September 08, 2004

That Bwessed Awwangement

by PG

I repressed the desire to quote the Princess Bride while writing yesterday's post, but a disputatious email has brought it on.

Mawwiage. Mawwiage is what bwings us togethaw today. Mawwiage, that bwessed awwangement, that dweam within a dweam... Then wove, twue wove, will follow you fowever...
I feel better. Now for the email:

I think you're wrong re adultery. There's nothing inherent in adultery that is inconsistent with marriage laws; there's no reason why two people can't be married and sleep around. It's not the norm, obviously, but there's nothing inherent in marriage that prohibits it. Prohibiting adultery prohibits the sexual act, and thus to me seems pretty clearly to fall within Lawrence.
As I noted at the beginning of the earlier post, I agree with Turley on practical grounds; I don't think the state should be prosecuting people for committing adultery. I don't even think that it should be a crime.

But Lawrence did not tear down all prohibitions against sexual acts. Bestiality, incest and many other sexual acts remain illegal, because their illegality rests not in one's choice of action (why should the state privilege vaginal intercourse or mutual masturbation over anal or oral sex?) but in one's choice of partner. The state has a very good reason to prohibit people from having sex with their dogs, brothers and sons, and these reasons are not unconstitutionally discriminatory. They do not distinguish between persons based on their race or gender, but on their relationships.

On the rationale that people who commit adultery are less likely to have lasting marriages -- a hypothesis I have not researched, but that seems plausible -- the state attempts to maintain the health of marriages by prohibiting a behavior likely to undermine the marriage. Of course, there are many other ways to screw up your marriage, and the state does not prohibit spending too much time at work or leaving the toilet seat up. In the pursuit of marital stability, the state clearly makes only a few select limitations on liberty, ones that traditional morality prefers.

Nonetheless, Lawrence's specific reservation on the constitutional protection it grants to sexual acts ("absent [...] abuse of an institution the law protects") makes the adultery prohibition constitutional, if not sensible or effective. There is nothing "inherent" to adoption that prohibits sexual relations with one's adopted child, once she is a consenting adult, except for the fact that this relationship is regulated by the state and the state does not think that sex is compatible with a healthy adoptive relationship, any more than it thinks adultery is compatible with a healthy marriage relationship.

The state may be incorrect in this idea, but the burden of proof seems to be on the adultery and incest advocates. I view the anti-adultery statute rather as Justice Thomas viewed the anti-sodomy statute: "the law before the Court today 'is uncommonly silly.' If I were a member of the Legislature, I would vote to repeal it."

September 8, 2004 11:52 AM | TrackBack

The state shouldn't be involved in promoting marriage. There are now legal precedents and laws that allow for other methods to protect marital assets, and marriage, as a concept, in the US anyway, is religious. The state has no business promoting any religious idea.

Posted by: flaime at September 10, 2004 02:17 PM
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