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Let's Talk About Sex

The recent arrest of a liberal Columbia professor and Puffington Host contributor for incest (an apparently consensual relationship) with his adult daughter has several people talking about sexual taboos and the law. This also comes up during discussions about gay marriage, and brings up the fundamental question about how much the state should be involved in sexual matters entirely.

In both cases, the issue of what the government should endorse, should tolerate, and should prohibit is the key. And those are three very important distinctions.

By "endorse," I mean "legally accept and recognize." This is for marriage and other matters that involve legal recognition.

By "tolerate," I mean not specifically say anything positive or negative -- simply by not making laws against it.

And by "prohibit," I mean specifically writing laws against it.

Incest is one of the points raised in the debates about gay marriage. If we allow two men to marry, why not two relatives? The genetic issue of inbreeding can be addressed by making it a same-sex couple of relatives, so why not outlaw them?

Historically, the answers have been tradition and the Bible. The Good Book (in Leviticus, I believe, among other places) spells out what are acceptable and unacceptable sexual relations and practices, and that part of the Bible is accepted by Christians, Jews, and Muslims, so it covers pretty much the majority of Americans.

But "tradition" and "the Bible" have no legal standing under the Constitution. They simply can't be cited as authoritative sources in court.

So I've batted around my own test for such matters, and while I haven't completely thought it through, I think it works in most cases. I call it the "consenting adults" test.

Essentially, I believe that whatever involves just consenting adults, and does not do violence to others or society as a whole, should be tolerated. And, when it involves the notion of legal equality, it should be accepted.

Gay marriage: Sure. Fine. Whatever. "I think it's gross" is NOT sufficient legal justification for banning it.

Pedophilia: Not consenting adults. Forget it.

Bestiality: Animals can't consent. Nope.

Incest: No, no, a thousand times no. In some cases, it involves minors -- so there goes the "consenting adults." In others, it raises the likelihood of inbreeding -- so there goes the "harm to others." In some, involving parents, squicky issues of power and authority and inequality are raised. But even in those cases where those pitfalls are avoided, the introduction of the sexual dynamic entirely within the family structure causes violence to society as a whole. So no.

Bigamy: Too many legal nightmares. Let's take the case of Adam, Eve, and Eden. Adam marries Eve, and then the two marry Eden. Then Adam wants out. What does that mean to the legal relationship between Eve and Eden? Are they still married, even if they don't want to be? Are they divorced from each other, even if they don't want to be? And what about children?

Marriage is a straight line (pardon the expression), defined by two points. It can be made and broken relatively simply (geometrically speaking). Introducing more points, making it into triangles, squares (with corners also connected), and whatnot just gets messy. No just say no to bigamy.

It's not a perfect system, this little notion of mine. But it does manage to address the... er... sticky issue of sex and the law, with a slightly vague but clearly definable principle that is not rooted in religion or tradition, but reason and logic and common sense. And it's not drawn from them, but instead demonstrates that the religious strictures did have some common sense to them.


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Comments (36)

So would you allow a same s... (Below threshold)
yetanotherjohn:

So would you allow a same sex married couple to adopt, have chidren through artificial insemination or thorugh a surrogate womb? If the answer is yes, look at the "harm to others" examples that you used above and contrast that with the issues for the chidren. If the answer is no, then what aspects of "marriage" are you allowing that can't be covered with existing grants of power of attorney or contracts?

Bestiality: <... (Below threshold)
macofromoc:


Bestiality: Animals can't consent. Nope.

any thoughts on Rachel Maddow

Fail."Gay marri... (Below threshold)
Woop dere It Is:

Fail.

"Gay marriage: Sure. Fine. Whatever. "I think it's gross" is NOT sufficient legal justification for banning it. "

"Bigamy... and whatnot just gets messy. No just say no to bigamy."

"Gross" shouldn't restrict our rights but "messy" does? lol. Fail.

It's not a perfect... (Below threshold)
Anon Y. Mous:
It's not a perfect system, this little notion of mine. But it does manage to address the... er... sticky issue of sex and the law, with a slightly vague but clearly definable principle that is not rooted in religion or tradition, but reason and logic and common sense.

It's not really a system. You start out by saying:

So I've batted around my own test for such matters, and while I haven't completely thought it through, I think it works in most cases. I call it the "consenting adults" test.

