Lawrence & Incest:

Jeff Jacoby's recent column argues, using a real life incest prosecution example, that there is no principled way such prosecution could survive Lawrence's holding.

The case Jacoby cites is interesting. It involved consenting adults -- Allen, 45, Pat, 30 -- who didn't meet until Pat was 18. Right there a key rationale for incest laws is missing from this case: Incest is rarely consensual and adult; it invariably involves the abuse of minor children living in the home. It is far harder to make a moral case against incest if this element is missing. But the second legitimate rationale for incest prohibition was indeed present in this case: The couple had four children (and as I'm sure all of us are aware, the argument is incest is bad for the species because inbreeding heightens the chances for biological defects).

Those two reasons, the defects that come with inbreeding and abuse of minor children, are, to my mind, the only legitimate moral and public policy rationales that support the legal incest taboo. They are also both wholly absent from homosexual relations between consenting adults. And that right there should be sufficient for any rational person to distinguish between incest and homosexuality.

Sometimes I get the question something along the lines of..."well what about incest where both elements are missing? What about two sisters who didn't start dating until adulthood? Or a sterile brother and sister?" My response: 1) I think it's icky, definitely not for me; 2) I really don't see good reason for a public norm or legal prohibition against such acts unless weakening the taboo against this more or less harmless incest weakens the taboo against incest generally, and in effect leads to more of the "bad" kind of incest with abuse of children and inbreeding.

Still the couple in question has engendered my libertarian sympathies. I'm not sure in a first best libertarian world how I would deal with them. I certainly don't think they should be sent to prison. But one thing is for sure, Jacoby is wrong on his thesis. I've stated two good reasons why incest is distinguishable from homosexuality.

The case made it to the 7th Circuit and the judges rather wisely held that, in Jacoby's words, "since Lawrence had dealt specifically with homosexual sodomy, it could not be invoked retroactively to overturn a conviction for incest." Jacoby called this a "strained and narrow ground," but those judges were doing exactly what normal judges do. When confronted with an analogy, judges can either read the precedent narrowly and refuse to extend the logic of case A to case B or read the precedent broadly and make that leap down the slope. Ultimately it's the judges who have the discretion.

Which brings me to my final point. There is something very irksome about social cons' seeming insistence that only gays bear the burden of the "slippery slope," homosexuality leading to things that are otherwise entirely unrelated to it. As I've written before, the slope does indeed exist and it's entirely possible, but certainly not inevitable, that the logic of gay rights decisions will be used to support these otherwise unrelated things. But good constitutional decisions that produce good results in which we all agree also can and do lead us down the slope as well.

Therefore, it is necessary to once again turn our attention to miscegenation. The fact is, homosexuality is no more or less logically related to incest than miscegenation is to homosexuality. We can use the same slippery slope argument against miscegenation: Recognize a right to miscegenation today, and you'll have to recognize a right to same-sex marriage tomorrow. And there is a kernel of truth to this argument! Loving, read in a broad sense, does indeed support the case for same-sex marriage. On the other hand, Loving can be read narrowly as applying to the specific case of mixed raced marriages only. Well the same thing can be said of Lawrence! We can apply the logic broadly to justify things like polygamy and incest or read the holding narrowly as applying only to consensual sodomy.

From a conceptual analysis, there are no two ways about it: incest is no more logically related to homosexuality than homosexuality is to interracial couplings. We are dealing with the wrong "race," the wrong "gender," and the wrong "degree of relatedness," each seemingly equidistant conceptually. If we want to argue that homosexuality and incest are both condemned as traditional taboos, then we'd have to logically group miscegenation in there too, which is or was equally a traditional taboo.

If anything, incest and miscegenation are more logically related to one another than either to homosexuality. Some traditional sexual taboos, like sodomy, are taboo because they are non-procreative. Well, neither incest nor miscegenation are inherently non-procreative. Indeed, the taboos against both are set up so these otherwise fertile folks will not procreate with one another! We can group both incest and miscegenation together under the rubric of consanguinity regulation. With incest, the partners are too closely related. With miscegenation, the partners are too distantly related.

And let us not forget, those who believe in a literal interpretation of Genesis believe the entire human race was propagated by brother and sister incest.

Finally, from a constitutional perspective, homosexuality is just as distinguishable from incest as miscegenation is from homosexuality. Some might argue that, unlike Lawrence, the ban on miscegenation as a constitutional matter, is supported by the 14th Amendment because that Amendment clearly had some idea of racial equality in mind in its general intent. Two things. First, the historical record demonstrates that the ratifiers of the 14th Amendment not only were not aware that they were illegalizing miscegenation, but gave assurances that the legality of miscegenation bans would be preserved. Secondly, if one then argues 14th Amendment jurisprudence as a general matter forbids racial classifications, subjecting them to strict scrutiny review (enough to justify striking down the ban on miscegenation), the 14th Amendment also forbids gender classifications as well, albeit subjecting them to a lower level of review (intermediate scrutiny). And if a ban on interracial marriages that applies equally to blacks and whites constitutes "race discrimination," then likewise a ban on same-sex marriage that applies equally to men and women constitutes gender discrimination. The 14th Amendment has no record of heightened scrutiny for consanguinity classifications or number classifications (polygamy). So once again we see that even from the perspective of the 14th Amendment, there is just as far logical distance between miscegenation and homosexuality as there is between homosexuality and incest.

(Hat tip to John Corvino for this excellent article that inspired many of these arguments.)