The Incest Horrible

With respect to incest, a court might well agree with respondent that the nature of familial relationships renders true consent to incestuous activity sufficiently problematical that a blanket prohibition of such activity is warranted. See Tr. of Oral Arg. 21-22. Notably, the Court makes no effort to explain why it has chosen to group private, consensual homosexual activity with adultery and incest, rather than with private, consensual heterosexual activity by unmarried persons or, indeed, with oral or anal sex within marriage.

When the United States Supreme Court rejected including sexual relations between two men within the right to privacy, the usual "parade of horribles" including adultery, incest and polygamy as well as things like possession of drugs were raised. Justice Blackmun tried to partially respond thusly, which basically has two paths -- direct and indirect. You can explain that incest can itself be excepted (either as not a right or a much weaker one and/or a strong enough interest is present to damn it) or wonder why specifically is it a problem now? The parade of horribles (toss in comparisons to bestiality too) historically also arose in respect to interracial marriage.

The dissents flagged that and the "slippery slope" problem is not just in one direction.  It might have taken the Supreme Court until Lawrence v. Texas (2003) to broadly explicitly accept that there is a right to intimate relationships, including of a sexual natural, which includes same sex couples. The opinion specifically noted it was not dealing with something where a state has to sanctify the relationship (that would cover in around a decade with the marriage cases), but that only underlined that old fashioned fornication laws would have to fall too.  A few lower courts refused to apply the opinion as broadly as it logically warranted (e.g., sex toys) but that wasn't really reasonable.

Likewise, its reference to cases like Griswold (contraceptives) underlines the fundamental nature of the interests.  Some have a problem with the Kennedy's gay rights opinion in part regarding the nature of the approach. But, I don't agree as a whole. This includes the recognition that not only is liberty interests are issue but equal protection matters. The dual nature arises in a variety of cases, including when justices might degree on the exact approach to use. Loving v. Virginia, e.g,, both relied on a criminal ban on interracial marriage as violating equal protection and liberty (the right to marriage being denied for an invalid reason). Same here: intimate association (including marriage), deemed fundamental rights by precedent, were being illegitimately denied to homosexuals.  Gays fit in a wider whole.

The dual nature of the rights at issue here can be seen in other cases. Thus, abortion rights were originally primarily seen as a matter of privacy rights, but even early on, sexual equality was also deemed an important aspect. Separately, in a case like criminal due process, something might be seen as wealth discrimination -- needing to pay for court records or a lawyer -- or simply a due process issue.  The same applies in religious liberty claims or free speech, where let's say only labor picketing is targeted. An "arbitrary" or "capricious" action often can be seen as some unequally benefiting.  Justice Kennedy in his same sex marriages opinion covers this ground too with cases to back it up.

Okay. So, what is it about gays and lesbians or perhaps some other things that raises the specter of incest?  As an aside, a companion specter is polygamy though serial polygamy has been even less shunned for years than homosexual behavior.  That is, having sexual relations with more than one person, even in respect to adultery.  (This does complicate matters, but even there, "swinging" was a thing for years. As was spouses who looked the other way.  So, we might have to limit it to non-consensual adultery.)   Anyway, a major thing was a feeling of disgust.  The road to perdition if it is not based on much more.  Thus, many are disgusted by sexual acts that heterosexuals regularly do, including anal sex or role playing.

(The discretion involved in this area as well as the problems with a heavy-handed state approach at times seems a bit artificial.  This flows for some into things like homosexual relationships. In that case, that seems fine to people, while those who think it wrong might be seen as distasteful themselves.  Tad harder if two siblings are having sex, huh?  In principle, maybe, you might think it a bad idea to put them in jail.  But, a tad harder to conceive that they might actually be a honest attraction there that might even flow into love. Not that sex or even marriage need to rest on that. Still, the "squick" factor is there above and beyond a lot of things.)

But, disgust is not really the only reason the incest taboo has ancient roots. A judge in a state court ruling in the 1990s noted:

First, the restriction forces family members to go outside their families to find sexual partners. Requiring people to pursue relationships outside family boundaries helps to form important economic and political alliances, and makes a larger society possible. A second purpose of the taboo, as the majority aptly points out, is maintaining the stability of the family hierarchy by protecting young family members from exploitation by older family members in positions of authority, and by reducing competition and jealous friction among family members.

