The Examiner editorial staff requested (in 2012) that political columnists address the issues surrounding the homosexual marriage debate. With some trepidation I began, and found that I had quite a bit to say, hopefully in the name of amicable dialogue.
These articles originally appeared between the end of July and the middle of September, 2012; additional articles on the subject also appeared in subsequent years.
The editors of The Examiner recommended that writers with political titles address the issues of homosexual marriage. This puts this writer in a difficult position. I am not and would not be perceived to be "impartial" on this issue (a better word than "unbiased", as the inference drawn from "bias" usually is that the partiality is unreasonable). My (now badly out-of-date) article Christianity, Homosexuality, and the E. L. C. A. has made me a minor hero to one side of the debate and a major villain to the other. The followup, originally commissioned and published by The Gutenberger, In Defense of Marriage, only adds fuel to the fire, and makes it clear that I have a religious position on the subject--which, to the minds of many, automatically means an irrational one. That I also have a distinct legal and political position on the subject is thus discounted, despite my doctorate in law, as an attempt on my part to create the illusion of rationality over a raw prejudice.
The issue is complicated further by the fact that this is a hot-button issue on both sides. Many of those who oppose homosexual marriage view those who favor it as sociopathic perverts intent on destroying the fabric of society and luring our children into psychosexual aberrations. Among those who favor it, the opposition is viewed by many as homophobic hate-filled bigots trying to destroy what they fear and enforcing their discriminatory prejudices againts innocents who are doing no harm to anyone. I am well-accustomed to the problem that I will make what I believe to be a rationally-defensible statement on the subject only to be slammed by opponents accusing me of motivations entirely foreign to those I espouse and of irrational hatreds against people I have never met.
Within that atmosphere, no progress can be made.
I genuinely accept that it is a difficult and challenging issue. I have reached certain conclusions; they are not carved in stone, but some are more fixed than others. I believe that most of those on both sides are rational individuals with solid rational reasons for their positions. That obviously does not mean everyone on both sides; every issue has at least a few extremists who hide their real agenda, whether the dangerous paranoid bomber in the gun lobby or the revolutionary socialist in the healthcare debate. Yet if we are going to discuss this issue and find compromise, we must begin with the presupposition that compromise is possible, that our adversaries are not unreasonable demons but rational people who, for reason of values or logic or personal feeling, have reached conclusions contrary to our own. If each side seeks first to understand the other, rather than first to condemn or even to persuade, there is a chance that each side will recognize the values in the positions held by the other.
If you have come here to take pot-shots at an irrational conservative, I'll ask you to leave; similarly, if you have come seeking ammunition against liberals, I request that you stand down. This will be the beginning of a hopefully short series addressing some of the issues involved, which will reflect my more conservative partialities, but will hopefully help the discussion. Your presence here will be taken as implying that you asked, that you want to know my opinion on the subject and will listen to my explanations. If you e-mail me, I will certainly listen to yours.
From the perspective of those who favor expanding the definition of marriage to include committed homosexual couples, it is a matter of rights, that a segment of the population identified as a minority is being discriminated against because they cannot have these rights which are afforded to the majority. That is a perspective that those against such a change reject. The rejection is based in part on the legal definition of a license, and how that applies to marriage.
In legal terms, a license is government permission for someone to do something which would be illegal without a license. Drivers licenses allow individuals to operate motor vehicles; hunting and fishing licenses permit the controlled killing of specific wildlife. Generally a license both permits specific categories of conduct and imposes certain responsibilities on the licensee. A nursing license authorizes the holder to work in specific ways in the medical field, but also makes the holder responsible for the medical care and condition of people within a sphere of influence. A registered nurse is legally required to remain in a medical facility providing patient care until relieved by another registered nurse, and is required to render aid at the scene of an accident or similar medical emergency if present when it occurs. Thus a license is a means by which the government regulates specific conduct, both to prevent conduct it wishes to discourage (overfishing of waterways, unsafe roads) and to encourage conduct it desires (culling of oversized wild herds, commercial enterprise facilitated by modern transportation). At issue, then, is what the state is regulating when it issues a marriage license.
