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Sexual Revolution: Past Is Prologue

A reader named Andrew Beckwith, a lawyer and president of the Massachusetts Family Institute [1], sent the following e-mail in response to my earlier post on religious liberty [2]. I post it with his permission:

You mentioned Professor Dale Carpenter.  I took his “Sexuality and the Law” class at the University of Minnesota Law School in the 2002-2003 academic year.  That class was a large reason for why I now work full-time in a deep blue state to fight for family values and religious liberty.  His class told me what was coming.  Don’t get me wrong, Dale was a nice guy and an encouraging and intelligent professor, but in his class on sexuality and the law, we marched through in theory what we’ve been living in law and culture over the past decade.

The class opened with the announcement that there could be no religion or traditional morality invoked to justify laws regarding sexual activity.  The foundation for what should be acceptable was whatever “two consenting adults” wanted to do.  I’m embarrassed to say that at the time I did not have the presence of mind, or perhaps the courage, to object to that standard.  It sounded perfectly reasonable. Of course, it became clear that “two consenting adults” included homosexual activity and adultery, in addition to fornication.  It also meant that incest (if they were adult relations) should not be criminalized.  Some students were mildly uncomfortable with incest, but that discomfort was explained away by a now antiquated aversion to sexual unions which had a higher rate of genetic deformities, etc.  With our medical advances in screening, access to contraception and abortion, there was really no reason why adult incest was wrong.  BUT, then we were asked why “two” consenting adults?  That numerical limit was seen as arbitrary.  Many cultures engage in polygamy or even polyamory, so why limit the sexual activities of consenting adults to only couplings of two?  Again, the students in the class largely accepted this as the correct progressive conclusion at which to arrive.

But we didn’t stop there.  Who is an “adult?”  Different cultures and societies across history have had different acceptable ages for marriage and sexual activity.   The age of consent is different even across some US states, so who is to say what an adult is.  Alfred Kinsey’s ground-breaking research demonstrated that children, even very young children, have sexual desires and can have sexual pleasure, so do they not have rights?  Should we be denying them sexual pleasure based on arbitrary age restrictions?  Isn’t that really more about just ensuring the ability to give consent?  Which brought us to our destination in this semester-long through experiment – interspecies sex.  Bestiality, fortunately, was a bridge too far, even for my very liberal classmates.  However, their objections to the legal and social acceptance of sex between humans and animals was NOT that it was somehow ‘wrong’ – we are all animals, after all, products of evolution – but rather that we did not have the ability to guarantee the consent of the animal.  Bestiality should probably remain criminal in order to protect the rights of the beasts.

Throughout this whole class, at what was at the time a top 20 law-school, the only students to object out of the dozen or so of us in the seminar were myself and a Mormon classmate.  For everyone else, this all made perfect sense.  This is where we are headed.  By way of reference, this class occurred prior to Lawrence v. Texas – when sodomy itself was still on the books as a crime in some jurisdictions.  But I saw it all laid out in that class – the striking down of sodomy laws, the repeal of DADT, same-sex marriage, polygamy… and more.  It was only a matter of time.

So, in my line of work, people often ask me now, after the Obergefell case, as we try to fight off cross-gender bathroom usage, “What’s coming next.”  Depending on who’s asking, I often answer, “polygamy, pedophilia, and bestiality, although not necessarily in that order.”

Dale Carpenter gave me a vision of what was going to come.  The students at my law school, as you mention in your article, were far out of sync with the rest of society in 2002-3.  It turns out they were merely a decade or so “ahead.”  Finish the Benedict Option book as soon as you can.  I have four young kids.

That’s a brave man.

You will remember what the late, great Justice Scalia prophesied in his Lawrence dissent [3] (2003):

I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence–indeed, with the jurisprudence of any society we know–that it requires little discussion.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” (emphasis added). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

When people accuse me of alarmism, it’s usually the case that they don’t want to see what’s right in front of their nose, because that makes them extremely uncomfortable. Would that we all had the courage of Andrew Beckwith.

