The Corner

Slipping

I want to speak to the Santorum controversy again. As I note in my NRO piece today, a large part of the outrage being stirred up over senator Santorum’s remarks depends upon denying or disguising the fact that the senator is making a slippery slope argument. A reasonable question follows from this. What realistic likelihood is there, after all, that abolition of state regulation of homosexuality might actually lead to a challenge to laws regarding either incest, or other extreme sexual practices?

If you don’t believe that there might really be a link between proposals to abolish sodomy laws and the legal status of incest, or of other extreme sexual practices, consider the case of French philosopher, Michel Foucault. As James Miller notes in his important biography of Foucault (The Passion of Michel Foucault), Foucault’s postmodern philosophy led him, in both his writings, and in practical political action, to advocate the complete decriminalization of all sexuality–in principle including even incest, boy-love, and rape. It is, of course, difficult to exaggerate Foucault’s influence on today’s postmodern academy. And his writings on sexuality are particularly popular. That does not mean that all, or even most academics endorse all of Foucault’s sexual program, but it is remarkable how receptive they have been to even Foucault’s very radical thoughts on this subject.

There was a time when Catherine MacKinnon (who’s ideas on sexuality are in many ways at the opposite extreme to Foucault’s) was nothing but an obscure academic. Here views were dismissed, even in the New York Times, as far out of the mainstream. Not too many years later, MacKinnon’s views (even if not her very most radical views) successfully shaped a significant body of law. I don’t see why this couldn’t also happen, at least in a slightly toned down version, with some of the more radically libertarian ideas on sexuality of thinkers like Michel Foucault. To protect against that possibility, I think it makes sense to attack sodomy laws legislatively, rather than judicially. But the large point is that worries about a slippery slope resulting from a judicial abolition of sodomy laws do indeed have a basis in reality. The degree of danger can be argued, no doubt, but we are not dealing here with a question of bigotry. It is a matter for legitimate disagreement.

For another very interesting and important take on the connection between judicial abolition of sodomy laws and incest, see this piece by William Saletan in Slate. Saletan doesn’t agree with Santorum about sodomy laws, but to his great credit, Saletan takes Santorum’s slippery slope argument seriously. Saletan actually goes to Santorum’s critics at the Human Rights Campaign and asks them to explain why Santorum’s argument is wrong. What Saletan finds is that Santorum’s critics cannot come up with an explanation. And Saletan himself shows how, on the matter of cousin incest, the slope is already slipping. Saletan’s honest and thoughtful piece is a far cry from the distortions and calumny being hurled at Santorum by the Democrats, and by The New York Times.

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