A Right To Adult Incest?

When I first wrote about the Supreme Court’s decision to strike down a sodomy law in the case of Lawrence v Texas, I warned that the basis of the decision — a privacy right to sexual conduct between consenting adults — would produce a wide range of mischief in subsequent decisions. I noted that polygamy, prostitution, and adult incest could be justified under such reasoning, and that although the law in question in Lawrence was indeed foolish and unwise, it did not violate the Constitution. Many CQ readers initially scoffed at this warning — which is OK, because I actually enjoy scoffing — but in November, polygamists began organizing challenges to the legal ban using Lawrence as a template.
Today, Jeff Jacoby reports at the Boston Globe that we should prepare ourselves for cases involving adult incest, too:

When the justices, voting 6-3, did in fact declare it unconstitutional for any state to punish consensual gay sex, the dissenters echoed [former Senator Rick] Santorum’s point. “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . called into question by today’s decision,” Justice Antonin Scalia wrote for the minority. Now, Time magazine acknowledges: “It turns out the critics were right.”
Time’s attention, like the BBC’s, has been caught by the legal battles underway to decriminalize incest between consenting adults. An article last month by Time reporter Michael Lindenberger titled “Should Incest Be Legal?” highlights the case of Paul Lowe, an Ohio man convicted of incest for having sex with his 22-year-old stepdaughter. Lowe has appealed his conviction to the Supreme Court, making Lawrence the basis of his argument. In Lawrence, the court had ruled that people “are entitled to respect for their private lives” and that under the 14th Amendment, “the state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” If that was true for the adult homosexual behavior in Lawrence, why not for the adult incestuous behavior in the Ohio case? …
Your reaction to the prospect of lawful incest may be “Ugh, gross.” But personal repugnance is no replacement for moral standards. For more than 3,000 years, a code of conduct stretching back to Sinai has kept incest unconditionally beyond the pale. If sexual morality is jettisoned as a legitimate basis for legislation, personal opinion and cultural fashion are all that will remain. “Should Incest Be Legal?” Time asks. Expect more and more people to answer yes.

Time Magazine reported in the article linked above that

It turns out the critics were right. Plaintiffs have made the decision the centerpiece of attempts to defeat state bans on the sale of sex toys in Alabama, polygamy in Utah and adoptions by gay couples in Florida. So far the challenges have been unsuccessful. But plaintiffs are still trying, even using Lawrence to challenge laws against incest.

The trick will be to get the Supreme Court to apply the Lawrence standard at all. They may avoid it by declaring that the state has a legitimate interest in keeping siblings or other close blood relations from conceiving — but in that case, would the sterility of one partner void the law banning incest? That state interest would not apply in one of the pending cases in which a man had a sexual relationship with his adult stepdaughter, someone outside the limits of consanguinuity.
That state interest — avoiding strange genetic variations — would also not apply to polygamy and polyamory among adults. Polygamy and polyamory as practiced in secret have plenty of other social ills tied to it, but openly practiced among adults, those would not necessarily follow. The same would be true of prostitution, although the state could argue that it has a valid interest in controlling the spread of venereal diseases. Where prostitution is legal, however, the state and the industry require frequent health screens to avoid it and also require “safe sex” in all instances.
In the end, the honest and real community interest in these laws are moral — and Lawrence removed that as a basis for law.
The dissenters were right. Based on the logic of their reasoning, the Supreme Court in Lawrence opened the floodgates for these challenges, and until the Court allows that law can validly reflect a moral consensus of the community without violating an emanation of a penumbra of the Constitution, eventually those challenges will succeed. At some point, this court or a future one will have to overrule Lawrence or have us forego any limitations on sexual practices in our society, regardless of legitimate state interests.
UPDATE: David Schraub notes a curious exception to incest laws in Rhode Island, and takes issue with Jacoby’s Sinai reference. In Jacoby’s defense, I believe he meant it in a general sense to reflect on the long tradition of legal sanctions against incest, and not that we should continue them just because they appear in the Bible.

38 thoughts on “A Right To Adult Incest?”