Don’t forget too what Alasdair MacIntyre wrote in After Virtue:

But if we are indeed in as bad a state as I take us to be, pessimism too will turn out to be one more cultural luxury that we shall have to dispense with, in order to survive these hard times.

I take that as meaning that we cannot afford to curl up in a fetal position and wait for everything to fall apart. Let’s prepare. Let’s go!

 

UPDATE: It’s fine by me if you dissent from anything here, but if you’re just going to snark and wail in the comments section, I’m not going to post it.

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220 Comments (Open | Close)

220 Comments To "Sexual Revolution: Past Is Prologue"

#1 Comment By KD On April 5, 2016 @ 5:41 pm

Franklin Evans:

There are good public health arguments for gun control, and I note that you are permitted to make them without being called a bigot, or that your arguments are based on religious zealotry.

On the contrary, talk about the negative statistical correlations which seem to follow the homosexual lifestyle like a plague, you will be called a bigot, or your views will be dismissed as based on some religious beliefs.

I note the dialogue around SSM does sometimes address the negative aspects of the homosexual lifestyle, and is legitimated based on these arguments, but the assumption is that homosexual behavior is some kind of immutable force of nature beyond good or evil.

I don’t see pedophilia addressed in the same way, but one could make the argument that legalizing child pornography might lower child victimization rates, or perhaps we could just castigate some small subset of (disadvantaged) children to be victims in order the protect the greater number (people are utilitarians right?) and allow pedophiles to express their true sexual identities? I presume “no” because pedophilia is choice not a force of nature like homosexuality, which we “know” is genetic?

#2 Comment By Giuseppe Scalas On April 5, 2016 @ 7:51 pm

E. Potson

I may misunderstand you, but the bolded portions of your comment seem to contradict one another.

No, as my premise was that secularism is a sort of religion (actually, “pseudo-religion” would be more appropriate). About your point of marriage being a state-defined relationship, I disagree (see below my answer to JonF).

JonF

It’s impossible to make a law (well, a meaningful and effective law) about something without defining it. The moment govermments starts defining marriages rather than leaving it as an organic social relationship we ended up on the slippery slope

See above. Until recently, no law defined marriage. Laws tipically set limitations to marriage (number of spouses, age, nationality, census, race, etc…), But what marriage is (the natural alliance of man and woman to build a family) never required a definition. It was taken for granted. below. Marriage was there even when no state and law structures existed. Just have a look at the biblical accounts of marriage in Genesis (not as a religious text, of course, but as a document of how marriage was performed in stateless religious tribes in the Bronze Age) And even after the birth of the state, for much of the history of humanity, states weren’t involved in the celebration of marriage, which was basically a matter between the spouses, their families and their community. Marriages weren’t even registered. Household registrations, however, were done periodically for fiscal reasons. Romans begun to register marriage only when their society became so large and complex that the publicity of marriage in a community couldn’t be relied upon to settle inheritance matters.

#3 Comment By E. Potson On April 6, 2016 @ 3:12 am

Guiseppe Scalas: Until recently, no law defined marriage. Laws tipically set limitations to marriage (number of spouses, age, nationality, census, race, etc…), But what marriage is (the natural alliance of man and woman to build a family) never required a definition. It was taken for granted. below. Marriage was there even when no state and law structures existed. Just have a look at the biblical accounts of marriage in Genesis . . .

Notwithstanding the history you cite above, you, I and everyone else engaged in this discussion are talking about what “marriage” means in this country. Again, if it is irrelevant whether, or how, the government of this country defines “marriage,” or if it even has the authority to define it, then religious conservatives should have no complaint if the government purports to define it and does so in a manner that’s inconsistent with the historical practice of marriage.

You can’t argue that government doesn’t, or can’t, define “marriage” while at the same time complain that government has defined it in a way that’s inconsistent with its historical meaning.

This issue is not whether government defines and regulates marriage, but whether the government should do so in accordance with any religious tenets.

