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

Sadly, EVERYTHING to the left is just politics as usual. Anything can be justified as long as it benefits the left.

Too bad Dr. Carson couldn’t have been our 1st black president … plus, I’m sure he was born in this country. Plus, I’m sure he has a valid SSN, etc.

conservativegram | March 31, 2013 at 6:01 pm

Thank you for addressing this, Professor. I believe the whole goal of this fight for ssm is to start that slippery slope. I believe the true goal isn’t about equal rights, but is to destroy the sanctity of marriage. Dr. Carson and Reverend have have it right. “Rev. Graham said it is God who defined marriage as the union of a man and a woman, and it would be a great mistake for our nation to go down the road of changing what God has ordained.”

    conservativegram in reply to conservativegram. | March 31, 2013 at 6:03 pm

    *Graham* should have proof read first

    I agree with you about the sanctity of marriage is the ultimate goal here. If you consider the Canadians have had SSM for 10 years and .8 of 1% of married and unmarried couples in Canada are SS and .0033% of married couples are SS, there is little evidence millions of gay people are really clamoring for the fundamental “right” to marry. We are told gay people are being discriminated against much like blacks because this is how they were born so we can assume the prevalence of gay couples would approximate what we find in Canada.

    I think it could be tempting, when considering how few people we are talking about here, to say what harm could come from changing definitions of marriage to protect this group. This older Megan McArdle blog post covers the harm that has come from each attempt at social engineering since the 50’s to show there could be quite a bit of harm. Then we consider the harm that could arise when religious organizations are inevitably deemed discriminatory when they refuse to marry a SS couple. Add to that the folks like Dr. Carson and many others who will be ostracized because their religious beliefs prevent them from towing the politically correct line about gay marriage and we are talking a great deal of harm. But as Megan McArdle noted in each case of social engineering those who warn of problems are deemed irrational but in hind sight the outcomes were in fact worse than the “irrational folks” predicted in advance.

    The best predictor of a vote against Obama last election was marital status. Those who believe gay people who are granted the right to marry will be suddenly more inclined to vote Republican are delusional. I really don’t buy the argument that younger voters consider this a “gateway issue” either. The goal here is to undermine marriage further. It also provides a new venue to undermine religion the same way health care was used to force Catholics to violate their conscience. We’ve been down this road and then some, yet somehow this time will be different. Puh-leeze.

      el polacko in reply to Mary Sue. | March 31, 2013 at 10:46 pm

      so, if the numbers ar so small, how are these few legal marriages any kind of a threat to anybody ? we’ve also had marriage equality in massachusettes for nearly a decade now and none of the predicted social catastrophe has some to pass. in fact, massachusettes has seen their divorce rate go down. maybe gay citizen’s desire to be legally married has reminded people of the socially important, stabilizing affect of marriage.

        Ragspierre in reply to el polacko. | April 1, 2013 at 5:23 pm

        “we’ve also had marriage equality in massachusettes for nearly a decade now and none of the predicted social catastrophe has some to pass.”

        Really? Support that.

        There is no such thing as “marriage equality”. There is only marriage. It is not conditioned by a modifier. Any more than “angular circles”.

BannedbytheGuardian | March 31, 2013 at 6:07 pm

I believe one ought be able to marry oneself. Why should single people not be equal. Their families can be contracted out like gays & they could get al the tax benefits.

Plenty of people love & cherish themselve & in the words of the. Lovely Olivia , hopelessly devoted t themselves.

    TrooperJohnSmith in reply to BannedbytheGuardian. | March 31, 2013 at 6:15 pm

    I’d like to marry my beautiful Dyson vacuum cleaner, another genius idea from you Limeys. Of course, I’d also keep the Missus…

      BannedbytheGuardian in reply to TrooperJohnSmith. | March 31, 2013 at 6:52 pm

      Trooper…and who would be doing the vacuuming?

      British people want to marry their dogs mostly.

        BannedbytheGuardian in reply to BannedbytheGuardian. | March 31, 2013 at 7:07 pm

        Also you realise that being a hot vacuum is only the lure.

        Once married it will not be wanting to vacuum either by itself or as a trial or even as a sex toy.

        But you will have to maintain it .

Ok, I know I’m going to catch hell for this, but I’m going to ask the question anyway, because there is a logical inconsistency in the treatment of property that arises:

Why is bestiality different in the slippery slope argument and dismissed out of hand? Why would a piece of property need to consent to anything that you are doing to it (owned animals are considered property under the law in every state). If it was someone ELSE’s owned animal, I could see an argument for lack of consent from the OWNER, but not from the animal itself.

