Sunday, August 28, 2005

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.)


Anonymous said...

I see your friends over at WORLD have a blog topic on this today; interesting dichotomy between your comments and theirs. A dichotomy I miss since I have not seen you there in awhile.

Marty said...

Jon, are you saying that homosexual incest should be permitted, and heterosexual incest continue to be banned?

Jonathan said...

No because that would violate equal protection.

Marty said...

So should incest continue to be banned or not?

Anonymous said...

Your blog is creative Keep up the great work. This may be of interest to you; tithe about info on tithe

Marty said...

Oh and BTW,

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.

Yawn, this is sooo beneath you friend.

Jonathan said...

-- 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. --

Marty -- isn't that the Truth?

Marty said...

Absolutely. And that was just the first time it happened -- it was repeated on a slightly larger scale with Noah's family. But that's neither here nor there, for this discussion:

"should incest continue to be banned or not?"

Jonathan said...

Yes, but with reason.

Marty said...

As you might expect, I'm looking for that reason.

Showing my cards:

Shrewd of you to play the "equal protection" angle so early, i must have a tell. It would certainly violate the equal protection argument to say that heterosexual incest is prohibited, while homosexual incest is permitted.

But there seems to be no "rational basis" for any ban on homosexual incest, as those laws are so clearly based in "outdated notions" of sex and gender. All things being equal then, if there is no rational basis to prohibit gay incest, then there should be none to prohibit straight incest -- because of equal protection.

So how will you justify continuing to ban incestuous relations, outside of "tradition" and the gender stereotypes of old?

Jonathan said...

Marty, as I've already written, there are sound reasons as to why incest should be banned that make it distinguishable from homosexuality and are not based on "tradition."

I recognize that not all cases of incest are inherently wrong, or otherwise legitimate for legal penalty. But I think you recognize that too! That's why I brought up the Bible. Is incest wrong in every instance? If it is, then what about Adam and Eve's Children?

The problem is, I don't think we can feasibly construct a public legal norm that says: "Incest in these circumstances will be allowed, but in those other ones, not allowed."

And also as I've written in the body of my post, "tradition" logically groups anti-misceg. with incest and homosexuality.

As regards brother/brother incest. Other brothers sometimes molest younger brothers. This is not a case where incest is disconnected with the child abuse that often accompanies it.

Marty said...

I've noticed a few people speculating about the coming of age of thousands of children concieved through donor insemination. Invariably some of these half-siblings will find each other, fall in love, and marry -- or not. Sooner or later, they'll wind up in court, arguing that they should be allowed to marry.

Outside any biblical prohibitions against incest (that wouldn't be allowed anyway), the reasons they will argue against are the same two you have presented here. Neither of which will apply, if the couple is of the same-sex variety -- assuming SSM is otherwise legal, of course.

How would you judge them unfit to marry, if you were on the bench?

Marty said...


Marty said...

From Corvino:

imagine two adult lesbian sisters who privately engage in what they report to be a fulfilling sexual relationship. Can I prove that such activity is wrong? No — at least not off the top of my head. On the other hand, I don't think it's incumbent upon me to do so. If there are good arguments against such a relationship, they will remain unaffected by the argument in favor of homosexuality. And if the only argument traditionalists can offer against such a relationship is that longstanding tradition prohibits it, so much the worse for traditionalists.

Emphasis mine.

So is it just me, or is he saying that homosexual incest should be permitted? Because the "good arguments" against such relationships are premised in the heterosexual union, and simply do not apply (no rational basis) to the homosexual version?