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July 21, 2004

A Step Too Far

One final response to the comments to that post, and then I'm considering myself caught up and going to bed. Tomorrow, I'll return to my search for blog-worthy material, hopefully having to do with other topics than same-sex marriage.

Jon Rowe writes:

[Polygamy, incest, bestiality,] & Homosexuality each wholly distinguishable phenomenon. The only thing they have in common is being frowned on by tradition. But equally has interracial couplings. Thus, homosexuality is no MORE logically related to these things than are interracial couplings. The bottom line of my point is examine each on a case by case basis.

There are various ways to argue against this point, but most relevant to the discussion, I'd say, is that there's an extra step required for same-sex marriage to follow interracial sex and marriage. To allow such activities for couples of differing race, all that was required was to assert that there was no significant difference between the races. Self evidently, therefore, there is no significant difference between the type of sex or the form of marriage indicated.

The same is not true for homosexual couples. In their case, it is patently absurd to argue that there is no significant difference between the sexes (although some try to argue just that). The equivalence that must be added to the mix is between the types of sex. And therein lies the step too far.

As Jon had already relied upon in a response to Ben, we still consider the difference between humans and beasts "profound," so — without intermediary steps — the leap from interracial to interspecies is too long to be plausible. However, to include homosexuals in the same category as heterosexuals, one must argue that the totality of gay sex is no different from the totality of heterosexual sex. I find the necessary level of equivalence for this comparison to be laughable, but those who would make it must illustrate why one form of non-heterosexual-vaginal sex is significantly different from another — not only in theory, but in the terms in which homosexuality is actually being "normalized" (e.g., with reference to "choice," "consent," and "privacy").

Another, more-common approach is to argue that the form of sex is not relevant to marriage. In this case, the difficulty of differentiating other forms of sexual relationships reappears. Additionally, one must explain why the presumption of sex continues to matter at all — a line of thinking that is likely to open the way for incestuous marriages.

A related problem has accompanied the gay movement, as a civil rights movement, all along. Unless gender is seen as no more significant than skin color, homosexuals are defined by what they do and how they live their lives. Striving to change laws and customs to include them loosens the strainer for behavior, choices, and lifestyles in a way that merely declaring nonexistent a distinction by a specific quality does not.

Posted by Justin Katz at July 21, 2004 2:17 AM
Marriage & Family
Comments

I did it again. I started a reply here and then it just turned into a blog item.

Posted by: Patrick Sweeney at July 21, 2004 10:10 AM

Perhaps you might say that gender is no more significant than religious belief. I consider the latter to be extremely important to the individual, to the family, to the children. Yet I would not have the government restrict whom one can marry on the basis of religous belief.

Posted by: Gabriel Rosenberg at July 21, 2004 10:41 AM

Prof. Rosenberg,

I might say that, but it would still not erase the differences between the genders. In other words, it would be a distraction. Luckily, among the first actions of our government was to declare religion a protected category.

Posted by: Justin Katz at July 21, 2004 10:54 AM

I agree with you. It doesn't erase the differences between the genders, just as it doesn't erase the differences between religions. It took a couple of hundred years, but in many states gender is now, luckily, also explicitly a protected category.

I'm not arguing that there is no difference in gender. I'm just arguing that the goverment should be wary of using that difference to dictate certain choices in our lives.

Posted by: Gabriel Rosenberg at July 21, 2004 11:04 AM

Well, we've achieved harmony, apparently, because I don't believe the government should forbid homosexuals from making the choice to marry simply because they supposedly aren't sexually attracted to their opposite-sex spouses.

Posted by: Justin Katz at July 21, 2004 11:16 AM

Yes, I agree homosexuals should have the choice to marry someone of the opposite sex if they want. I thought we were discussing choices related to gender, though. I assume you do think that a man should not have the choice to marry another man because of his gender. I'm not sure what your position would be if one of them got a sex-change.

Posted by: Gabriel Rosenberg at July 21, 2004 11:28 AM
I thought we were discussing choices related to gender, though. I assume you do think that a man should not have the choice to marry another man because of his gender.

That is what we're discussing, and I continue to hold that the government should not forbid gay men from entering into the relationship of marriage simply because their spouses would be women, nor lesbians from marrying men. I also believe it would be a travesty for the government to declare that men cannot marry or that women cannot marry.

However, I do believe that a man does not have the choice to marry another man because that is not marriage as society has an interest in defining it.