Let me add in here that I found this article a good fairly recent introduction to the "incest horrible" debate, if one that leans toward being doubtful current rules work.  See also, this news article that cites a major German lawsuit that upheld the prohibition (translating the German, the dissent seemed to deem the criminal penalty disproportionate as applied to the adult sibling relationship at issue). As noted in the first article: "the question was forwarded to the German Ethics Council, which released  a  non-binding  opinion  that consensual  intercourse  between  adult siblings  should  in  future  not  be  treated  under  criminal  law."  The first article also references others, including pre-Bowers article supporting a libertarian approach and a 2005 article criticizing the line drawing as well.

The first reason suggests a dividing line in respect to marriage recognition at the very least.  Thus, Justice Kennedy at one point noted that marriage made outsiders, insiders.  But, family members are already insiders. The state might use marriage as a means to provide benefits and obligations to unite together those that were previously separate. It very well might be a good idea to have "domestic partnerships" that might include family members too.  But, marriage still might be treated differently with the sex of the partner not being a suitable dividing line. 

This might be sound even if one thinks incest should not be grounds for criminalization (the U.S. has a patchwork system of laws here, but nearly all states disallow at least immediate family members -- by one count, but for six even uncles/aunts and nieces/nephews -- to have sexual relations [what this means might be unclear though]).  I think this very well is likely sound public policy, but it is not simply arbitrary to bring in gays, various kinds of sex, premarital sex and so forth, while not protecting incest.  For instance, targeting behavior based on sex is clearly illegitimate on basic legal principle. Not hiring a women is not akin to not hiring a relative.  Still, yes, as is the case in many countries in Europe, the criminal law is not a great means to address adult incest. Making it a constitutional right is a step beyond that.

Of course, one can only take this so far. Way back in 1978, the Colorado Supreme Court in Israel v. Allen deemed a ban on marriage of adoptive siblings unconstitutional. It drew the line at blood, but as noted, many incest barriers do not.  The state did not ban the two from having sex.  And, many states (including New York) allow first cousins to marry. Looking at various cases cited in one article, repeatedly it involved stepfathers and teenage stepdaughters where consent was dubious (though once it was "exchange for social privileges, such as going out with her friends").  Some laws cover rather distant relations, like third cousins.  Given current rights to form intimate associations, at least some of this is dubious.

There has been some feeling that incest taboos is a result of eugenic concerns though as a general rule either people with a range of conditions are able to have children or barriers are rightly seen as problematic. We do not want to block blind people or those with disabilities in general from marrying and having children.  And, we do not.  It is also argued that only in modern times did this interest become apparent with scientific knowledge of genetics not known earlier on.  This is dubious though since there was -- to the degree this is a problem, which is a mixed question -- evidence by experience. This would also be apparent for those who bred animals.

The basic arguments that appeal "reasonable" these days somewhat weakly is eugenics (if only to be concerned for the children themselves), consent and family harmony.  Consent was flagged at the start and along with things being "private" (so no prostitution though criminalization there too is questionable on public health grounds) is basic to rights. Thus, incest is not an issue for minors in general -- they would normally be deemed not to have the ability to have consent. And, even if we understand teenagers, let's say, will have sex, there is a strong argument to be made that a parent or stepparent's authority would make consent a problem.  It's a somewhat different issue with siblings though there too power differentials and consent very well might be a problem.  We are again talking minors. But, it's starting to get tricky.

We should apply the rules consistently here -- so, e.g., if we ban incest within the immediate family, minor step-relations should be included. The dividing line there would be concern about blood mixture, but that is a weak dividing line generally.  The other reason is familial harmony. It is easier to defend that when incest only had to meet rational basis review. We need not just rely on tradition here -- looking at the wider ends of family life, same sex families, e.g., meet the test.  Ditto marriage.  There is a lot of flexibility here on what marriage or families should entail.  But, like the same sex marriage cases set forth, there is probably some sort of limits. Debatable limits, but certain criteria all the same.

So, e.g., love need not be a grounds for marriage. The roles of each partner is flexible, not just traditional or egalitarian.  Children or no children. How you raise the children also can be a range.  Easy divorce, a great change from "traditional marriage" would be possible.  The specific privileges and duties might be open to debate. Is spousal privilege required?  Should couples be allowed to have open marriages? Should that be open to loss of benefits? Yes, polygamy even is possible if again easier to justify disallowing on certain grounds.  This level of discretion in the articles flows into questioning harmony grounds for incest bans.  What about sex here is by definition so different?  What sort of behaviors are involved there?  What about adults, in-laws and so forth? etc. Marriage continues to develop as well.