  1. Is there a way to square this round peg?
    Gay men and women are a distinct class of persons who cannot “change” their identities – nature vs. nurture arguments aside – that merit equal protection under the constitution, while incestuous partners do not. Being gay isn’t just about sex but an orientation, a physical and romantic attraction to members of the same sex. I’m very doubtful someone in an incestuous relationship can argue that their particular relationship involves that kind of brain chemistry.
    However, this does revisit some doctrinal problems with Lawrence v. Texas, a case dealing with, in the famous words quoted by Justice Thomas from Griswald v. Connecticut, “an uncommonly silly law” that could have been more well written. Scalia has a point in wondering if morality can be used at all in drafting laws — as much as “morality” can be abused by bigots and demagogues, doesn’t it provide a basis for at least some laws?
    As unjust as sodomy laws are, there were proper and improper ways to have removed them. The error in Lawrence was not in its conclusion but in its looser instances of logic, and we may yet pay the price for it.
    DU

  2. This sort of thing makes me reconsider my growing libertarian attitudes…
    I was one of many who suspected – correctly – that deviants of all stripes would use Lawrence as a legal excuse for their perversions. I recall others – almost all of them libs and champions of “homosexual rights” – pooh-poohing such predictions as alarmist or outright fantasies. They were so eager to remove the legal restrictions against homosexual intercourse that they didn’t stop to think that they were opening the floodgates of other practices that even they would (grudgingly) admit are abhorent and should be illegal.
    Now what do we do?
    Does the state have a compelling interest in stopping (for example) a brother and sister from having sex? How about a father and daughter? An uncle and nephew? What if they want to get married? Maybe Gavin Newsome or the State of Vermont can have a race to see who will sanction the first marriage between a man and his brother.
    If there is a compelling state interest against such perversions, from what does it stem? Certain elements of our society have done a thorough job of discrediting traditional Judeo-Christian morality as a basis for law, so that’s out. One might argue against incest because it can lead to the propogation of genetic defects, but what if the couple (trio? Foursome?) in question is sterile… or single-sex?
    On a previous thread, there was much discussion about marijuana, with several people (including me) arguing that the government really hasn’t got a right to regulate what consenting adults take into their bodies. Others argued (apparently on the basis of extensive personal experience) that it causes no serious ill effects. One might make the same arguments about incest, homosexual sex, bestiality, etc.
    So, where DO we draw the line? And how? Is “majority rule” sufficient, i.e. enough people vote to outlaw a given practice? What about the courts? Are they not constrained by Lawrence and the concept of stare decisis to find that ANY practice between two or more consenting adults, so long as no harm comes to another person, is not only legal but guaranteed under the Fourteenth Amendment?
    I will be very interested to see how people respond to this.

  3. Speaking of brain chemistry….
    I like Camile Paglia’s take which basically is ‘we’ve forgotten the primary function of the sex organs that being procreation’ Hey, I think sexually is enjoyable, orgasmic and all but our sexual organs serve a primary purpose which is greater than serving a momentary gasp of satisifaction.
    For a specific reason humans are born with either male sex organs or female sex organs, everything else is behavioral. OF course, every once in a while as nature always provides there are abberations to this nature. None is born gay or straight, we all have the capacity to engage in homo and or heterosexual activity. I know young ‘gay’ males who have engaged in homosexual relationships yet are repulsed by the act after the orgasm. Some people I know need to be electrocuted(I kidd you not) in order to get a hard-on, some people need children, some people are fearful of even being touched. The is behavioral sexuality not ‘identity’ sexuality.
    There is no such thing as same-sex parents, doesn’t exist not matter how the language is altered to change this biological fact. Can’t argue law based upon ‘distinct class of persons who cannot change their identity’ because you are basing laws on behavior.
    It is akin to arguing that blacks who because of their distinct class of persons cannot change their identity need special laws to insure that they merit equal protection. The fallacy in this type of ‘identity’ argument assumes that blacks are inferior and need special consideration when in fact they are humans just like everyone else.
    But because the law these days wants to satisify behavior it will be impossible to argue against the idea that incestuous partners merit equal protection the constitution because they cannot ‘change’ their identities.

  4. Consensual sex between stepfather and an adult stepdaughter should in no way be illegal. The only valid reason for laws against incest are for genetic reasons. Where no genetic relationship exists, there is no reasonable prohibition.
    Political correctness is getting too close to puritanistic prudishness. This is like putting a 55 mph speed limit on a road built for 75 mph traffic.