Posted by: Justin Katz at July 21, 2004 11:37 AM

Yes, we both agree that a man should be able to marry a woman if he wants and a woman should be able to marry a man if she wants. There is no disagreement on that matter. The argument is over whether a man should be able to marry another man, and a woman should be able to marry another woman. You say, no, because you don't consider that to be a marriage as society has an interest in marriage. I say, yes, because I do consider that to be a marriage as society has an interest in marriage. My point in this thread, was that my position does not imply that gender is irrelevant or unimportant as the example of interfaith marriages demonstrates.

Posted by: Gabriel Rosenberg at July 21, 2004 11:49 AM

The other thing about Jon's assertion about miscegenation is that it was never a universal prohibition, even within the U.S. He also never addresses the fact that those laws were tightly linked to other laws designed explictly to keep blacks subservient to whites. The laws governing marriage were never designed to keep homosexuals subservient. Nor are they now.

I still think it an elephant in the room that SSM advocates don't address honestly that such social definitions should not be changed by the courts. Even if they think that the legislature is not doing its job by refusing to change the laws, that doesn't mean it is appropriate to appeal to the courts to change the definition.

Posted by: Mike S. at July 21, 2004 12:04 PM

Here is the response I posted on my blog, that I copied over here:

Let me respond to Justin Katz’s post that was a response directed at me.

"Jon Rowe writes:

"'[Polygamy, incest, bestiality,] & Homosexuality each wholly distinguishable phenomenon. The only thing they have in common is being frowned on by tradition. But equally has interracial couplings. Thus, homosexuality is no MORE logically related to these things than are interracial couplings. The bottom line of my point is examine each on a case by case basis.'

"There are various ways to argue against this point, but most relevant to the discussion, I'd say, is that there's an extra step required for same-sex marriage to follow interracial sex and marriage. To allow such activities for couples of differing race, all that was required was to assert that there was no significant difference between the races. Self evidently, therefore, there is no significant difference between the type of sex or the form of marriage indicated.

"The same is not true for homosexual couples. In their case, it is patently absurd to argue that there is no significant difference between the sexes (although some try to argue just that). The equivalence that must be added to the mix is between the types of sex. And therein lies the step too far.

But here is the problem for Justin’s “Slippery Slope” side: He has just moved from, “slippery slope to P, I, & B” to “how homosexual marriages will affect society based on the differences between hetero and homo sex.” These are two distinct issues. Leave aside bestiality for a moment. Say we have a marriage between one man and more than one woman that has only heterosexual sex (common for of polygamy), or a marriage between a brother and a sister…as long as procreative vaginal sex is involved in both circumstances, we could also say that “there is no significant difference between the type of sex.” Regarding “form of marriage,” a brother and sister marriage also does not violate the one man/one woman paradigm. Under the same slippery slope logic, we could argue, “recognize interracial marriage today, and you’ll have incestuous ones tomorrow.”

The point about the slippery slope is that it is a logical fallacy—that is we can always ask, “if we apply the same rule to another circumstance, how do we draw the line here and not there?” with every single policy, even the good ones that we all support. But the line has to be drawn somewhere—that’s why I argue, “examine each on a case by case basis.”

For instance, let’s say that a federal court recognizes same-sex marriage and explicitly relies on the Loving case as authority. Back when Loving was decided, the anti-miscegenationists raised the same slippery slope fears. Once a federal court uses Loving to support same-sex marriage, the racists could say, “HA, we were right! Interracial marriages led us down a slippery slope to same sex marriage.”

The point that Eugene Volokh makes is that even though the slippery slope is a logical fallacy, it is alive and well in a legal system that relies on reasoning through analogy and past precedent. But the point still remains that every good policy that we all support can—via the slippery slope mechanism—be taken to support policies that we do not desire.

So how do we stop the slippery slope in the courts? By limiting the case to the facts involved, or reading the rules in a more narrow sense. How do we limit the Loving decision? By only applying it to racial discriminatory cases. How would we limit a same-sex marriage ruling? By only applying it to gender discriminatory cases. And when we get involved in the “specifics” of each circumstance, we find that there are entirely different reasons for and against each of these cases. And it’s in those distinctions where social/legal policy can find their reasons for not extending the logic of one circumstance to another.

