There is no Gay Marriage “Slippery Slope”


Rainbow White HouseYesterday’s U.S. Supreme Court decision approving gay marriage throughout the country is a long overdue recognition that everyone has a right to love and to share marriage with the whomever they like, regardless of gender.

Unfortunately, the decision has already motivated an irrational — and, on the part of some, hysterical — reaction (listen, for example, if you can stand it, to Ted Cruz) by opponents of marriage equality.

For the most part, response to these rantings would be both futile and a waste of time. However, in two respects, it is worth the time and effort to respond — these are the related claims that this decision puts the US on the path to approval of, among other things, pedophilia and polygamy.

Pedophilia

The discussion regarding pedophilia exemplifies two significant rhetorical fallacies — the so-called “slippery slope” argument and another called “moral equivalence”.

In its simplest form, the “slippery slope” argument goes like this, “if A happens, B will happen” (often with disastrous results).

However, except under circumstances where B is inevitable (which are rare), and as long as discretion can still be exercised over whether or not B will happen, the argument fails.

An example of a valid “slippery slope” argument (which will also exemplify why they are rare): “If I jump out of a 10th floor window, I will fall to the ground”. (Likely with those disastrous results mentioned above.)

On the other hand, the suggestion that “legalization of gay marriage will lead to legalization of pedophilia” is a false argument because society (through its various legislatures) still has the discretion not to legalize child molestation. And the likelihood is quite high that no legislature will ever legalize child molestation in part because of the second rhetorical fallacy here:

“Moral equivalence” is an argument that compares two things, implying that they are equal or at least similar, when in fact they are not. The significant difference between gay marriage and pedophilia is that in the former, the two participants are consenting adults who mutually desire to enter into a marriage … while in the latter, one of the two participants is a minor and therefore legally incapable of consenting to any sexual activity (and also probably mentally and emotionally too immature to make a rational decision on the subject in the first place).

Ergo, “gay marriage” is not morally equivalent to “pedophilia” and there is not logical reason to conclude that approval of the former will in any way lead to approval of the latter.

Polygamy

Similarly, the suggestion that “legalization of gay marriage will lead to legalization of polygamy” is a false argument because society also still has the discretion not to legalize polygamy.

Which is not to say that the ongoing changes in societal attitudes that have led first to acceptance of interracial marriage and now to acceptance of gay marriage will not someday lead to acceptance of polygamy … for they surely may. If they do, however, then it will be fair to say that, like gay marriage, perhaps polygamy isn’t such a bad thing after all.

As with the animosity toward gay marriage, the current strictures against polygamy are fundamentally religious in nature, albeit enforced through governmental compulsion. On the other hand, polyamorous relationships are already quite common (in the United States and other countries), even if not legally sanctioned.

Historically, polygyny (the technical name for a single male married to multiple wives), polyandry (one woman married to more than one husband) and plural marriages (families composed of multiple intermarried adult males and females) were quite common throughout the world prior to the rise of the Roman Empire and Christianity. Hindu, Jewish and Chinese history are all replete with examples of men taking multiple wives.

Polygamy is currently legal in several African and Middle Eastern countries and is acceptable in some religions other than Christianity. Muslim men, for example, may marry up to four wives (with the significant caveat that the man has to be able to care for each equally).

One historical reason (the tendency of men to get themselves killed in wars) for the acceptance of polygyny was that it helped to insure that some women and children, who would otherwise lack support, would have a man to provide for them. That historical justification is less valid today, but it remains the case that there are significantly more women than men in the world … which leads inevitably to the conclusion that if each woman is to enjoy the benefits of a legalized marriage, at least some degree of polygyny is not only acceptable, but necessary.

Separate and apart from all of that is the underlying fundamental issue of personal freedom and the right of consenting adults to enter into the romantic relationships of their choice.  If two women want to marry the same man … and he is amenable to that arrangement … it is no business of mine — and, by extension, no business of the government’s — to tell them that they cannot do so.

There are certainly some legitimate societal issues involved, most notably the ability of the polygamous family to be self-supporting, so as not to be a burden on society (see comment above re the Muslim practice). That particular imperative, however, is no more compelling with respect to plural marriages than it is with respect to traditional marriages, into which many people enter despite a lack of financial stability and responsibility on the part of the couple.

