Dan Markel at  PrawfsBlawg has posted in the finest tradition of a scholar and academic.  But it’s perhaps the most disturbing post I can remember.  While I truly believe that limiting discussion to “politically correct” topics or assumptions has precluded the resolution, correction, adjustment or understanding of many critical issues, and for this reason applaud Dan’s boldness in raising unpleasant questions, this one just disgusts me.

In the news today is the arrest of a 38 year old man, a Rhodes Scholar and HLS grad who is a high-ranking Mass. gov’t official, for allegedly masturbating and performing oral sex on a 15 year old male in a steam room at a resort in Florida. (HT: ATL) I’m less interested in the facts here and more interested in the normative legal questions posed by this conduct and conduct similar to but different to it as posed in the following scenarios.  What reactions do you have regarding what you think the law should be in a liberal democracy under the following conditions, and why?

Dan runs through a series of questions, based upon adjustments to the facts to alter the details sufficiently to raise or eliminate factors that would/should change the analysis.  He then gives his responses as to how the law “in a liberal democracy” should treat the scenario.

In one sense, Dan’s point is to distinguish the law’s treatment of homosexual contact between an adult and a child from heterosexual contact.  If we believe, as most say they do, that homosexuality is not a “disease” or “evil”, then why does the public, and the law, respond so differently to the two?   This exercise reveals the fallacy of our professed acceptance of homosexuality as a legitimate alternative preference, since it’s impossible to give an intellectually honest distinction.  That, I presume, was Dan’s point.

But Dan takes the lesson even further, dealing with other taboo subjects such as consanguinity, bringing the connection increasingly closer to face the taboo of incest.  I guess when you’re going out on a limb, you might as well go all the way out.

While Dan’s post raised a wealth of substantive issues that some of us (like me) prefer not to face, and from a scholarly perspective should be addressed if we are to have meaningful discussions of what our norms and mores and purported liberal leanings really mean, I find this post to be exceptionally disturbing.  Perhaps it’s because it crosses lines that I can’t bear to cross, or just because the taboos are far too ingrained in an old man like me to separate my intellectual consideration from my visceral reactions.

But I cannot agree with many of Dan’s responses.  I do not subscribe to the notion that it is acceptable for adults to engage children in sexual conduct, regardless of whether it is homosexual or heterosexual.  Indeed, just as I believe that children should not be treated like adults with regard to criminal conduct, I do not accept that children are sufficiently mature and responsible to make decisions of lasting consequence. 

Similarly, I am unconvinced that most children are capable of exercising independent choice when confronted by adults.  They are taught to do as they are told by their elders, and this lesson, even when not obvious, impacts their ability to refuse.  Rather than risk a child by considering choices on a post hoc basis, I favor a bright line test.  It is simply unacceptable to me to put children at risk, and getting anywhere near that slippery slope is wrong.

As for incestuous potential, just gag me.  There are enough people in the world that we can stay away from anyone related to us with a 10 degrees.  On this point, there’s just no reason to go there, unless you’re Rudy Giuliani, and thankfully, I’m not.

Update:  Dan’s at it again.  He’s pushing the envelope further :

Today I’m interested in reactions to marriages with minors and between minors in both polygamous and monogamous situations.

It’s not enough to ask about marriages with minors, but throw in polygamous to boot?  Where are we, Utah?  No clue where Dan will be heading next on this topic, but it appears a safe bet that it will challenge one’s sensibilities.