#4 Comment By Snippet On April 6, 2016 @ 7:39 am

If there is an objective problem associated with promiscuous morality (by “objective,” I mean something other than, “offensive to traditionalists.”), then we have an answer to anything-goes-ists.
Just like we have an answer to those who like to eat transfatty acids, and drink 64. oz. pops.
“It will kill you, or make you a burden on your fellow citizens who will have to pay for your quadruple bypass you will need when you are 30. Also, you’ll get type II diabetes.”
We need to track the social and medical costs of promiscuity.
I know this sounds very clinical and unsatisfying, but I agree there is a social cost to promiscuity. I think minimizing that social cost is behind “traditional morality,” and it needs to be part of the conversation.

#5 Comment By Turmarion On April 6, 2016 @ 10:32 am

KD, you are probably right that sexual identity is to some extent socially constructed. There is no such thing as a cross-cultural, immutable “gay” identity in the sense that all humans have hands and feet. Then again, heterosexuality, monogamy, polygamy, etc. are all to an extent socially constructed, too. Some cultures don’t even think that sex makes babies–they think it’s necessary (as plowing a field is necessary to growing crops) but not causal (they think that sex prepares the woman for pregnancy, but pregnancy is caused by other factors).

Likewise, if monogamy were “natural”, we wouldn’t have to have all the complicated societal customs, taboos, etc. to support it (and no, I’m not saying to reject it–I support monogamy).

I think what we can say is this:

1. Some people seem to be more attracted to members of the same sex than to those of the opposite.

2. This is probably somehow biological, and probably exists to some extent in people everywhere.

3. How this is manifested depends on the culture–it might be a two-spirit in Amerindian cultures, or fa’afafine in Samoan culture, etc.

4. In some societies, such as Ancient Greek or Sambia, a lot of people whose principle attraction is to those of the opposite sex participate in same-sex activities because of cultural norms.

Given all this, what then?

Well, we are in the culture we’re in. We’re not Ancient Athenians or Sambia or what have you. In our cultural context, a biological attraction to the same sex manifests itself as gay identity. It is theoretically possible that some people’s orientation may shift over time, or that societal disapprobation may reduce homosexual activity.

However, when our culture actually did have a strong disapprobation of homosexuality, in the pre-Sexual Revolution days, people with same-sex urges were beaten up, killed, given electro-shock to “cure” them, forced into sham marriages, etc. I don’t think that was better for them than the current situation.

I suppose hypothetically one could imagine a culture that channeled all sexual urges into either heterosexual activity or celibacy and in which those with strong homosexual inclinations would be happy and content. When you start doing that, though, you’re moving into the long tradition of idealists who thought we could have, for example, a society with no hierarchy and perfect equality. Marxism turned out about the way all Utopian plans do–badly.

So all abstractions about the cultural construction of sexual identity aside, once more, we have the culture we have; and instead of re-instituting the closet or seeking some Utopian society that probably could never be achieved, why not give gays some protections and not worry about it?

Shorter me: You can look at gays or gun buffs or Hindus or blacks or whoever and find negative traits associated with said group. To say, “This is an issue, we ought to discuss it, and we need to do something about it,” is perfectly legitimate. To say, “This is an issue, therefore we ought to ban/get rid of/suppress the group,” is totally different. Sure, we ought to talk honestly and frankly about the mental and physical health of gay people. We ought to deal with that not by shoving them back into the closet, re-stigmatizing them, or trying to put social disapproval to work against them, any more than we should do that to gun buffs, Hindus, blacks, etc. We should address the problems themselves.

BTW, I know a lot of gun buffs, and while they might not use the word “bigot” towards those who advocate gun control, they will call you unpatriotic, un-American, soft on crime, fascistic, and lots of other ugly things.

#6 Comment By JonF On April 6, 2016 @ 1:09 pm

Re: Yes, I understand that is a linguistic rule of usage in your theology, and to depart from that rule is to confess to liberal heresy.

If you want to go down the deconstructionist route (odd for a conservative) then we can– but you also have to say the same sort of thing about heterosexuals: they are only only heterosexuals if they are in a heterosexual relationship of some sort. Everyone not is just asexual I guess.

