Erik Jaffe, 10:52 AM]
Natural Law and Favored Relationships: Jacob's
post offering the natural law theory
still does not explain the exception for bestiality -- unless we also
wish to encourage relationships with various animals -- and begs the
question to some degree by framing it as a "marriage" issue
alone. If instead we frame it as a "stable family relationship"
argument, whether or not sanctioned by the legal institution of
marriage, then there is an equivalence between homosexual and
heterosexual sodomy. I am informed that Texas allows at least one member
of a gay couple to adopt children, hence presumably encouraging
relationship stability for such adoptions is a goal; homosexual sodomy
would serve an equal, if not greater, role in maintaining homosexual
relationships than heterosexual sodomy plays in a heterosexual
relationship. (Heterosexuals have another significant sexual option to
maintain intimacy and hence may not need to rely on sodomy to do so,
whereas homosexual couples necessarily lack that option.)
And if we are going to drag marriage into this, then we should at least
be specific about why the state generally encourages marriage and ask
whether those underlying interests are served or disserved by disallowing
a partial category of homosexual sex acts and whether such treatment is
consistent with other rules running counter to the policy interests
behind marriage. Finally, the quote from Bradley and George's brief also
begs the question of why sodomy within marriage is constitutionally
protected, as opposed to merely favored as a legislative policy
matter. Justice Scalia at oral argument expressly refused to concede the
point -- and rightly so, because it is based on substantive due process
cases using a non-historical mode of analysis that he refuses to apply
today. You can't have it both ways.
