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The Libertarian Question
Incest, homosexuality, and adultery.


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Stanley Kurtz

There is a mystery at the heart of the gay-marriage debate. I call it the “libertarian question.” The libertarian question (really a series of questions) goes like this: Why should any form of adult consensual sex be illegal? What rational or compelling interest does the state have in regulating consensual adult sex? More specifically, how does the marriage of two gay men undermine my marriage? Will the fact that two married gay men live next door make me leave my wife? Hardly. So how, then, does gay marriage undermine heterosexual marriage? Why not get the state out of such matters altogether?

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The libertarian question is mysterious because, in modern society, we find it difficult to understand the continuing necessity of shared moral standards — and of collective taboos against actions that violate those standards. Traditional societies depend on shared moral sentiments and collective taboos. Modern democracies, for the most part, have rejected these forms of collective morality in favor of an emphasis on personal freedom. Yet the truth is, although their workings are mysterious to us, shared moral codes (and a structure of taboos that guards those codes) can never be entirely dispensed with.

INCEST
Let’s approach the libertarian question about gay marriage from a new angle. The flap over Senator Rick Santorum’s remarks has raised the question of incest. If homosexual sex is declared private, why won’t consensual adult incest fall under the same sort of protection? (In raising this question, Sen. Santorum was simply echoing Justice Byron White’s decision in Bowers v. Hardwick.)

In his very useful exploration of the consensual incest problem, (See “Incest Repellent?” and “Incest Repellent, Continued.”) William Saletan points to a case of incest in which a woman was drawn into a sexual relationship with her uncle while she was still a minor, but continued that relationship as an adult. The woman was found guilty of incest and sentenced to supervised probation. After violating probation (presumably to return to her uncle) she was sentenced to five years in jail. Why should this woman have been jailed?

The prevalence of consensual adult incest is difficult to judge. It may be relatively rare. The deeper problem, of course, is the sexual abuse of children by older family members. The impossibility of real consent, as well as the potential psychological damage in cases of incestuous child abuse, are matters of very serious concern. But incestuous child abuse can obviously be made illegal. What is wrong with consensual adult incest?

Let’s return to the libertarian question. If a man happens to walk around town arm and arm with his adult niece, is that going to make me abuse my teenaged niece? In most cases, probably not. Clearly, however, there is a connection. Our collective horror at incest-even adult incest-acts as a protective barrier against the temptation to incest with minors. The very real dangers of child abuse within families shows us that a significant number of people are potentially susceptible to sexual interest in the children under their control. Our collective taboo on incest, as expressed in our laws, helps to offset that potential temptation.

The mechanism here is embodied in the law, but goes well beyond the mere mechanical workings of the law. The real mechanism is collective and psychological. The law on incest expresses a shared moral value. It is a collective statement. As such, it reinforces a sense of disgust that helps to ward off temptation.

To see the mechanism of our incest taboo at work, imagine a world in which consensual adult incest was legal. Once we see or hear of couples — even a relatively small number — who engage in legal, consensual, adult incestuous relationships, the whole idea of incest with minors becomes thinkable. Preventing incest with minors from becoming thinkable is the purpose of the taboo.

The reason we need an incest taboo is because there is no effective way for the state to protect children from sexual abuse by family members. Children are essentially at the mercy of the adults who care for them. So only by building into adults a psychological mechanism of disgust and horror at incest can society protect children from the psychological harm of abuse by close relatives. The taboo runs deeper than the law itself. Yet the law embodies and reinforces the taboo. Were the law to be eliminated — even for consenting adults only — the taboo on incest with minors would be weakened, or break down-maybe not in all families, or even most, but for far too many.

HOMOSEXUALITY
The taboo against homosexuality works in a similar fashion. But what, exactly, does the taboo on homosexuality protect? There is more than one way to approach that question, but the short answer is: The taboo on homosexuality protects marriage. Or, to look at the same problem from a slightly different angle, the institution of Western marriage, in its most traditional form, has been protected by a many-sided taboo against all sexuality outside of its confines — and against non-procreative sexuality within it. Just as the taboo on incest reduces the temptation to child abuse, the taboo on non-marital and non-reproductive sexuality helps to cement marital unions, and helps prevent acts of adultery that would tear those unions apart.

As an ultimate symbol of sexuality for the sake of pleasure (rather than reproduction) homosexuality has traditionally been taboo. That taboo was embodied and expressed in sodomy laws. Rigorous enforcement of these laws was secondary — and in any case, next to impossible. The important thing was the statement of collective values made by the laws against sodomy. By making homosexuality taboo, the law reinforced the idea that the highest and proper purpose of sexuality itself was to bind and energize families.

Of course, over the last 30 years, the taboo on homosexuality, like the broader taboo on a purely pleasure-seeking sexuality inside and outside the confines of marriage, has substantially broken down. And it’s not surprising that, as a consequence of our changed understanding of sexuality, the rates of divorce and out of wedlock birth have dramatically risen. Of course, at the same time as the divorce rate has risen, the weakening of the old taboos has substantially increased our personal freedom. And our new sexual freedom has benefited no one more than homosexuals, who no longer serve, in nearly the degree they once did, as ultimate symbols of forbidden sexuality.

On balance, I think we as a society have gained much from the weakening of the old sexual taboos, although it is important to keep in mind that we are in fact dealing with a trade-off here. Traditional sexual taboos protect marriage, and their weakening cannot help but weaken marriage — even as they increase personal freedom. But again, on balance, I believe that at least some of the weakening in the old sexual system has been worth the trade-off.

