Kent Greenfield is a law professor at Boston College and a supporter of legal gay marriage. He has also written a compelling article admitting that the arguments in favor of legal gay marriage must also allow for incestuous and polygamous marriages as well. He writes,
You know those opponents of marriage equality who said government approval of same-sex marriage might erode bans on polygamous and incestuous marriages? They’re right. As a matter of constitutional rationale, there is indeed a slippery slope between recognizing same-sex marriages and allowing marriages among more than two people and between consenting adults who are related. If we don’t want to go there, we need to come up with distinctions that we have not yet articulated well…
The arguments supporters of same-sex marriage have made in court do not sufficiently distinguish marriage for lesbians and gay men from other possible claimants to the marriage right. If marriage is about the ability to define one’s own family, what’s the argument against allowing brothers and sisters (or first cousins) to wed? If liberty protects, as Kennedy wrote ten years ago in Lawrence v. Texas, the case striking down Texas’s anti-sodomy law, the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” why can’t people in polyamorous relationships claim that right as well? If it’s wrong to exclude groups because of prejudice, are we sure the uneasiness most of us feel about those who love more than one, or love one of their own, shouldn’t count as prejudice?
In private conversations with leaders in the marriage movement, I often hear two responses. The first is that there is no political energy behind a fight for incestuous or polygamous marriages. The second is that they would be fine if those restrictions fell as well but, in effect, “don’t quote me on that.” The first of these responses, of course, is a political response but not a legal one. The second is to concede the point, with hopes that they won’t have to come out of the closet on the concession until more same-sex victories are won in political and legal arenas.
Can we do better? What are the possible distinctions?
Greenfield goes through all the ways that liberals try to distinguish gay marriage rights from incestuous and polygamous marriage rights, and he shows that there is no significant distinction. Gay marriage supporters have already provided the legal rationale for those who might press for legal incestuous and polygamous marriage. The equality genie is out of the bottle, and there will be no getting him back in.
Greenfield has in fact conceded the point made by Anderson, Girgis, and George in their watershed book What Is Marriage? They argue that once marriage is redefined, it becomes infinitely elastic. If the marriage right cannot exclude people simply because they love another person of the same sex, then why should it exclude those who love their own family members or those who love more than one person of the opposite sex?
This slippery slope really is slick, and we are already half-way down.
(HT: Jim Smith)