  5. “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . called into question by today’s decision,” Justice Antonin Scalia wrote for the minority.
    Bigamy – allowed by several religions, accepted as normal in several parts of the world. Why we should have laws against this, I’ve never understood.
    Same Sex Marriage – We’ve said this all along. Marriage as defined by the ages of man is between man and woman. We already have LEGAL CIVIL UNIONS, which is recognition of the same situation as marriage, for gays. The only reason we hold off is because to call gay marriage marriage would cheapen what marriage is SUPPOSED to be. Something the communists have been asking us to do for fifty years (check out number 26 here http://upssa.com/1963-congress.htm).
    Adult incest – again, none of our business. Worried about genetic problems? So what about other kids with birth defects? The deal with incest (called line breeding in the dog world) is that, you’re right, you get health problems, you get diseases, and, sometimes, you get the good side of it, which is a combining of more good from each side just like the others are combinations of bad. From what I understand, you’re just as likely to get a savant as an idiot. Either way, we don’t kill kids with birth defects now, we don’t let people not get married now just because they MIGHT have a child with a birth defect (which is what we’re talking, since all defects are there when you’re born, right?), and to restrict some based on morality while not restricting all based on the same reasoning is just ludicrously over the line into discrimination based on religious/moral belief.
    Prostitution – should be legal anyway. You can have sex with anyone you want, and anyone who wanted to make a law against that would face stiff opposition (no pun intended). So why can’t you do it for money? The canard about worried about venereal disease is just so much BS. Aids is at an epidemic, but they wouldn’t do the few things that could have kept it under control. Sex workers tend to inspect, and be more knowledgeable and more dutiful about checking, every client. After all, it’s his/her body, too. So do we outlaw sex because someone might get VD? Or do we only outlaw sex more than once in a day? Ludicrous, but yet, it’s still illegal.
    Masturbation – PUUHHLLEEAAASSE. Nuf said.
    Adultery – There are still laws on the books for this, and they are just as archaic as any other law made from the Puritan standpoint. There’s a difference between what’s right and wrong, and what you can enforce by law.
    Fornication – Okay, so now we’re down to outlawing sex? Fornication laws are wrong, period. Who, what, where, when, or how I have sex with someone (including myself) is my business. When I’m hurting someone, then it’s the LAW’s business. Laws against fornication? Be serious. Any law against sex should be struck down anyway.
    Bestiality – okay, not my cup of tea, but also none of my business. As long as we never call this kind of crap normal, teach our children that it’s perverted, again, I don’t see the enforcement of laws like this.
    Obscenity – Okay, but which obscene? The one defined in 1905? The one defined in 1805? Of course not, you’ll say, but how can you send someone to jail for obscenity knowing that in a few years, your OPINION will change, but this person will still be in prison because of YOUR OPINION.
    Let’s get to the basis of this. Morality. Sure, we have the right to make certain laws, like no murder and no stealing, but they aren’t moral laws. They are laws of violence against someone, injurious to another, and these are the ONLY kind of laws we should be worried about. And even then, you’ll notice they are laws about the ACTION, not the POTENTIAL. Bestiality MIGHT hurt the public, but in general, it probably won’t, unless the public starts to treat it as normal. In short, nanny laws should be erased, nanny criminals should be released and apologized to, and the nannys should be lined up and shot.

  6. Okay, Noah! You’re in the dock!
    Oh, yeah. Bible studies have everything. And, sex? It happens.
    Now, why does the Supreme’s have a view?
    And, does it matter?
    A view, if it’s your job to separate out the sounds of horses hooves; where you don’t want to make a mistake, and call a zebra a horse, based on the sounds the hooves make.
    As to what you can do with “extremism,” take my advice. It’s not gonna sell in the market place. Time to take the banners down. Because people won’t vote for prohibitions, no matter how far we’ve already gone.
    How far? You can’t smoke at a bar. You can’t smoke in the streets. You can’t smoke while you’re watching a movie.
    And, there are some who won’t wear a helmet. So doctors in emergency rooms call them “donors.”
    Again. With the Supremes taking fewer and fewer cases; and we really do have major problems. I could care less what lightbulbs the Supreme-O’s went and hung on this Christmas Tree.
    Another thing that always puzzled me. You mean, you take a dead tree, and you put it in your living room?
    Again. If you want to see the harms of intermarriage; I think the Man Upstairs expects the arabs to have problems, caused by all those marriages between first-cousins. And, ya know? I don’t know if they go to the goats, and get their permission first? I don’t even know if it’s necessary for the tablecloth to come off.
    But the only curiosity I have? How much tax money goes to the work to shine the flashlights into homes where there’s sex going on between brother and sister? Or father and daughter? Because, have I got news for you! YOU WON’T SOLVE EVERY PROBLEM IN THE WORLD. Let alone, watching 9 idiots spending time, after the fact, deciding like priests … Well, what’s been established by priests, rabbis and ministers. To say nothing of doctors. Stay away from tossing the dice where you’re guaranteed to get progeny failures. At a higher rate than “normal.”
    And, then. Once, Mort Sahl walked out on the stage. The New York Times under his arm. And, he said. “Today’s headline says the Pentagon has found fragging to be out of control.” So he asked. What’s the acceptable number?”
    Or. As Jackie Mason says. He never trusts men who wear bedsheets for clothing. Not the KKK. And, not the Saudis.
    We, do, of course, have a president whose quite friendly with the House of Saud.
    The Man Upstairs KNOWS the Laws of Nature. The Supreme-O’s? There are only 9 of them. Most were put there by republican presidents. And, there ya go. Among the 9, there’s not too much friendship. Which doesn’t even involve sex. So, how come, they can’t get along better?
    Noah! You’re in the dock! On the other hand? Good rabbi’s, who do study this stuff, have written about what appears in the Good Book. Here? Ya don’t even need the Constitution, to have those lessons delivered as COMMON SENSE.
    Geez. Some people sure have troubles with sex; given that they turn their noses blue, sticking them into the business of people who even draw the drapes!