Posted by: Jon Rowe, Esq. at July 21, 2004 12:20 PM

Well, if one thinks that it is a question of being denied the equal protection of the laws that the constitution guarantees, and the legislature is unwilling to act, I see no problem in seeking to redress the court. Of course, others do not see it as a violation of equal protection, but that is what the court is being asked to determine. In the Goodridge case, one of the first arguments the plaintiffs made was that marriage was not explicitly defined as one man and one woman in Massachusetts so they should be able to marry. The court rejected this arguement. They said it was clear that the legislature intended it to be restricted in that way, and without anything further it was the responsibility of the legislature to make that determination. It was only when they subsequently examined whether such a restriction (or such a definition, if you would like) violates the Massachusetts Constitution, that the Court determined that yes it did, and thus the legislature was prohibited from using that definition.

I disagree that marriage was never linked to laws intended to keep women subserviant to men. Even now, as we have seen here, the desire to keep marriage limited by gender seems connected to enforce gender roles. Is it a coincidence that someone who does not conform to traditional gender roles is often referred to deridingly as gay? (This is especially true for boys who act "girly")

I don't understand how the fact that the prohibition on same-sex marriages was once (but no longer) universal immunizes it from analysis as gender discrimination. The fact that the President of the US has always been a man, I would hope could not be used as a reason to justify keeping it that way. In Perez v. Sharp the California Supreme Court did not use the fact that certain states did not have interracial restriction anywhere in their analysis. Nor did their reasoning rely on the motives of the discrimination. They said it was de facto discrimination because somebody was being denied the equal ability to marry a particular woman because of his race. That, according to the court, was sufficient to force the state to come up with a compelling reason to justify the discrimination. It was at that point that the court looked at what purposes the restriction was intened to achieve and determined they were not compelling. In any case, just because one believes gender should not be used as basis for governmental discrimination does not imply one thinks gender is unimportant.

Posted by: Gabriel Rosenberg at July 21, 2004 12:48 PM

I apologize for being so direct, Jon, but for expediency's sake, I'm just going to skip over the canned "slippery slope" argument, which has only tangential relevance to the point that I was making, here.

I was refuting your assertion that there is "no MORE" logical link from SSM to further changes than miscegenation. Of course there are distinctions between each stage of societal corruption; that is why polygamy, for example, won't come as part of any changes in the law to allow SSM, but will require some degree of action in its own right. In any case, this strikes me as simply a nonsensical assertion:

Under the same slippery slope logic, we could argue, "recognize interracial marriage today, and you’ll have incestuous ones tomorrow."

Moreover, it suggests to me that you paid almost no attention to my point about the way in which interracial marriages are made legitimate. For the same logic to apply to polygamy, one would have to assert that there's no significant difference between one person and two; for incest, between a sibling and an acquaintance.

SSM introduces another level of equivalence, requiring further rhetorical manipulation involving "choice," "consent," "privacy," and so on. (An aspect of my argument that you've entirely ignored.) Unless you disagree that the arguments and logic that are actually being put forward in support of your cause are beyond the boundaries of your suggested approach (citing Loving too broadly, for example), then you ought to be at least as vehemently rebuking the activists as you are the opponents.

Posted by: Justin Katz at July 21, 2004 1:00 PM

Bestiality and Sexual Biology:

Now let me tackle this issue of including “Bestiality” in the parade of horribles.

More from Justin Katz’s response:

"As Jon had already relied upon in a response to Ben, we still consider the difference between humans and beasts 'profound,' so — without intermediary steps — the leap from interracial to interspecies is too long to be plausible.

"However, to include homosexuals in the same category as heterosexuals, one must argue that the totality of gay sex is no different from the totality of heterosexual sex. I find the necessary level of equivalence for this comparison to be laughable, but those who would make it must illustrate why one form of non-heterosexual-vaginal sex is significantly different from another — not only in theory, but in the terms in which homosexuality is actually being 'normalized' (e.g., with reference to 'choice,' 'consent,' and 'privacy')."

At the outset, we should all be able to recognize that there is a distinction between Man & Beast (as well as between Man & God, if God exist). And there is also a natural distinction between Male & Female. But contrary to the claims of Harry Jaffa (in fact, it is the central flaw in his natural law argument against homosexuality), the distinction between Man & Beast is far more profound than the distinction between Male & Female (expect a much longer post on this on my blog in the future).

