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In a message dated 8/21/2005 1:30:54 PM Eastern Standard Time,
[EMAIL PROTECTED] writes:
Lawrence, at least as a matter of formal analysis, inasmuch as we it is certainly rational to view adultery as a victim-creating activity and a well-substantiated threat to marriage. I might simply be unaware
of the exact nature and enforcement of laws prohibiting adultery, but I suspect
they prohibit adulterous relations whether or not the spouse consents. If so, in
some cases at least, the spouse is not a victim; nor is the adulterous
relationship a threat to that marriage. In this case, laws prohibiting adultery
are much more like laws criminalizing same-sex intimacy or incest between
adults. If that's right, liberals must seek another justification for laws
prohibiting adultery than victimhood. Indeed, some of us believe the state
has no role to play in policing marriages in this manner, and that it is
inconsistent with the general liberal imperative in favor of personal autonomy
to insist that laws against adultery are justifiable because there's a
victim. Sure, laws are justifiable when a spouse fails to fulfill
obligations for spousal or child support. But the fact that a spouse
feels betrayed by adulterous conduct doesn't seem to warrant
the intrusion of the criminal law.
Moreover, I think it simply
flies in the face of the experience of those abhorring same-sex marriage to say
no one is harmed or victimized by same-sex marriage. There are kinds of
harm--challenging the integrity of someone's "normative environment"--that occur
everyday and are genuine harms. The problem for those opposed to
same-sex marriage is that these kinds of harm cannot be the basis for law in a
democracy. An overly materialist, consumerist society threatens
(harms) my aesthetic lifestyle. That's a genuine harm especially when you throw
into the mix that I want to protect my child from materialism. Yet,
it would be preposterous to say that this harm justifies passing a law against
materialism. Democracy is messy and requires us to endure (be harmed by)
many value systems of our fellow citizens. So, in my view, democracy cannot
tolerate proscribing or not permitting same-sex marriage. But it
simply doesn't follow that opponents of same-sex marriage are do not suffer a
cognizable harm if the exclusivity condition in traditional marriage is
eliminated.
Bobby
Robert Justin
Lipkin
Professor of Law Widener University School of Law Delaware |
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