The earliest marriage licenses appeared in England in the fourteenth century, and were optional. Their primary function was to overcome the law of banns, a requirement that a marriage had to be publicly and repeatedly announced in the jurisdiction in which it was to be held during the three weeks prior to the wedding. The rule allowed discovery of any legal impediment to the marriage, such as that one of the parties was already married; the license allowed waiving this restriction on a certification and bond that there was no such impediment, and was used if, for example, the couple wanted to rush the wedding, or wished to marry in a district in which one or both was not resident.
Marriage licenses remained optional in the United States until the time of the Civil War, when states began using them to enforce anti-miscegenation statutes. You could marry without a license, but if you were marrying or engaging in sexual relations with someone who was of a different race (the traditional list includes black, mulatto, Japanese, Chinese, Indian, Mongolian, Malaysian, and Filipino) you needed a license, because States wanted to track mixed-breed children and limit their numbers within the population. Prior to this, marriages were regarded a private contract between two individuals, in which government had no interest; the terms of such contracts were standardized by the private sector.
Gradually licensing laws for marriage expanded to cover everyone. The regulation of interracial marriages began to decline, but there were other reasons to deny a license. Laws against incest required that couples not be too closely related. Some states required blood tests for fatal sexually transmitted infectious diseases (usually syphilis). The prevention of polygamy still remained an issue, as well as the responsibility for the care of children as the divorce rate rose. Yet many of these things are no longer considered state interests--and therein lies the crux of the problem. In order for the government to regulate any aspect of life, there must be a "legitimate state interest", something involved in that area which matters to the government. The government cannot regulate birthday parties beyond whether there are illegal activities connected to them; it cannot regulate personal exercise unless the activities impinge on the rights of others. Thus for government to issue marriage licenses, there must be a legitimate government interest in who marries whom. Originally that interest lay in preventing fraudulent polygamous marriages, later also in preventing miscegenation, but there are other bases for such government interference in preventing incest and controlling disease. However, what we might call the legal landscape in this area has changed greatly in the past half century, and it might validly be asked whether there remains any justification for the regulation of marriage at all. Absent that, arguably marriage licenses are themselves illegal (as the Libertarian party maintains); until we know it, assuming it exists, we cannot reasonably discuss whether homosexual relationships can legally be licensed, that is, regulated, limited, taxed, and defined, by the government, because we do not know whether it is still lawful for heterosexual relationships to be so controlled.
Marriage licenses are a means of regulating, restricting, and permitting certain conduct, and in order for the government to issue such licenses at all to anyone there must be a "legitimate state interest", something that the government has the right to regulate because it legitimately matters to the government. If there is no legitimate state interest, the government cannot regulate, and thus cannot license, marriages at all.
It is also apparent that the state's interest originally was a matter of controlling who was having sex with whom. That prevented the unscrupulous from seducing members of the opposite sex when they were already married (which in fourteenth century England could as easily have been a married woman attempting to lay claim on a young gentleman's name and fortune as it could be a man attempting to seduce a naive girl). It gradually grew to universal status as a means of preventing miscegenation and incest, and in some states of controlling the spread of infectious disease, but fundamentally it was about controlling who had sex with whom.
The problem is that in the past half century the Supreme Court has ordered the government out of the bedroom. Although the issue included the famed Roe v. Wade case (410 U.S. 113 (1973)), the Court first found a "Right to Privacy" in the Constitution in a case entitled Griswald v. Connecticut (381 U.S. 479 (1965)), in which the Court declared that statutes forbidding the use or provision of contraceptives to married couples were unconstitutional. Subsequent cases extended this to include unmarried couples, and other areas of sexual conduct were gradually ruled outside the valid interest areas of the government.
Notably in this regard, Lawrence v. Texas (539 U.S. 558 (2003)) struck down "sodomy" laws, making it unconstitutional for any State or Federal government to interfere in any way with homosexual sexual activity conducted in private. That means that it is unconstitutional for the government to regulate sexual activity, whether between heterosexuals or homosexuals, as long as it is not performed in public. That means that regulating sexual relationships no longer provides a legitimate state interest, and government-issued marriage licenses either must be discontinued or must be based on some other legitimate state interest.
