This week, the Associated Press published an interview with Rick Santorum, the third-highest ranking Republican in the U.S. Senate. Referring to a pending case involving sodomy laws, Santorum argued, "If the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery."
David Smith, the communications director of the Human Rights Campaign, the nation's leading gay rights organization, accused Santorum of "disparaging an entire group of Americans." "He's advocating that a certain segment of American society be disavowed from constitutional protection," Smith charged. "The outrageous thing … is he put being gay on the same legal and moral plane as a person who commits incest. That is repugnant in our view and not right."
Why not?
Let's leave adultery and polygamy out of it for the moment. Let's set aside morality and stick to law. And let's grant that being attracted to a gender is more fundamental than being attracted to a family member. Santorum sees no reason why, if gay sex is too private to be banned, the same can't be said of incest. Can you give him a reason?
The easy answer—that incest causes birth defects—won't cut it. Birth defects could be prevented by extending to sibling marriage the rule that five states already apply to cousin marriage: You can do it if you furnish proof of infertility or are presumptively too old to procreate. If you're in one of those categories, why should the state prohibit you from marrying your sibling?
On Wednesday, I asked Smith that question. "We're talking about people; they're talking about specific acts," he said. "It has nothing to do with these other situations that are largely frowned upon by the vast majority of Americans." Is being frowned upon by the vast majority of Americans an acceptable standard for deciding which practices shouldn't be constitutionally protected? "It's not part of the discussion," Smith replied. I asked whether it was constitutionally OK for states to ban incest. "Yes," he said. Why? "There's a compelling interest for the state to ban that practice," he said. What's the compelling interest? For that, Smith referred me to HRC General Counsel Kevin Layton.
Layton pointed out that laws against incest "already exist side by side" with the Supreme Court's current right-to-privacy doctrine. From this, he inferred that the doctrine doesn't cover those laws. But laws against gay sex also exist side by side with the privacy doctrine. If coexistence implies compatibility, then Santorum wins on both counts: States can ban incest and gay sex.
I asked Layton whether states should be allowed to ban incest. "They have a right to do that, as long as they have a rational basis," he said. Do they have such a basis? "It's not my point to argue what a state's rational basis would be for regulating cousin marriage," Layton replied. "The only way the court's decision in [the sodomy] case would go down the slippery slope to incest is if legally they were the same thing, which they're not." Why not? Essentially, Layton reasoned that it isn't his job to explain why incest and gay sex are different. It's Santorum's job to explain why they're similar.
But HRC's own arguments hint at similarities. Like Smith, a defender of brother-sister incest could accuse Santorum of "disparaging an entire group of Americans" and "advocating that a certain segment of American society be disavowed from constitutional protection." In its brief to the Supreme Court in the sodomy case, HRC maintains that "criminalizing the conduct that defines the class serves no legitimate state purpose," since gays "are not less productive—or more dangerous—members of the community by mere dint of their sexual orientation." They sustain "committed relationships" and "serve their country in the military and in the government." Fair enough. But couldn't the same be said of sibling couples? Don't laugh. Cousin couples are already making this argument.
I'm a lifestyle conservative and an orientation liberal. The way I see it, stable families are good, homosexuality isn't a choice, and therefore, gay marriage should be not just permitted but encouraged. Morally, I think incest is bad because it confuses relationships. But legally, I don't see why a sexual right to privacy, if it exists, shouldn't cover consensual incest. I think Santorum is wrong. But I can't explain why, and so far, neither can the Human Rights Campaign.
Remarks from the Fray:
I still think the best argument is that sex, like all non-financial actions committed in private, is only subject to legal sanction if one of the parties involved is being involuntarily harmed by the other. Rape and sexual abuse are clearly illegal. Consensual sodomy should clearly not be. Incest and bigamy are a tad more complicated. One can argue that these practices are INHERENTLY harmful to one of the parties (generally the woman) because they are inherently coercive. One can also make the case that incest is harmful to society as a whole (risk of birth defects) and I would not dismiss that argument as readily as Saletan does. Unfortunately, the same sort of arguments are generally (mis)used by gay-bashers, so it's a fine line to walk developing a cogent Constitutional argument that isn't predicated on one's own subjective feelings about the actions in question. My thinking is that incest should be very strongly discouraged by all elements of society. Yet throwing an adult brother and sister (or two sisters, for that matter) in jail for shagging each other is unreasonable. So is there a "right to incest?" Not in so many words. But perhaps we SHOULD conclude that the definition of criminal incest should be limited to forceful or coercive acts, and to acts committed against minors.