  7. The Mechanical Eye said:
    “Gay men and women are a distinct class of persons who cannot “change” their identities – nature vs. nurture arguments aside – that merit equal protection under the constitution, while incestuous partners do not. Being gay isn’t just about sex but an orientation, a physical and romantic attraction to members of the same sex. I’m very doubtful someone in an incestuous relationship can argue that their particular relationship involves that kind of brain chemistry. ”
    I don’t doubt for a minute that that argument can be made. For that matter, what about the pedophile? If you know anything about this particular type of perversion it is that it is absolutely, positively un-curable. Once a pedophile…always a pedophile. So, using the same argument about “brain chemistry” i.e. this behavior is hardwired in and is not open to change, then there are any number of perversions that can be excused away with this line of reasoning.
    (Consensual) Incest being several orders of magnitude less harmful than pedophilia, should have no problem at all being legally justified under such an argument. That is, of course, not to say that it should, but it will be eventually argued successfully before the courts unless Lawrence is overturned. And, unfortunately, that will pave the way for everything else on the perversion list.
    Actually, I will be very interested to hear the PETA point of view on bestiality. Perhaps they will sanction it as long as the animal consents. Animal rape, though, would be bad. I can hardly wait.
    I think that ultimately these decisions, like abortion, should be left to the state…i.e. local opinions should rule. Utah would then, perhaps, become the sanctuary of bigamists and, just guessing here, Californina and New York would welcome the NAMBLA crowd. Incest would be welcome, well, who knows? But at least the people would be able to decide for themselves what makes sense for their communities.
    May Lawrence be overturned sooner rather than later.

  8. If there isn’t a good reason for the illegality of something, then it shouldn’t be illegal.
    That’s what distinguishes libertarianism and liberalism from the theocratic impulses of conservativism.
    So, that said, what’s really troubling about incest? Polygamy?
    Honestly, if two mature people want to get married, I’m not especially troubled by their relationship even if they are blood relatives. It’s pretty creepy, but there are plenty of creepy things that are legal. Same goes for polygamy: if three swingers in San Fran want to tie their knots, I’m really not concerned.
    So what is it about these areas that gives me pause for thought?
    It’s the likelihood of abusive relationship that adhere to these kinds of relationships. For example, we see child molestation and rape going hand in hand with polygamy in Utah, and incest is similarly accompanied by highly disturbing disparities in power dynamics.
    That’s the real moral problem, and is sufficient to overcome any Lawrence objections. Of course, for Christian conservatives, all relationships are built on power difference (the wife being subordinate to the husband), so it doesn’t surprise me that conservatives, when faced with the problems posed by incest and polygamy, are unable to articulate a reason that goes beyond “ick.”

  9. The government has no business making laws against consensual sex among any combination of adults. Religious morals should not be the basis of laws restricting sex. Besides, if we keep to biblical standards, then incest would be legal. After all, Adam’s and Eve’s children could only have sex with siblings or parents. I also recall Old Testament support for polygamy and for a man having sex with his sister-in-law.

