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Friday, May 30, 2008

More on slippery slopes & same-sex marriage

In response to a recent post of mine on slippery slopes, several commentators offered responses that suggest I was unclear. So here is a clarification that, I hope, in painful detail, eliminates all ambiguity about why I believe that the justification for same-sex marriage does not "slip" us into a sexual Babylon.

First, consider the justification for same-sex marriage. The overwhelmingly dominant rationale for same-sex marriage is that same-sex couples are indistinguishable from hetero couples on the usual romantic grounds -- capacity for reasoned speech, desire for an exclusive relationship with a unique and singular other, etc. On this reasoning, the only morally relevant distinction between hetero and same-sex couples is that the latter cannot procreate with each other. But once the Court and government generally accepts that contraception and non-procreative sex are fully legitimate activities, the moral-legal relevance of this fact vanishes.

Second, note how this very, very narrow and well-defined justification does not "slip" down the "slope" using either "sorites" or "reductio ad absurdum" reasoning to polygamy, bestiality, or any other sexual practice. For instance...

(a) Mainstream advocates of same-sex marriage do not question the ideal of exclusive love, in which a single person is elevated above the rest of the world as an object of exclusive affection of unique intensity. This ideal of the unique soul mate may be good or bad, but it is certainly well-defined. (Consider, for instance, Aristophanes' speech about the erotic search for one's other half in Plato's Symposium). And the "soul mate" ideal obviously and clearly excludes polygamy. Hence, so long as the Court accepts this ideal as a basis for marriage law, laws banning polygamy are safe. And no one is asking the Court to dump this rationale as "arbitrary," "invidious," etc.

(b) Mainstream advocates of same-sex marriage do not deny that humans should unite the sexual with the social, emotional, and intellectual -- another well-defined and long-standing ideal of romantic love. Again, one need not accept the ideal to understand how it excludes copulation with any creature not endowed with the power of reasoned speech. Again, so long as the Court does not question this ideal as the basis for legislation, laws banning bestiality are safe. And, again, no one is asking the Court to dump this ideal as "irrational," "arbitrary," etc.

And so forth: It is obvious that one could repeat this exercise for every marcher in the parade of horribles proffered by the opponents of same-sex marriage, given the very narrow and well-defined justification for same-sex marriage offered above (which is, again, the overwhelmingly dominant justification in the press, the scholarship, the speeches, op-eds, and the judicial opinions. Yes, the sexual advice column of the Village Voice whistles another tune -- but their readers are a bogeyman of the Right, not a serious force behind same-sex marriage).

So, please, please, please stop the "slippery slope" rhetoric on same-sex marriage. Object as much as you please to the idea -- but on the merits and not on the ground that the justification for same-sex marriage somehow "slips" us down the "slope" to a sexual Babylon.

Posted by Rick Hills on May 30, 2008 at 09:13 AM in Constitutional thoughts | Permalink


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Thinking about it more, the problem with the consent rationale for bestiality prohibitions touches on a broader problem with all of the conceptual ledges you propose: there needs to be a tight fit between the conceptual ledge that will keep a prohibition in place and the already-existing justification for that prohibition. In other words, you can't say that the idea of consent will keep us from permitting bestiality after adopting SSM if consent has nothing to do with why we prohibit bestiality now.

Posted by: Paul | May 30, 2008 6:53:11 PM

And as has been noted on this blog before, we're fine with letting animals be slaughtered without their consent, so if our prohibitions on bestiality and other forms of animal cruelty are based on a consent rationale, we are either radically inconsistent in our application of this rationale, or animals' incapacity to consent doesn't have much to do with bestiality prohibitions.

Posted by: Paul | May 30, 2008 5:52:07 PM

Thanks for your reply, Professor Hills. Nice to be able to engage as an anonymous poster. And your posts are always good hard-headed fun.

A couple of responses to your points:

1. You still have not responded to the argument that no court or other law-making institution that has pronounced on the SSM question has relied on arguments about soul mates or, less poetically, monogamy. This was your first argument, and it was the only one, so far as I could see, that dealt with the polygamy/polyamory question, since your "power of reasoned speech" rationale obviously doesn't work in the polyamorous context. Do you then concede that slippery slope arguments may be made with respect to polyamory, based on the rationales that are being advanced?

