Legal Commentary

In response to a recent post of mine on slippery slopes, several commentators offered responses that suggest I was unclear. So here is a clarification that, I hope, in painful detail, eliminates all ambiguity about why I believe that the justification for same-sex marriage does not "slip" us into a sexual Babylon.

First, consider the justification for same-sex marriage. The overwhelmingly dominant rationale for same-sex marriage is that same-sex couples are indistinguishable from hetero couples on the usual romantic grounds -- capacity for reasoned speech, desire for an exclusive relationship with a unique and singular other, etc. On this reasoning, the only morally relevant distinction between hetero and same-sex couples is that the latter cannot procreate with each other. But once the Court and government generally accepts that contraception and non-procreative sex are fully legitimate activities, the moral-legal relevance of this fact vanishes.

Second, note how this very, very narrow and well-defined justification does not "slip" down the "slope" using either "sorites" or "reductio ad absurdum" reasoning to polygamy, bestiality, or any other sexual practice. For instance...

(a) Mainstream advocates of same-sex marriage do not question the ideal of exclusive love, in which a single person is elevated above the rest of the world as an object of exclusive affection of unique intensity. This ideal of the unique soul mate may be good or bad, but it is certainly well-defined. (Consider, for instance, Aristophanes' speech about the erotic search for one's other half in Plato's Symposium). And the "soul mate" ideal obviously and clearly excludes polygamy. Hence, so long as the Court accepts this ideal as a basis for marriage law, laws banning polygamy are safe. And no one is asking the Court to dump this rationale as "arbitrary," "invidious," etc.

(b) Mainstream advocates of same-sex marriage do not deny that humans should unite the sexual with the social, emotional, and intellectual -- another well-defined and long-standing ideal of romantic love. Again, one need not accept the ideal to understand how it excludes copulation with any creature not endowed with the power of reasoned speech. Again, so long as the Court does not question this ideal as the basis for legislation, laws banning bestiality are safe. And, again, no one is asking the Court to dump this ideal as "irrational," "arbitrary," etc.

And so forth: It is obvious that one could repeat this exercise for every marcher in the parade of horribles proffered by the opponents of same-sex marriage, given the very narrow and well-defined justification for same-sex marriage offered above (which is, again, the overwhelmingly dominant justification in the press, the scholarship, the speeches, op-eds, and the judicial opinions. Yes, the sexual advice column of the Village Voice whistles another tune -- but their readers are a bogeyman of the Right, not a serious force behind same-sex marriage).

So, please, please, please stop the "slippery slope" rhetoric on same-sex marriage. Object as much as you please to the idea -- but on the merits and not on the ground that the justification for same-sex marriage somehow "slips" us down the "slope" to a sexual Babylon.