Into the Future

It is fairly clear to me that whatever change to American society results from the Supreme Court’s marriage equality decision, it will not be the end of the world as we know it.  And, to the extent that it is the end of the world as we know it, we will be a better society — and country — for the change.

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In 2008, when gay marriage was a significant issue in California, I blogged extensively on the subject.  I am not so modest that I cannot observe that now both the California Supreme Court and the US Supreme Court agree with my legal and practical opinions!

My previous gay marriage blogs (which some excerpts):

https://freelegaladvice.wordpress.com/2008/05/15/california-supreme-court-yes-on-gay-marriage/

https://freelegaladvice.wordpress.com/2008/05/16/comment-re-gay-marriage-posted-on-slate/

“Remember these words: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’

“I see nothing there which justifies a majority of people of any state (or, for that matter, all of the states) in denying to a minority group of people a right which the majority enjoys. Nor is there anything in the Constitutions of the United States or the State of California which would support denying people the right to join in a same sex marriage if they choose to do so.”

https://freelegaladvice.wordpress.com/2008/05/16/will-california-gay-marriages-be-legal-in-other-states/

“… it appears to be the current state of constitutional scholarship (derisive laughter in the background) that ‘full faith and credit’ need not be given by other states to California same sex marriages.

“At least, that is, unless and until the U.S. Supreme Court steps in and recognizes that same-sex marriage is protected by the federal constitution. That court has already held in Lawrence v. Texas that homosexual sex is constitutionally protected, in the process invalidating a Texas law criminalizing sodomy. So it is, perhaps, not that big a step to full-fledged constitutional protection of gay rights and same-sex marriage.

“As an interesting (at least to me) aside, Justice Antonin Scalia, the self-styled “originalist” (his way of saying he’s a “strict constructionist” based on the “original” language of the constitution), dissented in Lawrence. Among other things, he complained that, by its majority opinion in that case, the court had:

“‘… largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.’

“He also worried that the decision would undermine other state laws relating to sexual activities, including those prohibiting same-sex marriage. So much for ‘originalist’ interpretation of ‘equal protection’ and ‘due process’, never mind what little is left of ‘full faith and credit’.”

https://freelegaladvice.wordpress.com/2008/05/17/redefining-marriage/

https://freelegaladvice.wordpress.com/2008/06/14/randy-desoto-on-gay-marriage/

In which I responded to the following question:

“… if courts were to follow the Supreme Court’s reasoning to its logical ends, how could judges possibly uphold any state or federal law regarding private sexual conduct including incest, prostitution, polygamy, child molestation and child pornography?”

My response:

“The California Supreme Court decision held that consenting adults, even if of the same sex, have a right to marry. There is nothing ‘logical’ about extending that reasoning to such conduct as child molestation or child pornography, in particular, since neither involves consenting adults.

“The argument that this decision could lead to legalization of incest is a ‘slippery slope’ argument — there is a logical legal basis for differentiating between unrelated consenting adults and those whose degree of consanguinity would bring them within the definition of ‘incest’.

“Furthermore, the California court’s decision is based on the right of each individual ‘to establish a loving and long-term committed relationship with another person’, which would hardly seem to include the typical prostitutional relationship.

“The only one of the perceived ‘evils’ which might constitute a logical extension of this ruling is polygamy. That possibility, alone, hardly seems a reasonable basis on which to deny gays the right to marry.

https://freelegaladvice.wordpress.com/2008/06/24/point-counterpoint-with-randy-desoto/

“… proper constitutional interpretation starts not with the question of whether a particular right is ‘granted’ in the Constitution, but whether by anything contained in the Constitution the people have specifically given the government the power to deny the right which is the subject of controversy. In short, not ‘is there anything in the Constitution which gives gays the right to marry?, but rather ‘is there anything in the Constitution which gives the government the power to deny gays the right to marry?’

“… the Constitution is silent on the subject. That being the case, proper constitutional interpretation leads inescapably to the conclusion that the people have not given the government the power to deny gays the right to marry. To the extent that the court in the precursor case of Lawrence v. Texas found a ‘new right’ to make one’s own private sexual choices, it was mistaken … not because there is no such right, but because that right has been there since the day the Constitution was ratified and is not new at all.”

https://freelegaladvice.wordpress.com/2008/06/25/california-anti-gay-marriage-initiative/

https://freelegaladvice.wordpress.com/2008/07/17/california-supreme-court-agrees-with/

“… there is a religious basis for objecting to gay marriage, but religion is perhaps the worst of all foundations on which to base social policy. Which is to say nothing of the fact that our government is constitutionally prohibited from doing so.”