We think nothing about slaughtering and enslaving animals, eating them, wearing them on our bodies—but never dare do this to humans. That tells us something about the profundity about the distinction between Man & Beast. Yet, when the law or even private action makes a distinctions between men and women, the Civil Rights Act of 1964 and the 14th Amendment’s prohibition on gender discrimination automatically raises suspicion at such distinctions.

That’s not to say that gender distinctions are the same as racial distinctions. Because there are real differences between men & women, the law allows for such distinctions. For instance, we allow for segregated gender bathrooms, but not race. Constitutional law holds that gender distinctions get “intermediate scrutiny” while race gets “strict.” Gender can be a Bona Fide Occupational Qualification (thus a permissible basis for job discrimination), while race is never a legal BFOQ. But these are considered “exceptions to the rule.”

Regarding, man v. beast, there is no rule that we are dealing with equivalents in any way. There is no way from a legal perspective we could “slip” from same sex marriages to human animal ones. Marriage is a contract and animals have never had the ability to contract in this nation. Neither do they file tax returns. As John Corvino says in this article (quoting a friend) “Marry your toaster if you like, but please don't try to file a joint tax return with it.” Ditto for animals.

I understand Justin’s objections that there is a distinction between hetero and homo sex—clearly that heteros can procreate and homos can’t means something. But what it does not mean is that we should “group” human and animal sex together. In other words, even though there is some distance between hetero procreative sex and homo sex, there is a far more profound distance between homo sex and bestial sex. I think in an earlier post I used a fruit analogy. There is logical distance between and orange and a lemon—but a far greater distance between the both of them on the one hand and “crabgrass” on the other. In other words if we have three relationships: a normal hetero, homo, and bestial, and we needed to ask which should be grouped together, the obvious choice in my eyes would be to group the hetero & homo together, just as I would group the orange & lemon together.

Finally I find Justin’s Catholic/Thomistic view of sex to be highly problematic. I don’t like the way it reduces human beings to biology, procreative biology at that. What makes us human is our minds (our souls if you will), not our biology. Even though there are biological differences between homo and hetero sex, in the non-biological way that relationships occur, there is so much of an equivalence between the two (and even regarding the physical ways in which we have sex, there is far more common ground between homos and heteros than what sets us apart). I only think of Plato’s metaphor of human beings having complementary set of genitals and being split in half, longing for our other half. But in some cases, both genitals were male.

But let’s stick with the biological for now. Justin writes: “but those who would [argue for the legitimacy of homosexual relations] must illustrate why one form of non-heterosexual-vaginal sex is significantly different from another.” Okay let’s make a list of them: we would have not only homosexual and bestial sex, but also heterosexual oral and anal sex, mutual masturbation, solo masturbation, and arguably any other *things* that heteros do with one another that doesn’t involve, “penis-vagina” sex. And what is so special about this form of sex anyway? Only one thing I can think of—that it’s “procreative.” Turn off the procreative button and penis/vagina just become erroneous zones—just like breast, buttocks, anus, mouths, lips, tongues—practically the whole rest of the human body. So I’d argue that we’d have to throw in heterosexual contraceptive sex on my side as well. And as Andrew Sullivan (after Mark Jordan) has noted in his article “We are all Sodomites Now” all of these things have been termed “sodomy” by the Catholic Church. Do you really want to make the case that activities so normalized as heterosexual oral sex and contraceptive sex are equivalent to bestiality because all separate sex from its procreative teleology?

Posted by: Jon Rowe, Esq. at July 21, 2004 1:50 PM

Jon,

I'm running short on time, so I'll have to make this quick. I notice that you stopped short, in your response, before addressing my entire point: "not only in theory, but in the terms in which homosexuality is actually being 'normalized' (e.g., with reference to 'choice,' 'consent,' and 'privacy')."

Further, I note that, even in the extent of the point that you did address, you failed to answer the demand: "those who would [argue for the legitimacy of homosexual relations] must illustrate why one form of non-heterosexual-vaginal sex is significantly different from another." All you've done is to list a bunch and imply that it would be foolish to say that there are not differences.

Yes, there are differences, but as you so succinctly illustrate, removing the cultural presumption of the one form that is clearly distinct (as doing more than providing [presumedly] mutual pleasure) from marriage lumps all of the practices "on your side." As I suggested in the post to which this appends, why not go ahead add "mutual celibacy" to your litany, as well?

