Daily Archives: June 13, 2012

Arguing Equality Chapter 6: Gay Marriage is Slippery Slope?

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This is a nine-part installment designed to help everyone understand marriage equality.  For some, it will be an education, for others, it will be helpful when discussing the subject.  I have included links to each chapter at the end, as well as information about the author.

CHAPTER 6: 

THE SLIPPERY SLOPE

Gay marriage would be the “downfall of Western Civilization!!!” We’ve all heard this preposterous claim. Click here to explore it.

IF GAY MARRIAGE, WHAT NEXT?

Marriage has traditionally been defined as a union between: (1) two persons; (2) of different sexes; (3) that are over the age of consent; (4) and are not related. If we alter or ignore these restrictions and permit same-sex marriage, do we not risk opening the floodgates to the sanctioning of all types of familial arrangements? If society allows gay marriage, by what rationale could it stop polygamous marriages, pederastic marriages, or incestuous marriages?

This is called a “slippery slope” argument — in the words of William Eskridge, “Once you start going down the slope, you tend to slip to the bottom.”

Hadley Arkes, professor of political science, makes the case this way:

The traditional understanding of marriage is grounded in the “natural teleology of the body” — in the inescapable fact that only a man and a woman, and only two people, not three, can generate a child. Once marriage is detached from that natural teleology of the body, what ground of principle would thereafter confine marriage to two people rather than some larger grouping? That is, on what ground of principle would the law reject the claim of a gay couple that their love is not confined to a coupling of two, but that they are woven into a larger ensemble with yet another person or two? … [O]nce the arrangement is opened simply to “consenting adults,” on what ground would we object to the mature couplings of aunts and nephews, or even fathers and daughters…. All kinds of questions, once placed in a merciful repose, may reasonably be opened again. They become live issues once we are willing to ponder that simple question. Why should marriage be confined, after all, to couples, and to pairs drawn from different sexes?

A sarcastic response. Why stop at polygamy? Lets keep going and going…

A) Slipping To Absurdity

By taking this argument to its absurd albeit “logical” conclusion, one can see how silly it truly is. Look closely at the claim being made, that any alteration in “traditional” or “natural” restrictions on marriage will lead to the deterioration of all other marital restrictions. But if this were true, why stop at incestuous or polygamous marriages? If we are truly worried about these marital variations, why not necrophilic ones as well? What about bestiality, or even marrying an inanimate object if an individual claims to be in love with one and there are truly no restrictions on the form or function of marriage?

The very notion is manifestly ridiculous. Gay marriage is a legal and moral issue distinct from these others, and it as best disingenuous to argue that its legalization will force the government to recognize the sanctity of a human bond with an animal or a dead person. And will the state have to sanction polygamous, incestuous or child marriages. To intimate otherwise, Andrew Sullivan wisely points out, “is not an argument, it’s a panic.”

B) Slipping The Other Way

It would be wise also to keep in mind that slopes can slip in more than one direction, and can be used to support, rather than undermine, the case for same-sex marriage. For instance, if the state is permitted to cite “traditional restrictions” and ban gays and lesbians from marrying, what would prevent it from also banning other categories of people “traditionally” denied the right to marry? Not so long ago, people with mental disabilities and sexually transmitted diseases were “historically” denied access to the marital institution. If gay men and women are not permitted to marry on grounds of tradition, what could stop the state from denying these other groups the right to marry on grounds of tradition as well?

Going one step further, anti-miscegenation laws, on the books of some states from as early as 1691, are as “traditional” as any law in this country. Also part of our country’s tradition is a legal conception of marriage whereby a woman is considered the “property” of her husband. If the state opts to ban gay marriages because it wants to define marriage traditionally, as a matter of intellectual consistency do we not risk the return of these other antiquated, albeit “traditional,” definitions of marriage as well?

If you haven’t figured it out by now, slippery slopes don’t usually have much logical sway. Usually, they can be outright dismissed on their face.

C) Slippery Slopes in General

Within Harvard University’s Speech and Parliamentary Debate Society, students are taught “The Five Deadly Opps,” five arguments which can be used in virtually any situation to oppose virtually any proposal for change. They are:

  1. It costs too much (not necessarily economic costs).
  2. It does not solve the underlying problem.
  3. It targets the wrong people.
  4. It applies a short term solution to a long term problem (or vice versa).
  5. Where do we draw the line?

The problem with all of these “opps” is that, while useful for purposes of debate, in their extreme form they are intellectually dishonest and imply that no social reforms should ever be undertaken. The simple truth is that gay marriage will not lead to incestuous marriage. Countries such as Denmark, Sweden, Canada and the Netherlands, and most recently Massachusetts have all legalized same-sex unions without legalizing polygamous or incestuous ones.

As I shall explore in the next section, marriage has evolved numerous times over the centuries. Women are increasingly seen as equal “partners” in a marital relationship. Persons of different religions and races are now permitted to wed. Mentally handicapped people and people with sexually transmitted diseases are also now extended that right. Indeed, the only consistent, traditional aspect of marriage is that it has constantly changed to reflect society’s understanding of the equality of individuals, and today we are coming to recognize that the choice of a marriage partner should belong to the individual, not the state.