  10. I’ve always thought that Roe v. Wade provided enough legal precedent to make prostitituion laws unconstitutional. If a woman has a privacy right to allow a man to insert his fingers or a medical instrument into her body for the purpose of interrupting a process that would otherwise lead to the birth of a living being, surely she also has a privacy right to allow a man to insert other things into her body when done for the simple purpose of deriving pleasure. If the state has no sufficient interest to prevent the former, certainly it has no sufficient interest to prevent the latter.

  11. Re: jpe at May 2, 2007 08:01 PM

    jpe wrote: “If there isn’t a good reason for the illegality of something, then it shouldn’t be illegal.”

    The US Supreme Court doesn’t exist to overturn “silly” laws–just unconstitutional laws. The legislature that makes “silly” laws will only be as “silly” as the people who elect it, and “the People” have a right to be silly.
    To stop legal “silliness,” you amend the Constitution. It’s not the Supreme Court’s job to decide what’s silly.

  12. I agree with a lot of posters on here – Why we get into making laws about how people get sexual relief, I don’t know.
    Why is prostitution illegal? It makes absolutely no sense whatsoever. In fact, it almost begs for rapes, STDs, and an overall higher crime rate. Yet it’s still illegal, even though it has NEVER been able to be stopped. It’s time to legalize it and regulate it to clean it up a bit.
    You can’t buy sex toys in Alabama? LOL – I can’t believe that! What are people thinking? We have to stop trying to control people so much –

  13. RBMN hit the key point. I’ll just add that the state has ALWAYS legislated morality, and will continue to do so. Left/right, environmentalist/capitalist, christian/muslim, they all are trying to impose their own view of morality on the general public. The tax code is filled with attempts to encourage and discourage certain types of behavior. There is nothing inherently wrong with this.
    People only realize that we legislate morality when they run across a law that conflicts with their own moral worldview.
    Look, I like porn. But that doesn’t mean I have a ‘right’ to porn. It doesn’t mean that if my town wants to ban porn, the civilized world should boo and hiss at my town. I recognize that my view of morality is different than other people. If my town passes laws I don’t like, I’ll move to some other town that encourages my perversions.
    A law against incest may be ‘silly’, but the state should be able to ban it. Laws against sodomy, sex toys, polygamy, pumpkin sex, and on and on… those are areas of morality which have traditionally been within the power of the states to regulate. If enough people want to amend the Constitution to authorize polygamy – fine. But the court’s should not be usurping the power of the people – through their legislature – to regulate morality.

  14. The laws against incest as we know them have as their origin the instructions given by God to Moses. Perhaps there would be such laws based, say on good sense, but that is not how we got them. I know the Biblical origins are difficult for those who reject Judaism and/or Christianity but they did not come from good sense nor were they pulled out of a hat.

  15. I’ve always thought that Roe v. Wade provided enough legal precedent to make prostitituion laws unconstitutional.

    I think that’s a stretch. Key to the Roe decision is the historical deference given the doctor-patient relationship. There’s never been any kind of analog for that private relationship w/re/to prostitution. In fact, we find the opposite: the state has traditionally banned it.

    To stop legal “silliness,” you amend the Constitution. It’s not the Supreme Court’s job to decide what’s silly.

    I was focusing on policy, rather than constitutional arguments: should a legislature pass these laws, rather than should a court strike them.
    That said, the court probably shouldn’t strike silly laws, but the courts can strike nonsensical laws. And to the extent that these kinds of laws literally have no reason beyond “because I said so,” there’s a decent argument that they’re nonsense (in philosophical terms, morality has to supervene on non-moral reasoning).
    This is similar to the argument of libertarian Randy Barnett: in the absence of a reason for a law, the court should strike the law. Courts should operate from a “presumption of liberty” per Barnett, and only a decent reason (or, at a minimum, a real reason, rather than the tautological “because I said so”) can sustain a law.

  16. Fruitful incest, polygamy, that’s it…
    “I will give up my sheep when they pry it from my cold dead fingers…”

  17. “Step” relationships become the real thing, if done right. In any case, there are clear potential damages to the derivative and extended families from an adult incestuous relationship. Preserving families is a legitimate state interest. This is NOT just “two consenting adults” at all – a prior familial relationship has been established which survives the majority of the child and/or the divorce of the parent and step-parent.
    As I read the Constitution and in particular the 9th and 10th Amendments, federal interest in state decisions needs to be predicated upon something more than “contemporary morals,” such as they are.

