Friday, May 04, 2007

Up Next: Legal Incest

There is a serious debate, in this country and in Europe, about whether incest should remain illegal as it has from time immemorial. When the Supreme Court declared all state laws against sodomy an unconstitutional intrusion on a citizen's right to have consensual sex in the Lawrence case, alarmists claimed that bigamy, polygamy, incest, and bestiality would follow. The alarmists were right.

I have written about the coming polygamy crisis. Incest is next.

Of course, nothing is inevitable in social life. We could have a new social movement to restore a public standard of sexual morality. But the movement to make sex, even marriage, a matter of private choice is well advanced. The Supreme Court has pretty nearly dropped the last legal defense. It would be possible to amend the constitution to prohibit incest, but it would be horrible. Liberals would feel obliged to go way out on a libertarian limb, from which it would be difficult to come back. My reading of the present political moment is that the movement toward social conservatism has run out of steam for this generation, and is not likely to be renewed soon.

One of my favorite college professors caused a wonderful scene during a polite dinner with some visiting evaluators. He grew increasingly frustrated as he tried to get them to draw any practical judgments from their philosophy. Finally he rose, and in a carrying voice, demanded to know if they could offer some reason why he shouldn't have sex with sheep - though he put it a bit more graphically than that. Not, mind you, that he wished to do any such thing; rather, he wanted them to explain if their philosophy had any conception of what was good, of how people should live.

We are not quite to the "sex with sheep" stage in the debate over the complete privatization of sex, but we are only a step away.

35 comments:

Alan said...

"Lawrence case, alarmists claimed that bigamy, polygamy, incest, and bestiality would follow. The alarmists were right."

I'm not sure why conservatives need to wrap everything in silly B-Movie rhetoric. The sky is not falling, polygamy is not legal, and neither is incest and bestiality. I'm also pretty sure aliens haven't invaded yet, but I look forward to your post on how "Lawrence" created a safe haven for Martians.

Really, as a college educated man, and even a professor, I would have thought that an elementary class in philosophy would have taught you why slippery slope arguments are fallacious. I guess even good logic can't win over ridiculous emotionalism at times.

"We are not quite to the "sex with sheep" stage in the debate over the complete privatization of sex, but we are only a step away."

Also interesting how obsessed conservatives are with bestiality. Is there some epidemic of bestiality, polygamy and incest that we're all unaware of? Even chicken-littles like you must admit the answer to that question is No.

Recently we saw a raft of conservatives who were obsessed about homosexuality get caught with their hands in the cookie jar, so to speak. I've always said you can tell a closet case by just how loud they preach against homosexuality. Perhaps the same is true for the bestiality and incest crowd.

Anyway, thanks for reading, now I'll let you get back to your regularly scheduled Schwarzenegger-esque cliched movie rhetoric, already in progress.

Gruntled said...

I am not worried that there will be a wave of incest, or polygamy, or even homosexual marriage (which I think will prove unattractively restrictive to most of its potential practitioners). I do worry, though, that the courts will unilaterally establish a legal standard that marriage is a private contract, like any other, and not a public good. Then anything will indeed go in law, though not it custom, which will erode the power of marriage to shape the morals of married people.

Alan said...

"I am not worried that there will be a wave of incest, or polygamy..."

Strange, because that's precisely the argument you make in the post, and in previous posts you've even gone so far as to make the link between gay marriage leading to polygamy, incest, bestiality, etc.

I don't know how you could read this sentence, "I have written about the coming polygamy crisis. Incest is next." as anything but you being worried that there will be a wave of incest, polygamy, etc. You've completely contradicted yourself.

Gruntled said...

The crisis is not the there will be a great deal of any of these unusual practices. The crisis is that we will lose the legal foundation of marriage, and erode the cultural consensus about what marriage is and why it is essential to society. If incest is on the same legal footing with marriage, it doesn't matter if there is only one case, or tens of millions -- the legal principle is the same.

just axing said...

Google sex with animals if you think gruntled is being an alarmist conservative. Besides that he is a centrist not a conservative remember?

Chris said...

So Alan it appears your core rebuttal is "We're smarter than that"

Anonymous said...

