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Wednesday, May 21, 2008

Same sex marriage and the "parade of tolerables"...

Rick's correct to note the general point on slippery slopes below, but I think his application of the point doesn't translate. Let me offer a couple quibbles re: the fine-grained legal theory. To get us to reach a conceptual ledge, Rick writes: Public nudity is, well, publicly visible; bestiality does not foster emotionally important human sociability; polygamy thrives on subordination of women; and so forth.

I recognize that Rick is being somewhat quick here, so I take it with a grain of salt, but consider:
a) public nudity may be no more shocking to us now than inter-racial coupling was to some communities in the past. And so the public aspect of public nudity is not really a conceptual ledge if what predicates opposition to it is merely aesthetic offense, no different in kind to the revulsion that racists had when they saw whites kissing blacks in public, or more recently, gays kissing each other in public.

Here the slope really is slippery--of course, its slipperiness is based on how pliable the social norms are. It might well be that the norms will be stickier here because of expectations of tangible harms. Maybe public nudity is opposed because it will cause rubbernecking and car accidents. But as society becomes more naked, less rubber-necking occurs. There's a dynamic loosening of the norm. In this vein, it's worth thinking of how some traditional societies view the allure of even fully-clothed women not wearing burkas or hijabs (or shaytels...). In those societies, if citizens wore what my students at FSU wear to class, it would be cause for commotion. Here and today, it barely registers.

b) the bestiality issue cannot rest on the ledge of failing to "foster" "emotionally important human sociability." First, that might suggest a reason not to have pets more generally. 

Second, it suggests that a person couldn't have sexual relations with a dog that are as emotionally meaningless as some of the hookups that occur in stripclubs, streetcorners, and bushes in the park. One might be a loving son and brother and husband, and still seek quick anonymous sex elsewhere. No necessary tension between human sociability capacities and quick sex with Trixie the sheep. (Think Woody Allen.)Bestiality to my mind is a concern because we can't think of animals as consenting meaningfully...  and it's the inherent coerciveness that seems problematic.  But if that logic does the work, it should also suggest a principle of vegetarianism because animals also don't consent to their slaughter.

c) polygamy is complex, as you know; much more so than just thriving on the subordination of women. One need only look at a) the existence of polyandry across time and space (which is admittedly less prevalent than polygny), and b) the fact that polygamy activists make their claims on several grounds including: i) it actually increases women's opportunities in the workplace vis-a-vis childcare responsibilities, and ii) it respects women's and men's liberty interests in polyamorous relations.

So only bestiality really rests upon a "conceptual ledge." The public nudity and polygamy examples are just aspects of social norms subject to the normative force of the liberty-advancing principles that supervened on miscegenation laws and now prohibitions against SSM. Let the slope slip against objections of "ickiness" -- at least as it relates to the use of the criminal law in a diverse liberal society.

Btw, there was a good post on Volokh.com recently by Dale Carpenter trying to draw the distinctions between SSM and polygamy.**  But color me unpersuaded. Dale links to this post by John Corvino, a philosopher interested in trying to stave off the slippery slope. It strikes me that Corvino's answer is missing the force of the liberty arguments at the heart of private ordering, and when SSM opponents adduce the parade of "horribles" there is no danger to those of us who believe it's really just a parade of "wonderfuls" or more plausibly, a parade of "tolerables."

**I can't link to it b/c for some reason the volokh.com site is not responding.

Posted by Administrators on May 21, 2008 at 10:35 AM in Criminal Law, Current Affairs, Dan Markel | Permalink


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(a) sex ought to be reserved for emotionally important relationships and (b) human-animal sex was not emotionally important enough to qualify.

One could slot in anything for (b). Interracial sex is not emotionally important enough to qualify, because Others are inferior. Homosexual sex is not emotionally important enough to qualify, because homosexual relationships are disordered and fail to promote human flourishing. Fornication is not emotionally important enough to qualify, because sex outside of marriage is not wedded to procreation and harmonious fidelity. And so forth. Emotional importance is subjective enough to permit tyrannical majorities to do anything to relatively powerless political minorities, whether they are evil (e.g., NAMBLA) or innocent (e.g., polyamorous).

Posted by: Too conservative? | May 21, 2008 11:21:35 PM

I am obviously too conservative for this blog. I would have thought that it would perfectly appropriate for a legislature to distinguish between sexual relationships between humans and sexual activity between humans and animals on the uninteresting grounds that (a) sex ought to be reserved for emotionally important relationships and (b) human-animal sex was not emotionally important enough to qualify. A court might also erect a doctrine about sexual privacy on these sorts of principles.

Of course, the court's rather than the legislature's doing so would be controversial for all of the usual separation-of-powers reasons, but none of those reasons include any "slippery slope" problem. Likewise, Peter Singer and Midas Dekkers have arguments against (b), and lots of people have arguments against (a). But those arguments, again, have nothing whatsoever to do with any slippery slope: They are just arguments that anyone is free to accept or reject on their merits.

In short, the slippery slope is an imaginary slalom, brought on by a conflation of controversial distinctions with logically untenable distinctions. It might be controversial to distinguish between different sorts of relationships based on some assessment of their value, but there is nothing "slippery" about such distinctions.

Posted by: Rick Hills | May 21, 2008 10:28:12 PM

Trevor, these are good points you make, thanks.
On the cannibalism point, I wonder whether the reason intuitions work against it are in part b/c of the concern more broadly with consent to homicide (assisted suicide). If we got rid of the administrative hangups we have about whether the person consenting was really in a good state of mind and actually consented, it would probably not make much difference--to me at least--that someone who consented to being killed could also consent to being eaten thereafter. The speedbumps to that conclusion seem to me to be based on religious/cultural notions, not philosophical ones about the nature and implications of human autonomy.

I'm also not sure plants are less capable of consenting than animals; it seems both are not able to consent in any way that seems intelligible to me. But, two things may be able to warrant vegetarianism (and I confess I'm not there either, but I am increasingly so, more out of propinquity than principle). First, necessity. We can survive just fine (for the most part) w/o animal proteins; it's harder to abandon plant life too. Second, capacity for pain or suffering seems a relevant issue: plants don't seem to emote the same way that cows and pigs and dogs do.

So, consent may be enough to avoid bestiality and embrace cannibalism, but I agree it's not enough to require vegetarianism full stop when not coupled with those other considerations.

Posted by: Dan Markel | May 21, 2008 1:57:18 PM

"Bestiality to my mind is a concern because we can't think of animals as consenting meaningfully... and it's the inherent coerciveness that seems problematic. But if that logic does the work, it should also suggest a principle of vegetarianism because animals also don't consent to their slaughter."

Dan, I'm inclined to agree with your account of why bestiality is a concern (animals can't meaningfully consent), but I don't see how that "suggest[s] a principle of vegetarianism." Consider: (1) adult people generally *can* meaningfully consent, but that capacity (even if exercised) doesn't alter our general objection to cannibalism; and (2) plants are even less able to consent meaningfully than are animals, yet that does not tend to create a basis for not eating them.

Put simply, the consent principle just doesn't seem applicable to debates over what it is morally (or otherwise) permissible for us to eat. Extending the consent principle from bestiality to carnivorousness seems to push the principle beyond its conceptual utility -- over the conceptual ledge, as it were.

To be clear, I think there are powerful moral principles that one can invoke in favor of vegetarianism (though I am not currently a vegetarian myself), but I just don't think the incapacity-to-consent argument against bestiality is one of them.

Posted by: Trevor Morrison | May 21, 2008 11:53:49 AM

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