a bit stronger than a reassurance that such an extreme innovation wasn't on the political radar."

Is this your way of saying that the slippery slope down the road from the legalizing of contraception to interracial marriage is what has led to the considering of same-sex marriage ? No disagreement here. You can also add that there is clear evidence that the social fabric has deteriorated since the advent of both of those.

Finally, Trilling is wrong to say that the reason SSM won't lead to acceptance of polygamy or incest has anything to do with what is currently on the "political radar". The reason it won't lead to those is that the arguments for those are different and not near as compelling as those in support of legitimizing gay relationships.

Just as there should prayer allowed in schools but that does not mean that there is no separation of Church and State. Just as some activities should be regulated by the government but some should not.

This is all about 'where' to draw the line - where liberty balances with protection.

Posted by: Mark Miller at July 12, 2004 4:34 PM

Mark: "The reason [SSM] won't lead to [polygamy and incest] is that the arguments for those are different and not near as compelling as those in support of legitimizing gay relationships."

Why do you think that the arguments for polygamy and incest aren't nearly as compelling as those for SSM?

Polygamy is historical, after all. It has been done. We know the consequences. So if we had a big pro-polygamy movement in this country, its opponents could not claim that it would lead to imminent doom.

Also, most of polygamy is already available. Adultery hardly draws any legal sanction today. A man can still have two wives---he just can't call one of them his legal wife. Otherwise the relationship is the same, and the left has drummed it into our heads for decades that there's nothing wrong with anyone having consensual sex with anyone else. We already have widespread promiscuity. Widespread polygamy would be a step upwards.

The objection to incest is very interesting. I honestly can't think of a reason to forbid SS incest. I can't imagine why the left would oppose it, except out of political expediency.

OS incest is different, of course. It has the genetic underpinning rooted in biology. But there, don't we have the assurances that we generally have control of our own reproduction, so we don't need the old rules? Isn't that what SSM is all about?

The approach to OS incest should be piecemeal. They could use the SSM logic backwards: The SSM argument is that the infertile may marry, so marriage isn't about reproduciton. The incest version will be: Incest prohibitions are based in reproduction, so the infertile should be allowed to marry incestuously. At that point, incest is just a matter of how much trouble you want to go through: Get a vasectomy and you can marry your sister.

I don't bring up polygamy et al for rhetorical value. They're pretty complicated and unpleasant to talk about. For me, it's more of an intellectual exercise: The principles of SSM will obviously lead to those things eventually, and I don't see how a thoughtful SSM supporter can deny it. In my experience, they don't want to think about it; they just want to change the topic or destroy the conversation. The responses, when they've been civil, have never risen above: "It just won't happen," or, "That's just gross."

The particularly disappointing feature of these conversations is the refusal to see any connection at all. I would understand if an SSM supporter said, "Yes, there is some risk that SSM will lead to those things, and we need to be careful that it doesn't." Or they could say, "There is some risk, but it's very small." But they never do that. It has always been the blanket denial of even the remotest possibility, which seem intellectually dishonest on its face.

You're a particularly thoughtful liberal, Mark. Can you provide something more substantive on this?

Posted by: Ben Bateman at July 13, 2004 2:17 AM

Perhaps the reason you have such a hard time getting published is that your writing is so bad. You seem far more interested in trying to produce a clever turn of phrase than in formulating and expressing an actual argument in favor of your position. Your prose style is mannered and self-conscious. Your whole blog just screams vanity journalism. Newspaper editors are especially sensitive to this kind of bullshit because they have to wade through so much of it. Try harder to be a serious opinion journalist, and your writing might be taken more seriously.

Posted by: Jon at July 13, 2004 4:15 AM

Justin, ignore the anonymous coward above -- he's only trying to discourage you. I will say that your ideas are both compex and subtle, and while you do a great job of conveying them -- they DO require the reader to actually stop and consider things as they move along. Your writings are never so simple that they can easily be "scanned" for their "gist", but neither are they so hypercritically convoluted to be near meaningless (galois?).

Keep up the fine work.

Posted by: Marty at July 13, 2004 9:23 AM

Obviously, Jon does not agree with your opinion. Therefore, you write badly and make no arguments to support your opinions. Gee Jon, that is sheer brilliance on your part. Even a simpleton like myself understood J's argument - if the reason against incestual marriage is fear of abnormal procreation, remove the procreation and there is no longer a basis for objecting to incestual marriage. Not rocket science (not even fourth grade math). And removal of procreation is courtesy of SSM.