Alan. Just to be fair to gruntled, slippery slope arguments are not always fallacious. And you sir, should know that.

Anonymous said...

I would have thought that the favorite professor's excellent judgment and character would be an obvious impenetrable barrier (so to speak) to him having sex with sheep. But if not, then laws are the next best thing. There still is this nagging thought: when having sex with sheep is outlawed, only outlaws will have sex with sheep.

Alan said...

"To Alan it appears your core rebuttal is "We're smarter than that""

Nope, it isn't. But thank you for attempting to put words in my mouth.

My core rebuttal is that a slippery slope argument is a logical fallacy and anyone who'd ever taken an intro philosophy class would understand that. My problem with this post and several other "gruntled" posts is that he uses such logical fallacies over and over. And given his education, I can only assume he knows better and that it's a disingenuous attempt to win an argument and score cheap points against an issue he doesn't like (ie. same-sex marriage) by repeatedly making the link to these disgusting practices.

"If incest is on the same legal footing with marriage, it doesn't matter if there is only one case, or tens of millions -- the legal principle is the same."

In the same way, you'll see how he disingenuously attempts another slick and savvy rhetorical move, making it appear that anyone here is defending incest.

I believe that honest people should have honest and vigorous debates about important issues. The intentional use of logical fallacies and straw man arguments is simply another way to bear false witness. I seem to remember reading a commandment against that, but perhaps I'm mistaken. ;)

"Besides that he is a centrist not a conservative remember?"

If it walks like a sheep, and baaas like a sheep, it's probably a sheep.

Anonymous said...

I am saying this: The slope is indeed often slippery. Noting it when we are considering policy decisions does not mean we embrace logical fallacies. It means we're paying attention. I, for one, will encourage my students to learn the textbook descriptions of "logical fallacies," and to think about them critically. Finally, it could be argued that some predicted slippery slope results do not come true because people, aware of the slippery slope, are on guard against them. (Scott Stein)

Anonymous said...

Alan,
Making fun of gruntled does't really help your arguments. You seem to be a bitter yet intellegent soul who feels he must accuse anyone who disagrees of basically being stupid.
just axing

Alan said...

"Making fun of gruntled does't really help your arguments. You seem to be a bitter yet intellegent soul who feels he must accuse anyone who disagrees of basically being stupid."

I don't believe I've accused anyone of being stupid. In fact, just the opposite, I'm assuming throughout this that Gruntled does indeed understand the basics of illogical, fallacious reasoning. Nor have I made fun of him, called him names, used ad hominem attacks, or anything else of the sort. I do believe he's being disingenuous with his arguments and over-the-top rhetoric and I've given my reasons for that opinion, but that's quite different than "making fun of him."

Bitter? Not even remotely. I'd suggest that you're probably not in a great position to judge such things, given all you know about me is from a few blog comments. ;)

"Finally, it could be argued that some predicted slippery slope results do not come true because people, aware of the slippery slope, are on guard against them."

Or because the argument was full of holes to begin with....

Stuart Gordon said...

Help me, Alan:

I didn't take that class in college, and so I don't know how slippery-slope arguments are fallacious.

May one not legitimately argue, "If A happens, it is likely that B will follow"? That would be different from "If A happens, it is certain that B will follow."

Cause and effect is the bread-and-butter of empirical thought. I'm not doing a full review of Gruntled's method, just asking that focused question.

Alan said...

"May one not legitimately argue, "If A happens, it is likely that B will follow"?

The difference between a logical line of reasoning and a slippery slope argument isn't the level of certainty involved.

So certainly one can legitimately make that sort of argument long as one provides actual warrants for the claims. Warrants are not the same as speculation, or the simple linking of one or more sexual practices simply because you don't like them yourself (ie. same-sex marriage and bestiality.) And of course, the more steps that are required between A and B, the more evidence is needed for each step. From Lawrence to same-sex marriage to incest to bestiality... It's quite a causality thread there...and since even same-sex marriage has only happened in MA, it's pretty tough to make the case.

