I know other Lurers have noted the NY gay marriage victory already and I hope to make a more substantive contribution on the subject (or at least some of the law’s aftermath). However, I thought it quasi-timely to float another potential argument in favor of gay marriage.
A common argument against same-sex marriage is that, since the unions are not inherently procreative, they should be legally distinct from naturally procreative ones (i.e. one man and one woman), with the later being considered marriage and the former something else. A number of people, including here on the Lure, have quite rightly and ably argued that this logic would also excluded infertile or other sorts of heterosexual couples incapable of procreation. Further attempts by marriage equality opponents to refine their definition has not mitigated this objection in the slightest.
However, I sense another potential problem with this logic. Incest laws are largely predicated on the potentially harmful effects of these unions on any offspring produced (in addition to the biologically innate “ick” factor). Non-procreative couples have been covered by these laws, despite their inability to produce children biologically, because they are still governed by the same fundamental regime as procreative couples. This avoids judicial hairsplitting during criminal trials and more fully reinforces the taboo against incestuous relationships, not unlike still charging someone with a DUI even if they are immaculate drunk drivers.
The problems arise, though, if a legislative body or court declares same-sex unions distinct from their heterosexual counterparts (and thus governed by a separate legal framework) specifically because these unions are fundamentally non-procreative. It seems quite apparent to me that this system would be open up laws prohibiting same-sex incest to a robust legal challenge. The sorts of arguments necessary to defeat gay incest are exactly the same as those that buttress non-procreative incest: preserve the social sanction and avoid unnecessary wrangling during trials. But they only hold their validity because no legal distinction is made between straight and gay couples based on procreation. Indeed, this line of arguments is analogous to that proffered above in favor of SSM: if we allow gays to commit incest, why shouldn’t we allow sterile couples or even those religious about birth control to do the same. The primary safeguard is a common legal framework governing all consenting relationships, or at least one that does not discern groups based on fertility. If judges or lawmakers officially disregard these objections and adjure against SSM on procreative grounds, they will set a dangerous precedent that will likely be far more permissive of gay incest.
Slippery slopes don’t necessarily have the m-values their proponents expect.