APA, SCOTUS, & DOMA. And Mike Huckabee

Today Americans celebrate Independence Day, the anniversary of the day the founders of this nation backed their military rebellion against the constitutional monarchy with the fierce and fiery words of the Declaration of Independence. Many Americans view Independence Day as not only the birthday of their distinctive democratic republican form of government, but also the birthday of a certain set of freedoms, not the least of which has to do with the freedom to trample as a group on only a certain set of only certain other people’s (minority) freedoms.

The recent news cycle in the U.S. has devoted a certain amount of attention to one particular freedom which the Respective States may no longer abridge, the freedom of someone to enter into a marriage contract with a member of the same sex, the result of the recent Supreme Court decision on the issue of gay marriage, including their ruling on the Defense of Marriage Act (DOMA), which “defended” marriage in the same way that smashing someone else’s radio “defends” yours.

Anyway, I’ve been interested in how people justify and motivate their positions on this contentious issue. A bit less than two years ago, I wrote about what I take to be the somewhat peculiar stand taken by the American Psychological Association (APA) toward gay marriage. Our friends at the APA were in favor of legalizing the practice, basing their position on the issue of harm. First, they said, the debate about gay marriage makes people feel bad. So that’s one reason to just legalize it already and end all debate. (Let’s see how that works out…) Second, they said, is that marriage is psychologically beneficial for the (gay) couples that enter into it. (Note the distinction between the claim that it’s good for society, broadly, and the claim that it’s good for the people who do it, narrowly.)

So, as good social scientists, they based their position on data: findings that many people would be better off, psychologically, if gay marriage were legalized.

Indeed, last week the APA hailed the decision as “a triumph for social science,” and continued to emphasize not any moral principle having to do with freedom, but rather the evidence, as the basis for its position.

In contrast, Mike Huckabee, former candidate for the nomination for the Republican presidential ticket in 2008, responding to the recent decision, based his opposition to the decision on moral consistency, saying:

If we’re determined to change the definition of marriage to accommodate how people feel and what they wish to do because of their mutual consent, then we should immediately release those incarcerated for practicing polygamy or bigamy…And, frankly, let’s make all consensual adult behaviors legal, whether prostitution, assisted suicide, or even drinking 16 ounce sodas in New York City.

Those unfamiliar with American politics might not immediately recognize it, but Huckabee was being sarcastic. He was not, in fact, advocating making prostitution or polygamy legal. (Those not familiar with New York politics might also need that last bit, the thing about sodas, explained to them.)

So, the APA opposes DOMA because the Act makes some people unhappy. Huckabee opposes overturning DOMA because of a slippery slope argument. If, he invites us to suppose, we let people do as they wish, where will that lead us, he asks, hands wringing. (Note: he is not, actually, wringing his hands in the video; “mutual consent” is as 2:26.) His argument seems to be that if we adopt this as a moral principle — letting people do what they want (as long, one presumes, as they aren’t hurting anyone, and there are no harmful side effects, etc.) – then we’re going to have to let people do some things that we just obviously don’t want to let people do, such as engage in polygamy, prostitution, and excessive soda consumption.

Huckabee isn’t the only one to worry about this slippery slope. Justice Sotomayor seemed to be worried as well. During oral arguments, she asked Ted Olson:

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 child, assuming that they are the age — I can — I can accept that the State has probably an overbearing interest on — on protecting a child until they’re of age to marry, but what’s left?

In Sotomayor’s question is more or less the same idea implicit in Huckabee’s remarks, namely that whatever basis we use to let people marry members of the same sex, that basis better not force us to let people marry more than one other person, or a close blood relative, because those things are icky and we’d rather not let people do things that make us feel icky. Recall that the founders left Congress open to oppress minorities in certain respects, so the government is within its rights to keep its boot on the necks of would-be polygamists.

At this point it might be worth mentioning that as far as I can tell, the court didn’t base its opinion on either the data, as the APA would have it, or the notion of “mutual consent,” as Huckabee had it. I’m not a legal scholar, but I understand that the court’s basis was something to do with federalism and or “equal protection,” a clause in the 14th amendment.

Which brings me back to my main point, which is consistency. I and others have suggested, here and there, that people are often inconsistent in their moral views, using moral principles more or less as they become convenient to support the position they have already adopted for some reason or other. In this case, I don’t pretend to know Huckabee’s own moral principles, but it seems to me that he – and Sotomayor – have a good point which all of us academic freedom-loving liberals ought to ponder. (In contrast, I think the APA’s argument is a terrible one.) If we think that women ought to have the right to enter into a long-term contract with another woman, a contract which includes, presumably, sexually intimate acts, should we not also think, for example, that women ought to have the right to enter into short-term contracts – with men or with women – for shorter periods of time, a contract which includes, presumably, sexually intimate acts?

And, related, it seems to me that we ought to be careful in putting our chips where the APA places them. Suppose that research shows that the discussions of father/daughter incestuous marriages are causing psychological harm. Will the APA come out in favor of legalization? Suppose research shows that people in plural marriages are happy, and children in such marriages are well adjusted? (And, to return to a point above, it could be that polygamy is good for people in it, on average, but bad for the broader society.) What position will the APA take then? (For what it’s worth, the New York Times recently had an interesting piece on the result of the fact that prostitution is still a black market transaction in most of the country.) My sense is that the APA is less wedded to consistency than Huckabee seems to be.

Anyway, happy independence day to all you Americans out there, and I encourage you all to spend some time today thinking of the contracts and voluntary mutually beneficial transactions you think the government ought to continue to suppress as we celebrate our “freedom.”

04. July 2013 by kurzbanepblog
Categories: Blog | 12 comments

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