I prefer the realist attitude: there really are heterosexual and homosexual people, and while that is culturally mediated to an extent, there is a biological– and real world factual– basis to this business. It isn’t just a matter of “thinking makes it so.” There’s a lot of criticism on this blog of transsexuals for “thinking” they are of a different gender than their chromosomes suggest. And we got a hoot a while back out of that white lady saying she was black. OK, sure. But you can’t adopt a realist approach in some areas and then go all nominalist (or subjectivist or whatever) in others when it suits your ideology. A rigid consistency may be the hobgoblin of small minds, but an utter lack of consistency is just a big old mess.

#7 Comment By Siarlys Jenkins On April 6, 2016 @ 3:15 pm

E. Potson… what Giuseppe Scalas said about marriage pertains to the history OF THIS COUNTRY until circa 2003. And one fundamental weakness of the effort to judicially disassemble the assumed understanding of what marriage consists of, is the failure of the court to define what this “marriage” thingy IS, before examining whether anyone has been denied access to it.

Then again, heterosexuality, monogamy, polygamy, etc. are all to an extent socially constructed, too. Some cultures don’t even think that sex makes babies–they think it’s necessary (as plowing a field is necessary to growing crops) but not causal (they think that sex prepares the woman for pregnancy, but pregnancy is caused by other factors).

While I agree with most of the rest of what Turmarion says, this introduction makes as much sense of Young Earth Creationism. Heterosexuality has a well-established empirical reality independent of social construct. And, those cultures which deny that sex makes babies are clearly unfamiliar with recent research on the role of sperm and ova in conception.

E. Potson… what Rob G. was saying sounds perfectly straightforward to me. On the one hand, we can and should recognize that people have the right to decent peace and quiet enjoyment, careers, etc, regardless of the fact that they are doing things in their private lives that some substantial portion of their fellow citizens believe will doom them to burn in hell eternally. Jewish children in mixed marriages have been known to hear from Catholic cousins, too bad you’re going to hell, but you’re fun to play ball with at family reunions.

On the other hand, there is a component of the gay movement that demands everyone must not only accept, but enshrine, celebrate, appreciate, bow to, what a fair number don’t really wish to pay much attention to at all.

Pretty simple distinction, really.

#8 Comment By KD On April 6, 2016 @ 6:11 pm

JonF:

I think you can be deconstructionist with modern identities (like homosexual/heterosexual or white/black or American/Russian) while at the same time remaining a primordialist with respect to traditional identities centered in ethnicity and religious traditions. (This centers the dialectical struggle between the forces of authenticity versus the forces of techne, with serving deconstruction as part of the arsenal of techne in its battle with life itself.)

Christianity is Christianity–all modernist attempts to “transform it” result in modernist sects dying out. Further, the gender binary, male/female is primordial–social engineering in this respect will ultimately result in disaster (for those that engineer).

This is what makes traditionalism traditionalism–it is what cannot be killed off, that which remains a remnant only to return when conditions are again favorable.

I think in some ways, H.P. Lovecraft’s myth of Cthulhu may be one way of looking at it–the sleeping dark chthonic power that modernism falsely believe it will finally be able to kill off–only to find modernism itself is shattered and consumed.

But in actual fact, perhaps it is modernism itself that is the dark chthonic power stripping away all signs of life and vitality in the human condition.

#9 Comment By KD On April 6, 2016 @ 6:26 pm

Turmarion:

What we “know” is that most prefer the opposite sex, a few prefer the same sex, and some are indiscriminate.

The idea of a moral rule–any moral rule–is to discourage the “marginal sinner” on the fence from falling into behavior that is either self-destructive or destructive to others. Of course, some will ignore moral rules, no matter what they consist in.

It is precisely the fact that there are “fence straddlers” that make a moral rule necessary and useful–if of course there is a demonstrable empirical evidence that one choice is healthier than another.