But, whenever your test gives results you don't care for, like bigamy, you abandon it and substitute your preferences. Not a very portable system, unless it comes with a miniature JT the user can perch on his shoulder to give warning when he runs into one of your exceptions.

Sexual Taboos are there for... (Below threshold)
mag:

Sexual Taboos are there for very good reasons. However people who would remove these taboos are just perverts or people way out there and they want their ways to be accepted enough were it just becomes the norm.
Aside from the religious and legal laws, just the health reasons alone is enough for many of the taboos.

Well Jay a couple of points... (Below threshold)
John:

Well Jay a couple of points, sex and marriage are clearly 2 different things as a lot of married people can attest. Bigamy is all about marriage not necessarily about sex, there is no law I'm aware of that prohibits multiple sex partners. In fact lots of people spend a lot of time chasing after multiple partners.

Anything out of the stated ... (Below threshold)
WildWillie:

Anything out of the stated norm of society as a whole. Nature clearly has answered as well as the bible. ww

The role of marriage to fac... (Below threshold)
Mark:

The role of marriage to facilitate the raising of children; otherwise cohabitation would do just fine with the rest of the combinations. The raising of children requires both a man and a woman as they each bring certain qualities to the process. This excludes gay marriage. First no procreation. Second, if adoption, the child would lack a normative environment with input from both sexes. If you do not think this is important, then look at the statitics related to children of single mothers.

How about necrophilia? One ... (Below threshold)
Jay Guevara:

How about necrophilia? One consenting adult, at any rate. No harm done to anyone. Cool?

Sorry, but grossness (the yuk factor) counts. Forego attempts at a hyper-rational analysis.

The bottom line is that some practices undermine the social structure (families in particular), and cannot and should not be tolerated because - eventually - they lead to failed societies.

Not all of the practices are sexual. Non-sexual practices in this category include, e.g., murder and theft.

Society can withstand low incidences of anti-social conduct, much as the body can withstand a sufficiently small tumor. The question is the impact on society of large scale adoption of such conduct. If invidious, then the conduct should be resisted.

Heinlein had a few ideas ab... (Below threshold)
BlueNight:

Heinlein had a few ideas about group marriages; The Moon Is A Harsh Mistress is worth a read-through for how it covers that concept (and AI issues, and asymmetric warfare, and resistance to oppressive government, and space politics as well).

Traditionally, mentally challenged adults are on most lists of unconsentable adults; I specifically speak of those whose mental age is permanently below the equivalent of 18, as determined by psychiatrists. This gets into another hairy area of rights, and I'm sure someone will yell at me, but consider that I have Asperger's Syndrome, a form of autism that meant, until recently (age 30), I had neither the emotional maturity nor the conceptual framework necessary to be a head of household.

I'm not endorsing any parti... (Below threshold)
john:

I'm not endorsing any particular activity mentioned, but the arguments here have holes big enough to drive a Swiss cheese truck through.

The Good Book (in Leviticus, I believe, among other places) spells out what are acceptable and unacceptable sexual relations and practices

Including polygamy as acceptable.

I call it the "consenting adults" test.

Except for bigamy, where you override your own test. Same with incest, where you gloss over an incestual relationship of non-childbearing, consenting adults.

the sexual dynamic entirely within the family structure causes violence to society as a whole.

Hand-waving. You give no justification for this conclusion. This is just an "underpants...profit" argument.

Bigamy: Too many legal nightmares.

All easily solvable by new laws.

Marriage is a straight line (pardon the expression), defined by two points.

You're begging the question. In discussing why marriage should be a straight line between two points, you're citing the premise that marriage is a straight line between two points. And saying that marriage is a straight line made messy by a third point is no weightier than claiming that marriage should be a triangle made messy by a fourth point.

It's not a perfect system, this little notion of mine.

As Anon observed, this isn't a system. These are your situational preferences.

Anything out of the stat... (Below threshold)
john:

Anything out of the stated norm of society as a whole.

Everything was at one time out of the stated norm of society as a whole. Society developed over time; it wasn't stamped into being. Inter-racial marriage and multiple sex partners are examples of things that were once outside the stated norm, but now are an acceptable norm. Even marriage itself at one time was out of the stated norm.

Nature clearly has answered

Nature demonstrates homosexuality, polygamy, promiscuity, incest, pedophilia, necrophilia, infanticide, rape, and more. I don't think you should be looking to nature as the blueprint for human behavior.

as well as the bible.

So polygamy is fine. Yippee!