Reasonable arguments demand that extraordinary claims require extraordinary evidence. So then, the claim that society is merely "one step away" from the "sex with sheep" stage, would require extraordinary evidence.

At the same time, your warrants for the connection between A & B must explain away any contradictory evidence. For instance, I can provide example after example of how marriage has changed over the millennia which have not lead to polygamy, incest & bestiality. (In fact, polygamy used to be the norm, and we've moved AWAY from, not toward it.) The legalization of interracial marriage, for example, did not lead to the legalization of bestiality, even though that was precisely an argument used at the time. If the legalization of interracial marriage in the early 1950's did not result in legalized bestiality by now, it seems unlikely that it will in the near future, no?

At the same time I can provide an excellent example of the LACK of a link between say, polygamy and homosexuality: the Mormons. They were polygamists who at that time and still are deeply anti-gay.

So no, I've never said that such "if ... then" reasoning is incorrect. I've been very specific about speaking only about slippery slope arguments, which attempt to create a link between A & B without sufficient evidence and without explaining away contradictory evidence.

Stuart Gordon said...

Alan:

Thanks for an articulate response. I wonder if we can all use that to evaluate one of Gruntled's claims, "that the courts will unilaterally establish a legal standard that marriage is a private contract, like any other, and not a public good."

That is concrete, limited, and lacking in hyperbole. The linked article indicated that the courts are unlikely to use Lawrence to set aside existing incest laws.
What does seem to be occuring is that some citizens see an opportunity in Lawrence and are seeking to capitalize on it, by bringing suit against incest laws. Time will tell if they are successful.

It will be interesting to see what the courts say about the subject of marriage and the state's interest in it. Where will the courts draw the privacy line?

Gruntled said...

I am also concerned about where the courts will draw the "public interest" line -- or even whether they can muster a theory of marriage as a public good.

Alan said...

"that the courts will unilaterally establish a legal standard that marriage is a private contract, like any other, and not a public good."

:) I hope you'll take this as I mean it -- ie. friendly joking -- but exactly which country are you living in? :) Have you taken a look at the make up of our Supreme Court lately? Lawrence almost didn't pass, we've had 2 more very conservative justices appointed since then, and Lawrence was only about sex, not marriage.

"What does seem to be occuring is that some citizens see an opportunity in Lawrence and are seeking to capitalize on it, by bringing suit against incest laws. Time will tell if they are successful."

Frankly I think the assertion that our current, very conservative Supreme Court would acquiesce to anything like that is indeed an extremely extraordinary claim that would require extremely extraordinary evidence.

In fact, a much less extraordinary claim could be made, it seems to me, that Gruntled's support for situations other than marriage, such as civil unions, is in fact much more likely to "establish a legal standard that marriage is a private contract" or at least that "marriage-lite" is a private contract.

Chairm said...

Gruntled,

You emphasized the principles at stake. I think Alan missed that.

I agree with you that SSM argumentation presumes that marriage is essentially a two-person contractual arrangement based on caretaking.

That is illustrated in recent legislation for Civil Union. The restriction to one-union-at-a-time is borrowed from marriage; likewise the prohibition on closely related people. But the rationale is not based on a sexual relationship. It is not based on a both-sexed requirement (i.e. two sexes). It is not based on equality of the sexes (between husband and wife). It is not based on integrating motherhood and fatherhood.

Civil Union is the type of relationship that would be merged with marriage. It shows what would be substracted from marriage. This is relevant to incest and polygamy.

Oregon, for example, has affirmed marriage as the union of one man and one woman. This affirms the prohibition against polygamy as well as incest.

The same-sex category is nonmarital in Oregon. There is no provision for consummation of Civil union nor for adultry as grounds for dissolution. The presumptin of paternity cannot apply to the new "same-sex" category.

This new relationship status is not sexual. It is described as protective, not as preferential. But it is merged, at law, with marriage recognition. It is SSM.

When a closely related man and woman hold themselves out to be married, they transgress the incest prohibition even if they do not actually engage in sexual relations. This protects the institution of marriage as a public sexual union of husband and wife. Marital status safeguards the private aspect of the public relationship.