Similarly, it would be insane to message that smoking and non-smoking are morally equivalent choices, given the fact that smoking is implicated in a number of disease processes in humans. One should not “celebrate” tobacco use or “respect” the smoking lifestyle. This does not mean, of course, that we should ban cigarettes or round all the smokers up and put them in tobacco free work camps either.

What concerns me is that traditional Christian morality, whatever its source, represents basically good, positive, healthy moral rules that benefit any individual or community that seeks to abide by them. This morality is under attack, and it is attacked by those who seek to substitute forms of life that are not particularly healthy, positive, and therefore not very good. So I am speaking out against it.

I was fine with LGBT until the Judiciary choose to constitutionalize it, and until the LGBT declared zero tolerance on traditionalists. They may or may not have started the war, but they are intent on “finishing it”.

#10 Comment By Turmarion On April 6, 2016 @ 9:17 pm

KD: Similarly, it would be insane to message that smoking and non-smoking are morally equivalent choices, given the fact that smoking is implicated in a number of disease processes in humans.

What about alcohol? Alcohol use is one of the largest factors in preventable illnesses, crimes, car wrecks, etc. It is certainly “implicated in a number of disease processes in humans”. Is it insane to message that tetotalling and drinking are morally equivalent choices? In short, is alcohol drinking always, everywhere, and at all levels of intake to be discouraged? Or is moderate drinking OK and maybe even salutary? What about marijuana, where the cost/benefit analysis is at best murky?

Homosexuality is indeed “implicated in a number of disease processes in humans”. So is heterosexuality. So is eating fast food. So is smoking. So is drinking. Cars and guns are involved in large numbers of deaths and permanent injuries. More children die in private swimming pools than from gunshot wounds. Need I continue?

You err by portraying it as black-and-white, as if behavior X is either A-OK, or of no redeeming value and thus to be suppressed or strongly discouraged. Human life isn’t like that. There’s a whole spectrum. I guess one might ask whether homosexuality is more like smoking or illegal drug abuse, or more like driving a car or drinking. In short, is the cost/benefit analysis so far to the cost side that gay behavior should be stigmatized and opposed and discouraged, treating it like smoking or crack? Or is it more like drinking or like using automobiles–having real risks, but not to a sufficient degree to warrant societal disapprobation and stigma?

#11 Comment By Siarlys Jenkins On April 7, 2016 @ 1:08 pm

You err by portraying it as black-and-white, as if behavior X is either A-OK, or of no redeeming value and thus to be suppressed or strongly discouraged.

Don’t we all? I get accused alternately of pandering to the gay agenda or of being a homophobic bigot because I don’t believe that homosexual acts are either A-OK, or of no redeeming value. I can understand Carrie Nation’s antipathy to the taverns where men drunk up their paychecks and had nothing left to feed their dependent wives and children all week… but Prohibition was a disaster of greater magnitude. I find it hypocritical to sentence people to five years for marijuana when they can drink alcohol legally, BUT, I take note that marijuana can linger longer in the system, and that it can impair such tasks as driving a train.

Etc. Etc. Etc.

#12 Comment By JonF On April 7, 2016 @ 2:37 pm

Re: In short, is alcohol drinking always, everywhere, and at all levels of intake to be discouraged? Or is moderate drinking OK and maybe even salutary

Which points to the solution here: the issue is not one of absolutes, but of degree. Just as excessive, out-of-control drinking is harmful, while modest drinking is not (and may even be healthful), so to with these other behaviors. The issue is not homosexuality per se (put away the broad tar brushes); it’s promiscuity and often enough the social prejudices such people may still endure. There are after any number of healthy and functional gay people out there. The dysfunctional messes get the press, as with most such things, but they are hardly the whole story.

#13 Comment By JonF On April 7, 2016 @ 2:40 pm

Re: I think you can be deconstructionist with modern identities (like homosexual/heterosexual or white/black or American/Russian) while at the same time remaining a primordialist with respect to traditional identities centered in ethnicity and religious traditions.