  18. The problem with bigamy, and poly-type relationships in general, is when they’re accepted as the societal norm you end up with a large chunk of people with not even a theoretical hope of a family of their own. This results in a surplus of angry young men that society has to aim towards outside groups.

  19. Yep. The moral decay is well under way.
    Waves of mastubation are sweeping the country and causing huge laundry problems and/or the use of more than one square in all too many cases. This is a threat to our very security due to excess fuel consumption and the ensuing green house gases.
    We need more laws.
    And more police. This should be made into a cabinent office. The Department of Masturbation is a good name. Or maybe we make it part of Treasury. The Mastubation Enforcement Administration.
    We can get this under control.
    We know it is impossible to prevent bad behavior. However, it can be punished. Severely.

  20. syn:,
    Sex keeps couples bonded. Which I’m told is good for families. Doesn’t matter if the couple is trying for procreation or not.

  21. “Step” relationships become the real thing, if done right. In any case, there are clear potential damages to the derivative and extended families from an adult incestuous relationship. Preserving families is a legitimate state interest. This is NOT just “two consenting adults” at all – a prior familial relationship has been established which survives the majority of the child and/or the divorce of the parent and step-parent.
    As I read the Constitution and in particular the 9th and 10th Amendments, federal interest in state decisions needs to be predicated upon something more than “contemporary morals,” such as they are.

  22. “For example, we see child molestation and rape going hand in hand with polygamy in Utah”
    And now we get to the question of why do you have to be eighteen to be an adult? Again, here we go with the “I said so” mentality. Here come the arguments. If I can vote and die for my country at eighteen, why can’t I drink until I’m twenty one? If I can marry, have a job, own a car and a house when I’m sixteen, why can’t I decide what I want to do with my life? And those Mormons don’t consider it rape when the child willingly marries anymore than you would consider it rape if you had sex with your new bride on your wedding night. People used to get married at twelve, and nobody thought much of it. What’s the new diff? The libs have all told us that the “children” need a “childhood”, a period where they aren’t held responsible for their actions, where they can get away with just about anything. Then, when they turn eighteen, we toss them in jail for life if they smoke a joint or have sex with their seventeen year old girlfriend that they’ve been having sex with for three years. Yeah, we’re real advanced, huh. And before you start trying to malign polygamy with that “goes hand in hand with polygamy” crap, no, it doesn’t, except in your fevered mind. Child molestation, if it’s linked to anything, would be linked to homosexuality, since MOST child predators are gay/bi. But even then, it’s unfair. Child molestation and rape go hand in hand with nothing but child molestation and rape. They are individual crimes that have no basis in religion. Unless, of course, you care to show us how the Mormon church is based on rape and incest and child molesting? Didn’t think so.
    “and incest is similarly accompanied by highly disturbing disparities in power dynamics.”
    Power dynamics? Wow. We’re talking about two consenting adults, and you want to bring psychobabble into it. More liberal speak for “I’m smarter than you, so I’ll tell you what you can do and what you can’t”. Had just about all of that crap I can stand.
    “That’s the real moral problem, and is sufficient to overcome any Lawrence objections.”
    No interpretation of morality should overcome what’s legal. If we wanted to go there, then Buddhists or Islamics or some other religion will start doing the same thing to you one day, and you’ll see what I mean. Legal goes according to what’s in the constitution, and like Barnett’s corollary, absent a compelling reason for them to have jurisdiction, they shouldn’t be allowed to make a law.
    “Of course, for Christian conservatives, all relationships are built on power difference (the wife being subordinate to the husband), so it doesn’t surprise me that conservatives, when faced with the problems posed by incest and polygamy, are unable to articulate a reason that goes beyond “ick.””
    And, as usual, assuming makes an ass out of you….well, just you this time. I’m hearing lots of conservatives on this very thread contradict your words before you even write them. And your assumptions make you look like a neanderthal. Christian wives are submissive to their husbands? Only in certain sects is this a requirement, and in many churces wives are in charge of lots of things, while the husband is in charge of overall decisions, hardly a submissive arrangement. People are submissive because they believe it to be the right thing to do. You know, like those who believe the right thing to do is marry their stepdaughter after divorcing her mom? You may not like it, but I’ve been to lots of churches, and frankly, there’s lots of crap you guys are into that *I* think should be banned. So go ahead, let’s trade bans, okay? But no, of course, you think your way is right, mine is wrong, so of course, you should win. GEEZ, the conceit of some of you Christians embarrasses the crap out of the rest of us Christians.
    Posted by: jpe at May 2, 2007 08:01 PM

  23. Ah, sweet irony.

    And, as usual, assuming makes an ass out of you….well, just you this time. . . . GEEZ, the conceit of some of you Christians embarrasses the crap out of the rest of us Christians.