You say that you are provid... (Below threshold)
nanker phelge:

You say that you are providing a "slightly vague but clearly definable principle that is not rooted in religion or tradition, but reason and logic and common sense," but really the only principle here is "Does JT like it?"

I agree with "woop dere it is" and "Anon Y Mous" -- all you are doing is saying that the things that creep you out, like incest, shouldn't be allowed, while saying that those of us who are creeped out by other things, say, gay sex, should get with the program.

Furthermore, you are being disingenous by posing "reason logic and common sense" as justification for your preferences.

You would forbid incest on the basis of the genetic risks of inbreeding. What about two carriers of a recessive genetic disorder -- their children would have a 25% risk of having the disorder, much higher than the risks seen with inbreeding. And what if the incestuous couple (let's make it a brother and sister, to avoid issues of power differential) were surgically sterilized and couldn't have children?

And since you say "Gay marriage: Sure. Fine. Whatever. "I think it's gross" is NOT sufficient legal justification for banning it," would you forbid two brothers from marrying (gay incest -- it COULD happen)?

Sorry if this sounds confrontational, but I think that all you are doing is claiming that somebody else's somewhat irrational prejudices are based less on reason, logic, and common sense than your equally irrational prejudices.

But thanks for starting the discussion -- somebody had to.

--NP

If two consenting adults ha... (Below threshold)
sillypuddy:

If two consenting adults have sex, the fact they were related does not bother me at all. Total waste to spend time\resources on cases like this.

Eugene Volokh has some inte... (Below threshold)
Murgatroyd:

Eugene Volokh has some interesting thoughts on the matter here. He points out that more than a dozen years ago Leon Kass raised similar objections based on "the wisdom of repugnance" to practices that most of us take for granted as being beneficial -- organ transplants, for example. Volokh points out:

Lots of medical procedures, for instance, are yucky and revolting, especially before one gets used to them -- consider transplanting organs, using maggots for medical purposes, or for that matter many kinds of surgery, if you think hard about them. Think a bit about inoculating people against smallpox using fluid from pustules of someone who was recovering from a mild case of smallpox. Seems pretty disgusting to me even now, and I'm sure it was even more disgusting to many when inoculation was first introduced. Yet how many millions of lives did inoculation save?
Yes John, everyone is famil... (Below threshold)
WildWillie:

Yes John, everyone is familiar with the homosexual problem with giraffes and rhino's, etc. Are you for real?

And your referring to polygamy explains your lack of what Christianity says. Also, polygamy was the form used to assure that some children will survive.

I also believe you know what I meant but are playing the useful idiot role. ww

Slippery slope. Enough sai... (Below threshold)
Wordygirl:

Slippery slope. Enough said.

I am neither for nor agains... (Below threshold)
John A:

I am neither for nor against same-sex civil union, which is actually what the government is concerned with: marriage is a religious concern, though various governments have used the term by default for centuries. The State recognises all the "marriages" in my family, but I can name several religions which hold that no-one in my family has ever been married even if a religious ceremony was involved.

On incest in the Bible, tak... (Below threshold)
BlueNight:

On incest in the Bible, taking it as literal history: Adam's wife was his XX clone, Eve, and Cain's wife had to be one of his sisters, nieces, or cousins. It wasn't discouraged until after the Flood, when human lifespans started declining thanks (in part) to the sudden reduction of the gene pool to Noah's children and children-in-law. Even at Abraham's time, it was common practice to marry within one's extended family.

Well, at least no one is fo... (Below threshold)
epador:

Well, at least no one is for sex with ex's.

That professor incest thing... (Below threshold)
Roy:

That professor incest thing is bad mainly because there is too much "inbreeding" among college faculty already.

"Pedophilia: Not consenting... (Below threshold)
Jason Author Profile Page:

"Pedophilia: Not consenting adults. Forget it."

And yet we allow these same children to choose to have abortions completely on their own without parental knowledge or consent. Can someone please explain that incongruity to me?

Hmmm. Not sure about this ... (Below threshold)
ryan a:

Hmmm. Not sure about this one, Jay Tea.

No, no, a thousand times no. In some cases, it involves minors -- so there goes the "consenting adults." In others, it raises the likelihood of inbreeding -- so there goes the "harm to others."