But the "same-sex" category is nonsexual. It is not preferential. So what is the public interest in barring closely related people? It is explicilty nonmarital -- but it has been merged with marriage -- so either marriage will inform Civil Union or Civil Union will trespass on marriage. I think the chances for the latter are much higher given SSM argumentation in the courts and in the legislatures. Civil Union shows us what SSMers really mean by adding the adjective "civil" to marriage.

Civil Union bans millions of families from the protective status that is reserved for gays and lesbians, for unstated reasons.

Likewise, the same-sex category restricts people to one-union-at-time -- whether than union be marital or civil union. For unstated reasons. SSM argumentation trivializes the integration of motherhood and fatherhood; it trivializes the both-sexed nature of marriage (i.e. two sexes united sexually). SSM argumentation emphasizes that legal requirements define the relationship status.

But Civil Union gives us an example of a purely legal innovation, not a deeply rooted social institution being recognized, which has its own legal requirements.

No consummation so not a sexual relationship. No provision for adultery so not monogamous.

This is the way SSM argumentation has worked in attacking the core of marriage. SSMers cannot now be abandon their principles when incest and polygamy are at issue. Not if SSM argumentation is based on principles that determine the bounds a relationship status which gives public meaning to a private arrangement. Not if those principles are written into Civil Union requirements.

Civil Union is an unnecessary relationship status that is meant to mimic marital status in all but name. However, if merger is wrong when the name is SSM, it is wrong when the name is Civil Union.

Designated beneficiaries provides for protections without a new relationship status. It is not presumed to be sexual and is flexible enough to accomodate more than 2 persons-at-a-time and does not have a public meaning that calls for incest prohibitions. But it is an affidavit based relationship -- it fits the contractual emphasis of SSM argumention -- and does not create a preferential status -- in keeping with the protective provisions emphasized by SSMers even in Civil Union legislation.

Incest outside of marriage would still be a transfression of public morality. But holding oneself out to have closely related designated beneficiary would not be incestuous. In fact, that's the point of distinguishing marriage from nonmarriage when marriage law intersects with incest law.

But Civil Union has this superficial aspect of incest based on a nonsexual, nonmarital, and non-preferential status that has just been established with legal requirements that, according to SSM argumention, ought to define the new relationship type.

This is how SSM will undermine the public morality that stands against incest and against polygamy. Either through Civil Union or SSM -- because both are mergers with marriage and both are only superficially related, in fact, to the social institution of marriage.

Alan said...

"I didn't take that class in college, and so I don't know how slippery-slope arguments are fallacious. "

Well, we've just seen a textbook example. :)

Anonymous said...

alan,
We certainly have haven't we!
just axing

Stuart Gordon said...

I confess that I don't have the patience to try to understand that comment.

Gruntled said...

I agree with Stuart. Slippery slope arguments are not a logical fallacy. They are an empirical possibility. Whether they prove true in an particular case depends upon empirical evidence.

Alan said...

"Slippery slope arguments are not a logical fallacy. "

Hmm... I'm no philosopher, but isn't it odd that every philosophy text, philosophy professor and philosophy class I've ever had says differently. Can you provide a reference?

But then, even if they weren't fallacious, there would still need to be warrants and claims, rather than just the "here's a bunch of things I don't like" sort of reasoning.

Empirical evidence? That would indeed be nice ... Will you be providing any? :) For example, precisely the same arguments were used against interracial marriage (next will be polygamy, bestiality & incest). Yet that never happened. Can you provide *empirical* evidence that demonstrates not only why they were wrong, but why you're right and these things will happen, this time, even though Lawrence doesn't go nearly as far as Loving v. Virginia?

Or can you even provide the simplest empirical evidence of numbers? That is, just how many people are involved in polygamy, incest &/or bestiality? You've said this is a "serious debate". Just how many folks are having this "serious debate" other than you? Just how many amendments have been proposed to our Constitution to allow incest, as you suggest? You do realize the only folks offering amendments to the Constitution are conservatives, right?

Can you actually provide any empirical evidence for this statement "We are not quite to the "sex with sheep" stage in the debate over the complete privatization of sex, but we are only a step away."