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FLA 69

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“Lies the Government Told You”


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I just finished listening to the audio book, “Lies the Government Told You” by former New Jersey Superior Court Judge Andrew P. Napolitano and highly recommend it.  In fact, this is a book that every American should read (or listen to the audio version of).  In it, Judge Napolitano discusses the many ways in which the US federal government has deceived and continues to deceive the American People as it arrogates unto itself more and more power, diminishing in the process both individual liberties and the power of the states.

Judge Napolitano concludes his compelling discourse with a bold and detailed statement of what We The People must do to rectify this situation and reverse the federal government’s ongoing and increasing power grab.  To whet your appetite, I am going to quote the concluding paragraphs of the book in full:

We will need a major political transformation in this country to rid ourselves of persons in government who kill, lie, cheat, and steal in our names. We will need to recognize some painful truths.

First, we must acknowledge that through the actions of the government we have lost much of the freedom that we once all thought was guaranteed by the Constitution, our laws, and our values. The lost freedoms have been cataloged in this book and need not be restated here. In sum, they are the loss of the primacy of the individual’s inalienable rights and the concept that government is limited in its powers. We have lost the diffusion of power between the states and the federal government. We have lost a federal government that stays within the confines of the Constitution.

Second, we must recognize that we do not have a two-party system in this country; we have one party, the Big Government Party. There is a Republican version that assaults our civil liberties and loves deficits and war, and a Democratic version that assaults our commercial liberties and loves wealth transfers and taxes.

Third, we must acknowledge that there is a fire in the bellies of millions of young people who reject both wretched visions of the Big Government Party. These millions of young folks need either to form a Liberty Party or to build on the libertarian base in the Republican Party by banishing Big Government conservatives, neocons, and so-called social conservatives who want to use government to tell others how to live their lives back to the Democratic Party from whence they came.

Then we need a political fever that consumes the careers of all in government who voted for the Patriot Act, the illegal wars in Iraq and Afghanistan, the TARP and stimulus programs, the federal takeover of education, spying on Americans without warrants, and all other unconstitutional monstrosities that have tethered lovers of liberty to Washington, D.C.

We should abolish the federal income tax, prohibit eminent domain, impose term congressional limits, make Congress part-time, return the power to elect senators to State legislatures, abolish the Federal Reserve system, and prosecute for malfeasance any member of Congress who cannot articulate where the Constitution authorizes whatever he or she is voting for or who has voted for any law that he has or she has not certified under oath that he or she read and fully understands. And we must reject the nice smiles and easy ways and seductive promises of anyone in government who lies to us.

The Big Government Party crowd is obviously not afraid of lying or being caught in a lie. Its members do not fear their own lawlessness or our loss of freedom. They only fear the loss of their own power. So let’s use that fear against them. Jefferson understood and articulated this best when he wrote: “When the people fear the government, there is tyranny. When the government fears the people, there is liberty.”

If we fear our own government, if we accept its deceptions, its lies to us, if we take no action to redress them, our freedoms are doomed.

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For Judge Napolitano’s personal website, see here:

http://www.judgenap.com/

For Judge Napolitano’s biography, see here:

http://www.judgenap.com/bio/

The “Lies the Government Told You” page of the judge’s website is here:

http://www.judgenap.com/books/lies-the-government-told-you/

California Supreme Court agrees with …


… me … see my post on the anti-gay marriage initiative at:

https://freelegaladvice.wordpress.com/2008/06/25/california-anti-gay-marriage-initiative/

… and, coincidentally, with proponents of the anti-gay marriage initiative.

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Point-Counterpoint with Randy DeSoto


I have received an email from Randy DeSoto regarding his column on the California gay marriage case, to which I respond here:

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Randy DeSoto Wrong on Gay Marriage


I received today an email with a link to an article by Randy DeSoto on the website The Conservative Voice. In this article, he discusses the recent California Supreme Court decision on gay marriage. DeSoto’s “constitutional” analysis of the issues is, however, deficient in several significant respects:

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California Supreme Court: Yes on Gay Marriage


In the most important court decision upholding individual rights since the US Supremes struck down state prohibitions of interracial marriage, the California Supreme Court today banished California’s law against gay marriage.

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