The notion, presented by Robert George in the National Review article posted here, that marriage is the firewall against undistinguishable claims to sexual liberty based on consent needs to provide an answer to the following. Since marriage is a contract based on consent, how does judicial doctrine protecting only sexual activity within marriage preclude a consent-based argument that brothers and sisters should be able to marry, which George assumes it does?
The form of George's argument seems to be that marriage creates a logical barrier against a regime of consent claims, but in fact legal marriages in the United States are already a constitutionally protected subset of a class of potential marriages based on consent. So marriage, as legallly defined in most states, can't be a logical brake on the regime of consent. We are already in a world where the justices pick and choose among types of sex-related consent that enjoy constitutionally protected status. In other cultures, brothers and sisters marry. So, real consistency in the world of the slippery slope would require a critique of the cases that give protection to sexual activity within marriage. It seems a sleight of hand for George to refer to marriage as a "principle," for which consent is the principle competing alternative principle. Legal marriage is a cultural practice with certain recurring and familiar features, but it is a product of consent circumscribed in ways that are to some degree just a matter of cultural taste. The extent of protection for the ability to enter marriage is based on distinguishing among favored and disfavored consent-based claims. Marriage itself does not supply a principle for excluding some opposite-sex pairs from the category. Rather, marriage is a social practice that has great political s! upport. That political support has translated into judicial support not fully explained by the application of neutral principles. Thus, extending judicial protection to other consent-based sexual pairings does not change the business in which the Court is involved, which is figuring out which claims about consent, sexual intimacy, and the like, deserve sufficient judicial respect to merit constitutional protection. Social meanings and practices help inform the justice's conscience on the matter. There is reason to anticipate that the justices have a grasp of social meaning that enables them to draw lines, as George intimates he cannot, among "fornication, adultery (e.g., spouse swapping, "swinging"), polygamy, group sex, prostitution, adult brother-sister or parent-child incest, and (depending on one's views about the rights of animals and their capacity to consent) bestiality." They may well have the confidence and cultural grounding to conclude that a typical America! n same-sex couple is more like a typical American married couple than i and its owner/guardian. In so doing, they would not be abandoning a world of pure principle for one of arbitrary policy. Mae Kuykendall >>> [EMAIL PROTECTED] 05/28/03 10:55AM >>> I found an article at National Review Online that I thought you'd like to see: http://www.nationalreview.com/comment/comment-george052703.asp Robbie George has a piece in NRO on Lawrence that might be of interest to some on the list.
