Ralph Richard Banks Looks at Equality Progress

Ralph Richard Banks, author and professor of law at Stanford Law School, wrote in the New York Times…

Not long ago, the prohibition of same-sex marriage, like the prohibition of interracial marriage before it, was so deeply ingrained in our social fabric and legal understandings that the recent turnabout by the New York State Legislature might have seemed unimaginable.

To many, sure.

As recently as 1986, the United States Supreme Court rejected a gay man’s argument for constitutional protection of his sexual relationship, declaring the argument as “at best, facetious.”

The denial of freedom was atrocious.

In 2001, the court overturned that ruling and accorded same-sex partners the same constitutional protection as heterosexuals. Same-sex marriage may soon become legal in even more states.

It must. We must keep moving towards full marriage equality.

What now of the two remaining criminal prohibitions of intimate relationships: incest and polygamy?

They also belong on the ash heap of history, right next to the ban on same-sex marriage and the ban on interracial marriage.

Even as same sex and interracial relationships are accepted, Americans are now imprisoned for incest or polygamy.

It’s not only a travesty of justice, but a waste of resources.

The cases against polygamy and incest are not nearly as strong as most people imagine.

They are flimsy masks hiding prejudice and bigotry and fear.

Yet they will not become legal anytime soon.

They won’t if we sit on our hands. In modern times, we have never been closer to achieving full marriage equality. But we need to act.

Banks cites the long road that interracial and same-sex (monogamous, nonconsanguineous) marriage have taken to explain why. But there’s more momentum for equality now.

The categorical prohibitions of incest and polygamy persist in part because people who commit either act are commonly reduced to that act (which is viewed as morally reprehensible) and, in turn, are not viewed as worthy of respect as people.

That is changing, and we need to keep changing it.

Historically, both polygamy and incest have been more widely practiced, and accepted, than the Supreme Court, and most Americans, seem to believe.

Over time, our moral assessments of these practices will shift, just as they have with interracial marriage and same sex marriage. We will begin to take seriously questions that now seem beyond the pale: Should a state be permitted to imprison two cousins because they have sex or attempt to marry?

Of course not.

Should a man and two wives be permitted to live together as a family when they assert that their religious convictions lead them to do so?

They should be able to with or without a religious reason.

An adult should be able to pursue love, sex, and marriage with any consenting adults. That should be obvious to anyone who takes off the blinders.