The United States Supreme Court has struck down the Defense of Marriage Act (DOMA) and California’s Proposition 8, in two welcome boosts for the equal rights of homosexuals. Hooray, champagne bottle corks poppin! While some of us still have to hang our national heads in shame (hello there, fellow Finns, as well as my Swiss and German friends) as being more backward than we would like to think ourselves when it comes to marriage equality, I prefer being forward looking. It is just a matter of time, at least as far as Finland is concerned. Probably also for Switzerland, although we know from experience that the “time” might just be a few decades longer than in surrounding Europe.*
Since gay rights are, or will be, pretty much in the bag, I want to look at the future, and what are the next battlefields in the sphere of sexual equality. I will again be guided by the United States Supreme Court, and draw my inspiration from the great liberal thinker that is Justice Antonin Scalia** who stated in his dissenting opinion in Lawrence v. Texas 123 S.Ct. 2472 (2003), a case that found the criminalisation of homosexuality to be unconstitutional, that anti-gay laws were like legal bans on “bigamy, ... adult incest, prostitution, masturbation, adultery, fornication [and] bestiality”.
I had to study the judgment as part of my comparative human rights course at university and our excellent, provocative professor paused on this passage and asked us whether Scalia had a point: Was homosexuality really that different from bigamy, adult incest or bestiality?
I loved the exercise, and put my natural distaste for issues such as incest aside to ask myself the genuine question: What sexual behaviour can be regulated by the state, and what should be left for the bedroom? I don’t think the issue should be determined on the basis of our personal feelings about the sexual practice itself, but on some principled ground.
For me, I decided that the principled ground is this: As long as the practice involves consenting adults, it is not for the state to concern itself with it. And when it comes to corollaries of sexual behaviour, such as the institution of marriage, the state should really provide the same rights to everybody, as long as the practice itself is permitted.
Applying this principle to the list, I find that the line is drawn at bestiality. Animals are not capable of consenting to sex with humans in any meaningful way, so sex with animals, like sex with children, can be illegal. But bigamy, adult incest, prostitution, “fornication” (ie sex outside marriage) and adultery are all OK. (I won’t stoop to even comment on masturbation).
You may initially be shocked, as I was. For example, the idea of sex with a close relative is repulsive to most of us. But it might not be to everyone, and frankly, if someone wants to have sex with their father or sister, it is none of our business. Many have heard about the case of Patrick Stuebing and Susan Karolewski, a perfect example of where the anti-incest laws led to a real injustice.
Similarly, why would we restrict the right to marry to just two people? What is the justification to deny bigamy, or polygamy in general, between consenting adults? None, except that we are instinctively drawn to the purity of the biblical idea of a monogamous heterosexual marriage as the “proper” state of affairs. We might also look at some cultural practises and fear that polygamy will lead to abuse, unhealthy relationships and misery. Well, many monogamous heterosexual relationships lead to such things and we don’t deny the institution as a result. As polyamorous people are becoming more open about their lifestyle choice (see e.g. here or here for info), I’m predicting that polygamy is the next issue on the sexual equality agenda, and you know now whose banner I will be marching under.
*Fun fact: Appenzell was the last Swiss Canton to admit women’s suffrage (=right to vote) in 1990, and only because the Federal Supreme Court (Tribunal Fédéral) forced them to.
** That was sarcasm. Scalia is an arch-conservative douchebag.