Furthermore, other than they are cute and cuddly most of the time, why does a piece of property have any specific “right” or “expectation” of the way it should be treated? Why do we treat “animals” differently than we treat a television, or a toaster, or (GOD forbid) a “sex toy.” None of those are dismissed due to a “lack of consent.”

It’s always been one of my great annoyances with the way the law regarding animals has developed. Either they are property, or they are not. The “half-measures” adopted under current law give them “quasi-rights” which makes no sense.

    SoCA Conservative Mom in reply to Chuck Skinner. | March 31, 2013 at 6:38 pm

    They are also tasty, perhaps more tasty than a toaster or sex toy. But I do understand what you are saying. I’m a devoted carnivore, but I don’t advocate mistreating animals prior to slaughter.

    ThomasD in reply to Chuck Skinner. | March 31, 2013 at 7:01 pm

    Chuck, I think your question imminently valid. In ordinary circumstances my reply would be that the concern is not so much for the property but for the owner. That is to say, we prohibit certain abusive behavior because they are, in and of themselves, harmful to the actor, and the society as a whole.

    Of course, given the latest track, that concept of civic hygiene is right out the window.

    Brave new world indeed.

    DemosthenesVW in reply to Chuck Skinner. | March 31, 2013 at 7:07 pm

    I won’t give you hell for the question.

    If animals are strictly property, in the same sense as inanimate objects, then they don’t need to consent to anything you do TO them — as long as you own them. However, as far as the discussion of marital contracts is concerned…which is where this started…animals could still not enter into contracts, because they can’t give consent. The slippery slope might lead from gay marriage to various types of polyamory, various types of incest, or even (if we redefined the ideas of who was capable of entering into a contract) marital relationships between adults and competent minors — of the straight, gay, polyamorous, and/or incestuous varieties. But it wouldn’t lead to the marital enshrinement of bestial relationships. You can do things TO animals, but not things WITH animals. Not in the sense that you and your property can agree to mutually acceptable terms. (And now I feel ill.)

    As for the concept of animal rights, one can believe those rights are of a natural type (e.g., God-given rights, or else rights arising from their nature) or a legal type (i.e., rights that we have agreed to give them). Either of these views could be consistent with the idea that animals are property.

    We could say, for example, that animals have some subset of the natural rights that we have — the ones that arise from their being alive, and (to a limited extent) self-aware, but which are still consistent with their being ownable beings. So, perhaps they don’t have an inalienable right to life, but they do have a right to a basic minimum standard of treatment. Such a stance would be consistent with a Christian worldview…God has given animals to us to use, but we owe them a measure of consideration in how we use them.

    Or we could say that we have agreed to give animals a certain set of rights, even though they don’t have them naturally. That picture is trickier, but it might look like this for an adherent. Most of us tend to believe that how we treat animals, especially the domesticated ones in our care, reflects on our moral character…wouldn’t you say? So these “rights” of theirs, which they cannot enforce in the ways we can enforce ours, are therefore not actually rights at all. They are a set of obligations that we have imposed on ourselves.

    The one view that doesn’t seem to go through for most people, intuitively, is the idea that animals have NO rights at all. And I think most people are right to think so. We can call them property, and we certainly can and do own them. But sixty seconds’ worth of experience should give you all the evidence you need that there are differences between a dog and a lamp, in that the first one reacts to you, and the second one does not — and maybe more importantly, that the first one reacts DIFFERENTLY to you as you act differently to it, and the second one does not. Animals do have a consciousness, clearly. They feel joy, and sorrow, and pain, and contentment. Whether that entitles them to natural rights or not, we generally feel that they are at least entitled to legal rights, based on those clear-cut behavioral differences.

    Having said all that, I share your annoyance with the current state of rights law. I believe it comes from the fact that most people don’t think about it, and will just accept whatever justifications look and sound good (that is, those that agree with their beliefs) on a case-by-case basis. There’s something to be said for such a pragmatic attitude in the short run, but in the long run, it can lead to tangled knots of law and custom. And I am grateful that there is someone out there who is still asking questions. in reply to Chuck Skinner. | March 31, 2013 at 7:25 pm

    You can’t marry an animal because marriage ultimately is a contract and you can’t make a contract with an animal.

