Professor Volokh takes on the “ick factor”

Posted: December 13, 2010 by datechguy in culture, the courts
Tags: , , ,

Way back in the early days of the Blog I talked about Gay Marriage and Richard Cohen’s self=righteous hit piece:

Personally on a religious level I can’t support gay marriage but this is not a valid argument for a non-religious person. On a non-religious level it seems to me you can not rationally say that gay marriage is ok and should be legal without also allowing either polygamy and incest between consenting adults. Both have a longer and more accepted cultural history worldwide.

And PLEASE don’t give me the “ick” factor argument about these other things being accepted. Ick is just an argument about culture. It is the same argument that one would have heard concerning gay marriage less that 20 years ago. It is particularly galling when gay people are subject to state sponsored murder in places like Iran and ick is invoked beside Islam.

Via Glenn we have Eugene Volokh being a lawyer with some interesting items in the news has expanded on this bigtime:

(1) Should it be illegal, and, if so, exactly why? Is it just because it’s immoral? Because legalizing incest would, by making a future sexual relationship more speakable and legitimate, potentially affect the family relationship even while the child is underage (the view to which I tentatively incline)? Because it involves a heightened risk of birth defects (a view I’m skeptical about, given that we don’t criminalize sex by carriers of genes that make serious hereditary disease much more likely than incest does)?

(2) Given Lawrence v. Texas — and similar pre–Lawrence decisions in several states, applying their state constitutions — what exactly is the basis for outlawing incest? Is it that bans on gay sex are irrational but bans on adult incest are rational, and rationality is all that’s required for regulations of adult sex? Is it that bans on gay sex don’t pass strict scrutiny (or some such demanding test) but bans on adult incest do? Is it that Lawrence rested on the fact that bans on gay sex largely foreclose all personally meaningful sexual relationships for those who are purely homosexual in orientation, whereas incest bans only foreclose a few possible sexual partners?

Go and read his whole point but let me say that a Judge named Antonin Gregory Scalia saw this coming a mile away as did an awful lot of us. When I made the argument saying that you can’t logically ban polygamy while allowing gay marriage in a discussion on Center of Mass podcast this year my host insisted that it was totally different.

I’ve talked about the ick factor in the past. And let me quote myself one more time:

This is a republic. If the people who support gay marriage can move enough of the public in the individual states or on a national level to support it in an actual vote then the more power to them. That is how a republic works. With the media’s help they are well on their way to doing so, but let the people vote for it and if you win, you win. If your argument holds water it should be capable of doing so and you should be able to make that argument stick.

Take out the word gay marriage and enter anything you want instead and the argument holds. The fact that a respected lawyer is actually making the case tells me this is already coming down the pike. And let me leave you with some John Nolte in terms of changing the culture with the help of the media:

And this is how cinematic propaganda works. Whether the filmmaker’s motivations are good or evil, the idea is to get decent and thoughtful people to start second guessing themselves as they’re enveloped in the dark and held captive by the powerful sound and fury of the moving picture. First we’re led to identify and sympathize with a particular character, then that character does something designed to challenge our belief structure

None of this is a bug. It’s a feature.

  1. […] the success of his indoctrinators.” – William F. Buckley Jr., Up From Liberalism (1959)Da Tech Guy blogs about the intellectual hand-wringing over “consensual adult” incest, a discussion provoked by the Epstein case. He helpfully links John Nolte’s comment on how […]

  2. Roxeanne de Luca says:

    I do have a slight (ha, ha) disagreement that gay marriage will lead to polygamy. The issue with polygamy is that it is nearly impossible, from a lawyer’s perspective, to administer. Do all the people have to get married to each other at the same time and consent to the marriage? Can you just ad in people as time goes on? Who has to agree – one of the people in the marriage, or everyone? How does divorce work? Do you divorce everyone in the marriage? Some of them? Take some of the kids? Who gets visitation?

    A lot of non-lawyers look at this and think, “Yeah, big deal, it’s just some extra paperwork” or what-not. Lawyers think about it, purse their lips, and say, “Yes, that’s a good enough reason for a judge to let a ban on polygamy stand.”

  3. Roxeanne de Luca says:

    I agree it is a legal nightmare, but since when has that stopped government?

    [bangs head against desk]

    Um… Peter? I adore you, but please do me a favour and think through that before throwing platitudes around. Think through how pro-polygamy people would try to get polygamy legalised, and how that differs from some other bureaucratic, legal nightmare like ObamaCare.

    A court will likely uphold a ban on polygamy if it fulfills the “rational basis” test – i.e. there is a rational basis for the ban. Now, while liberals are leery of tradition, religion, and “Hey, that’s a load-bearing wall of society” arguments, and tend to believe that those are not “rational” reasons to enact a law, they are more willing to listen to things like, “Hey, here are the slew of regulatory problems that arise from this”. Basically, if a government can make the argument that you cannot simply substitute in a polygamous marriage for a two-person marriage without changing the law, it meets the rational basis test. The reason that the MA Supreme Judicial Court enacted gay marriage was that the state could simply put a man and a man’s name, or a man and a woman’s name, down on a marriage certificate, without changing a thing. Polygamy would require such a radical overhaul of family, marriage, divorce, and property law as to deter many jurists.

    Courts have written opinions that have resulted in huge societal changes, but never in those that have required massive changes in the written law. Most big cases are “negative” cases: the state cannot prosecute a doctor for performing an abortion, cannot execute someone for a certain crime; a court cannot admit certain evidence in a criminal trial; an entity cannot discriminate based on certain characteristics. What courts have almost never done, and what there’s a huge body of law surrounding (that both liberals and conservatives agree with) is for a state legislature to do a wholesale re-write of its laws in order to do something affirmative. Courts are reluctant to police those things, and tend to not impose remedies that take a lot of oversight.

    Not that I’m championing judicial activism, but mandating polygamy is of a different LEGAL stripe than mandating gay marriage. I put “legal” in all caps because lawyers are the ones arguing this, writing amicus briefs on this, and (as lawyers-turned-judges) deciding this, and they just see the world differently than non-lawyers. To a non-lawyer, 90% of what I said is a trivial distinction; to a lawyer, it’s a basic, fundamental difference.

    Of course, none of that would stop a legislature from enacting polygamy and doing its laws over, but it’s doubtful that it would have the public support to do it and then to not have it be repealed.

    Now, even if a court were to say, “Enact polygamous marriage”, a reluctant legislature could just not provide various protections for people in a polygamous marriage (such as property law, honouring pre-nuptial agreements, etc.), which would be a huge disincentive to get into them.

  4. […] is an excellent political move for the GOPApparently Sarah Palin is better read than Richard Wolffe.Professor Volokh takes on the "ick factor" Archive DTG on […]

  5. Roxeanne de Luca says:

    I see a very logical distinction, which I’ve outlined above; you don’t. We’ll agree to disagree.