Anyone not watching the events that have been unfolding in Texas at the FLDS compound with interest is missing out on something a bit chilling. The news is full of it, so I’ll spare the more obvious summary, except to say the sight of armored transports surrounding a religious community and a whole town’s worth of children being moved away from their parents is disturbing for a few reasons.
Oddly enough, the kink blogosphere has been extraordinarily quiet about all of this, or at least the 50 or so blogs I read about BDSM have been (which may not be the same thing.) Much more was made of Elliot Spitzer’s dalliances with a high-priced hooker, for example, which probably says more about BDSM’s obsession with pro-dommery rather than folks living a lifestyle, or even practicing privately in their off-hours.
Now, obviously the FLDS, which is the Mormon splinter-church at the center of this controversy, is probably anathema from the point of view of most kinksters, and most people into BDSM. The church is conservative, religiously fundamentalist, patriarchal, and the brand of polygamy they practice is pretty much — by its very nature — socially deleterious, both on the young girls that provide the fuel for its group marriages and the faith’s persistence, and for its effect on non-privileged men within the compounds, who tend to get driven out at the first opportunity. (I have no idea if the Texas compound was practicing the kind of shunning practiced in other FLDS strongholds, but simple math tells you that if the balance between women and men is 50/50, and you have a handful of elites marrying multiple women, the young men at the bottom of the totem pole will have to be dealt with, one way or another.)
This post is in no way a screed defending the FLDS. I’m not a fan of polygamy in general, given how it tends to play out in the real world, and the story behind the FLDS creates a particularly unlikeable fact pattern. But as a professor of mine said on several occasions, “Bad facts make for bad law,” and Texas has already demonstrated that it’s not friendly to people practicing kink. Amongst other things, it managed to create — whole cloth — a tort based on Infliction of Emotional Distress to allow a wife to collect damages in a divorce for consensual S&M she practiced with her husband on three or four occasions during their marriage. SS&C is not going to pass muster as a defense in those courts if the judges aren’t fans of S&M.
So when I say that the scenes on TV are chilling, they’re not frightening because I feel any real kinship with the FLDS, or approve of their particular brand of sexist patriarchy and the side-effects it creates. I say it because kink and poly folks in America should always have their eyes open for the state — or State, if you will — using its coercive power against those who are sexual minorities. We’re living in a country where a large voting bloc gives lip service to the more ridiculous portions of the Old Testament, where for the last 8 years that voting bloc has promoted a strong and frightening version of Unitary Executive legal theory under the guidance of the head of state, and where the supreme legal authority of the land has veered into more and more conservative territory. (Scalia’s dissent and its talk of a gay agenda co-opting America in Lawrence, for example, is sheer paranoid madness, but few people blinked at it being in a Supreme Court opinion. And they should have — it was like reading about Zionist Conspiracies in an Executive Order.)
Combined with the power of the administrative state — the Texas FLDS issue is being handled by state agencies — and I think anyone who practices something out of the mainstream should be a little worried. Especially those of us who practice BDSM, because no matter how comfortable I am in my own skin with what I do, the vast majority of people in America think the more extreme flavors of it are off-putting at best and offensive to human dignity at worst, and there are still psychiatrists who believe an interest in S&M comes about due to childhood trauma. (ABC news had an article to that effect not a month and a half ago.)
But they’re not us, right? The FLDS are bad guys. Well, bad facts make for bad laws, and ballgags and leather hoods and golden showers and bloody backs don’t play well in Middle America. I have to wonder if a state was pulling a couple of children from the house of a poly family, or the house of a couple into S&M (especially 24/7 or domestic discipline scenes) if we’d look any better on TV, no matter how much more into consent and negotiation we are.
But Lawrence protects us, right? I can think of a dozen reasons why Lawrence can be distinguished from S&M activities, not the least of which is simply the stigma associated with BDSM, and the psychiatric fields’ unease with it, provide plenty of fuel for a smart judge to distinguish it with. You simply don’t have to be a good lawyer to pick apart a Lawrence argument in a case about S&M.
Now, am I being a doomsayer? Not really. I don’t see this as a “First they came for the Mormon fundamentalists, and I didn’t speak up…” situation. The FLDS really does have major social costs and questions of consent hanging around its neck — as concerns its particular brand of polygamy — that it will have to deal with, and which I believe it might not ever be able to. They’re bad guys, or at least immensely misguided and harmful. But I think any kinky folks out there with an interest in the law need to watch how this is handled, and how the power of the state is exerted against undesirable sexual minorities.
You know, like us.