    As for same sex marraige, it will be interesting to see how the family courts work out their inherent bias against men when both parties in a divorce are male. Will bottoms get the same preferential treatment that women now get?

    Ok. After reading the replies here, I realized that I was looking at this from a slightly different angle than I had previously looked at this before.

    Previously this has come up in the context of “Why should bestiality be banned?” to which the animal-rightists answer is “Because the animal cannot consent to the act.” to which my response has always been “under the law, it is a piece of property, it doesn’t have to consent.”

    In this context, it is not that act of bestiality would have to be permitted or denied, but the contract of bestial marriage would still be denied because the animal does not have the legal status to enter into a “marriage contract” as recognized by the State.

    Although, that immediately raises the question: What happens if we ever give animals the right to enter into contracts? Specifically, I’m thinking of some of the work done with Koko the Gorilla or Kanzi the bonobo, both of which have learned language and communication, use and creation of tools, and Kanzi knows how to make fire. Is it possible that they could understand the concept of contract?

      DemosthenesVW in reply to Chuck Skinner. | April 2, 2013 at 10:00 pm

      Well…no. It’s kind of both. Certainly bestial marriage would not be permitted, as the animal cannot consent. But animals are an entirely different kind of property from most things that fall under that name. They do have preferences, and they do have feelings. And that does make a difference. What sort of rights animals might have is, at present, unclear…but I think most people would concede that they have some.

      Is it wrong to attempt intercourse with a human being that is unable to consent? If your answer is yes, as I’m sure it is, then why would bestiality be alright? Would it just be because animals are property? But they don’t behave like other types of property, do they — so why should we regard them as exactly the same? You could whip a table for hours without hurting it (though you might damage it, which is not the same thing). If you treated a dog the same way, you would kill it — or it would kill you. Doesn’t that behavior indicate a being possessing a conscious mind, who might not want to have sex with you?

      About animals and contracts: There are certain animals that display an impressive degree of ability to communicate with us on our terms, to use our tools, etc. And if they advance further along the scale, we may have to address your question. But bear in mind that the examples you give are thinking and behaving on roughly the level of a very bright child. Could a seven-year-old consent to a marital contract, or any other type of contract? No? So why should Koko be able to do so, just because she’s a genius when compared to the average member of her species?

TrooperJohnSmith | March 31, 2013 at 6:12 pm

Anymore, my personal litmus test for anyone on the right supposedly saying something “outrageous” will be the following:

(1.) The full quote or conversation is recorded, both audio and video;

(2.) The full context of said utterance is available;

(3.) I see and hear the person begin and end said conversation.

Only then, will I entertain giving credence to anything that comes from the MSM.

And we all know who they are.

I am currently re-reading Robert Bork’s book, “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” a must read for understanding of today’s politics and society.

Conservatives will not win the moral relativism battle. They must stick to absolutes whether or not they win or lose political power.

Moral relativism and nihilism synthesize good and evil in order to permit more evil, ergo “homosexual marriage.”

God made it clear that there were boundaries not to be crossed. And…

“Art, like morality, consists of drawing the line somewhere.”
G. K. Chesterton

So far, I completely agree with Dr. Benjamin Carson and plan to share it on my blog. He is truly a well spoken man of courage.

Conservative Beaner | March 31, 2013 at 7:10 pm

If SSM is upheld as a right then the real fun begins. I can see the local Reverand, Priest, Rabbi or Imam, well maybe not the Imam taken to court since they would not perform the ceremony which is agaist their faith.

Lawsuits and threats against tax exempt status will be in play and nothing would please the left more than seeing religion taken down another notch.

Subotai Bahadur | March 31, 2013 at 8:37 pm

When the US Supreme Court overturned Texas’ sodomy laws they were probably overturning a law that was in fact poorly written, and rarely applied. One can make a case that states have the rights to have laws that are stupid, until they reach the point that the people of the state themselves change it. However, notwithstanding this, there is one huge flaw in the Court’s reasoning. By explicitly denying that there was any legitimate government interest in the nature of the society shaped by the government’s laws, they threw open the legalization of many things that most Americans find to be an abomination. Polygamy? The same reasoning, word for word, used to make homosexual sex literally a Federally protected act can be used to justify polygamy. Polyandry? The same. Incest? Absolutely the same. [for those who raise the issue of genetic risk, the courts have already ruled that there is no state interest in restricting marriage between those carrying other genetic defects that have a higher risk of birth defects] Child Sex/Marriage? The courts have taken an interest in preventing child sexual abuse; however they have also made the sexual expression of minors protected too. Statutory Rape laws are an endangered species. In fact the courts have ruled that there is a state interest in fostering the sexual activities of minors, especially over the objections of parents. The rulings that children may be provided both birth control supplies and abortions, secretly over the objections of parents, weakens any precedent for a court stand otherwise in the near future. If some case is brought forth, claiming that in fact that such is protected by the rubric of marriage, can you truly believe the Left will not jump on it?