Thus at issue is whether there is any legitimate basis for the government to continue issuing licenses--a question to which the Libertarian Party answers no, and they have a strong case. Justice Antonin Scalia in his dissenting opinion in Lawrence indicated that the majority decision in the case casts doubt on whether states have any authority to regulate other areas of moral conduct, including (among others) bigamy, incest, prostitution, adultery, fornication, bestiality, and obscenity. With such a sweeping level of doubt, the question of whether marriage licensing laws are sustainable will require finding some basis for them that does not involve the direct regulation of sexual conduct. If that exists for heterosexual relationships, it will then be a question of whether a similar basis can extend the right of the government to regulate homosexual relationships in the same way on the same basis.
We have raised the problem of a "legitimate state interest", whether the government has any basis for legislating concerning marriages and thus whether it has any basis for regulating them through the issuance of licenses. The core problem is that marriage licenses were originally intended as a means of preventing other crimes, including polygamy/polyandry, miscegenation, and incest, but that it is doubtful whether any of these can be categorized as crimes under more recent Supreme Court decisions such as Lawrence. Some have already been decriminalized, and there are advocates pushing for the decriminalization of the others. Thus it is not possible to argue that the state has a legitimate interest in issuing marriage licenses to heterosexual couples based on any theory of regulating sexual activity; the government is constitutionally banned from regulating sexual activity, and thus cannot prohibit, permit, tax, or license it.
That might mean, as the Libertarians insist, that the government cannot legitimately issue marriage licenses and needs to stop doing so.
There would be repercussions, of course. There are many ways in which the assumption of legal registered marriages is integrated into our legal system, including tax filing status, insurance benefits, inheritance laws, spousal privilege--the whole plethora of minutia which are the basis for the homosexual wish to be granted analogous status. However, if the government genuinely has no legal basis for licensing marriages, then all of these government-based interventions must similarly be eliminated and must be returned to the systems and policies which existed prior to the universalization of government-based marriage systems of the 1920s. Rather than extending the marital restrictions and obligations imposed by the licensing system, it would seem that we need to annul them.
The core of the marriage extension argument is that heterosexuals have these "rights" that are denied to homosexuals, and therefore equality under the law requires that homosexuals be granted the same rights. This is, of course, fundamentally contrary to the very concept of licenses. Blind people cannot claim that it is discriminatory that they are not issued drivers licenses; medical licenses are issued only to those who pass very challenging tests after obtaining very thorough education. The issue of whether one "deserves" a license is one of whether one meets the qualifications to be in the class of people for whom these permissions are appropriate and from whom these responsibilities may reasonably be demanded. Further, the license is almost certainly there to protect someone or something that the state legitimately ought to protect, and that protected interest usually includes someone or something beyond the license holder.
It is reasonable to see the marriage license as a process that protects the partners from each other. The theory here is that in entering into a marital relationship, each of the partners makes sacrifices for the benefit of the marriage, and that these sacrifices will never be fully equitable. One partner might give up any hope of a career in the expectation that the other will succeed and provide financially in the years ahead. This would include, similarly, giving up educational opportunities, social opportunities, other relationships and activities, all of which are choices made by one person in the name of preserving and encouraging a continuing relationship with the other. Yet to say that the government has a legitimate interest in protecting people who make these self-sacrificial choices is extremely doubtful. The police are not going to arrest your girlfriend for breaking your heart and keeping the engagement ring. When we make choices in our personal relationships, barring clearly criminal or malicious conduct by the other person, we accept the risk.
If marriage is going to be different, if the government is going to interfere with personal sexual relationships in a way that appears to be prohibited by the Supreme Court in Lawrence, then there must be some legitimate reason why this relationship is, and should be treated as, different from every other relationship. If there is some aspect of the marriage relationship that justifies such interference (the license), then the government can continue to issue marriage licenses to those couples whose relationships qualify, and we can determine what relationships qualify for such regulation. If there is no such reason, then the only legitimate outcome is for the government to cease issuing such licenses or recognizing "married" as a legal status. That does not mean that there will be no more marriages; it means that marriage will return to the private sector, to personal legal contracts and religious certifications, and cease to be regulated by the government.
