Along the Tracks

Wednesday, May 28, 2003

Robert George takes a swing

Over at NRO, Robert George enters the fray over the Texas anti-sodomy law and Sen. Rick Santorum’s comments of a month ago.

He treads over the same tired ground, “proving” that if the standard of legal sexual activity is no longer demarked by the marriage vow, there is no non-arbitrary standard at all. Like most other arguments I’ve seen, George attempts to dismiss the criteria of “consent” by tossing out a litany (two, in George’s case, which are mostly parallel) of non-traditional sexual options and defying the reader to differentiate the “protected” from the “non-protected,” according to a consent standard. But also like the others, George seems to simply assume these acts as one and the same, regardless of their differences. Let’s take a look.

All these lists run in order of increasing offensiveness to traditional norms. Therefore, fornication comes first, followed by adultery, then sodomy. Consider these for a moment. The first two describe not the specific act, but the relationships involved - regardless of the form their sexual expression takes. You cannot fornicate or commit adultery (in the physical sense, at least) inside of marriage. However, the next “misconduct” (George’s word) is sodomy - an action, not a relationship, and something which could very well take place inside a marriage. Already, we see issues being conflated to bolster an argument weak on its own. What are we outlawing here, certain relationships or certain acts? The legal arguments for each are quite different. Relationship-based sexuality laws are (as George identifies) grounded in the unique legal recognition of marriage - a consensual contract. Act-based sexuality laws, however, are founded in “natural law” philosophy, and therefore make no distinction as to the relationship or consent of the people involved. Yet, George and other defenders of anti-sodomy laws lump them all together, apparently seeking strength in numbers (or confusion).

“Polygamy” is a red herring, as the marriage contract clearly falls in the realm of state regulation. If Utah, for example, chose to sanction polygamy between unrelated, consenting adults, up to whatever number of spouses the state chose, it would be free to do so. At the same time, public sentiment elsewhere might make those marriages null and void outside Utah. The federal government would only step in if the conflict led to constitutional problems. This is precisely where we are with the gay “civil union” debate, as some states seek to “protect” marriage by refusing to recognize civil unions from Vermont. While I personally favor state recognition of civil unions, I also believe it is up to the states, through their legislatures, to decide. This is a matter of contractual regulation - but not a matter of sex.

“Group sex” involves non-contractual relationships, and as long as there is consent among those involved, then this sordid affair must be regulated - or not - in the same way as any other non-marital consensual sexual relationship.

As the list progresses, things get even more interesting (legally speaking, of course). The term “prostitution,” next up, once again describes a relationship, this time a contractual, monetary relationship - clearly in the realm of state regulation, as such (again, as is marriage: a non-monetary, permanent - supposedly - contractual relationship). Whatever the two people are “trading,” the state has the right to regulate the contractual terms in the name of stabilizing commerce. Legally, sex doesn’t - or doesn’t need to - have anything to do with it. (Interestingly, another vice legal in Nevada and some other places - gambling - can also be seen as falling under the auspices of commerce regulation, as George notes.)

The next item on the George lists, “consensual adult incest,” is the one that always stops people cold. If allowing sodomy means allowing incest, count me out. Indeed. But allowing sodomy does not mean allowing incest. Incest returns us to the realm of relationship regulation, and there is no reason why eliminating laws against a specific sexual act should have anything whatsoever to do with the regulation of relationships. That argument fails.

But what of relationships? Would giving homosexuals the right to enter civil unions, for example, open the Pandora’s box, forcing the recognition of incestuous relationships? I certainly don’t believe so. It could be argued quite convincingly that no sexual relationship between close blood relatives can be truly consensual. The prior familial connection involves legally-recognized coercive relationships (parent-child) and interior power structures (sibling rivalry and dominance). These are part and parcel of the family’s traditional and recognized role in raising children to adulthood. The child is gradually built into an independent adult capable of consent. Any effort by members inside these restricted parameters to produce an outcome in which a sexual relationship with another member of the “inner circle” is “consented to” would be aided by the coercive environment - taking away the individual’s true ability to consent. The very reason people are offended when a boss “takes advantage” of an intern in a workplace is because we agree that the young person is not capable of full consent when a coercive relationship is implied, even if it is not overtly stated. Sexual harassment laws provide a level of protection and an avenue of recourse for these organizational relationships. The family is a far more coercive situation, where any potential recourse could have not only financial, but also severe social and emotional repercussions - that is precisely why so often such sexual violations are only discussed years after their occurrence, when the victim has been able to extricate herself (females are the primary, but not universal, victims of incest) from the relationship’s coercion. Temporal adulthood does not necessarily open the avenues of consent inside the family. Incest remains indefensible by both the relationship and sexual-act regulation arguments.

Finally, George (as with others similarly defending their side through confusion) cites “bestiality” as potentially opened to legal recognition if a sexual privacy right is “created.” This is another relationship-based argument, not act-based. It is also a subtle attempt to remove the debate from the simple realm of animal cruelty, giving animals recognition as independent, cognitive agents inside human society. George says the idea that animals might consent to sex with humans “depend(s) on one’s views about the rights of animals and their capacity to consent.” Tell me, Robert, when was the last time your dog said “yes” to anything? Sure, we “understand” our animal companions, know what they like, often even know what they want. But even a chimp genius could not comprehend a request for sexual favors or (most importantly) its right to refuse, because a) it can’t understand the language and b) it has no concept of legal rights. Indeed, if we claim animals can consent to interspecies sex, how can we possibly claim people with mental disabilities or in a vegetative state do not “consent” when they are violated in group homes or hospitals. Yet the law invariably recognizes those with limited mental or responsive capacity cannot independently offer consent to a wide range of financial, contractual or physical proposals. To drag our animal friends into the realm of independent, “consenting” agents is to dilute the term “consent” to irrelevance. Suggesting bestiality involves “consent,” and not cruelty, is patently ridiculous.

George and the other social conservatives are bent on denying homosexuals any right to create and nurture the relationships to which they are genetically predisposed. They even have a well developed legal recourse which they could follow: the enforcement of laws which make all sexual activity outside of state-sanctioned marriage illegal. Yet, they refuse to simply step forward and admit this. Instead, they claim to accept homosexuality but not certain acts which the expression of homosexuality involves. In doing so, they are the ones who tread a slippery logical slope which, for consistency, requires them to ultimately oppose any sexual act which is not procreative, INCLUDING INSIDE THE MARRIAGE RELATIONSHIP. The Supreme Court has already stated in previous opinions that this line of reasoning fails to meet constitutional standards. I have no doubt it will say so again, when it releases its decision in the Texas case.

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