2. It is true that I was objecting, as a preliminary matter, to the cogency of the ideal that the "union of the sexual" with all manifestations of "the social, emotional, and intellectual" can be explained by the criterion of "the power of reasoned speech." I was objecting to it precisely on slippery slope grounds, which I do not think you have extirpated in the least. What about incest? And to make it fun, let's say it's incest between a brother and sister, or between a father and a girl of 16 (or whatever age of consent you wish). Do you agree that an incestuous relationship like this may be both monogamous (satisfying your first criterion) and between two people with the power of rational speech (satisfying your second)?

3. In your reply to my initial post, you introduce the new wrinkle that what you mean by "the power of reasoned speech" is in fact the power to consent. If that's what you mean, then I concede both that all states have consent laws and that this criterion would rule out bestiality, since we don't know if an animal has the power to consent. It may also be true that the argument from consent is one that courts ruling on SSM have been relying on. But the consent argument would not rule out any arrangement deemed sexually (and emotionally, socially, or intellectually) satisfying between consenting people, including ones that you appear to be objecting to. That at least moves us roughly in the direction of Gomorrah, no?

Thanks again for the argument.

Posted by: anon | May 30, 2008 12:28:03 PM

If we give homless people soup, the next thing you know, we'll be giving them Bentleys.

Posted by: keithT | May 30, 2008 11:07:16 AM

1. "It needs to be said that this justification [based on the relationship of reasoned speech to capacity for meaningful love] makes leaps of totally undefended and highly dubious logic."

Great! Finally you argue that merits rather than invoking a "slippery slope" argument! (Incidentally, you might be right -- and every single European philosopher since Descartes is wrong -- about the relationship between reasoning capacity and the capacity to bear rights, including rights to marriage and love).

I do not care about the merits: I just want to extirpate that noxious weed of argument, the slippery slope.

2. "what court or other law-making power has ever, anywhere, talked about 'the power of reasoned speech' as a limiting condition of extending the right to marry? Can you point to one such institution that has made this argument?"

Every state in the Union requires parties to a marriage to have capacity for reason sufficient to indicate consent. People who lack such basic reasoning capacity cannot marry -- or consent to anything else in a binding manner, for that matter.

Posted by: Rick Hills | May 30, 2008 10:21:16 AM

I'm sorry, Professor Hills, but the explanation does not become more persuasive as you become more vehement about it.

As to limiting justification #1: there is nothing, at least to my knowledge, in any justification given by the courts that have discussed this matter that refers to a "soul mate" explanation. Now, it may be, as you say, that "mainstream advocates" (represented, in your view, by Aristophanes, who was anything but mainstream in his own day, let alone in ours) have trumpeted the monogamy justification. But this has obviously NOT been a justification that the courts (or whatever other legal body) have relied on at any length in their arguments for SSM. So while it may be true that mainstream advocates talk about soul mates, it is perfectly reasonable to extend the legal arguments made on behalf of SSM to those situations that do not involve the good of a soul mate.

As to limiting justification #2: First, it needs to be said that this justification makes leaps of totally undefended and highly dubious logic. It's entirely unclear why "uniting the sexual with the social, emotional, and intellectual" necessarily means uniting the sexual exclusively in respect of those creatures capable of "reasoned speech." Perhaps one might be persuaded that "the power of reasoned speech" has a necessary connection with "the intellectual" (though even that would need to be explained and defended) but I just don't get at all why unifying the sexual with the "social" or the "emotional" would necessarily exclude bestiality (and of course, I assume that justification #2 says nothing about polygamy, which does involve sex with creatures with the power of reasoned speech). But even if one were inclined to take your justification at face value, again, what court or other law-making power has ever, anywhere, talked about "the power of reasoned speech" as a limiting condition of extending the right to marry? Can you point to one such institution that has made this argument? Or is this simply another point that Aristophanes the avatar of the mainstream made at one time, and that all right-thinking folks ought to acknowledge? And if so, what exactly is it that should stop folks from engaging in slippery slope arguments with respect to the arguments for SSM that courts actually have made?

In sum, the sorts of arguments you make might indeed be made (though their logic would need to be defended at far greater length than you do here...perhaps understandably, as this is not an optimal forum for that kind of defense). But they are not arguments -- again so far as I know, but I'm happy to be corrected -- on which law-giving authorities have relied.

Posted by: anon | May 30, 2008 9:51:34 AM

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