Since regulation of sexual conduct has been made unconstitutional by the Supreme Court, either there is some other basis for regulating marriages, or there is no basis and marriage licenses should be eliminated as a government regulatory scheme. We have recognized no good reason for the government to involve itself in our personal relationships, and clear Supreme Court decisions excluding those relationships if they are sexual. Before abandoning the hope for a basis for legal recognition of a government-defined status called "married", though, there is another possibility to explore. The government has an interest in the protection of children.
Heterosexual sexual relationships produce children, frequently unexpectedly and against the wishes of those involved, and children are an ultimately vulnerable class of citizens, totally dependent on adults for their protection and care. Not all mothers can or will provide such care for their children, and the number of negligent fathers is considerably higher. States devote significant resources into caring for children of single mothers, including identifying, locating, and taxing fathers for "child support", money the father pays for the care of children because of paternity. The state does not care whether the father raped the mother or the mother raped the father or the relationship was entirely consensual; someone has to pay to raise the child, and we consider it fair that both parents contribute.
The marriage license system is a means of simplifying this process of assigning responsibility: if you were married when the child was conceived, it is presumed to be your child, your responsibility. That presumption is rebutable, if there is solid evidence that this is not your child, but the starting point is to make you responsible for your own children as identified by the licensing process. Thus a marriage license is the government's effort to regulate and track responsibility for the potential birth of children.
It is objected that we issue marriage licenses to couples who cannot or will not have children, and thus that the ability to have children cannot be the basis for determining whether to issue a license. To this, there are two responses. The first response is relatively simple: just because we have to this point issued licenses to infertile couples does not mean that there is a legitimate state basis for doing so, and it may be appropriate in the future to require couples to prove fertility and intent before receiving a license. There are science fiction stories in which marriage licenses are replaced by childbirth licenses, in which a woman applies for permission to have a child, and the state decides whether she may. It would not be impossible to tighten licensing laws such that tests were required; we require tests for licenses in nursing, plumbing, driving, hair styling, medicine, law, accounting, electrical work, food service, and piloting, and in some states there is already (or still) a pre-marital blood test. If the argument is that a license to have children should only be issued to those who demonstrably can have children, then that still precludes non-heterosexual unions; it just precludes more people who now would be included.
The second argument, though, is that a brightline test for who is fertile is not possible under today's advancing technology. At least some people who would have been ruled infertile thirty years ago today can conceive in quite ordinary ways by taking medications (to induce ovulation, stimulate sperm production, or combat impotence), and the extraordinary ways in which couples can conceive (in vitro fertilization is the tip of this iceberg) advance more rapidly than most of us recognize. There will be self-evident cases in which conception would not be possible save, perhaps, by cloning. However, to state categorically that any heterosexual couple could never, under any circumstances, have a child, intentionally or accidentally, falls in the realm of medical expertise that becomes outdated daily, not in the realm of government bureaucracy. We know that some relationships will not produce offspring absent extraordinary means; we almost never know with certainty that any heterosexual couple is both presently and permanently infertile, barring total hysterectomy or castration.
It thus appears that in the protection of children the government has a legitimate interest in licensing heterosexual sexual relationships, which does not apply to homosexual relationships, and thus that the licensing laws can overcome the objection that the government cannot regulate sexual relationships as long as they are restricted to heterosexual couples, but become unsupportable if extended to other cases. Whether the government wants to continue licensing procedures for this purpose is a policy question to be addressed legislatively; but the extension of the regulations to cover those who do not qualify under the basis requirement would invalidate the law entirely.
The marriage license process enables the state to identify who is responsible for the care of any given child; it is presumed to be the child, and thus the responsibility, of the man who was legally married to the woman who bore the child at the time of birth. It thus appears that because heterosexual couples engaging in sex are likely to have children, the state has a legitimate basis to regulate such activity by a licensing process that enables the identification of responsible parties.
This aspect of fathering children, though, leads to another legitimate state interest which is itself a matter of legitimacy--that is, the identification of the legitimate heirs of any given individual. The common law assumes that all real property, and by extension all property, belongs to the state, and is held in trust by its citizens and visitors. Such citizens, in particular (the law has not always been clear about visitors), have the right and reasonable expectation that the properties they hold will pass to their legitimate heirs upon their deaths. In any case in which there are no legitimate heirs and no legal documents (wills, testaments, or trusts) stating the intention of the deceased in relation to his property, the property "escheats to the state", a fancy legal term which means that it returns to the government. Thus when an unmarried man with no identified living family dies intestate (without a will), everything he owns becomes the property of the state. It is not really, legally, that the state "takes" it; it is that it always belonged primarily to the state and in the absence of any trustee holding it the state resumes directly the control over the property which it was presumably exercising indirectly through the property owner.