ADULTERY
What we need to understand — but do not — is that gay marriage will undermine the structure of taboos that continue to protect heterosexual marriage — and will do so far more profoundly than either the elimination of sodomy laws, or the general sexual loosening of the past thirty years. Above all, marriage is protected by the ethos of monogamy — and by the associated taboo against adultery. The real danger of gay marriage is that it will undermine the taboo on adultery, thereby destroying the final bastion protecting marriage: the ethos of monogamy.

Gay marriage threatens monogamy in two ways. First, gay marriage threatens monogamy because homosexual couples — particularly male homosexual couples — tend to see monogamy as nonessential, even to the most loyal and committed relationships. Of course, advocates argue that legal gay marriage will change all that — that marriage will make gays more monogamous. But it is just as likely (indeed, far more likely) that the effect will go in the other direction — openly non-monogamous married gay couples will break the connection between marriage and monogamy. (For more on this, see the NRO Gay-Marriage Debate, particularly my, “Point of No Return.”)

Even more powerfully, gay marriage threatens monogamy through its tendency to lead, on a slippery slope, to the legalization of polygamy and polyamory. (For more on this, see my Commentary article, “What Is Wrong With Gay Marriage.”

It’s important to understand what the danger of openly non-monogamous gay marriages, and of legalized polygamy and polyamory, really is. The key problem here is not, say, that polygamous marriages are unfair or exploitative to women. (That is a legitimate concern, of course, but it is not the greatest social danger posed by legalized polygamy.) The real problem is the effect of openly non-monogamous gay unions, and of legalized polygamy and polyamory, on the ethos of monogamy.

Even in the wake of the sexual-cultural changes of the Sixties, there is still a strong consensus in our society that marriage means monogamy. That consensus is expressed in the taboo on adultery. Legal recognition for group marriage, and for openly non-monogamous gay unions, would effectively destroy the taboo on adultery. That doesn’t meant that everyone would instantly go out and commit adultery — any more than everyone exposed to legal incestuous unions between consenting adults would engage in child abuse. But there would be a significant social effect — and it would be over and above the weakening of marriage that has already occurred in the wake of the changes since the Sixties.

The libertarian asks, Just because two married gay men live next door, is that going to make me leave my wife? In a way, the answer is “Yes.” For one thing, as a new generation grows up exposed to gay couples who openly define their marriages in non-monogamous terms, the concept of marriage itself will gradually change. No doubt, movies and television in a post-gay-marriage world will be filled with stories of the “cutting edge” understandings of open marriage being pioneered by the new gay couples, even if the actual number of such married gay couples is relatively small.

A large segment of the gay community looks forward to gay marriage for precisely this reason. Many thoughtful gay activists see same-sex marriage as a chance to redefine marriage itself — stripping marriage of what they see as its outdated and constricting connection to monogamy. And of course, even more powerfully than openly non-monogamous gay marriages, legalized group marriage would destroy the taboo against adultery. (Lot’s of potential for movies and TV there.)

Still, the libertarian asks, Would the group marriage next door really make me leave my wife? Maybe not. Of course, the married commune next door might invite the two of you over for some fun, with potentially problematic results for your marriage. But even that is not the real problem. The deeper difficulty is simply the breaking of the taboo on adultery. Sodomy laws were barely enforced, yet they made a collective statement about social attitudes toward non-marital and non-reproductive sexuality. Similarly, incest laws are rarely invoked. Yet their existence reinforces the horror of incest, and helps prevent the sort of violations that make incestuous temptation thinkable.

So the mere social statement that marriage does not mean monogamy is where the real danger of legalized gay-marriage and polyamory lie. And the collapse of consensus about shared social institutions really does effect us as individuals. Once we as a society no longer take it for granted that marriage means monogamy, you may not decide to leave your wife. But you may be more likely to give in to the temptation of an affair. And that could mean the end of your marriage, whether that’s what you wanted going into the affair or not. (For another way of looking at this problem, see my, “Code of Honor,” where I compare the operation of the taboo against adultery to the working of a college’s anti-cheating honor code.)

As with the taboos on incest and sodomy, society can’t enforce the taboo on adultery with laws. Laws on matters of sexual conduct do make a difference, but less as enforcement mechanisms than as embodiments of common values. Precisely because the state cannot monitor and prosecute adultery, society writes a taboo against the practice into our hearts. The laws of marriage as currently constituted embody and express that taboo. Transform those laws, and the taboo will disappear.

The ongoing need for shared social understandings on matters pertaining to the family and sexuality does not fit neatly into the libertarian playbook. Social and sexual taboos are the stuff of traditional societies. But the truth is, so long as we live, not merely as isolated individuals, but in families together, we shall be in need of social and sexual taboos.

If the controversy over Senator Rick Santorum’s remarks has made it possible to openly discuss the real basis of our shared social and sexual understandings, then it will have done some good. Unlike Sen. Santorum, I would rather accept some disruption in family stability than go back to the days when homosexuality itself was deeply tabooed. The increase in freedom and fairness is worth it. Yet there has been a terrible social cost for the changes of the sixties. We need to mitigate those costs. And we certainly do not need to risk the destruction of an already weakened family system by radically undermining the ethos of monogamy.

Gay marriage would set in motion a series of threats to the ethos of monogamy from which the institution of marriage may never recover. Yet up to now, our society has been unable to face the real costs and consequences of the proposed change. That is partly because of an understandable sympathy for the gay-rights movement. But it also reflects the sheer inability of modern folk to grasp the operation, necessity — or even the existence — of the system of moral consensus and prohibition upon which society itself depends.

Stanley Kurtz is a research fellow at the Hoover Institution at Stanford University.



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