Friday, July 22, 2011

Revising Monogamy, or the Prophet Homer Simpson

In 2003, when the Supremes ruled that states can't criminalize same-sex sex acts, Justice Scalia dissented that this reasoning demands that any so-called "private" behavior be legal, including polygamy. Of course, he wasn't the first to see a slippery slope in the derivation of a "right to privacy" in the American Constitutional tradition.

Since then, those who object to same-sex marriage have commonly repeated Scalia's notion, to the cacophonous catcalls of the cause's champions.

Lately, of course, the champions of the cause seem to be carrying the day, as the enlightened legislators elected by the enlightened citizens of New York have voted to equate same-sex relationships with opposite-sex relationships by legalizing same-sex marriage.

Meanwhile, in the deserts of Utah, a small, unconventional "family" is suing for what they call same right, the right to be left alone. And their intrepid attorney makes their case in--you guessed it--the Gray Lady.

Jonathan Turley, Esquire, pillories Scalia, of course. One can't mention Scalia in the Manichean Times without damning him. Taken as a whole, however, his piece affirms that Scalia was right in his pronouncement, as Turley rejoins with the journalistic equivalent of, Who cares? It's none of your [obscene participle deleted] business! Here's a telling quotation:

Justice Scalia is right in one respect, though not intentionally. Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. Otherwise he’s dead wrong. There is no spectrum of private consensual relations — there is just a right of privacy that protects all people so long as they do not harm others.

In other words, there's no slippery slope: the "right to privacy" is an elevator straight to the bottom. There's no spectrum because the right of privacy trumps any perception held by the public that a "private" behavior is wrong. So stop trying to scare the public with nasty-sounding terms for esoteric, allegedly "perverse" behaviors. It's all just "privacy." Turley's objection to Scalia is not his reasoning about what privacy entails but his disapproval of any of the behaviors deemed private.

Concerning plural marriage, we urge Mr. Turley to do the math and the history on the way to deciding what deserves disapproval. Men and women exist in approximately equal numbers. If they pair off exclusively, all have more or less the same chance for forming a family. If some men take multiple wives (essentially it never works the other way, of course), some men are deprived the chance. Thus arise power plays: rich men enticing multiple wives, progressively younger, while poor men are strategically marginalized (note the polite understatement). Stories of teenage males being pushed out of polygamous communities in Our Republic's still lawless Intermountain Region are but one example (the M√ľnster rebellion is another) of the inevitability that arises from human arithmetic. It's not for nothing that some describe the development of monogamy as the most powerful social equalizer in human history. Monogamy, dare we say it, is the foundational institution of social justice.

By the way, this is the genius of the biblical standard of monogamy: that in a culture that had never questioned polygamy, the Bible begins with the articulation of the monogamous ideal, proceeds to narrate polygamy as an inevitably disastrous adventure, and climaxes with a story that forever makes all human relationships--including permanent, faithful, heterosexual marriage--about serving others rather than self. "Privacy" gets crucified, if you will.

But back to the politics in a democratic republic. In many areas we consider it the state's business to regulate otherwise private behaviors for the public good. SWNID can't shoot deer or burn trash in his back yard, for example, even though there are private benefits to both and little, if any, direct public detriment (a few rounds from a single rifle or a little smoke from a single trash fire are statistically no  risk to anyone). But the reasoning for prohibiting such things is Kantian: what if everybody did it, or at least a lot of folk? We don't want the city's atmosphere filled with bullets and smoke, so we forbid even one act that, when replicated, gives rise to disastrous social outcomes.

The state has at least as much an interest in regulating what constitutes "marriage" as it has enforcing zoning laws, minimum wages, or a host of other matters that are essentially "private" (like, no joke, how big the SWNIDish compost pile grows in our urban landscape). Let's generously include the ObamaCare health-insurance mandate (tread carefully here, conservatives: your opportunism in attacking what might be ephemerally the political weakness of the Affordable Care Act may come back to bite you). That's why historically our laws have shown a sharp preference for opposite-sex monogamy as marriage's standard: isolated polygamy may be "mostly harmless" to everyone else, but what if it weren't isolated?

Truth is, we use laws all the time to encourage otherwise private behaviors that we deem preferable. "You can't legislate morality" simply means that law doesn't change people on the inside or attain 100% compliance with any law. Law influences behaviors away from what is illegal, as the slowdown on the highway near the state trooper's roadside hiding place persistently demonstrates.

Advocate-for-hire Turley does SWNID's work for us by tacitly acknowledging that "marriage" in our culture is already on life support. He notes the obvious: "In olden days . . . Now, heaven knows, anything goes" [not Turley's words, but for sure Cole Porter knew what he was talking about]. Specifically, Turley's piece would have no significance were it not for the fact that Western culture decided a generation ago that marriage is "just a piece of paper," not the socially preferred means of acting sexually and forming families. In that respect, his legal reasoning is almost immaculate.

We say "almost" because such reasoning sooner or later runs into the problem of social effect. That is, after people get on the privacy elevator and it swiftly descends to the behavioral bottom and opens its doors, they have to look around.

