Tue Jan 11/05
The last word, part deux 

Norman Spector has politely but firmly protested my interpretation of his December 27 column in the Globe and Mail. I had rather smugly accused him of propagating, and poorly, the much-debated slippery slope argument against gay marriage. His defence: that's not what he was doing at all. Picky, picky! He's quite right, though. I quoted this paragraph, which could just as easily have come from the keyboard of a slippery-sloper:

As a conservative, I can think of several reasons it would not be in Canada's interest to become the third country to legalize same-sex marriage. However, if the Supreme Court dismissed these arguments, I can't think of a single additional reason to prohibit a woman from voluntarily choosing to become Paul Martin's second wife, assuming Sheila Martin also agreed.

But in fact, Spector was only pointing out the ways in which the gay marriage debate is similar to the hypothetical debate swirling around Mrs Martin II. Thus, my protestations (and those of the letter writer I quoted) that any would-be polygamists in our future are likely to make their case on religious grounds are irrelevant. We are in the land of make-believe, and I will obey the local laws and customs from now on.

I am loath to risk further interpretation of his article, because I don't seem to be very good at it. (Also because I think he's beginning to take the piss a little bit: "Since you are a blogger and not a mainstream journalist," he wrote me, "I look forward to reading the revised entry on your site." Oof — thanks, I guess.) So I'll quote his last e-mail directly:

The Government, through its new definition of marriage [which excludes polygamy], is denying [Mrs Martin II] the right to marry whom she wants.

That was the issue in the same sex marriage case.

Gay men and lesbian women have always had the right to marry, like every other Canadian — they just did not have the right to marry someone of their own gender.

They argued that they were discriminated against.

My poor woman is being discriminated against in not being allowed to marry the man of her choice, just because he happens already to be married.

Why should that be?

All of the legal arguments in favour of and against allowing gays to marry apply to my poor woman.

All quite logical in the context of this make-believe world we're in, and I pretty much agree with all of it as a hypothetical exercise. As Spector isn't arguing the probability of such a case ever coming up, I won't bother to reiterate my position that there's no earthly reason to believe it ever, ever will. Whoops.

It's his last sentence above that leads us into ongoing disagreement. It's true that all the legal arguments, pro-gay marriage and anti-gay marriage, apply to Mrs Martin II, but it's also true that more legal arguments apply to her — all anti-, none pro-. It doesn't matter in the eyes of the criminal code why she wants to marry a married man — it's illegal for her to set herself up in such a situation, full stop.

Thus, I think it's far too pessimistic to say that "no one can predict" "how the Supreme Court would rule on Mr. Martin's proposed discrimination against threesomes [three-way marriage, I assume –ed]" or "whether what disgusts ordinary Canadians and what disgusts appointed Supreme Court judges will coincide." Spector sweeps away the law against polygamy as a bump in the road, easily flattened once the charter case is won. But I think the Supreme Court might very well claim (as I believe) that polygamy, like incest, is a social structure that runs fundamentally counter to the principles of western societies like Canada's, and that prohibiting Mrs Martin II from marrying Paul in a civilized, consenting manner is "demonstrably justified in a free and democratic society" for the sake of the many uncivilized, non-consenting relationships that would be sanctioned as a result.

Spector thinks gay marriage should be a political issue, subject to a free vote, and it seems to me that he believes that at least in part because it will set a precedent for an easy (presumably unanimous) vote against polygamy. That would be ideal, and perhaps I am being naïve, but I don't particularly care how gay marriage gets done — just that it does. The fact that similar rights-based arguments can be made for it as can be made for polygamy, or for incest, or for any of the cockamamie forms of marriage slippery-slopers have warned us about, does not make any of them more likely to come about. Not that Spector was necessarily arguing in favour of doing so, but I don't think we should risk the enshrinement of gay marriages in any way for the sake of a hypothetical threat that we should be more than strong enough to defeat.

[UPDATE Sun Jan 16/05: Spector responds to this piece, and I to him, here.]

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