A functional concern might still flag incest as a problem.  Again, thinking same sex couples are equal to different sex couples for purposes of marriage etc. without bringing in incest is not exactly impossible.  The first is easier to defend.  But, once we address the issue of adult incest, how much?  I recall a concern that adult incest could bleed into minors -- there would be a let's say "Gigi" tendency to prep children for a father to take over, let's say for purposes of sexual relationships.  But, is that really much different than prepping them for someone outside the family?  That sort of behavior itself can be deemed inappropriate, so the only push is that it is harder to stop if there is potential that the person as an adult will have an incestual relationship. 

And, the case quoted again involved a teenager who had sex with a stepfather. It's a rather easy case. How about this cited in one magazine article: "In Ohio, lawyers for a Cincinnati man convicted of incest for sleeping with his 22-year-old stepdaughter tell TIME that they will make the Lawrence decision the centerpiece of an appeal to the Supreme Court." This can be "disruptive to the family" too but there we actually had a dissent concerned that the law was being stretched to avoid needing to prove consent.  An article also flagged a college professor who had sex with his twenty-something daughter.

A concern for family harmony when two adults are involved and the people aren't even living together, maybe even not really having much of a relationship at all family-wise, is a stretch.  The case we generally worry about is a father or stepfather being involved in a non-consensual relationship with a minor daughter.  The German case involved siblings. One case that overlapped with Lawrence v. Texas involved adult siblings who got in trouble when one of their children was reported as at risk by a babysitter.  Some incest laws in this country allow certain relatives to marry once they no longer would have children. The main article cited also flagged many occasions where relatives reunite as adults and find they have an attraction, perhaps (I'd gather) family members have certain tendencies that might overlap with soul mates if the taboo was not present. And, the couple grew up apart, so the taboo would not develop between them.

[The Muth v. Frank case had unpleasant facts beyond the incest and concern about the child in question very well might be warranted for reasons that do not directly seem to related to the parents being related.  The value of putting each in prison for incest as compared to voiding the marriage and perhaps even their parental rights -- not necessarily a good idea in each case -- is a harder question. See again, the dissent in the German case cited above.  The concurrence in the opinion, as I flagged years ago, also suggests the wording of the majority opinion left something to be desired.  This includes the focus on Lawrence v. Texas as merely about homosexual sodomy, when it went beyond that.  The exceptions included, all the same, very well could include incest.]

I found "what about" arguments regarding incest/polygamy tiresome when same sex marriage was starting to be debated. I still do since there is not really something specific to same sex relationships here.  Again, interracial marriages was seen as unnatural once upon a time. It also is easier to justify blocking sex and sexual orientation discrimination as well as discrimination by marital status (sex before marriage) and so forth.  And, every debate is not about opening a whole libertarian discussion of taking things to the outer limit. We can ban heroin while not banning marijuana.  Law, including constitutional law, is drawing rough lines at times.

As the articles discuss, yes, it is at some point sound to think wider thoughts. So, e.g., portraying incest in pornographic films or in written works should clearly be protected.  Line drawing can be rather arbitrary as seen in the case of distant cousins.  Sometimes, as seen in an early case, this might even have religious implications (uncle/niece of partial relation met Jewish rules of marriage).  Criminal penalties for adults who have sex with adults, even members of their own biological family, also is bad public policy.  Some relatively small fraction, if numbers-wise not totally trivial, likely are quietly having sexual relationships now.  And, though you will likely find someone pushing the envelope, domestic partnership rules even can factor in siblings who are on the side having sex.

Incest has been portrayed in religious works, fiction and occurred historically (such as siblings in Ancient Egypt) so this is old ground. An excellent 1980 law article on the right to intimate association argued even then incest bans very well might mostly be a matter of social disfavor, not reasonable line drawing.  Push come to shove, there very well might be something to that, though I do think as a general matter the continual norm that sex and biological family tend not to mix is a good policy.  But, good policy and what should be criminally or otherwise burdened is not the same thing.  Fine enough.  It still is not all the same.