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July 21, 2004

Not So Dramatic a Leap

Thanks to reader Mike S. for pointing out this factoid courtesy of NRO:

In 1983, a Vermont legislator named Elizabeth Edwards introduced a bill to allow a 65-year-old woman to marry her 86-year-old maternal uncle, despite incest laws banning the match. Edwards, a Republican (only in Vermont, kids!), figured that incest laws were primarily about preventing defective offspring, and her neighbors Ramona Crane and Harold Forbes were too old to bear children. "They're a super-neat couple who don't have any money, and they just have each other, and I think they should be able to get married if they want to," Edwards told United Press International for a February 23, 1983, story.

I see nothing in Ms. Edwards's thinking that does not apply to same-sex relatives of any age. Once again, those who would rearrange our thinking about marriage to include couples involving one sex have to address the claims of those who prefer other forms of sex, as well as those who have no intention of having sex at all.

If they want to argue that there's some social good to be derived exclusively from recognition of gay sex, that's fine. They can argue the point and bring it to their fellow citizens. But leveraging the courts to declare various new rights is not an adequately subtle a mechanism. If they really do believe as many SSM advocates are content to claim, then it seems to me increasingly clear that they ought to be on the other side for the time being — until the circumstances, the rhetoric, and the strategies have shifted.

Posted by Justin Katz at July 21, 2004 3:13 PM
Marriage & Family
Comments

Yes, if incest laws were strictly about preventing birth defects, there is nothing wrong with Ms. Edwards thinking. It would apply to same-sex couples, elderly siblings, etc. A man could marry his 80 year old mother. I think the problem is with the assumption that incest laws are strictly about preventing birth defects.

Posted by: Gabriel Rosenberg at July 21, 2004 3:25 PM

Professor Rosenberg is correct. There are other legitimate reasons to be against incest.

This is the same argument as has been used before by SSM-foes - that if 'some' of the arguments to support SSM are the same as the ones used to justify incest (or polygamy or bestiality) then it follows that legalized SSM will lead to legalized PI&B.

But that argument is disingenuous in that when SSM supporters use the same logic as applied to the interracial marriage ban or allowing elderly couples allowed to marry (the procreation argument), then the argument is that 'those are different in some ways' - which I agree with.

It is possible to believe that a) incest should remain taboo (and illegal) while homosexuality should be legally acknowledged. In the same way that SSM foes believe that b) elderly couples who cannot procreate be allowed to wed but same sex couples should not.

The assertion that b) is perfectly rational but a) is logically inconsistent is not valid.

Posted by: Mark Miller at July 21, 2004 4:53 PM

I guess the problem, professor, is the matter of whose assumption you mean. I don't, for one thing, see a plank in the SSM movement to strengthen other barriers to incest.

-----

Mark,

It is possible to believe that a) incest should remain taboo (and illegal) while homosexuality should be legally acknowledged. In the same way that SSM foes believe that b) elderly couples who cannot procreate be allowed to wed but same sex couples should not.

The assertion that b) is perfectly rational but a) is logically inconsistent is not valid.

I don't see how your two points are relevant, except in that they allow you to place two groups in conflicting opposition. We're not talking about what it is possible to believe; it's possible to believe just about anything. We're talking about "wills" and "coulds," not "shoulds."

A central point of the SSM debate (one that you've made, I believe) is that "taboo" isn't a legitimate justification for illegality. In rebuttal, those who oppose the SSM movement note that this erasure of taboos' legal weight opens the field of possibilities wide.

I'm not going to revisit the various practical reasons that elderly couples shouldn't and/or can't be effectively excluded from marriage. However, I will note that there's no legal or logical difficulty (indeed, simplicity is a benefit) in defining marriage simply as between a man and a woman, thereby including elderly couples while excluding same-sex couples. There is considerably more difficulty in defining marriages as... something to include homosexuals. A joining of two people who care about each other? Two people who wish to support each other? Are we going to test for love? For sex? What?

Posted by: Justin Katz at July 21, 2004 5:08 PM

The assumption I was referring to was that proffered by Ms. Edwards. That is not an assumption that is fairly common with SSM for it is more in line with the idea that marriage is strictly about biological procreation.

As for there not being a plank in the SSM movement to strengthen barriers against incest, I am not familiar with the SSM platform. If I thought there was a need to strengthen barriers, though, I would propose a plank at the next SSM International Conference.

Posted by: Gabriel Rosenberg at July 21, 2004 8:56 PM

I'm not sure how the argument on behalf of sterile incestuous marriages can be considered more "in line with the idea that marriage is strictly about biological procreation" than with arguments on behalf of sterile homosexual marriages. How can the inability to procreate be a selling point if the institution is all about procreating?