In sum, if one believes in this line of argument, when talking with them you might not even need to address the issue of polygamy. Ppolygamous marriages should perhaps be legalized, and perhaps they should not. That is an issue which our legislators may or may not take up, and is an issue different than, and should be treated as distinct from, gay marriage. Marriage has evolved for the better many times over the years, and will likely evolve even further in years to come – each change, however, has been and must continue to be judiciously analyzed and judged on its own merits. It is disingenuous, and callous, to treat any potential change as part of some seamless process of an alleged disintegration of an institution.

The conservative view. Attacking polygamy and incest to promote gay marital monogamy.

D) Concept of Choice

Finally, in addition to the aforementioned reasons, a distinction between gay marriages and polygamous and incestuous marriages can be made based on the concept of “choice.” Andrew Sullivan makes the case this way:

Do homosexuals actually exist? I think so, and today even the Vatican accepts that some people are constitutively attracted only to members of the same sex. By contrast, no serious person claims there are people constitutively attracted only to relatives, or only to groups rather than individuals. Anyone who can love two women can also love one of them. People who insist on marrying their mother or several lovers want an additional (and weird) marital option. Homosexuals currently have no marital option at all. A demand for polygamous or incestuous marriage is thus frivolous in a way that the demand for gay marriage is not.

via Gay Marriage is Slippery Slope?.

ABOUT THE AUTHOR:

Seth Persily is a member of the Georgia Bar and a cum laude graduate of Harvard Law School. While at Harvard, Mr. Persily served as Publisher of the Harvard Law Record and co-President of the Lambda Law Association. Mr. Persily obtained his undergraduate degree from Duke University, where he served as President of the Duke Gay, Bisexual & Lesbian Association. He graduated Phi Beta Kappa, with a B.A. in Religion and a minor in Gay & Lesbian Studies.

Mr. Persily worked at the Atlanta law firm of Sutherland, Asbill & Brennan before opening his own practice, Persily & Associates, which concentrates on employment discrimination and real estate law. He serves on the Board of Directors for Georgia Equality as well as YouthPride.

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Arguing Equality Chapter 5: Gay Couples and Children

Posted on by

This is a nine-part installment designed to help everyone understand marriage equality.  For some, it will be an education, for others, it will be helpful when discussing the subject.  I have included links to each chapter at the end, as well as information about the author.

CHAPTER 5:

GAY MARRIAGE AND PROCREATION

BUT GAYS CANNOT REPRODUCE

What purpose does marriage serve? Why should the government sanction it? Gay marriage opponents often utilize questions such as these to probe the heart of the marital institution, analyzing its essential form and function to demonstrate that marriage is – and ought to be – an inherently heterosexual institution.

Marriage, as the argument goes, is an institution created and celebrated for one all-important purpose — to sustain a healthy environment for raising children. As James Q. Wilson, author of The Moral Sense, puts it: “A family is not an association of independent people; it is a human commitment designed to make possible the rearing of moral and healthy children. Governments care — or ought to care — about families for this reason, and scarcely for any other.”

If the purpose of marriage is to raise children, then the question of same-sex marriage comes down to the biology of the sex organs. A man and a woman can have a child, but a woman and a woman, or a man and a man, cannot. Since same-sex couples cannot procreate, they cannot fulfill this basic function of marriage.

To put the argument simply, the purpose of marriage is to foster procreation. Gays cannot procreate. Therefore, gays cannot marry. This is not a matter of discrimination, it is simple human biology.

Below you will find the most popular ways of countering this supposition, and depending on your social and political outlook, you can choose ay one of them, or all. Click below to learn some of the basic arguments.

A) Gay People Do Have Children

The first flaw in this reasoning is that — contrary to popular opinion — gay people can, and do, raise children. Some gays and lesbians have children born from a prior heterosexual relationship, others adopt children, many go the route of artificial insemination or surrogate parenting. Indeed, what many refer to as the “gayby boom” is no small phenomenon — figures place the number of lesbian mothers in the United States at 1 to 5 million and the number of gay fathers at 1 to 3 million.

B) The Infertile Couple Analogy

There are far more sterile heterosexual unions in America than homosexual ones. The “anatomical possibility” crowd cannot have it both ways. If the possibility of children is what gives meaning to marriage, then a post-menopausal woman who applies for a marriage license should be turned away at the courthouse door. What’s more, she should be hooted at and condemned for stretching the meaning of marriage beyond its natural basis and so reducing the institution to frivolity. People at the Family Research Council or Concerned Women for America should point at her and say, “If she can marry, why not polygamy?” –Jonathan Rauch, For Better or Worse?

Procreativity speaking, there is no difference between a sterile heterosexual couple, a heterosexual couple who chooses not to have children, and a homosexual couple. Thus as a matter of logical consistency, if the government is to deny gays and lesbians the right to marry because they cannot procreate, then it must necessarily deny post-menopausal women and impotent couples that right as well.