Posted by: c matt at July 13, 2004 2:01 PM

"You're a particularly thoughtful liberal, Mark."
—- Thanks for the compliment but I don't consider myself a liberal at all. I'm a registered Republican and, in my view, my ideology is conservative. But admittedly, I'm not an evangelical. I contend that most of the anti-SSM arguments are based more on liberal principles such as effect on the culture, effect of deregulation, etc.

"Why do you think that the arguments for polygamy and incest aren't nearly as compelling as those for SSM?"
—-- I've had this exact conservation with many others including Justin and Mike S. The truth is that while SOME of the arguments in support of legitimizing polygamy and incest are the same as for gays, many are different. I'm not going to restate them again and again. This is the same logic as the pro-SSM movement saying that the opponents are using the same reasons as they did to oppose interracial marriage. (and some of the reasons ARE the same)

I guess I'm just tired of the slippery slope argument by anyone. Anti-war activists say that going to war with Iraq means we will go to war with any leader we don't like. Gun activists use the slippery slope to defend owning assault weapons. Abortion activists use the slippery slope to defend the partial-birth abortion. You can apply the 'slippery slope' towards use of any government regulation. The slippery slope can and has been used by both liberals and conservatives when it works towards their agenda.

In summary, to answer your question - I think that the legitimization of gay relationships will not harm the social culture while I do believe that legitimizing polygamy and incest will. That may sound arbitrary to you but no more than many of your views such as allowing elderly couples (who can't procreate) to marry.

"A man can still have two wives---he just can't call one of them his legal wife. Otherwise the relationship is the same, and the left has drummed it into our heads for decades that there's nothing wrong with anyone having consensual sex with anyone else. We already have widespread promiscuity. Widespread polygamy would be a step upwards."
—--- What is your point here - that adulterers are already involved in polygamy-of-sorts. I guess that's true. Are you in favor in criminalizing adultery ? OK by me.

The objection to incest is very interesting. I honestly can't think of a reason to forbid SS incest. I can't imagine why the left would oppose it, except out of political expediency.
—---- Because some people find incest immoral but do not see homosexuality as immoral. You're getting into Michael Moore territory here - as in the call that Republican ideology is the same as the Nazi's or the KKK.

I don't bring up polygamy et al for rhetorical value. They're pretty complicated and unpleasant to talk about. For me, it's more of an intellectual exercise: The principles of SSM will obviously lead to those things eventually, and I don't see how a thoughtful SSM supporter can deny it.
—---- Been here done that. I see the 'principles of SSM' differently. Also to me, the argument that SSM will lead to incest and polygamy (which is that 'if gays can get married then why can't I marry my dog ?') is intellectually equivalent to the pro-SSM argument that denying gays is the same thing as denying interracial marriage.

The particularly disappointing feature of these conversations is the refusal to see any connection at all. I would understand if an SSM supporter said, "Yes, there is some risk that SSM will lead to those things, and we need to be careful that it doesn't." Or they could say, "There is some risk, but it's very small." But they never do that. It has always been the blanket denial of even the remotest possibility, which seem intellectually dishonest on its face.
—----- I don't think that's the case. Some of the more 'reasonable' supporters of SSM like Prof Rosenberg have acknowledged that. But then I can say the same about you. Have you ever acknowledged that SSM would be a benefit for gays that have children and for each other ?. The question is whether the costs of legally acknowledging gay relationships outweigh the benefits.

Posted by: Mark Miller at July 13, 2004 4:50 PM

Mark,

"Why do you think that the arguments for polygamy and incest aren't nearly as compelling as those for SSM?"
—-- I've had this exact conservation with many others including Justin and Mike S. The truth is that while SOME of the arguments in support of legitimizing polygamy and incest are the same as for gays, many are different. I'm not going to restate them again and again.

> But you never did state them in our exchange. At least, you didn't state anything that stuck in my mind. Perhaps this is because I forgot, or because you stated them in an unclear manner. Or maybe you didn't state them at all, but just kept repeating that "they are different" without explaining how. Anyway, perhaps you could indulge Ben (and me) and explicitly state one argument as to how the arguments for polygamy and/or incest are different than those for SSM.

"This is the same logic as the pro-SSM movement saying that the opponents are using the same reasons as they did to oppose interracial marriage. (and some of the reasons ARE the same)"

What reasons are those?

