Fenster Moop writes:

Dear Blowhards,

I am taking advantage of my co-host role to move outside the "comments" section and conflate a potential comment into a post.

I am writing to elaborate on a brief snippet in Michael's latest "More Elsewhere". You may recall Michael wrote "* Does it have to follow from allowing gays to marry that polygamy will be legalized too? Colby Cosh thinks the answer is yes."

You'll see that Cosh linked in turn to another Canadian blogger, Chris Selley. Selley and Cosh appear to have a bit of a disagreement. Cosh, as Michael points out, says yes. Selley says no, on the grounds that "public opinion is far more forcefully against polygamy than it is against gay marriage, and that whereas homosexuals always numbered in the millions, the tiny number of Canadian polygamists means that public opinion is far less likely to shift."

To recap that old Certs ad: stop, stop, you're both right!

I think Selley is quite right to distinguish between the two cases based on the relative acceptance of the two situations in the broader culture. Culture is free to let gays into the charmed circle of marriage but exclude polygamists, incestists or animalists--there's no rule book that says what a group of people will value and what it will exclude.

As I wrote previously,

I have no problem with a culture that redefined marriage to include gays and to continue to exclude groups, kids or domestic animals. Indeed, that is what is happening in America at present. More people are moving to include gays within the definition while continuing to exclude others. That is as it should be.

Indeed, this is how you stop the slippery slope argument from coming true: by taking seriously the morally serious choices that cultures make.

But, gosh, Cosh has a point, too. Selley states that "rights are not normally granted to a group until it can produce respectable representatives to lobby on its behalf." But isn't there always a risk of courts getting out front?

Once the court starts making decisions on the basis of the most abstract "rights" grounds, without any nod to the value distinctions currently operative, any kind of slippery slope is possible.

It is precisely because the court in Massachusetts made a morally serious decision without the consent of the governed that the fear of polygamy, and worse, is a reasonable one. When there is no deference to the moral decisions of the people, decisions can only be made on the most abstract grounds. Under these conditions is the fear of polygamy so unreasonable? The people are no longer in control; the slippery slope extends before us.

And, for the record, I don't find Mark Steyn's latest persuasive on this score. Steyn is a brilliant and funny righter, and write a lot, but Muslims pressing for religious acceptance of polygamy is not the same as greater mainstream acceptance of gays. Maybe he does not like the latter, but it's a social fact. Personally, I don't believe that acceptance has gotten to the level of marriage--the Massachusetts court overreached and we're seeing a reaction--but there seems little doubt that the direction mainstream culture is taking on gay matters is quite different from the way it would consider the implementation of Sharia law.

In the US anyway. Canada is a different story.

Best,

Fenster

We're not going to see legally sanctioned polygamy in America any time soon.

All judges are ultimately answerable to the Supreme Court, and the composition of the Supreme Court is decided by democratically elected presidents.

Any important Supreme Court decision that deviates too far from what the American people consider reasonable will eventually be overturned due to a shift in balance created by later appointments.

This part of the American Constitution works quite wonderfully. That's why I have no great fear of "activist" judges.

Posted by: Graham Lester on January 6, 2005 12:03 AM

These things are so complicated. We're all still trying to figure out exactly what is meant by "inalienable rights endowed by their Creator: namely, life, liberty, and the pursuit of happiness." And, poetic though that might be, it might not really be a good map for organizing a society. I am uncertain whether ole Tom would in fact say that outlawing polygamy was OK. He pursued a sexual relationship explicitly prohibited by the laws and customs and social acceptance of his own day. His longtime liason with Sally was just as outside of what society was willing to accept then as gay marriage is today. IS the "pursuit of happiness" REALLY a right which should be considered when passing laws? It might make me very happy to steal your car. Society says that is illegal. We have obviously denied people rights that they might define as "liberty" or "the pursuit of happiness" routinely. But did we get it right when we did that?

I think part of the problem is that we are schizophrenic as a society--we think that "majority rules" isn't really the basis for good laws. So we keep veering back and forth, because we do allow "values" to play a part. It was a "value" of some peope in society that segregation was immoral--while some thought it was highly moral. Now..gay marriage.

Posted by: annette on January 6, 2005 11:43 AM

Once the court starts making decisions on the basis of the most abstract "rights" grounds, without any nod to the value distinctions currently operative, any kind of slippery slope is possible.

I read the Massachusetts Court Decision, and as a supporter of gay marriage I found it completely absurd.

If the Massachusetts Court had ruled narrowly, stating the State could not discriminate on the basis of gender in marriage, the "slippery slope" would have been avoided completely. No door is left open for polygamists or worse.

Therefore, I'm mildly challenging the notion that the courts are at fault for overturning a commonly held "cultural value" - all they needed to do was be concise and smart about it and all would be well. Racist cultural values were overturned by courts without much slippery slopeness getting involved, I might add.

Posted by: Jonas Cord on January 6, 2005 6:50 PM

And since the original purpose of the marriage contract is now lost in the mists of time, why shouldn't kiddies get married then? Y'know, their parents could arrange cute little ceremonies and they wouldn't live together or anything. Like, it would be cute, right? Gee, I mean nine-year-olds are wearing thongs and belly rings.

Posted by: Dave F on January 11, 2005 4:34 AM






Post a comment

Name:


Email Address:


URL:


Comments:


Remember your info?