    I’m not a Christian.
    I couldn’t make it through the rest of the comment. Something about fever and pyschobabble. Whatever it was you were trying to say, I’m sure it was coherent and others will find your defense of child marriage interesting.

  24. Constitutional Right to be a Sick, Twisted Freak

    Lawrence has removed our ability to impose moral standards and instead has made sure that the sickest and most twisted among us can claim a Constitutional right to incest. Deviancy is now a Constitutional right. Who are we to judge what is right or …

  25. The Lowe case involving stepfather/stepdaughter sex, has additional aspects.
    First is that the sex was allegedly non-consensual (the step daughter was passed out drunk). The prosecutor, when faced with a statement from the stepfather that it was consensual, may have decided to go with a sure conviction on incest (since the stepfather admitted to the sex) rather than a “he said”/”she said” trial on charges of rape.
    Second is that we don’t know when the stepfather married the mother. If he married her when the daughter was a young child, and undertook the role of father to the daughter, then it is emotionally incest. If he married the mother when the daughter was already an adult, had no “father” role in her upbringing, and was just her mom’s current husband, then it might be considered differently

  26. M SImon
    Sex is a way for couples to bond, but it doesn’t keep couples together further people often have sex without ever bonding.
    It is commitment to the relationship which keeps couples together and quite often it is sexual escapades outside the relationship which tears them apart.
    IF sex were about love there would be no prostitution. I’m quite sure that Western men who travel to exotic places which offer children as their personal sex slaves offer no love nor any desire to bond with their sex slaves any more that private gay clubs where men hook up for group sex do not bond.
    Further if marriage were about sex there would be no commitment, eventually the sexual desire for someone different would erode the couple.
    The fallacy of the ‘gay rights marriage’ is the premise that homosexuals cannot marry but in fact homoseuxals have and do marry, procreate and divorce however under the paridigm of marriage they cannot marry one of the same-sex; same sex activity cannot procreate.
    IF our sex organs had no function in reproduction of the species then all of this would be moot. The big elephant in the room is that sexuality is interwined with reproduction which is reason why it cannot be treated as sport.

  27. I live in an area where the police are “known” for being corrupt (just ask the MSM and the lefty posters). It is also known for being dangerous…murder, rape and general mayhem on a weekly basis.
    I own one “illegal” hand gun. I want to be able to protect my family from the cretins who are allowed to roam about freely (it appears to me that some of them post here…).
    What makes me sick to my stomach is the fact that many of the cretins who whine that the government should stay out of thlives…are the very same cretins who use the government to deny me the ability to “legally” defend/protect my family.

  28. The main problem with Jacoby’s article is that he confuses incest with *legal* incest, two separate things. Having sex with your stepdaughter is not incest, though it may violate incest laws; only having sex with blood kin is incest. The whole uncle-niece marriage thing is a straw man, and doesn’t in any way demonstrate that Jacoby was wrong. There is, and always has been as long as we’ve had records, a universal proscription of incest, though where you draw the line differs from culture to culture. There is a very good biological reason for it (that does not apply to incest that is not really incest): inbreeding.
    So even though Jacoby is confused about the definition of incest, his point is valid, and can easily be confirmed.

  29. I am surprised at the number of comments basically in support of the (hyper)libertarian position, i.e. that the government shouldn’t regulate what goes on between two (or more) consenting adults.
    I think wooga (May 2, 2007 09:48 PM)raises a very good point, but it’s a thorny issue:
    A law against incest may be ‘silly’, but the state should be able to ban it. Laws against sodomy, sex toys, polygamy, pumpkin sex, and on and on… those are areas of morality which have traditionally been within the power of the states to regulate. If enough people want to amend the Constitution to authorize polygamy – fine. But the court’s should not be usurping the power of the people – through their legislature – to regulate morality.
    Writing laws IS why we have legislatures in the first place, and in principle those legislatures represent the will of the people AND their view of “morality”. Does a court have a right or obligation to strike down laws passed by those legislatures absent a clear violation of the Constitution or other, superior law?
    I find Randy Barnett’s argument (if a court can’t find a “good” reason for a law then, it should strike down the law) cited by jpe (May 2, 2007 10:02 PM) rather ominous in this regard: Doesn’t this subjugate the will of the people to a single man in a black robe, or at best a tiny group of men in black robes? Should his / their opinion of what constitutes a “good” reason trump the opinion of the legislature / people? Is Barnett’s opinion not merely another basis for judicial activism, which has become a bete noir among many people (especially conservatives)?
    Where does “personal liberty” end? Should the standard be “it doesn’t hurt anybody”? If so, then what about the laws against driving drunk or impaired? We know from lengthy and bitter experience that an impaired driver is MORE LIKELY to be in an accident, and therefore is something of a menace to others on the road. But merely driving drunk “doesn’t hurt anybody”… until the accident happens.

