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5.23.2007

A Reply to Scalia's Dissent in Lawrence v. Texas

Dissenting in the landmark 2003 case of Lawrence v. Texas, United States Supreme Court Justice Antonin Scalia wrote, “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; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. The impossibility of distinguishing homosexuality from other traditional ‘morals’ offenses is precisely why Bowers rejected the rational-basis challenge. ‘The law,’ it said, ‘is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.’”

I agree wholeheartedly with Justice Scalia’s above legal reasoning; however, I contend that legalizing most of the activities on his list of horrors would be a good idea. Thus, the courts should be very busy indeed, striking down these absurd laws wherever they can yet be found in our nation, this alleged land of the free and home of the brave. I will make the case for legalizing each of the activities on Scalia’s list of taboos individually.

First, there is bigamy. I do not know what Scalia intended this word to mean, so I will make an important distinction before preceding any further. Many people use the words "bigamy" and "polygamy" interchangeably, but doing so causes unnecessary confusion. The word "bigamy" almost always refers to a man illegally having two or more wives at the same time; however, "polygamy" often refers to a man having multiple wives in a situation where doing so is not illegal. Furthermore, "bigamy" often refers to a scenario in which a man's multiple wives are unaware of each other's existence. Due to the contractual nature of marriage, this type bigamy necessarily involves fraud. Thus, there is a solid legal basis for banning bigamy independent of any attempts to enforce Scalia’s conception of traditional morality. Polygamy is another matter entirely.


There are actually three basic types of polygamy. The type most widely known in the United States involves one man marrying multiple women. This practice is called polygyny. A less common type, though one that has been practiced in some cultures, involves one woman marrying multiple men. This practice is called polyandry. The third alternative is less common still and involves multiple men marrying multiple women. This practice is called polyamory. Importantly, in all of these situations all of the people involved are fully aware of what is going on. Thus, fraud is not a concern.


Rational arguments against legalizing polygamy are likely to focus on three basic issues: spousal abuse, child abuse, and an overburdening of the legal system. If spousal abuse is the primary concern, then we should focus on providing legal and social services systems that guard against it--regardless of what sort of marriage is involved. There simply is not any data suggesting that group marriages are inherently more likely than monogamous marriages to result in spousal abuse; however, even if such data did exist it would not justify banning all group marriages. By that logic those who are at highest risk of being trapped in an abusive situation (such as people with particular socio-economic backgrounds) could be prevented from engaging in monogamous marriage, too. The government is simply not equipped to make these sort of decisions for people, attempting to stop them from getting into situations where they might possible be abused. Again, it is on the abuse itself that the law must focus. These same arguments apply to concerns about child abuse. Finally, partnership law already provides the legal framework necessary to deal with group marriage. Also, there is no reason that people engaged in group marriage should not be expected to pay for any extra legal services they may require.

Second, there is same-sex marriage. Many developed nations and some US states now allow same-sex marriage (or some equivalent) without any demonstrable negative effect on their societies, so there is no reasonable basis for suggesting that it would harm American society as a whole. In any case, the most popular objection to same-sex marriage does not seem to be that it would actually harm anyone, but that marriage is supposed to be a religious term; however, if that is true, then the government should not be involved in marrying people at all. Government involvement in such a religious ceremony could violate the First Amendment's Establishment Clause. An easy way to solve this problem would be to have the government provide civil unions to any two or more people who desire the current legal benefits of marriage. Marriages could then be exclusively religious affairs, allowing religious conservatives to maintain that by definition marriage must be between only one man and one woman. Requiring a church to marry people the church did not want to marry would violate the First Amendment's Free Exercise Clause.

Third, there is adult incest. As an extremely open-minded and tolerant person, it is easy for me to support polygamy and same-sex marriage. Neither of those practices bothers me. I cannot say the same for adult incest: it disgusts me. Having sex with my father, mother, or one of my siblings is one of the most revolting things I can imagine. The problem is that being grossed out by something is not enough to make it illegal. For example, the idea of morbidly obese people having sex is also terribly revolting, but that does not mean I support prohibiting such people from having sex.


