Friday, March 24, 2006

The Scary Children of Goodridge

Jurisprudence professor Hadley Arkes writes in his Meaning of Marriage essay about the train of scary possibilities opened by the logic of Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court case that mandated legal gay marriage. The court said marriage law could not be based on procreation, or even on sexual relations. The emotional attachment of same-sex couples was enough of a foundation for marriage under the law.

Arkes points out that, since neither the possibility of children nor the practice of any sort of sex is included in the definition of marriage that the court has now imposed on Massachusetts, any pair or group claiming an emotional attachment could apply for a marriage license there. If they were denied, they could sue, citing the court's own decision to eliminate nearly all grounds of objection. Polygamy and the various grades of adult incest would all have a case that would be hard for that same court to deny.

Beyond that scary possibility, Arkes points out that all the laws and decisions that prohibit discrimination on the basis of sexual orientation, including Goodridge, open a new world of "orientations" to legal protection. The growing consensus that pedophilia is a deep-seated and almost untreatable condition creates the grounds for a lawyer for, say, the North American Man-Boy Love Association (yes, there really is such a thing, and no, they aren't kidding) to argue that their sexual orientation should be protected, too.

The slope is slippery, and the Pandora's box that we are carrying down it is already ajar.


Jonathan B. Horen said...

NAMBLA be damned, if all that is required is "emotional attachment", than we shall soon see "The True Story of a Boy and His Dog" not just on the silver screen, but in the bedroom, as well.

Gruntled said...

This does seem to be one of those cases when the "law of unintended consequences" will come back to bite us soon and with big teeth.

jon b. said...

There's an interesting article on Slate today that takes the opposite position (namely, that worrying about the slippery slope rather than people's rights to have the government "stay out of their bedroom" is negative). I disagree with the article, but the author poses a suggestion wherein the government licenses "marriages" - with lots of rules, benefits, and obligations - for partnerships (presumably male-female) in which kids are or will be part of the equation. A "civil union" would be allowable between any couple - straight, gay, "spinster sisters," etc. - who would only use the arrangement as a proprty and tax benefit.
Is this a decent marriage of sociological sense and equal rights for all? Or is it too a sticky situaion, in your opinion?

Gruntled said...

I think there should be a civil status which allows anyone to identify another person who can visit them in the hospital, and share a safe deposit box, and other such things that married people can do. When you start looking at the supposed governmental benefits of marriage, though, it is a very mixed bag, with a number of responsibilities that the civil union advocates usually leave out.

Homosexual unions cannot be presumed to be childless, especially for lesbians.

As to keeping the government out of your bedroom, that is easy; don't invite them in by asking them to validate your bedroom parternship in a legal "marriage."

There is not an easy solution to this problem, as Arkes' article demonstrates. Every possible solution spins off unintended consequences.

Michael W. Kruse said...

What is being lost in all this is the idea of marriage as an enviable social institution which is historically what it has been. It has been the institution responsible for the birthing and raising of children. It is the institution that is most likely to have the best interests of its constitute members at heart as opposed to the state who will have the will of the majority of the polis at heart. The family, not the state, is the primary institution and the role of government is to serve and protect families and individuals not for families and individuals to serve the state.

Plato and Aristotle both had the idea, with differing variations, that family is a tool and instrument of the state rather than an independent enviable institution. One of the geniuses of the Western democracies, with the balance of power between institutions, was to see the family as the core institution. The single biggest obstacle to totalitarianism is the family. Without family and kinship, the individual is laid bare as a pawn of the state. Stalin, Hitler, Mao, Pol Pot and many others have understood this. The most sinister effect of Goodridge v. Department of Public Health is not that it normalizes sexual activity that some my find objectionable. It is that it has reduced marriage from an enviable institution to a contractual arrangement that can be allowed or disallowed at the whim of the state. Yes, we have had laws that restrict traditional marriage and have required legal solemnization but those have been to protect it from dilution which is precisely what the Mass. Supreme Court has done. The sick irony is that those most adamant about same-sex civil rights have undercut the single most important institution that protects those rights! The effects may not be felt today or even this decade. But within in generation or two we will have the choice between disintegration into cultural chaos or totalitarian rule.

Gruntled said...

I was with you until the end, Michael (but I wouldn't be Gruntled if I thought we were a generation from tyranny or chaos). I agree, though, that the effort to open the marriage contract to any and all close relations will corrupt marriage into a mere contract.

Michael W. Kruse said...

"I was with you until the end, Michael (but I wouldn't be Gruntled if I thought we were a generation from tyranny or chaos)."


Actually, that wasn't intended as a prediction. It was a projection forward if there are not corrective measures taken. Sort of like Eb Scrooge in a Christmas Carol with the Ghost of Christmas Future.