That is, the presumption in law is that everything really belongs to the government and is on loan to you, and if at any time there is no one else to take the responsibility for that property that responsibility returns to the government.
Because of this, there are inheritance laws, laws which state who receives the property of any given decedent in the event he dies intestate. Those protected generally include an individual's spouse and all legitimate children, that is, children born within a legal marriage.
That the spouse is covered is almost incidental; either a will or a joint property agreement or business partnership agreement would have the same effect, and the last of those is so easy to create that people sometimes create them unintentionally. It is the aspect of children that is important. It has long been considered appropriate for a man's heirs to include the children born legally and legitimately to him within a legal marriage, and that any claimed illegitimate children could not claim a man's estate after his death. This streamlines the probate process, because the courts do not have to consider whether individuals claiming to be the illegitimate children of individual decedents are in fact his children--whether they are or not, they do not have a claim on the inheritance, because they are not legitimate heirs. (Adopted children inherit under a different rule, and are presumed legitimate by virtue of adoption.)
Thus the state has a second legitimate basis for regulating heterosexual marriages, in the regulation of ownership of property through inheritance, which only applies because heterosexual sexual relationships produce children routinely, and no others do. It thus follows that there is again a basis for regulating heterosexual marriages by means of licensing that does not apply to homosexual relationships.
Perhaps a century ago, pain medicines were discovered. There were debates about the morality of using chemicals to interfere with the pain experience. That argument has been settled; nearly every home medicine cabinet contains ibuprofen, acetaminophen, probably others. Pain medicine accounts for a significant slice of the pharmaceutical market.
The moral decisions we make today become the baseline for those of the next generation. Few ask whether it is wrong for Norwegians to marry Swedes, or blacks to marry whites--miscegenation is a settled issue. Today the question is whether men should marry men, and whatever we decide today, that will become the moral baseline on which our grandchildren will build the answers to whatever questions they face. This gives rise to what is called the "slippery slope" argument, that a decision made now which we think acceptable will lead to a decision that is unacceptable. One of the arguments against abortion is that it leads to to infanticide. One of the arguments against homosexual marriage is that it opens the door to pedophilia.
The weakness of the argument is that it is not necessarily true. Most users of drugs such as cocaine and heroin first used marijuana, and most users of marijuana began with cigarettes and alcohol; but most smokers and drinkers will not start marijuana, and most marijuana users will not advance to harder drugs. If in the present we decide that abortion is murder and marriage is strictly a heterosexual affair, we are less likely to approve infanticide and pedophilia; if we approve abortion and homosexual marriage, we are more likely in the future to approve these others, but it is not certain we will--only more likely.
The probability, though, rises when we look at the landscape. Within the past few years there have been court decisions forgiving young couples who killed their newborns, based apparently on the logic that if they had had the resources they could have aborted them and should not be penalized for the poverty or ignorance that prevented them from doing so. Further, recently some researchers are claiming that pedophiles are born that way--the same claim that initiated the shift from viewing homosexuality as a learned psychosocial disorder to a natural human condition. Those who opposed regarding homosexuality as "normal" predicted that pedophilia would be next. It is difficult to assert that this is not happening.
The usual response is that it could not happen because pedophilia involves abuse of a minor, a child unable to give consent. This concept of the inability to give consent dates back centuries in the Common Law of British and American courts, to a time when twenty-one was the age of consent; it is the basis of all statutory rape laws. That age, however, is arbitrary. It has been lowered to eighteen in most states, and younger in some. Some states allow twelve-year-olds to marry if they have parental permission; at 22 years old, musician Jerry Lee Lewis married his thirteen-year-old cousin. In New Jersey, a child is old enough to consent to sexual relations as young as twelve, provided only that the partner in this relationship is not more than four years older--a sixteen-year-old can have sex with a twelve-year-old with the younger's consent, provided only that the younger's birthday falls first within a calendar year. In some times and cultures, girls were considered old enough to engage in consensual sexual relationships as young as six, and while it certainly would not happen overnight, it has been happening already. The pedophile could easily successfully argue that his twelve-year-old lover had had sex with several other boys who were fifteen or sixteen, and that he is being discriminated against on the basis of age. As younger children become more aware of their sexuality, whether through educational programs or general culture, the age of consent will drop, the concept of statutory rape will evaporate, and pedophilia will become normalized.