In 2005, Homer Simpson opened a same-sex marriage chapel in his protean garage. Challenged by the ever-insightful Kent Brockman that his practice meant that anything could be married to anything, Homer explored whether any limits remained: "It has to exist! . . . Or does it?" Those prophetic words now echo down the corridors of history.


Anthony Jones said...

Well said...only question/critique I may have is the belief that we are in a slow spiral downward with regards to our approach to marriage. Has there not always been transgression and resistance with regards to the ideal for marriage and the formation of families? I don't know how legitimate this statistic is, but I was told by a person that I would typically trust recently (yeah, didn't care enough to look it up) that around 40% of the children born in the decades after the American Revolution were fathered outside of marriage. In the same way people often wrongly think that "now times are worse than ever!" and "the end times must be near because it just keeps getting worse!", sometimes I wonder if the ideals of marriage have consistently been broken throughout human civilization. Not confident in that conclusion, but I do have that question.

JB in CA said...

SWNID: I agree wholeheartedly with your argument. I'd point out, however, that it provides a perfect example of how individual cost/benefit choices can sometimes have a negative impact on the common good. We can't always rely on Adam Smith's "invisible hand" to mold the collective pursuit of individual self-interest into what's best for society as a whole.

P.S. Nice reference to Kant, but I wish he'd quit getting credit for the idea. We all know it must have been some prehistoric mother who first came up with it:
"But mom, why can't I throw my McBronto Burger wrapper out the window?"
"Because, dear, what if everbody did that?"

Jon A. Alfred E. Michael J. Wile E. SWNID said...

AJ, we don't think that we're in a slow spiral downward. We simply think that the move to call same-sex relationships "marriage" is historically unprecedented and so momentous, in a bad way.

JB, our devotion to Adam Smith does not extend much beyond fiscal and trade policy. We also decry his attempt to derive comprehensive ethics from his observations.

JB in CA said...

Yeah, I know. But that's what I find difficult to understand. To my mind, economic and (the rest of) social life are so intertwined that if the "invisible hand" fails in one, it fails in both. And, likewise, if it succeeds in one, it succeeds in both. So in either case, the real challenge, it seems to me, is to figure out when to say "hands off" and when to say "hands on" so as to promote the common good and avoid the social evils.

Jon A. Alfred E. Michael J. Wile E. SWNID said...

Burke, we think, would say that you have to assess, with due consideration for the human capacity to overestimate our capacities, what you can actually accomplish, and then decide on what you can deploy your very limited political resources to influence the social fabric.

JB in CA said...

What can I say? Burke was a smart guy. No doubt that's why he also believed economics should be subordinate to social issues. It wasn't until this century that you find self-professed conservatives reversing the order.

Jon A. Alfred E. Michael J. Wile E. SWNID said...

Don't confuse our cry for less restraint in the markets with libertarian conservatism. It is really a response to the resurgence of the neo-socialist left of the last decade. Insistent anti-Bush, class-warfare rhetoric after the 2000 election has produced a generation that dreams of prosperity through redistribution and continues to utter absurdities disproved in an earlier generation.

We seek not to make economic liberty the highest good but to underline the caution that rampant redistributive policies are good neither for the economic nor the social fabrics.

So, in the present, when loud voices call for social libertarianism and economic redistribution, we point out that both are doomed. Removing social incentives to virtue will not make people more virtuous, and restraining economic incentives to productivity will not make people more productive.

JB in CA said...

Removing social incentives to virtue will not make people more virtuous, and restraining economic incentives to productivity will not make people more productive.

I agree with this up to a point, but we humans are a strange lot. Sometimes removing social incentives to virtue makes people (on average) more virtuous. (When prohibition was repealed, e.g., crime—and in particular, organized crime—dropped dramatically.) And sometimes restraining economic incentives to productivity makes people (on average) more productive. (E.g., Standard Oil grew exponentially after the government took away its incentive to monopolize the market.)

More to the point I was trying to make, however, is the fact that sometimes—often?—there are "crossover" effects. Sometimes, e.g., economic incentives to boost productivity have a negative impact on social virtue, and social incentives to promote virtue have a negative impact on economic productivity. A classic example of the first dynamic is the legalization of gambling; a classic example of the second is the curbing of prostitution. Sometimes we have to take a stand in favor of virtue (individual or social) at the expense of prosperity. But all too often in the current debate (catfight?), it often sounds like the only issue on the table for conservatives is prosperity (under the heading of “tax cuts”). I think that’s unfortunate, and I also think it’s why libertarians usually end up winning when conservatives have their way at the polling booths.

JB in CA said...

I got carried away. Strike one of the "often"s in the penultimate sentence. I'll let you choose which.

Jon A. Alfred E. Michael J. Wile E. SWNID said...

We offer the rejoinder that prohibition did restrain the consumption of alcohol, which was its aim, after all. It will be a strange outcome indeed if legalizing same-sex marriage leads to fewer same-sex relationships. There is certainly an opportunity in the mix for people who believe in the orthodox Christian notion of marriage to raise their game, but that will only have statistical impact if they persuade others of their position.

It's our assumption that people advocate political and economic positions out of self interest, thereby often taking unreasonable extremes on otherwise reasonable positions. We find it awfully hard to decide who is making the worst of that at any given moment. And we confess profound indifference to the phenomenon, as it doesn't say anything about which position has more merit.