"I guess I'm just tired of the slippery slope argument by anyone."

Just because the slippery slope argument is used improperly by some, or has varying degrees of relevance to a question, does not mean that it is illegitimate on its face. In this particular case, we are talking about legal rationales for allowing or denying same-sex couples to obtain marriage licenses. If you could demonstrate how the rationales being used to support SSM are not applicable to supporting polygamy and/or incest, we would be much obliged. The point is not what you think personally, or what people's gut-level reactions are, but whether the rationale can be used or not. If denying SSM is due to nothing more than 'irrational animus' towards gays, as the MSC held, then how can denying marriage licenses a man and two women be due to something other than 'irrational animus' towards people who want to be married to more than one other person?

Posted by: Mike S. at July 13, 2004 6:05 PM

I grew up in the home of a southern baptist preacher. As such, i rejected everything i was taught in my youth.

Imagine my suprise at finding that EVERY SINGLE PART of the "slippery slope of sexual immorality" arguments of the past 30 years have come true -- and then some. I used to think that was sooo foolish. Now i see who the fool was...

You guys want to lower the age of consent to 13? Want to allow incest and polygamy? Want to see marriage abandoned by everyone, gay and straight alike? Go ahead, support gay marriage. Just call me back in 10 years to eat your bushel of crow.

Posted by: Marty at July 13, 2004 8:37 PM

Mike,

"But you never did state them in our exchange. At least, you didn't state anything that stuck in my mind. Perhaps this is because I forgot, or because you stated them in an unclear manner. Or maybe you didn't state them at all, but just kept repeating that "they are different" without explaining how.

—-- I've been through this with you, Ben, Justin and others on marriagedebate.com. It follows the same logic as to why hunting animals is legal but hunting humans is not, why owning a gun is legal but making bombs is not, why we chose to attack Iraq but we won't attack North Korea, why contraception is legal although it has an effect on procreation, why having sex with a 14 yr old is rape but with a 18 yr old is not .... and so on. I've said it many times before - the law draws lines all the time.

"This is the same logic as the pro-SSM movement saying that the opponents are using the same reasons as they did to oppose interracial marriage. (and some of the reasons ARE the same)"
What reasons are those?
—--- I was referring to the 'moral' reasons. That people of different races are not supposed to be together.

Just because the slippery slope argument is used improperly by some, or has varying degrees of relevance to a question, does not mean that it is illegitimate on its face. ... The point is not what you think personally, or what people's gut-level reactions are, but whether the rationale can be used or not. If denying SSM is due to nothing more than 'irrational animus' towards gays, as the MSC held, then how can denying marriage licenses a man and two women be due to something other than 'irrational animus' towards people who want to be married to more than one other person?
—---- By applying your logic, the MSC could reasonably say that denying a marriage license to me and my dog is nothing more than 'irrational animus' towards the love of animals. Again, this is about drawing the lines. The argument that the basic rationales between allowing SSM and incest are the same is just old and tired. I agree that allowing SSM is moving the line - but that doesn't mean that I support NO LINES. Just as the attack on Iraq was moving the line but that doesn't mean we should attack China tomorrow. Sorry Mike, I think it is you that are ignoring my arguments because you don't agree with them. You have never explained why you would support gun rights but don't support public ownership of WMD's (unless you do). Similar logic applies here.

Posted by: Mark Miller at July 14, 2004 12:25 PM

Mark writes:

The argument that the basic rationales between allowing SSM and incest are the same is just old and tired. I agree that allowing SSM is moving the line - but that doesn't mean that I support NO LINES.

But part of the way in which we've defined our legal culture, particularly the role of the judiciary, is that there be no arbitrary lines. So, what unarbitrary reasons allow you to progress to the "that's just old and tired" stance? Every other issue that you mention presents clear lines, or to the extent that some do not, they are either not parallel or are matters of contention.

1. We privilege human life over animal life (in part because it would be difficult to eat animals without killing them first). Still, we are averse to cruel and unnecessary killing of animals.

2. Is it illegal to make bombs? Perhaps state by state, and perhaps with limits on size and with regulation. (I really don't know, although it's legal for some people to have and to use dynamite.) Of course, there's continual debate about the meaning and extent of the Second Amendment, but large bombs' being ineffective for ordinary self defense makes arguments for their legality narrow. (But again, I'm not sure that it is illegal just to make and own large bombs.)