Is this outcome certain? No future is certain. This one is made more probable by the normalization of attitudes related to homosexuality--the belief that homosexuals are born in a way that should be regarded as normal rather than aberrant is the foundation for reaching the same conclusion about pedophiles.
There is, of course, a more fundamental issue: whether we want a society in which children experiment sexually from a very young age, and whether we want to exclude adults from such experimenation. That is a policy question on which the majority are presently opposed to any change; but that was the case with the homosexual issue as recently as thirty years ago. Policies change; we must accept that the future will be different and do the best we can in the present to direct the future where we believe it ought to be.
The pedophile argument was to be last in this series. The final part was intended to consider the oft-made argument that recognition of homosexuality would lead to acceptance of pedophilia, and assess both the strengths and weaknesses of that argument. It is not certain, but is stronger than a slippery slope fallacy.
The article stimulated Facebook discussion, leading to the need to address the issue once again.
As was admitted, it might be that pedophilia is not in our future. Just because the age of consent has been lowered several times in the past half century does not mean it will drop further. Admittedly, too, there was the confusion that some who had not read the article wrongly thought it claimed homosexuals were pedophiles. Perhaps it would have been better to cite efforts to normalize polygamy or incest. Many who favor homosexual marriage still oppose these practices; but they are gaining ground, and there are many who see no reason why a man could not have multiple wives (or polyandry, a woman multiple husbands), or why consenting adult siblings could not become spouses. Generally people divide into one camp that denies anyone wants this (as Ron Paul reportedly said responding to a question on polygamy) and those who don't oppose it (as Nick Cassavetes reportedly said about incest). Thus these do not make good examples, because people either do not believe they will happen or they do not object. Pedophilia is the critical issue, because people do object, and thus the only question is whether society is headed that direction. Fifty years ago no one imagined that we would be "normalizing" homosexual conduct; even ten years ago, polygamy and incest were taboo. Perhaps advocates for these practices would be vocal absent the victories of the gay community; but to say those victories do not encourage these others is difficult to defend.
The question was not a scare tactic; it was presented as a claim made by those opposed to homosexuality, with a view to determining whether there was merit in it. The article did not clearly say we should oppose pedophilia, nor did it suggest anything about raping children. Statutory rape is inherently defined by statute, therefore arbitrary, and if the age of consent is lowered sufficiently then some we consider children would be consenting, not raped. In 1571 the first law in the English-speaking world set that age at 21; that was different from the age at which a girl could marry with parental consent, and created the concept of statutory rape. The age did not lower much until the last half century, when it plunged by about twenty-five percent. How far will it go? Perhaps no further; perhaps considerably further. Certainly twelve year olds think they are old enough to give consent, and if twelve year olds are recognized, seven year olds will want to do the same.
But as was stated in the thread, a slippery slope argument is only valid if it is cogent--that is, if there is evidence to support it. It is argued that there is no connection between approval of homosexuality and approval of other issues which do not involve homosexuals--but Supreme Court Justice Antonin Scalia sees such a link, writing in his dissenting opinion in Lawrence v. Texas 539 U.S. 558 (2003)
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision....Court decisions normalizing homosexual conduct erode the basis for laws against other sexual practices--and although pedophilia is not on that list, it is only because we still have that thin arbitrary statutory definition of "minor" to draw the line.
I do not think the outcome is inevitable; I do think it more probable, because the path blazed by the homosexual community is being followed by some of these others already, and pedophiles have taken the first step. That does not mean we cannot legalize homosexual marriages and still draw the line; but we considered whether homosexuals have the "right" to have their sexual relationships regulated by the government in previous articles, and found no legitimate basis.