I did not say that the various activities are "equivalent to bestiality." I said that you are ignoring the burden to describe why the differences that do exist are significant in light of the arguments about "consent," "privacy," and "choice" that are being used to push the gay movement forward.

One further matter that people of your view habitually discard is the distance between "normalizing" various sexual practices and honoring them as presumed bases for the right to marry.

Posted by: Justin Katz at July 21, 2004 2:19 PM

"I disagree that marriage was never linked to laws intended to keep women subserviant to men."

The argument is that limiting marriage to a man and a woman was not designed to keep gays subservient to heterosexuals. Of course many marriage laws and customs did serve to keep women subservient to men. Polygamy usually has this effect (or intention), for example.

"I don't understand how the fact that the prohibition on same-sex marriages was once (but no longer) universal immunizes it from analysis as gender discrimination."

It doesn't, from a logical perspective. What it points out is that even in societies that were more or less accepting of homosexual behavior, marriage was never considered to include same-sex couples. This undermines the argument that one of the purposes, or results, of defining marriage as a heterosexual institution is discrimination towards gays.

Posted by: Mike S. at July 21, 2004 5:52 PM

Well then we seem to agree on this limited matter Mike. My opposition to the prohibition against SSM is not so much that is discrimination towards gays, but rather that it is discrimination on the basis of sex.

Posted by: Gabriel Rosenberg at July 21, 2004 8:48 PM

The step from heterosexual marriage to homosexual marriage is a larger one than the step to interracial marriage for an additional reason: the definition of race.

Back when slaves were black and owners were white the distinction was easy. Before bans against interracial marriage were lifted, there were constant arguments as to whom should be classified as black. Having one black grandparent, one black great-grandparent, even the "one drop of black blood" makes one black position. What seems like nonsense today was the fervent subject of debate in the past.

Now we have children of mixed race from nearly all white to nearly all black, and all possibilities in between.

No such continuum could develop to span the gap between heterosexual and homosexual pairings.

Justin is right on this one, Jon. The step to SSM is a larger one.

Posted by: Bill Ware at July 22, 2004 10:42 AM

Bill,

That's a good point, but once again it would be better to think about comparing race to gender. There were practical problems in classifying people by race, but there are also practical problems in classifying people by gender. Different courts have come to different conclusions about whether (and at what point) someone who has undergone a sex change should be legally classified as being of another gender. Likewise there are problems for classifying people who are XXY, etc. And thus a number of times, arguments over whether or not a marriage should be valid have boiled down to lengthy testimony about which gender a person should be considered.

Posted by: Gabriel Rosenberg at July 22, 2004 12:04 PM

Do you really want to make the case that activities so normalized as heterosexual oral sex and contraceptive sex are equivalent to bestiality because all separate sex from its procreative teleology?

Yes. I love the way you argue that slippery slope arguments are invalid. It was argued that contraception would eventually lead to abortion, divorce, and now SSM. And here you are, railing against slippery slope arguments while you stand at the bottom of the hill. Its really hilarous. Oh, they may be invalid logically I suppose, but that damn reality of history keeps getting in the way. You don't even realize your own words prove the slope - you are including the "legitimization" of contraception and oral sex as support for SSM while decrying its connectedness under the "slippery slope"- quite ironic.

The bottom line is that marriage is not about the adults involved, but the children. Who really needs marriage? The adults don't; the offspring do. Yes, procreative sex is the basis of marriage. Take that away and you can define "marriage" to be between a man and his remote control.

So how do we stop the slippery slope in the courts?

You don't stop it in the courts, you stop it in the legislature. That is where the will of the people in forming their society, through elected representatives, is expressed. Not in the will of some idiotic judge. The legislature has the resources to commission polls, gather data, perform studies - where has a court ever done that? Its not their job. If SSM advocates can convince enough folks in the legislature that its good for society, then go for it.

Posted by: c matt at July 22, 2004 8:05 PM

Hear Hear c_matt -- anyone who denies the existence and remarkable consistency of the slippery slope has just not been paying attention these last 30-40 years. I used to laugh at such arguments myself, until one by one, each domino fell, just as it was supposed to. And here we are, where consenual cannibalism is little more than a misdemeanor in europe, and in america we're trying to equate procreation with defacation.

But as hopeless as it sometimes seems, vigilance is still warranted. The culture of sex and death is a bottomless pit.

Posted by: Marty at July 23, 2004 9:05 PM