  30. All law is ultimately based in morality, at the very least a concept of ‘fairness’ and ‘justice’.
    The Constitution does not forbid the states and local communities from enacting laws that conform to their own moral heritage and judgment, except where they might conflict with an explicit provision of the federal Constitution, as for example in the case of involuntary servitude.
    The Supreme Court properly should not be reviewing disputes over state and local law that do not involve federal Constitutional issues. Equally, the Supreme Court should not be inventing ‘rights’ that somehow come under Constitutional purview.
    What this means is that Griswold (? the Connecticut birth-control case), Roe v. Wade, and Lawrence v. Texas should not have come before the Court, and were wrongly considered.
    The issues dealt with in this thread arise from changing morés and outright challenges to the traditional Judeo-Christian values that underlie our civilization. They should be dealt with at the local level. They cannot and should not be grist for the Constitutional mill.
    There is however a circumstance where alternative moral systems may come to the fore and threaten the foundations not only of our society but of the federal Constitution: Just wait until there are enough radical Muslims in America who believe that Shari’a law and a concommitant theocratic government should replace our existing one. Then, advocating the violent overthrow of the Constitution is a crime, isn’t it?
    /Mr Lynn

  31. Seeing some of this “anything goes” thinking expressed here – all individual rights and no duty/obligation/responsibility to society – makes me think that the Islamicists may have some kernels of correct insight mixed in with their erroneous thinking.

  32. “Ah, sweet irony.
    “And, as usual, assuming makes an ass out of you….well, just you this time. . . . GEEZ, the conceit of some of you Christians embarrasses the crap out of the rest of us Christians.”
    I’m not a Christian.”
    Yet you pretend to speak for all Christians? I’m sorry for the ASSUMPTION, but it was logical that you wouldn’t try speaking for a group you weren’t a part of. My mistake, you’re right, my ASSUMPTION made an ass out of me…and you, for pretending. Since you’re not a Christian, STFU about them, until you actually, you know, KNOW SOMETHING FACTUAL. Moron.
    “I couldn’t make it through the rest of the comment.”
    Yes, you did, and read it, and you know you did, but you decided to be smarmy instead. Always a good substition when you have no intelligent response.
    “Something about fever and pyschobabble. Whatever it was you were trying to say, I’m sure it was coherent and others will find your defense of child marriage interesting.”
    Uh, MORON, I didn’t defend CHILD MARRIAGE. I merely pointed out that it has existed for much longer than proscriptions against it, and that it was religiously accepted, even encouraged, and that who the hell are we to suddenly decide that at some arbitrary age that something is okay, but two days earlier is wasn’t? But of course, you didn’t read it, did you? You see, you’re a liar, too. You said you didn’t, but then you quoted it, then passed it off as though it were simply the ravings of a madman. Great argument. Offhand dismissal has always worked against FACTS.
    Posted by: Moron at May 3, 2007 05:45 AM

  33. Doesn’t this subjugate the will of the people to a single man in a black robe, or at best a tiny group of men in black robes?

    It subjugates the current will of the people to the will of the People that passed the Constitution and, specifically, the 9th Amendment (at least in Barnett’s view). And that’s as it should be.

    But merely driving drunk “doesn’t hurt anybody”… until the accident happens.

    True, and I don’t see how that offends a “do no harm” approach to Constitutionality. If we can ban activities that harm others, I don’t see why we couldn’t ban activities that create an unacceptable risk of the same.

  34. sex and law

    I wrote a long time ago about a group of Christians who were arrested in Philadelphia for ‘hate crimes’, so I fully expected it to turn into a trend. Watching the antics of the weird group the Westboro Baptists who protest at soldiers fune…

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