As Mark Strasser notes:

It is at best disingenuous to hold that an essential precondition of marriage is that the couple plans to have children, but that the state’s requiring only certain people to meet that condition is a mere theoretical imperfection. In any case, no responsible legal authority believes that the desire and willingness to have children is an essential precondition of marriage except in the context of attempting to show why there can be no homosexual marriages.

Indeed, any argument that justifies an impotent heterosexual marriage also justifies a homosexual one, and thus if sterile or elderly couples cannot be denied the right to marry on procreative possibility grounds, than neither can gays or lesbians.

The argument laid forth below is for the conservative-minded. Quit simply, marriage, gay or straight, is good for society, and should therefore be encouraged. Many straight and gay single individuals would question why couples receive any benefits at all versus married or coupled individuals.

C) Insurance and Companionship

Of course sterile heterosexual couples can get married, a fact not likely to change any time soon. And for good reason. Despite the rhetoric of gay marriage opponents, marriage is widely considered to be “the bedrock of our civilization” for reasons as important, if not more important, than the rearing of children.

Marriage as Social Insurance

One of the biggest problems any society faces is how to care for an individual when they can no longer care for themselves. If single, an individual with Alzheimer’s or cancer might be fortunate enough to rely on friends or family. But then, again, they might not, in which case they will fall under the responsibility of the state – often at substantial cost.

The benefit of a marital “partner,” for both the individual and society, is to help guarantee that one will not have to rely on the government during times of need. As Jonathan Rauch notes: “If marriage has any meaning at all, it is that when you collapse from a stroke, there will be at least one other person whose ‘job’ is to drop everything and come to your aid.

From a purely economic perspective, marriage serves as a form of social insurance. Its participants are provided with a reliable partner “for richer or for poorer, in sickness and in health.” It is for this reason that elderly and sterile couples are permitted, indeed encouraged, to marry – not because they will bear children, but rather because marriage promotes individual and societal stability.

Marriage as Companionship

Of course marriage is more than just a machinization of social insurance; it is an expression of love. When men and women decide to wed, it is not usually because they are contemplating the insurance features of marriage, but rather because they are in love and want to make a binding commitment to be together for life.

From a religious perspective, this “companionship” function of marriage was present from the very first couple onward. Indeed, according to the Bible, God created a partner for Adam not for procreative purposes, but rather because: “God said, ‘It is not good for man to be alone’ (Genesis 2:18).” Jeffrey John notes:

“Complementarity and companionship are at least as much a part of God’s plan in creation as childbirth. Indeed it is remarkable that in the Genesis account childbirth emerges only as an afterthought, and in the rather negative context of God’s punishment of Eve (3:16). It is highly significant that Jesus and Paul, while both referring to the creation story, never once mention procreation or physical sexual difference in their teaching about marriage. On the contrary, their stress is entirely on the quality of the relationship, and in particular that it should be a covenant of total sexual fidelity and indissoluble union.”

Marriage is not just about procreation and child-rearing. It is a system of insurance and a guarantee of stability, an expression of love and a promise of lifelong companionship. To argue that gays and lesbians should be denied the right to marry because they cannot produce children or have the “wrong sexual organs,” then, fails to take the entire picture into account.

Point/ Counterpoint

While most would no doubt agree that companionship is a noteworthy goal of marriage, many opponents would add that gender differentiation is a material component of that companionship. A man is meant to complete a woman, it is argued, and a woman to complete a man – a theory known among Christian scholars as “complementarity.”

However, lifelong gay and lesbian couples provide demonstrative evidence that one’s companion need not be someone of the opposite sex. Indeed, a vast array of sociological and psychological literature reveals that the bond between same-sex couples can be as emotional and powerful as that between opposite-sex couples. Psychologist C.A. Tripp, for instance, reports that:

[T]he settled qualities of the homosexual couple tend to be precisely those which characterize the stable heterosexual relationship. The similarities evidenced in daily life are especially noticeable. The way the partners interact as they engage in conversation, the way casual affection is expressed and minor irritations are dealt with, as well as how visitors are treated, or dinner is served, and myriad other details of everyday life are all more or less indistinguishable.

“The heterosexuality of marriage is civilly intrinsic only if it is understood to be inherently procreative. And that definition has long been abandoned in civil society. In contemporary America, marriage has become a way in which the state recognizes an emotional and economic commitment between two people to each other for life.” – Andrew Sullivan, The Politics of Homosexuality

via Gay Couples and Children.

ABOUT THE AUTHOR:

Seth Persily is a member of the Georgia Bar and a cum laude graduate of Harvard Law School. While at Harvard, Mr. Persily served as Publisher of the Harvard Law Record and co-President of the Lambda Law Association. Mr. Persily obtained his undergraduate degree from Duke University, where he served as President of the Duke Gay, Bisexual & Lesbian Association. He graduated Phi Beta Kappa, with a B.A. in Religion and a minor in Gay & Lesbian Studies.

Mr. Persily worked at the Atlanta law firm of Sutherland, Asbill & Brennan before opening his own practice, Persily & Associates, which concentrates on employment discrimination and real estate law. He serves on the Board of Directors for Georgia Equality as well as YouthPride.

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