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    “Polygamy would have to be permitted”

    “Polygamy would have to be permitted”

    Also, “it’s just bad faith to forbid the brother and sister on these putative health grounds”

    The words in the title and subtitle were spoken by one of the leading thinkers and advocates in favor of gay marriage, University of Chicago Professor Martha Nussbaum, in a speech she gave at Cornell Law School in 2009 (video and discussion below).

    I was reminded of those words after Dr. Benjamin Carson created a stir when, during a television interview, he made the following comment (emphasis added).

    Marriage is between a man and a woman. It is a well-established fundamental pillar of society, and no group — be they gays, be they NAMBLA [North American Man/Boy Love Association], be they people who believe in bestiality — no matter what they are, they don’t get to change the definition. So it’s not something that’s against gays; it’s against anybody who wants to come along and change the fundamental definition of pillars of society.  It has significant ramifications.

    That last highlighted portion often is not quoted when Carson is attacked for allegedly “comparing” those other unlawful acts to consenting homosexual sexual relations.  As Patterico points out, the actual words used by Carson were not a comparison of one to another, which Carson also denied in a follow-up interview.

    Rather, as John Nolte at further pointed out, No Media Outrage After Sotomayor ‘Compares’ Homosexuality to Incest, Dr. Carson raised the question of where society draws the boundry once one man/one women no longer is the standard.  This also was raised by Justice Sotomayor during oral argument last week. Here’s the question Justice Solomayor asked (emphasis added):

    Mr. Olson, the bottom line that you’re being asked — and — and it is one that I’m interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to — that could get married — the incest laws, the mother and the child, assuming they are of age — I can — I can accept that the State has probably an overbearing interest on — on protecting the a child until they’re of age to marry, but what’s left?

    Nolte continued (emphasis in original):

    To be clear, I do not believe Sotomayor compared homosexuality to anything. What she did is what Dr. Carson did: she played devil’s advocate about the slippery-slope of what might come next if we open the Pandora’s box of changing the definition of marriage. And to make that argument, like Dr. Carson, she used illegal and immoral relationships (not homosexuality) as slippery slope concerns should the definition of marriage be held to include gay marriage.

    But no one on the left or in the media cared that Sotomayor used the horror of incest to make a point about same-sex marriage — because Sotomayor is a leftist and they know which way she is going to rule. Moreover, the point she was making was obvious.

    The point Carson was making was just as obvious.

    This all reminded me of a post I wrote after gay marriage was legalized in NY State by the legislature, On what rational basis does NY State now deny polyamorous clusters the right to marry?

    Once society decides that one-man, one-woman no longer is the “arbitrary” standard, on what rational basis do we stop at one-and-one?

    In that post I pointed Nussbaum’s speech at Cornell Law School in 2009, Same-Sex Marriage and Constitutional Law: Beyond the Politics of Disgust (full 1:35:00 hr. video at link).

    Nussbaum laid out the argument later invoked by Judge Walker in the Prop. 8 trial which deconstructs marriage into its parts and demonstrates that each of the parts can be obtained through gay marriage or at least is not a necessary a part of heterosexual marriage.

    We saw that approach in the oral arguments when Justice Kagan pointed out that we permit marriage of people in their 50s even though there is little chance or purpose of procreation — so how could procreation be a legitimate state interest in not permitting gay marriage.

    Nussbaum, as did Dr. Carson and Justice Sotomayor, confronted the slippery slope — and came down on the side of permitting polygamy and brother-sister incest based on the type of analysis which led her to support gay marriage.

    In the audio below, Nussbaum is questioned by a student whether he should be permitted to marry his parents, since there were valid estate and other tax reasons to do so.

    Nussbaum then addressed several aspects of the slippery slope.  She rejected bestiality out of hand as lacking necessary consent.

    Nussbaum stated, as to polygamy, there really was no justifiable state interest in banning the practice, particularly if past unequal gender roles were addressed by more modern polyamorous considerations:  “”Polygamy would have to be permitted.”

    More inflamatory was her position on incest between siblings.  While willing to draw a bright line on parent-child incest because of the compelling state interest in fighting child abuse, Nussbaum nonetheless applied the deconstructive analysis to sibling incest and found the state interest to be marginal:

    “But then when you get to brothers and sisters, well, you know, now we know so much about the genes, and we certain don’t forbid people with Tay-Sachs [garbled] to get married. So I feel that it’s just bad faith to forbid the brother and sister on these putative health grounds.  If one at one time states did think they had that interest, they don’t have that anymore.”

    I don’t expect Nussbaum’s intellectual justification for polygamy or sibling incest to gain much societal traction, although there certainly are groups already clammoring for polyamory.

    The slippery slope is an intellectual problem.  Discussion of that problem is not anti-gay or anti-anything.  Nussbaum accepted the slippery slope far more than Dr. Carson (or presumably Justice Sotomayor), but I don’t expect her to be boycotted on campuses like Dr. Carson based on claims she made a “comparison” of consenting adult homosexuality and bestiality, polygamy or incest.

    The attacks on Dr. Carson are just politics as usual.

    At some point society makes a determination where to cut off the slippery slope.  The issue is whether that line will be drawn by the Justices of the Supreme Court, something they seem hesitant to do.


    [Note: The intro was changed shortly after publication to clarify that the quotes in the title and subtitle were from Nussbaum.]


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    […] “Polygamy would have to be permitted” Also, “it’s just bad faith to forbid the brother and sister on these putative health grounds” […]

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