Well, KD, I don’t think you can pick and choose like that. Realism requires attending to reality, whether it comports with one’s desires or not.

#14 Comment By Rob G On April 8, 2016 @ 6:57 am

“What about alcohol?”

From the Christian pov, moderate alcohol use has the sanction of Scripture and Tradition. Fornication and/or sodomy, not so much. So there’s that.

If you want to respond that society at large shouldn’t base its laws on that, that’s fine, and I agree. But neither should we Christians be condoning behaviors that the Faith condemns.

#15 Comment By KD On April 8, 2016 @ 10:18 am

JonF:

No, you have traditions that emerge and evolve from the strands of time, like say the Talmudic tradition in Judaism. No real involvement by any State apparatus. It can’t be traced back to one man. If you look at ethnic identity, especially in hunter gatherer societies, it is just there, and it is attributed to the gods or something.

In contrast, you have something like Franco’s Spain, when conscious decisions were made as to whether “playing guitar” was Spanish or not, and that was given power of law. Or Henry VIIIth version of Reformation. Likewise, you have “human rights” today, a religion created by elites which arrives hot off the presses and is then turned into some kind of UN Proclamation. Totally contrived.

You see some of this discussion in Plato’s Laws, and you can see modern discussions of this phenomenon in the literature of macrosociology, for example, Gumplowicz’s work.

Its not a political point at all, it is an important conceptual distinction for people who want to understand the operation of human cultures.

#16 Comment By KD On April 8, 2016 @ 10:25 am

Realism is about describing reality.

For example, identities in hunter gatherer societies, and how they are distinct from national identities formed in a modern Nation-State system.

In contrast, “social constructivism” lumps together organic social evolution with rationalist social engineering, whereas in actual fact, the processes operate in completely different ways and involve different social institutions.

There is a distinction between organic, authentic identities derived from below and contrived identities imposed from above. Modern societies have mostly destroyed authentic identities, and what we have is a competition between different forms of synthetic identities (LGBT, “White” or “Black” nationalism, secularism, political labels, etc.).

#17 Comment By KD On April 8, 2016 @ 10:33 am

Because modern societies have eliminated authentic forms of ethnoreligious identity, the post-modernist framework is most appropriate for examining the construction of identity in modern and post-modern societies. However, a primordialist perspective is more sensible for looking at more traditional societies, whether Feudal Europe or Hunter Gatherer tribes.

The root problem of individualism is that it is based on the negation of identity, and individualism is expressed through the destruction of collective identities. However, identity is the basis for social cooperation in groups, and supplies a sense of meaning and purpose and yes, discipline form members of the identity group.

So we are engineering a society that leaves people incapable of social cooperation, lacking in any sense of meaning and purpose, and where people see no better option that to immerse themselves in self-destructive behaviors. Further, we think that society is going to be anything other than a totalitarian surveillance state, when in fact, it destroys all the moral and social foundations that make self-government possible.

#18 Comment By Siarlys Jenkins On April 8, 2016 @ 9:54 pm

Individualism is based on the negation of identity… now there is an oxymoron if I ever heard one. I is not I.

#19 Comment By KD On April 10, 2016 @ 6:50 pm

Siarlys Jenkins:

If you examine Piaget’s work, one of the strands is that the child develops a sense of self in relationship to NOT being the mother, for example, not being feed when he or she wants, or picked up, or cleaned up.

One of the thoughts about tickling, and why you can’t tickle yourself is that we are able to distinguish self-touch from other-touch, and that this process is important in the early formation of the concept of self in young children.

Not very Cartesian I will grant you.

#20 Comment By KD On April 10, 2016 @ 6:56 pm

It is not that I is not I, but that a sense of “I” can only emerge in a relationship between persons, an “I” and a “not-I”.

It is impossible to imagine a universe consisting of only one person, in such a universe, it would be impossible to develop a sense of self, nor would it be possible to express the self.

I think the deeper aspect of Trinitarian theology comes from the understanding that persona cannot be understood outside of relational terms, such as Father, Son, Holy Spirit.