June 28th, 2013

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Why The DOMA Decision Would Not Require Legalizing Bestiality

A common argument against judicial decisions invalidating restrictions on same sex marriage (or requiring states to recognize same) is that such decisions must, by their logic, invariably legalize bestiality, pederasty and polygamy. The argument is that by prohibiting the state from defining marriage as "traditional marriage" it prohibits the state from defining marriage (or prohibiting any form of sexual activity) at all.

Unfortunately, this argument is usually confronted with an emotional argument of "how dare you compare same sex marriage to bestiality!" While emotionally satisfying, this argument essentially replicates the logic of same-sex marriage opponents. "I think this thing over here is beautiful and the other one over there is yucky! How can you even compare the two things?" While some moral decisions are inherently arbitrary, it would be nice to believe that this was more than simply a "battle of the guts" and that a counter-argument grounded in law to this challenge exists.

Besides, as anyone who has sat through a law class knows, it is the proper duty of lawyers in all cases to consider such arguments. This is the heart of the Socratic method. From torts to property to Constitutional Law to legislative process, the student will invariably be asked how to distinguish a statement made from a fairly horrible reductio ad absurdem. Besides, not all reductios are all that absurd. I am old enough to remember that in the 1980s, when the Gay Rights movement was pushing anti-discrimination laws and amendments, an argument of opponents was that amending the state laws or constitution to prohibit discrimination based on sexual orientation would obligate the state to reognize same sex marriages. Proponents of these amendments angrily denounced this conclusion with the same fervor as those rejecting the argumentum ad pedophilia do today. Nevertheless, such arguments were ultimately made with seriousness and accepted in some courts.

So here is an exceedingly brief legal answer to the question: "Why wouldn't a judicial decision in favor of same sex marriage prohibit laws outlawing bestiality, pederasty and refusal to recognize polygamy?"

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