The real problem with adult incest is the risk of producing children with severe birth defects. Thus, a law against close relatives having children with each other could be justified on the grounds of preventing the suffering that such children would experience in their lives. Remember, however, my argument about spousal and child abuse in polygamous relationships: if the problem is the high probability of severe birth defects, then the law should be aimed at fixing that problem. Any such law would only be fair if it applied to all people who know (or should know) that having children together would be as risky as it would be for close relatives. Therefore, some people who are not closely related would also be prohibited from having children--at least without using embryo selection and IVF, which of course could also potentially get close relatives off the hook.


Fourth, there is prostitution. Like same-sex marriage, prostitution is legal in several Western nations, again without causing those nations any appreciable harm. In fact, legalizing prostitution has been shown to lower the levels of violence and disease associated with that industry. Ultimately, continuing to prosecute prostitutes in our modern society just seems odd: it’s bizarre to prohibit people from selling something that they are allowed to give away for free.


Fifth, there is masturbation. Including masturbation on his list demonstrates just how ridiculous Scalia’s fears truly are. A solid majority of Americans masturbate, especially men, in whom refraining from masturbation is exceedingly rare. Suggesting that most Americans should be punished for pleasuring themselves is incredibly silly. All a law against masturbation could accomplish would be to decrease general respect for the legal system. The simple fact of the matter is that a majority of Americans currently do not and in all probability never will in the future support laws against masturbation.


Sixth, there is adultery. Like bigamy, adultery is a contractual issue. If people contract to maintain absolute sexual exclusivity with each other, then failing to do so is a breach of contract. Thus, it is certainly reasonable to allow for civil penalties for adultery, but criminal penalties are a different matter. Although most Americans believe adultery is wrong, enough American commit adultery that it would be politically impossible to seriously pursue criminal prosecutions as punishment for it. This fact serves to expose the hypocrisy behind much of the “pro-family” rhetoric that many religious conservatives currently espouse. Despite how obvious it is that adultery and divorce pose a much greater threat to the traditional family than any aspect of the gay rights movement, no proposals to actually enforce criminal laws against adultery have gained any traction--it’s simply much easier to pick on gays than heterosexual philanderers.


Seventh, there is fornication. Fornication is nearly as widespread as masturbation. The vast majority of Americans have sex before they are married. Again, laws against this sort of widely popular activity do nothing more than damage the legal system’s overall prestige.


Eighth, there is bestiality. Like adult incest, bestiality is deeply revolting to me, but unlike the unpleasant case of adult incest, there is a consent problem here: how can one tell if an animal is consenting to a sex act? This is a difficult question and would probably be best addressed through empirical research using brain activity scanning technology. It would be odd, however, for us to concern ourselves too much with discovering whether animals are consenting to acts of bestiality when we concern ourselves so little with the fate of animals in the food production industry. Obviously, far more animals suffer as a result of poor treatment on farms and in slaughter houses than suffer as a result of acts of bestiality. The most rational means of combating animal abuse in all its forms would be to treat all acts that cause animals to suffer equally. Thus, when the state charges a person with animal abuse, it should have to prove that the animal or animals in question are being made to suffer. If the state is unable to prove that a self-described zoophile's relationship with an animal is causing it to suffer, then that person should not be able to be convicted of criminal animal abuse.


Ninth and last, there is obscenity. The definition of "obscenity" has steadily eroded over the years and by now the word barely means anything at all. The First Amendment protects material with any redeeming social value--material conveying political, social, scientific, or educational messages--regardless of whom it offends. In order for material to fall outside of the First Amendment's vast protective coverage, it must have basically no social value at all. Furthermore, it must appeal to people's "prurient" interests: it must sexually arouse them. Obviously, sexual arousal is not normally a legal issue, so the alleged problem with obscene material must be that it is not the sort of thing that "ought" to arouse people. Deciding how to make that judgment is exceedingly problematic: so much so that the best legal minds of the last century have been unable to come up with a workable solution. Thus, I propose it is time to give up.