3. I've written at length (somewhere) about the distinctions between Iraq and North Korea, but in this context, it doesn't really seem to apply. The law makes no distinction between the countries and invasion thereof; practical considerations and differing opportunities are the differences.

4. The contraception example doesn't really apply, here, either, because we don't ban particular contraceptives (except maybe for health reasons relevant for any drug).

5. The age of consent for sex is probably the most effective of your examples, but even that is a line by age and maturity, not by significant difference. States have different laws, and moreover, as Eugene Volokh proved a couple of weeks ago when he opened it to his blog readers as an academic question, it's still a matter under debate. Still, I think the burden is on you to go into more detail as to how it applies.

However, what folks are asking for is not an argument that "the law draws lines all the time," but one about why it can — and will — before polygamy and incest. Where you personally would draw lines is irrelevant; what would be relevant are your reasons for drawing them. So, what rationales open the way for same-sex marriage — on the basis of individual freedom and mutual consent — but close it for other forms of relationship?

Posted by: Justin Katz at July 14, 2004 2:29 PM

First, I don't know whether to be proud or offended that a comment of mine was actually the impetus of one of your posts. Well, it made me smile so thanks.

First with regard to the issues I raised, my point was not that there wasn't legitimate reasons for those lines but that arguments can and have been made on either side of those lines. For instance:

1. Animal life - there are those that argue that we should not harm animals for our own pleasure - food or clothing. There are even those that think it should be illegal.

2. Bombs - What I should have referred to is the use thereof and not simply the building of bombs. It is legal to use guns, it is not legal to use bombs.

3. Again, I know the arguments about why we went to war with Iraq but not North Korea et al and I happen to agree with you on them. My point is that there are those that have argued that the rationale used to justify the war with Iraq could be used to justify going to war with many other countries. In the same way as your assertion that the rationale use to justify SSM could be used to justify incest.

You said: "Where you personally would draw lines is irrelevant; what would be relevant are your reasons for drawing them."

The truth is that where each of us is drawing the line is 'personal'. Let's get to the bottom line here which is how each of us sees homosexuality. You see it as morally equivalent to incest and polygamy. I do not. Therefore, when you say (I'm paraphrasing) "allowing gays to marry will lead to legitimizing other sexual perversions" - the problem for me is that I (and others) do not see homosexual behavior as a sexual perversion.

Therefore, the attempt to make gay relationships equivalent to polygamy and incest does not work for me. Just as my attempts to say that same sex relationships are morally equivalent to opposite sex relationships does not affect your view.

So, to answer your question, what rationales open the way for same-sex marriage - on the basis of individual freedom and mutual consent - but close it for other forms of relationship?
—--- In my view, the social costs of legally acknowledging polygamous and incestuous relationships outweigh the benefits. Whereas I believe the costs of acknowledging same sex relationships are far less. Why you ask ? Because of where I draw that line.

Posted by: Mark Miller at July 15, 2004 9:21 AM

Care to share your definition of "perversion" with us, Mark?

Personally, i consider treating the rectum as anything other than a one-way street to be significantly perverted...

Posted by: Marty at July 15, 2004 11:09 AM

Good for you, Marty. Good for you.

Posted by: Mark Miller at July 15, 2004 11:27 AM

"the social costs of legally acknowledging polygamous and incestuous relationships outweigh the benefits"

What are those costs and benefits, and how do you know what they are or will be?

Posted by: Mike S. at July 15, 2004 12:27 PM

"the social costs of legally acknowledging polygamous and incestuous relationships outweigh the benefits"

What are those costs and benefits, and how do you know what they are or will be?
----- I don't know what they will be and either do you. Where we differ is on defining the costs and benefits and more importantly, on the effect of legitimizing gay relationships and whether it is different than legitimizing incest or polygamy.

I'm ready to acknowledge those differences and move on.

Posted by: Mark Miller at July 15, 2004 4:12 PM

"I'm ready to acknowledge those differences and move on."

I'm not. If you don't know (or at least have a reasonable guess at them) what the costs and benefits are then your argument in favor of SSM is completely hollow. How can you be arguing in favor of it if you don't think the benefits will outweigh the costs? And if you are a conservative (political or religious), why aren't you highly skeptical of changing a longstanding institution like that of marriage? I mean, really, Mark - it's *never* been tried before. Don't you think there might be a reason for that?

Posted by: Mike S. at July 15, 2004 9:17 PM