While incest taboos are found all around the world, the specific rules are not, by any means, the same (mostly because people around the world define 'kin' differently). And the "inbreeding" argument is fairly specious, since from a genetic standpoint this is only a problem if there is a higher risk of passing on a detrimental trait (incest does not CAUSE genetic abnormalities, as some people argue. But if there is a genetic issue in a family, incest would increase the likelihood of transmission).

Too many legal nightmares. Let's take the case of Adam, Eve, and Eden. Adam marries Eve, and then the two marry Eden.

As John already points out, it's funny that you use a Biblical reference for this example. Polygamy (polygyny, actually) was one of the dominant marriage patterns in that region during the days of the OT.

RE: Bu... (Below threshold)
kevino:

RE:

But "tradition" and "the Bible" have no legal standing under the Constitution. They simply can't be cited as authoritative sources in court.

So I've batted around my own test for such matters, and while I haven't completely thought it through, I think it works in most cases. I call it the "consenting adults" test.

Your list is incomplete: What is the standard going to be for prostitution?

In the past (e.g. the Bowers v. Hardwick decision), the standard was that the State was allowed to create laws for the benefit of the society. After the Supreme Court's Lawrence v. Texas decision, sexuality between consenting adults is a constitutionally protected expression of personal freedom, and the State has to provide stronger justification than "social hygiene". As Justice Scalia correctly states is his dissent, this opens the door for striking down laws against bigamy, same-sex marriage, adult incest, prostitution, adultery, fornication, and obscenity. He is, of course, correct. The Massachusetts supreme judicial court took one look at Lawrence and struck down the prohibition against gay marriage.

I believe that Lawrence is a very bad decision (technically), but I agree with the principle. Sexuality should be constitutionally protected expression. I also agree that Justice Scalia is 100% correct: once you make that decision, all manner of sexual activity between consenting adults should be legalized. What I find very amusing is listening to liberals applaud the idea, but then recoil in horror at the application of the principle in other areas (e.g. prostitution).

If social hygiene laws are invalid, then they're invalid. Period. If not, then society gets to decide that certain sexual activities are bad for the society and legislate against it.

Well Jay a couple ... (Below threshold)
ryan a:
Well Jay a couple of points, sex and marriage are clearly 2 different things as a lot of married people can attest. Bigamy is all about marriage not necessarily about sex, there is no law I'm aware of that prohibits multiple sex partners. In fact lots of people spend a lot of time chasing after multiple partners.

Good points, John.

the problem here is that th... (Below threshold)
Idahoser:

the problem here is that there are any benefits given out by the government to anybody for any reason. Let's get government out of marriage entirely, they already quit defending it, why should they be allowed to tax and license it? Make it a purely personal and, if desired, religious thing, and make contracts with anybody at all for the rest. BUT, you get nothing to leave somebody else, not from my taxes.

Let's get government out... (Below threshold)
Murgatroyd:

Let's get government out of marriage entirely ...

What idahoser said.

I'm fairly sure that the majority of people who object to "gay marriage" object to calling it marriage, in violation of their personal religious beliefs. I think many people see marriage as primarily a religious institution or sacrament, and worry that a government redefinition of the meaning of marriage will be the camel's nose inside the tent in terms of imposing legal restrictions on religious beliefs. (For example: whether there would be legal justification for it or not, would anyone be particularly surprised if two Massachusetts lesbians filed suit to force the Catholic Church to provide them a church wedding?)

Most states already recognize civil unions, which cover property, insurance, adoption, and inheritance rights. If you want to get "married," find a church or other organization that has a ceremony you like and that accepts you. (The Metropolitan Community Church has been performing wedding ceremonies for gays and lesbians for decades. Considering my ex-wife, I kinda wish we had found a group of Cthulhu worshippers for ours ...)

Get the government out of the marriage business, and help maintain a clear boundary between church and state to benefit both sides of the divide.

Yes John, everyone is fa... (Below threshold)
john:

Yes John, everyone is familiar with the homosexual problem with giraffes and rhino's, etc. Are you for real?

More real than you are, apparently:

Male giraffes have been observed to engage in remarkably high frequencies of homosexual behavior. After aggressive "necking", it is common for two male giraffes to caress and court each other, leading up to mounting and climax. Such interactions between males have been found to be more frequent than heterosexual coupling.[65] In one study, up to 94% of observed mounting incidents took place between two males. The proportion of same sex activities varied between 30 and 75%, and at any given time one in twenty males were engaged in non-combative necking behavior with another male. Only 1% of same-sex mounting incidents occurred between females.

en.wikipedia.org/wiki/Homosexual_behavior_in_animals#Giraffes

Though I'm sure you're able to Google, but are playing the useful idiot role. Let me help you with that: http://tinyurl.com/y7555dr

And your referring to polygamy explains your lack of what Christianity says. Also, polygamy was the form used to assure that some children will survive.

