Sometimes we choose easy arguments over better arguments for the very reason that they are easy. Unfortunately, given enough time we start forgetting the better arguments. Or in other cases, the easy argument is no longer convincing. An example of the latter would be the distastefulness of homosexual relations; today people predominantly do not think a rational person would find homosexual acts disgusting. An example of the former would be offering the free speech card whenever someone demagogues a person as a bigot for arguing against gay marriage. While the free speech card is certainly legitimate, it appeals to the lowest common denominator. Those opposed to gay marriage are not served best by arguing that their arguments are entitled to the protections given to Holocaust denial, white supremacists, and art that approaches indecency.
In most circles there is an assumed illegitimacy of claiming opposition to abortion is driven by being anti-woman. This is because public concern over life in the womb is seen as legitimate even by those unpersuaded to legally proscribe abortion. The most obvious example would be a husband who beats his wife in order to induce a miscarriage. Only the most strident ideologues would claim that this act is no different in character than wife-beating. Establishing this is of course not sufficient to establish the immorality of abortion. This also is not sufficient to establish that opposition to abortion is not driven by being anti-woman. One can easily by anti-woman and not support wife-beating. At the same time, what has been established is there is a legitimate basis for concern for the unborn child that is not predicated upon being anti-woman.
Many want to argue there is not a legitimate basis to publicly proscribe homosexual marriage. This argument generally falls under the argument that there is no public warrant to regulate mutual and consensual sex acts. In Lawrence v. Texas, Justice Scalia derisively called this the sweet-mystery-of-life passage: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” I will skip the easy arguments over polygamy (yes, I do think polygamy is easier to support on a public policy basis than gay marriage, and I also think the people who act shocked over this being brought up would not support laws targeting swingers and private orgies.), incest, bestiality, etc. I will go straight to the argument that we indeed do have public warrant to regulate mutual and consensual sex acts, because sex has consequences. That there are sex acts that are infertile by nature or by choice does not change the fact that almost all children are brought into this world through sex.
Yes, I’m familiar with the counter argument that plenty of people get married with no intention of having children and plenty knowingly or unknowingly can’t have children. That society can live with a little hypocrisy seems to be a sufficient basis for curtailing or allowing gay marriage. That is ultimately an argument over an arbitrary line. Let’s go deeper than that. One could start with child support. Certainly it makes sense for a couple sharing a household to share responsibilities for the child, but what is the basis for the compelling of shared resources? One could argue that children are more likely to grow up in poverty if they lack the financial support of a father, however there are plenty of responsible women who provide adequate support to their household that are arguably unjustly yoked to men. If public support of a child with a deceased father through the Social Security survivor benefit is legitimate, would not the freedom enhancing policy be to offer public benefits to those children who never had a father?
But with sex we needn’t confine ourselves with children. How about public health? This is allegedly the guise under which we as a society will not allow incest although the detriment to public health is exaggerated, in many cases being significantly less than the risks to children born to mothers with certain STDs and not considering couples who’ve passed their fertile years or for that matter who are gay. (Wisconsin does actually address incest and fertility for those curious. CH 765.03(1)) But we don’t just stop there. As a matter of public policy, we exhort people to limit partners, use devices to prevent disease and avoid children. All of the sudden when HPV is going around the neighborhood people think they have a right to tell me with whom I should have sex and how I should I have it. We feel comfortable as a matter of public policy telling an 18 or 19-year-old girl that they should wait before having children, but the 40-year-old attempting to get pregnant doesn’t get a PSA. About the only risk with the former is poverty and the significant risk of the latter is debilitating birth defects. Don’t claim to me we don’t have a public interest in sex. It is thorough and a lot more pervasive than we like to believe.
But much of this is immaterial regarding the prudence of homosexual marriage. It has mostly just established that societal interest in sex can be about things other than prudery or the imposition of a foreign morality on the otherwise competent. To address prudence we need to move to a rational basis. Perry v. Schwarzenegger, the federal court ruling striking down California’s constitutional amendment prohibiting gay marriage, explicitly used this test, and if my memory serves it also partly served as a basis for the Iowa Court’s decision. In both cases, the courts found insufficient evidence of harm to children, heterosexual couples, or gay couples themselves. Without delving into the legal minutiae, let’s suffice it to say that the sociological community hasn’t been on board in finding harms to gay marriage and they are the ones playing expert witness here. My wife while watching “The Doctors” learned today that there wasn’t a rational case for being a stay-at-home mother. They dressed this up of course as there being no demonstrated harm to children of working mothers. If you read around, you also will find divorce doesn’t harm children according to the psych and soc communities. Apparently there is a rational basis though for guns in the home doing so given that I’m interrogated regarding ownership of firearms whenever my child has to go to the doctor. Even though these claims test my own credulity, they seemed to be liked by the courts and the general public. It is time to do the hard work in this area. It is time to stop being embarrassed about discussing sex as a public issue.
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