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 Münster 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.