You might consider, by the way, floating a plank at the next SSMIC just to see what reaction you get.

Posted by: Justin Katz at July 21, 2004 10:49 PM

Gabriel, perhaps we could construct that platform out of the Lawrence and Goodridge decisions. Shall see how difficult it is to construct PB&I arguments out of the courts' own logic? Here is a quote to consider from the Lawrence opinion:

"The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."

And here is part of a dissent in Bowers, quoted with approval in Lawrence:

"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons."

These are the premises we're talking about. These are the people who will get to vote on the matter---not you or me. You may be smart enough to reconstruct their thinking into something coherent that doesn't lead to PB&I, but that doesn't matter, either. What matters is the actual logic used by Kennedy, Stevens, and a handful of other judges who are willing to abuse their power to impose their whims on the country.

I don't see how you can deny that their logic, if taken seriously, will lead to the legalization of many more sexual practices, e.g.: What a man does in his own home with his own goat is his own business.

You can say that the court won't actually do that. And you would probably be right, at least on the short term. Judges aren't dummies. They know what is politically feasible. But putting the discussion on that footing admits that we aren't talking about constitutions or law at all, but just the unprincipled moral intuitions of a couple of politically connected lawyers who got nominated for judgeships.

Posted by: Ben Bateman at July 22, 2004 2:33 AM

I don't see how your two points are relevant, except in that they allow you to place two groups in conflicting opposition.
—--- My point is that some SSM-foes have argued that it is logically inconsistent to support SSM and but not support legalized incest and that is simply not true.

We're not talking about what it is possible to believe; it's possible to believe just about anything. We're talking about "wills" and "coulds," not "shoulds."
—------ I guess I agree except that it is difficult to argue "wills" and "coulds" without involving "shoulds".

A central point of the SSM debate (one that you've made, I believe) is that "taboo" isn't a legitimate justification for illegality. In rebuttal, those who oppose the SSM movement note that this erasure of taboos' legal weight opens the field of possibilities wide.
—----- True ... and in rebuttal, those who support SSM note the many examples of certain taboos which are legal but have not lead to the opening of other taboos. Thus, the argument that legalizing one taboo will lead to legalizing all taboos. Not to mention that a central point in this debate is the legitimacy of defining homosexual behavior as a taboo.

However, I will note that there's no legal or logical difficulty (indeed, simplicity is a benefit) in defining marriage simply as between a man and a woman, thereby including elderly couples while excluding same-sex couples. There is considerably more difficulty in defining marriages as... something to include homosexuals. A joining of two people who care about each other? Two people who wish to support each other? Are we going to test for love? For sex? What?
—----- I agree that there is a legitimate argument as to why elderly couples should not be excluded from marrying. My point is that when THE argument against SSM is based on the procreative model, then the example of elderly couples is a legitimate rebuttal.

Posted by: Mark Miller at July 22, 2004 9:10 AM

My point is that some SSM-foes have argued that it is logically inconsistent to support SSM and but not support legalized incest and that is simply not true.

I guess it depends upon what you base SSM on. If SSM is based upon the "right" that each person can define for him/herself what their relationship should be, then it is logically inconsistent. If you base SSM on the fact that procreation is not possible, but it is with incestual relationship, and there are risks to such offspring, then I can see an argument. But what if the incestual couple agree not to procreate? What objection could you raise? None, unless marriage is about procreation.

What about supporting SSM but not supporting polygamy? Would that be logically inconsistent? Seems it would be - if each has the right to define what relationship suits them, how can you object? They really love each other, they are committed to one another, etc., etc. and frankly, its none of your beeswax.

Posted by: c matt at July 22, 2004 7:30 PM

If you base your support on SSM on the right of the individual not to be denied equal protection on the basis of their sex, then there is no inconsistency in supporting SSM, but not polygamy or incest.

Posted by: Gabriel Rosenberg at July 23, 2004 11:20 AM

Professor Rosenberg stole my thunder and said it more simply that I could have. But I'll respond anyways.

The argument that SSM will lead to PI&B assumes that homosexuality is another immoral sexual perversion and if you allow one then that will lead to others.

The opposing argument is that homosexual behavior is not a sexual perversion but natural yet rare. I'm not *asserting* that and I know that many people disagree but the point is that this view allows one to support SSM without supporting PI&B with consistency.

In other words, the assertion that the only choices in this debate are:
a) oppose SSM - or
b) support any consensual adult relationship
is not a valid one.

Posted by: Mark Miller at July 23, 2004 11:40 AM