Wednesday, March 03, 2004
Shifting gears violently, I'd like to talk for a few minutes about adultery.
I've been thinking about writing something on this topic since the days after the Lawrence decision, when Senator Rick Santorum remarked that the decision implied that there was no rational basis for laws criminalizing consensual incest, or necrophilia, or adultery. If I recall correctly, Andrew Sullivan, among others, zinged in on the last item in particular as evidence of Santorum's Bible-thumping troglodism. Criminalize adultery? An outrageous invasion of privacy. The very idea. (This is, of course, the same Andrew Sullivan who says that same-sex marriage should necessarily mean that couples so joined be monogamously faithful, just as we expect for straights. They say a foolish consistency is the hobgoblin of little minds; I wonder what a promiscuous contradictionism is?) Adultery is, of course, a misdemeanor in a number of jurisdictions. Is there a rational basis for such laws? Why shouldn't it be entirely a matter for the parties involved to resolve? Why should the law - other than divorce law - concern itself with adultery?
Let's start with history. The prohibition against adultery is one of the "big ten" commandments from Sinai. How, in Jewish law, is adultery defined? It is defined as a married woman having sexual relations with a man not her husband; both parties in such a relation are adulterers. That's right: a married man having sexual relations with a single woman is not an adulterer, and a single woman having sexual relations with a married man is not an adulteress.
Why the asymmetry? Polygamy. You didn't know Jews were polygamous? Well, we aren't, and haven't been (in the West) for over a thousand years, but not because the Bible mandates monogamy. Monogamy is not built into the structure of Jewish law, and technically a Jewish man who married two women would have two valid marriages under Jewish law. But for over 1000 years (in the West), it has been forbidden to officiate at a marriage ceremony that would endow a man with a second wife alongside the first, so it is as a practical matter impossible that such a valid polygamous marriage could be effected.
Because Jewish law technically permits plural marriage (even though the solemnization of such marriages is forbidden), a married man who had sexual relations with a single woman could, theoretically if not practically, make good on his implicit promise and marry her. He has therefore committed fornication, not adultery, a much lesser offense. Jewish law on legitimacy tracks this distinction as well; a bastard in Jewish law is not someone born out of wedlock but someone born of an adulterous or incestous union - someone whose parents cannot be married and thereby retroactively repair the breach caused by their premature union.
The same understanding is reflected in the concept of the marriage veil, which exists in Jewish law as well as in secular law (or did, until recently). The child of a man's wife is, in Jewish law, presumptively his child unless he chooses to challenge paternity. And an accusation of adultery against a man's wife can only be brought by that man. The structure thus produced can certainly be criticized for giving the man too much power; if he is a brute, and suspects that he has been dishonored, he could do terrible harm to his wife and to her bastard child by bringing even a justified accusation. But if he's generous, and loves his wife, he can overlook her transgression, and nothing the other man can say can then break up his still-intact family. The incentives are designed to keep the family together: to keep the children of one woman under one roof with one man. The system does not always work, but that's what it's intended to achieve.
I think this history sheds a little light on the public-policy rationale for forbidding adultery. Adultery may well be an unpardonable offense to the betrayed party, but that's not the business of the state. It may also be a prima facie affront to God, but that is also not the business of the state. But an adulterous union raises the prospect of issue who cannot be brought under the unified care of its natural parents through their marriage, because the parents in question cannot legally marry. And that - the interests of such potential issue - is the business of the state.
Well, you might say, that all may have been true generations ago, but these days procreation and intercourse are pretty well divorced from one another. Why should the state take an interest now?
"Procreation and intercourse are pretty well divorced from one another." An interesting assertion, often made, infrequently examined. What are the presumptions inherent in this statement? Contraception is not, after all, foolproof, and abortion is, let's say, morally complicated. We increasingly go about assuming that if a woman bears a child - because she has chosen to have intercourse, failed to use contraception, and decided not to have an abortion - that's her choice and her business. She could, after all, have chosen otherwise, at her sole and free discretion; the kid, therefore, is her problem. The state may have an interest in making sure the father pays for the mess he made, and may be willing to enforce his paternal "rights" - visitation, etc. - but the underlying assumption is still that women make babies, and men are ancillary figures.
In that view of the world, it's true, there's no reason to forbid adultery. If fatherhood is abolished, what difference does it make how women make babies? But is this a view of the world we want to endorse? Do we want to abolish fatherhood? Is the abolition of fatherhood mandated by the Due Process clause of the 5th Amendment, or the Equal Protection clause of the 14th Amendment?
Now, let's turn to gay couples for a minute. Sullivan - who has, in the past, extolled the spiritual virtues of anonymous sex - has argued that same-sex couples joined in civil marriage should be subject to the same social expectations of monogamy as straights. But why? Why should outsiders, whether through the state or through private censure, care whether a couple is monogamous? If a married couple wants to have an "open marriage" whose business is that of ours? I thought Sullivan was in favor of freedom and privacy? What gives?
But there is an obvious asymmetry here. For straight couples, adultery raises the prospect of children born who cannot be brought under the wings of the family. But this issue does not exist at all for same-sex couples, whose relations are necessarily non-procreative. If a lesbian cheats on her lover - or in the Netherlands, her . . . wife? partner? I'm not sure what the language ettiquette is here - we can be 100% sure that neither she nor her illicit companion will produce a child. The state need enact no laws to discourage such running around in the interests of keeping children together in one family. The state need enact no laws, so far as I can see, of any kind with respect to the two lesbians' fidelity to one another.
The assumption that adultery laws are about "enforcing" the marriage contract is flawed, and the notion that we should have laws for this purpose is fundamentally illiberal. If marriage is nothing but a private contract then adultery is a subject for private litigation, not criminal law. But if, as I argue, they are at bottom about children and the families they will grow up in, then they are not illiberal. They are a reasonable response to an "externality" of adult decisions - that sex can produce children - that is designed around heterosexual coupling and that take into account the differences between men and women. All of this is obscured by the idea of same-sex marriages, which is in turn only possible to contemplate because we falsely behave as if heterosexual intercourse were similarly non-procreative in nature, and that therefore childbearing is an entirely voluntary act on a woman's part, to which a father is only an ancillary appendage.
There are only three kinds of marital structure that we can plausibly have. We can have companionate marriage, which is organized around the complementarity of equal sexes and is the presumed order for all our modern family law. We can have traditional polygamy, in which one man may have many wives, which was the norm in earlier history in much of the world and which is certainly compatible with civilization, but which implies patriarchal dominance of women and divides society into mutually-distrustful and competing clans. Or we can have female-headed families without fathers, where the men come and go, sponging from the women or seizing what they want, a form of family organization that appears to be incompatible with civilization itself. Our law, and to some extent our social reality, has been moving in the direction of the last option. Same-sex marriage would accelerate this trend in law, even if it makes no measurable impact on social reality, because the assumptions that underlie same-sex marriage will prove incompatible with the assumptions underlying marriage, and these changes in law will, eventually, result in changes in social reality generally. Making special, exceptional rules for same-sex couples to give them some set of social benefits will have no such negative impact, because they would not imply a redefinition of marriage and its assumptions generally.