Dr. Philip Jenkins is a prolific author and an outstanding professor of history religious studies at Penn State University. Dr. Jenkins’ 2002 book, “Hidden Gospels: How the Search for Jesus Lost Its Way“, convincingly debunks the claims that recently discovered texts such as the Gospel of Thomas, the Gospel of Mary, and the Dead Sea Scrolls undermine the historical validity of the New Testament.
In this Dallas Morning News op-ed, Professor Jenkins addresses one of the many legal issues that must be addressed in connection with the societal drift toward gay marriage — i.e., the age of consent. Interesting reading from a compelling thinker.
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Professor Jenkin’s op-ed thesis is mistaken. He misapprehends the law for certain. He may well be mistaken about certain empirical assumptions that underlie his argument as well. An analysis of his Dallas Morning News commentary may be viewed here: http://www.curmudgeonlyclerk.com/weblog/archives/2004_03.html#000746
I read your blog discussion on Professor Jenkins’ piece, and it is certainly interesting. But regarding your argument that Professor Jenkins’ age of consent argument is a strawman, I do not agree.
As you point out, Professor Jenkins makes a mistake in the fifth paragraph of his piece where he refers to “states with a legal age of 16.” However, that mistake does not undermine his core argument, which is that that the Massachusetts court’s decision allowing gay marriage “revolutionize(s)the law on teenage sexuality” because “Massachusetts boys now can marry” a gay partner “at 18, unless they have parental consent or a judge’s permission, in which case the age is 14.” Although Professor Jenkins would have been better advised not to muddle his argument regarding the revolutionary nature of the Massachusetts court’s decision with the age of consent issue, the crux of his argument is still correct — the Massachusetts court’s decision dramatically changes the nature of a young man’s marriage and family choices without any meaningful empirical research or political debate of the impact that such change may have on society.
Professor Jenkins’ argument is compelling because of the premature nature of the Massachusetts’ court’s decision. I am not in favor of a constitutional amendment banning gay marriage. However, I am in favor of full political analysis and debate of the societal impact of gay marriage before courts begin overturning anti-gay marriage laws that may serve a viable societal purpose. The Massachusetts court’s decision undercuts that key component of creating just law in our Republican form of government.
I am not so sure that much of Jenkins’s argument survives once the bit about the age of consent is (properly) jettisoned, however. The remaining issue you identify is as follows:
“. . . ‘Massachusetts boys now can marry’ a gay partner ‘at 18, unless they have parental consent or a judge’s permission, in which case the age is 14.’ . . . the Massachusetts court’s decision dramatically changes the nature of a young man’s marriage and family choices without any meaningful empirical research or political debate of the impact that such change may have on society.”
To me this really adds little or nothing to the debate about gay marriage. That is, there really is no additional objection to gay marriage here; it’s just a restatement of objection to the institutional recognition of gay marriage. After all, to object to a gay marriage involving an 18-year-old, who would otherwise be free to enter into a heterosexual union, is just an objection to gay marriage in general.
The bit about the ability to marry younger (than 18) with parental or judicial permission strikes me as largely consisting of misdirection. I suspect that few seriously believes that such unions would be anything other than a marginal occurence. I cannot find anything in the way of empircal evidence to support such a claim. As I note in my post, the data that Jenkins is relying on does not support such a notion. Indeed, the trend in America is deferment of marriage.
Perhaps, what you have in mind is the sort of claim made Don Browning and Elizabeth Marquardt in the March 9, 2004 edition of the New York Times.
See http://www.americanvalues.org/html/marriage_history.html
I am somewhat more sympathetic to such Burkean claims about the dangers of tinkering with longstanding institutions like family and marriage. I also think that the legal implications of recognizing gay marriage have not been fully fleshed out or considered. However, it might plausibly be suggested that the sort of argument put for by Browning and Marquardt regarding a dearth of “sociological knowledge” is flawed in that the dearth is an inevitable result of society’s refusal to grant same-sex relationships any form of legal recognition. How could we possibly possess such sociological knowledge given that we were only recently criminalizing the behavior in question? Isn’t our lack of knowledge on these topics self-imposed ignorance in some sense?
I am not necessarily persuaded by the foregoing objections. But neither am I persuaded by the sorts of arguments being put forward by Jenkins, Browning, and Marquardt.
Thanks for the reply. I think we are narrowing the focus a bit. You write:
“To me this really adds little or nothing to the debate about gay marriage. That is, there really is no additional objection to gay marriage here; it’s just a restatement of objection to the institutional recognition of gay marriage. After all, to object to a gay marriage involving an 18-year-old, who would otherwise be free to enter into a heterosexual union, is just an objection to gay marriage in general.”
But it seems to me that this argument begs the question. The fact that the societal effect of condoning gay marriage is not as well known as the societal effect of promoting heterosexual marriage is a legitimate objection to gay marriage and not just an objection to gay marriage in general.
For example, suppose that empirical studies indicate that gay marriage is more likely to lead to divorce than heterosexual marriage (hard to imagine, but we’re talking theory here)? Could not there be a legitimate state interest in banning gay marriage if, in doing so, the state would be promoting the stability of marriage as an institution?
Similarly, what if evidence exists that condoning gay marriage would lead to societal acceptance of polygamy? Again, I do not know if that is the case, but if it were, the state may have a legitimate interest in limiting marriage to heterosexuals unless, in the course of debating that issue, society concludes that polygamy is not all that bad after all and legalizes it, too.
In the end, Professor Jenkins’ somewhat flawed analysis of the age of consent issue as it relates to gay marriage does not undermine the main point of his piece — i.e, major changes in a societal institution such as marriage may have important unintended consequences. Those consequences should be the subject of political debate (again, at least initially) before they become the subject of litigation.