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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New California Laws Effective January 1, 2013


 

The California legislature passed some 800 new laws which become effective on January 1, 2013.

Some new criminal laws include:

AB 1432 adds Penal Code section 273j:  This law makes it a misdemeanor for a parent to fail to report within 24 hours that a minor child is missing or has died.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1401-1450/ab_1432_bill_20120930_chaptered.html

AB 1527 adds Penal Code section 26400:  This law makes it a misdemeanor to carry an unloaded firearm that is not a handgun in any incorporated city or city & county (i.e., San Francisco).  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1501-1550/ab_1527_bill_20120928_chaptered.html

AB 2020 amends Vehicle Code section 23612 to provide for implied consent by any driver to submit to a breath or blood test if lawfully arrested for DUI.  This modifies existing law to delete the previously authorized alternative of submitting to a urine test.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_2001-2050/ab_2020_bill_20120827_chaptered.html

SB 661 adds Penal Code section 594.37:  This law makes it a misdemeanor to picket, on public property, a funeral for a period of time starting one hour before the funeral starts and ending one hour after the funeral ends.  This law is designed primarily to track federal law protecting the privacy of military funerals.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0651-0700/sb_661_bill_20120917_chaptered.html

New laws on some subjects previously discussed here:

SB 1140 amends Family Code section 400 to provide that any priest, minister, rabbi, or authorized person of any religious denomination may decline to solemnize a same-sex marriage if doing so is contrary to the tenets of his or her faith.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1101-1150/sb_1140_bill_20120930_chaptered.html

AB 1536 amends Vehicle Code section 23123.5 to authorize texting while driving as long as the driver is using a hands-free, voice-activated electronic messaging device.  This bill modifies existing law which prohibits texting while driving.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1501-1550/ab_1536_bill_20120713_chaptered.html

Some other new laws of interest:

AB 1708 amends Vehicle Code section 16088 to allow drivers to provide proof of insurance upon request of a law enforcement officer by use of a mobile electronic device.  This is a modification of existing law, which requires drivers to provide documentary proof of insurance upon request of a law enforcement officer.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1701-1750/ab_1708_bill_20120907_chaptered.html

SB 1264 amends Penal Code section 11165.7 to add to the list of “mandated reporters” of suspected child abuse or neglect athletic coaches, assistant coaches and graduate assistants.  This change brings these individuals within the coverage of existing law, which makes it a misdemeanor for a mandated reporter to fail to report such suspected abuse or neglect.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1251-1300/sb_1264_bill_20120924_chaptered.html

SB 1298 adds Vehicle Code section 38750:  This law authorizes the operation of “autonomous” vehicles (that is, vehicles which drive themselves, or more accurately, which are driven by a computer), as long as there is a licensed driver in the driver’s seat.  The full text of this law is available here:

http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1251-1300/sb_1298_bill_20120925_chaptered.html

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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The 1st Amendment — Dialog on Religion & Government


My recent posts here regarding Randy DeSoto’s The Conservative Voice columns were an outgrowth of an ongoing conversation among a group of West Point graduates regarding 2008 presidential election issues. John Sloan, Class of 1955, a frequent contributor to this discussion, provided a lengthy and thoughtful comment on my post on the role of religion in government, to which I will respond here.

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California Anti-Gay Marriage Initiative


Today I received the following email and inuiry from a fellow West Pointer, Ed Colchado, Class of ’76:

Jim,

What is your opinion of recently filed suits to bar the November initiative on the basis that the “measure would change the state’s Constitution so profoundly that it would amount to a revision. Under the law, the Constitution cannot be revised by initiative alone – a two-thirds legislative approval is also needed before the measure goes to the voters.”

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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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Will California Gay Marriages be Legal in Other States?


A straight-forward reading of Article IV, Section 1, of the U.S. Constitution, would seem to indicate that the anwer to this question is an unequivocal yes.

It isn’t.

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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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