You're a sociologist, right? So, I'm assuming you have access to actual studies and numbers here, right? Please show us just how the "alarmists" were right.

Gruntled said...

The reasoning of Lawrence was that citizens have a right to privacy about consensual sex. Once the court establishes that standard, if two adults, such as the German brother and sister mentioned in the linked article, assert a right to privacy about their consensual sex, what basis can the Court offer to deny them?

Alan said...

I don't suppose you happened to notice that Lawrence was a case before the US Supreme Court and the German couple you're referring to is ... well, German. We're not Germany, nor do our laws work over there or vice versa.

I can't help but notice that you keep avoiding my questions about Loving, etc.

Gruntled said...

The German couple are indeed foreign, but they surely have counterparts in our vast and varied country who are following developments abroad. And the ACLU brief in favor of consual incest, and indeed in favor of utterly privatized marriage, is real and American and ready to go.

The finding in Loving was that preventing racial intermarriage was contrary to public policy. The finding in Lawrence is that there is a right to privacy in sex. They are not really parallel as matters of law.

Stuart Gordon said...

Hey Guys, can we find some common ground on which to stand and talk? Alan, where are you on the privacy issue? Do you share, in principle, Gruntled's opinion that the state has a legitimate interest in sexual relationships? Do you believe that the state rightly establishes laws regulating sexual relationships, according to some set of standards?

Alan said...

"Alan, where are you on the privacy issue? Do you share, in principle, Gruntled's opinion that the state has a legitimate interest in sexual relationships? Do you believe that the state rightly establishes laws regulating sexual relationships, according to some set of standards?"

Absolutely, which is one reason why I believe that Gruntled's slippery slope argument is fallacious. The state certainly has an interest in certain regulations of sexual relationships as long as those regulations are fair (maybe, but not necessarily, equal) and as long as they reasonably balance individual rights & responsibilities with the common good.

"The finding in Loving was that preventing racial intermarriage was contrary to public policy. The finding in Lawrence is that there is a right to privacy in sex. "

Thank you for making my point. Marriage and public policy is much more expansive than simply a right to keep the cops out of your bedroom.

(Well, that's my view anyway... Others may believe that the definition of marriage relies exclusively on procreative sex.)

If either Loving or Lawrence were going to be used as stepping stones toward changing *public policy* toward polygamy, incest, & bestiality, it would be Loving, because it's reach is more expansive, for the reasons that you yourself gave. So, please explain why, even though there were the exact same sky-is-falling warnings about Loving, they were wrong, but you're right.

(And again, some actual evidence would be nice that demonstrates that the sky is indeed falling, other than one German couple and the assumed countless nameless millions in the US who apparently want to marry their golden retriever.)

Anonymous said...

alan,
google "not all slippery slope arguments are fallacious" I did there were 40,7000 hits.

Alan said...

Ooh, google! Then it must be true. :) j/k

Actually if you'll read what I already wrote, "The difference between a logical line of reasoning and a slippery slope argument isn't the level of certainty involved. So certainly one can legitimately make that sort of argument long as one provides actual warrants for the claims."

So, yeah, I already said that.

Anonymous said...

I guess you get the last word.
Bergamot

Jon said...

I was just catching up on Gruntled and saw the quote about Google. Actually, if you put the phrase in quotes Google only turns up 25 hits. Otherwise, you are showing all webpages where these words ever occur in the document.

Some time ago I read an article in Slate (I think Michael Kinsley wrote it) that suggested the government should get out of the marriage business. We just give it back to churches and then contract all custodial/ legal relationships (for health care, pension, etc.). It's impractical, but I sort of liked the idea.

Gruntled said...

Marriage is a civil good for a secular state. Most people do get married in churches, but the law needs to cover the minority who don't, as well.

Alan said...

"Most people do get married in churches, but the law needs to cover the minority who don't, as well."

Actually I think that's incorrect. I've seen stats that say 60% of people have a civil ceremony.

Gruntled said...

Knox, D., and Schacht, C. (1991). Choices in Relationships, 3d edition say 80% of American marriages are religious ceremonies, the overwhelming majority of which are in churches.