I stated a fact, one that you apparently concur is true. If it makes you feel better to provide societal context, go ahead. That doesn't change the fact. And actually, by acknowledging that different behaviors were accepted at different points in history, you torpedo your own "stated norm of society" argument.

Wazza matta, none of you di... (Below threshold)
epador:

Wazza matta, none of you divorced?

Wazza matta? None of you di... (Below threshold)
epador:

Wazza matta? None of you divorced?

Still some comment issues..... (Below threshold)

Still some comment issues...

Jay, I, too, find fault wit... (Below threshold)
Dodo David:

Jay, I, too, find fault with some of your logic.

You stated,

Incest: No, no, a thousand times no. In some cases, it involves minors -- so there goes the "consenting adults." In others, it raises the likelihood of inbreeding -- so there goes the "harm to others." In some, involving parents, squicky issues of power and authority and inequality are raised. But even in those cases where those pitfalls are avoided, the introduction of the sexual dynamic entirely within the family structure causes violence to society as a whole. So no.

You claim that sex between to adult biological relatives "causes violence to society as a whole." Yet, you do not provide data that supports this particular claim of yours.

Someone else might claim that same-gender marriage causes violence to society as a whole.

Someone else might claim that interracial marriage causes violence to society as a whole.

It is not enough for you to claim that all forms of incest "causes violence to society as a whole." You also have to provide evidence supporting your claim.

What you claim might be true, but you have the burden of proving that it is true. It would be illogical to assume that your claim is true just because your claim has popular support. Once upon a time, the claim of a geocentric solar system (the Sun revolving around the Earth) had popular support, too.

As you said,

But "tradition" and "the Bible" have no legal standing under the Constitution. They simply can't be cited as authoritative sources in court.

If tradition and the Bible have no legal standing, then you have to introduce evidence other than tradition and the Bible in order to support the aforementioned claim of yours that I am challenging you to prove.

Jay, what you claim may be emotionally appealing to me and to others, but you want claims about sex to be based on reason and logic, and I do not believe that you have adequately supported the aforementioned claim of yours with reason and logic.

By the way, one reason why people used to believe in a geocentric solar system is because common sense supported that belief. Common sense isn't foolproof.

.... But Tradition and The ... (Below threshold)

.... But Tradition and The Holy Bible -- and, thank God, the opinions of no-matter-how-well-intentioned bloggers, have no legal standing under the united States' Constitution -- and, in court, may not be cited as authoritative sources ....

Although with the likes of such effectively Constitutionally illiterate rule-by-fiat treasonously-tyrannical ignoramuses as Kagan and Breyer and Ginsberg and Sotomayor on the bench and the coke-brained marijuana-mumbling Mussolini-modeled modified Marxist mother's milquetoast and his gormless gang be-squatting and be-manuring our once most-hallowed house - who knows?

Maybe Mr Tea's well-felt feelings will get a guernsey, too?

Brian Richard Allen, your p... (Below threshold)
Dodo David:

Brian Richard Allen, your post above is not an argument.
It is an exercise in the use of ad hominem.

I see another flaw in Jay's... (Below threshold)
Dodo David:

I see another flaw in Jay's original argument.
He states,

Incest: No, no, a thousand times no. In some cases, it involves minors -- so there goes the "consenting adults." In others, it raises the likelihood of inbreeding -- so there goes the "harm to others."

In his statement Jay does not define inbreeding, and he does not explain why it causes harm to others. It is not enough for Jay to claim that inbreeding causes harm to others. He needs to introduce evidence to suppport his claim.

In short, I believe that Jay needs to strengthen his argument with scientific data.

By the way, inbreeding implies sexual reproduction, which can be prevented by two consenting adults who engage in sexual intercourse with each other.

Dodo David, your post above... (Below threshold)

Dodo David, your post above is not an argument.

It is the gratuitous employment of ad hominem.

Snap!

That aside, my post was intended only to provide me momentary relief from the boredom of doing absolutely nothing (by replacing it with doing nothing much -- or less) between attending to tasks that matter -- and to that end I scored it B. (Ish)

Merry Christmas - B A




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