It is important to distinguish between "obscene" material viewed in a private setting from that which is displayed in public such that people are subjected to it against their will. Actually prosecuting people merely for possessing in their private homes materials that other people find offensive and think ought not cause sexual arousal involves such a breach of individual privacy and autonomy that doing so is untenable in today's society. People simply would not put of with such intrusions into their lives by the voyeuristic likes of Justice Scalia. The booming pornography industry presents excellent evidence for this assertion. Displaying such materials in a truly public setting, however, is a different matter.

There is a case to be made for laws prohibiting the display of grossly and gratuitously offensive material in public, but it is a case that must be made very carefully. We must be careful because there is always a danger that the government will label something "obscene" merely because some tyrannical government official does not like it. If we are to prohibit any material from being publicly displayed it must be material that no reasonable person could interpret as politically, socially, scientifically, or educationally valuable. It must also be deeply offensive to a majority of the people being exposed to it. In such a rare case I am willing to concede that it is appropriate to remove material from a public place where people who are minding their own business are subjected to it against their will. Ultimately, the reason I am willing to make such a concession is purely a matter of politeness. Publicly displaying, for example, a large image of people engaging in bestiality is simply incredibly rude. It is very much like walking up to someone in a restaurant and spitting on her food and ought to be prohibited for the same reason. It has nothing to do with what ought or ought not sexually arouse anyone.


After having poked fun at Scalia’s list of horrors, I will now give him credit where credit is due. At least he did not include rape or child molestation on his list. The fact that he left them off shows that he truly does understand why those two things are importantly different from the things he did list. Rape and child molestation are wrong and illegal because they both violate consent. In adult rape one adult forces another adult to engage in sexual activity against his or her will. Child molestation is a form of rape because we do not consider children capable of giving meaningful consent to sexual interactions. They are simply not mature enough to engage safely in sexual activity with adults, so we protect them accordingly.

In conclusion, if Justice Scalia is as concerned as he claims in the quotation at the beginning of this essay with our court system being overburdened, then he should support my proposed legal reforms. A law enforcement system wastes valuable resources when it seeks to identify and punish consenting adults for living normal lives as homosexuals (laws against sodomy and same-sex marriage), for not being monogamous or even just not getting married before having sex (laws against fornication), for being polygamous (laws against "bigamy"), for being sexually involved with a close relative (laws against adult incest), for getting paid in exchange for a valuable service that can legally be given away (laws against prostitution), for being a normal human being and deriving thoroughly healthy pleasure from one's own body (laws against masturbation), or even choosing to use an animal as a sex toy instead of butchering and eating it as normal people do (laws against bestiality). Justice Scailia points out the obvious when he writes that the law is based on morality. Thus, the law enforcement system ought to be used to protect members of society from the sort of violent acts that people don't want done to them, such as murder, rape, assault, and theft. Focusing instead on attempting to enforce Justice Scalia's personal ethical code is utterly irrational, inexcusable, and, yes, immoral.

2 comments:

Neal said...

On the bestiality subject and consent, here is at least a thought or two:

I don't know how you would prove this in court short of a demonstration or physical evidence in the form of video, but here is a thought. Animals are quite clear on when they don't like something. Unless the animal is deaf, mute, blind, or has some other disabling ailment (at which time the question of animal consent may require the recording of brain function), that animal has multiple ways it can communicate to a human that the human's sexual advances are unwelcome be it through biting, growling/audible excitement or frear, kicking, or leaving.

If presentable evidence existed that the animal was aroused and assumed a submissive and unthreatened position you may be hard pressed to prove the animal didn't "consent."

But it seems that Scalia and even the talk of consent assumes that the animal is the one being penetrated. What about the instances of bestiality in which the human consents to sexual acts being performed by an animal? In most cases, this would be referring to the oral version of sodomy.

It's all too revolting to think about for any length of time, even in a theoretical sense, but is an intriguing question on consent.

And if animals can consent to sexual acts, can they consent to other actions?

Snowden said...

I liked this reasoning you used, which having no law background I've never thought through: You want law x for stated reason p. The best law to ensure p is law y, which you don't actually want. Therefore, p was a smokescreen for your prejudice.

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