If society cannot favor one social paradigm over another one; what basis is there to oppose a demand that Muslims be allowed to follow Sharia Law in matters of the family? Aside from the treatment of women [which since Muslims generally are not Republicans, does not constitute a “War on Women”]; there is the matter of sexual mores. The age of marriage and sexual majority is 9 years old for females. And hundreds of thousands of Americans stationed in Muslim countries have seen the casual acceptance of pedophilia involving both sexes. If no cultural matrix is superior or inferior to another, what basis other than prejudice and bigotry could underlay criminal prosecution under Western and Judeo-Christian ethics?

The destruction of one social-legal standard does not automatically mean that it is replaced by another one. If there are no standards, then each individual is free to respond to insults to his own set of beliefs in any way he or she chooses. Quite an interesting brave new world we are creating; where tolerance equals submission.

Subotai Bahadur

    Lead by men and women who exchange their liberty for submission with benefits. By men and women who voluntarily sacrifice human life to preserve their wealth and welfare.

    That said, not to worry. A dysfunctional convergence is the inevitable outcome.

    Has any civilization ever successfully limited progress before a dysfunctional convergence, followed by an internal collapse or foreign invasion which displaces a native population?

It’s not just polygamy that would have to be tolerated, but rather normalized. If we honor the letter and spirit of equal protection, then all unions, without consideration for sexual or platonic relationships, irrespective of kinds and forms, inclusive of all numbers and combinations, must be granted equal standing and stature under the law. All unions, whether marriage, civil, or other, would be corporate.

Also, related, in order to honor the letter and spirit of equal protection, we cannot reasonably discriminate by an individual’s stage of development. Supporters of homosexual marriage must oppose elective abortion which capriciously and maliciously deprives another human being of their unalienable Right to Life, without cause, and without due process.

The homosexual activists, and their heterosexual patrons, cannot remain in good standing without addressing their selective support for equal protection, and equal rights and benefits. They cannot generally remain in good standing if they are pro-abortion and pro-choice.

Dr. Carson is dead-on accurate.

However, I fully expect that definition to change in much the same way that today’s liberal/progressive crowd is rewriting history. Accuracy and point of definition is not part of their agenda.

It has been said that a nation that loses its morality is destined for failure and I believe this to be what is in store for us should we not wake up soon.

The Huns are at the gates and I seriously question who’s going to the white knight…

it wasn’t a ‘slippery slope’ argument that got carson in trouble. it was his outlandish inclusion of nambla and beastiality in his statement. once again, a ‘fresh, new face’ of the GOP turned out to be just more of the same-old-same-old. we already have one pat robertson, we don’t need another.

    What reason do you have to discriminate against minority behaviors? We have already rationalized premeditated murder (i.e. elective abortion), where it is normal to discriminate against men and women by their stage of physical development. Why should we continue to proscribe pedophilia and bestiality? This is a unique prejudice which must be addressed if we are to honor the letter and spirit of selective equal protection.

    Henry Hawkins in reply to el polacko. | April 1, 2013 at 11:44 am

    First of all, Carson is not a Republican, he’s independent. Second, Carson points out that gay marriage, if legalized as generally proposed, won’t stop at marriage between two same sex humans. Unless specifically proscribed, it brings polygamy onto the menu. It brings incestuous marriage onto the menu. The rush to legalize gay marriage overlooks these things in its promotions. Carson correctly notes that the pro-SSM people need to outline how – or if – they intend to draw the line against these other forms of union.

So el polacko, was Sotomayor outlandish? That was Professor Jacobson’s point. You seem to suffer from selective outrage?

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Sotomayor in trouble too? Are you critical of Nussbaum?

Sorry. Bad cut and paste. Will avoid commenting from my phone in the future.

[…] Related: Same Sex Attraction and Faith “It’s still a very difficult position to be in”. Polygamy, Incest, nah, um, yeah, um. No… […]

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