Dear Isabella,Enclosed are my thoughts concerning one of the arguments used against permitting same-sex marriages. As same-sex marriage is a topic of much debate these days, I am writing this blog in a vague attempt to summarize my feelings about condemning people for their genetic character. I have faith that there will be less discrimination, less stigmatization, and less hurt in the world by the time you are on your own -- you know, when you are 35 years old.
Your loving father,
Shawn
Professor Volokh wrote a very good article regarding same-sex marriage and the “slipper slope” arguments used against it. Let me just say that I encourage others to read this article, as it brings up several good points that are generally applicable irrespective of the one slippery slope argument discussed below.
It has always been my position that the contention that same-sex marriage could lead us to a “slippery slope” leading to polygamy (or bestiality) is logically flawed. It is my position that by definition different-sex marriage leads us to this slope. Specifically, “marriage,” as a sanctioned institution, is what creates the slippery slope that requires us to determine what types of marriages are acceptable among consenting adults. To conclude that same-sex marriage is the cause of the slippery slope is the result of making a morale judgment before the logical argument begins.
Particularly, polygamy is the would-be consequence of different-sex marriage (or marriage in and of itself) and not same-sex marriage. History bears this out, as men with more than one “wife” have existed publicly from the beginning of time. It is only when one views same-sex marriage as deviant in some way that you put it before different-sex marriage as the starting point for the slippery slope argument.
Again, please read Professor Volokh's article for a more detailed discussion.
This blog is intentionally short as I will discuss same-sex marriage in more detail in two upcoming blogs. One will discuss the decision of the Roman Catholic Church (“RCC”) to abandon its adoption services in Massachusetts, because it has determined that children are better off with no home than a gay home. Let me just say now that this is just one more case in which the RCC has put the welfare of our children second. Also, in this blog I will discuss the RCC’s continued discrimination against women and its continued policy of covering up child molestation cases in order to protect its priest. These three items are insupportable to me and are indications of how old-fashioned the RCC has become.
The second blog will discuss same-sex marriage as it pertains to the Constitution and a recent case Lawrence v. Texas. As Randy Barnett so eloquently details in his 2003 article, this case (to me) indirectly provides another way to examine this issue (i.e., liberties versus licenses -- and the potential application of the Equal Protection Clause). Given that I went to Boston University as an undergraduate, I find special pride in Professor Barnett’s article. I am especially glad to see a thoughtful constitutional writing put together by Justice Kennedy in Lawrence (something that is very lacking in the writings of Scalia and other originalist).
Please note that Professor Barnett also coauthored an amicus brief to the Supreme Court in Lawrence. To me this brief frames a very important question. Specifically, what liberties, which are not specifically mentioned in its text, are covered by the Constitution? As the founding fathers recognized, and as referenced in Madison’s famous dialogue in his draft writing of the Bill of Rights, not all of the people’s liberties are (or could be) spelled out in the Bill of Rights. Answering this question requires a courageous and thoughtful person as it is not easy. For this reason, I find Scalia’s writings (dissents) so disappointing. After reading Scalia’s dissents, one might think that the Constitution does not protect my liberty to eat more than 3000 calories in any given day. I guess the question is, “so does it?” I think in answering this absurd question do we further define what "liberty" really means and what it covers. One more question. Could Congress make it illegal for me to eat after 9 p.m.? Certainly I don't have a fundamental right (or liberty) in the Constitution to eat after 9 p.m., but nonetheless such a law would seem invasive to my ability to live my life as I generally see fit. Do I have a constitutionally protected liberty to drive? Or is this a license? Could driving be outlawed altogether? Driving certainly impacts others (and has the potential to kill) when it is not performed with basic skills.
It has always been my contention that if the Constitutional analysis is done correctly one should examine the “liberty” that is sought to be protected (and not the specific “act” -- such as sodomy). Assuming this is done, the specific “act” should only be controlled through legislation if it directly conflicts or infringes on the same (or similar) underlying liberty of the public -- with special attention given to "commercial" transactions.
For example, the right to use drugs in one’s home could be argued to infringe on the public’s right to tranquility in the home (or on the public streets) because of the resulting criminal behavior or physical damage or harm that such drug use will cause in enough cases. This argument could also apply to prostitution. Moreover, the “customer” relationship in such transactions creates a unique situation in which one is vulnerable and could be harmed -- not to mention the issue of true "consent." These situations are totally different, from consenting adults engaging in sodomy as part of a relationship, because they involve transactions that have been shown to result in public or personal harmed -- and where "consent" is at question.