--ShriekingViolet
(To reply, click here)
….It is worth pointing out that, because private consensual sexual conduct is not currently a fundamental right, current laws against incest must merely meet "rational basis" test. That is, the state's law is OK if there is a "rational basis" for its existence. The catch is that, unlike Mr. Saletan's take on the level of scrutiny, it need not be the *actual* basis for the law. It need merely be some cognizable, rational reason for the state's law. Regarding incest, just think creatively, and you're bound to find something that justifies it. Once incest is a right that falls under the consensual sexual privacy right that the court may hypothetically find, however, the "legitimate government purpose" must be its actual, stated purpose for a law that prohibits incest. And it must be "necessary" -- there cannot be any less restrictive alternative. I can't think of much that would make a sodomy law meet this level of scrutiny. But incest? What about the state's need to protect minors in the family who are susceptible to the power of their parents? What about the state's need to prevent hospital expenses for incest that leads to pregnancy? What about the difficulty of proving that it was consensual, especially between parent and child? What about the possible psychological damage that could occur even from a purely consensual act of incest that would be unknown for years to come? These sorts of problems do not present themselves with regard to sodomy laws. But because of family power relationships, age discrepancies, and psychological tenderness, they permeate issues of incest. Yes, the two "rights" would exist -- to private, consensual, homosexual sex and to private, consensual incest -- if Bowers were to be overturned, but that does not make the two acts equal, and it does not make the state impotent in its ability to create laws that limit one, even if it would be rendered impotent in creating laws that ban the other.
--ChrisH
(To reply, click here)
The issue may not hinge on the acts themselves, or the presence of consent, but of the context from which the consent comes….The same principle holds true for sexual relationships between, say, criminal defendants and judges, parolee and parole officers, teachers and students, bosses and employees, or priests and altar boys who've reached the age of consent. Granted, most of those examples except maybe the first two aren't crimes, but they illustrate the principle at work. In these cases and incest, the sex is non-traditional, the participants are adults and the consent is mutual, but the circumstances are much shadier for them than for homosexual sex between two adults who don't have this kind of "authority relationship." What is abhorrent is not the sex, or the presence or absence of consent, but the degree of potential coercion--push coercion far enough, and it's rape. Obviously, if any potential for coercion would re-classify sex as rape, there wouldn't be enough cops to enforce it, but I think the law draws a line at certain levels of authority, and family relationships fall beyond that line. If Saletan can draw and comfort from this principle, it would be that it can be applied equally to dads and sons, and to gay judges and gay criminal defendants. Something else to take into account is the potential for recrimination, which is typically much greater in a family or one of the relationship types listed above than a consensual gay relationship. Often, this potential is cited as a factor in the silence of rape victims. A similar principle would seem to hold re: torture and coerced confessions--even though the victim *says* they did it, their word is not considered solid evidence; the circumstances outweigh it. The same should hold true for "consent" in incestuous relationships.
--CaptainRonVoyage
(To reply, click here)
I thoroughly enjoyed reading this typically thought-provoking article from the deepest thinker at Slate. And I agree that if you avoid the easy answer to the question Saletan poses, you certainly do encounter a conundrum. But the easy answer is the right answer. Here is how Saletan does away with what I see as the actual solution to this problem:
The easy answer—that incest causes birth defects—won't cut it. Birth defects could be prevented by extending to sibling marriage the rule that five states already apply to cousin marriage: You can do it if you furnish proof of infertility or are presumptively too old to procreate. If you're in one of those categories, why should the state prohibit you from marrying your sibling?
Not so fast! Imagine that sibling sex yielded especially fit offspring (i.e., offspring that were especially intelligent, especially attractive, especially athletic, etc.) instead of increasing the risk of birth defects. Further imagine that, unlike sex between brothers and sisters, sex between unrelated individuals greatly increased the odds of mental retardation and the like. Do you think that the current taboo (and the current sense that sex between brothers and sisters is "icky") would exist? I doubt it. Sibling sex might even be the norm, and the thought of sex between unrelated individuals might even give one the willies. So, I agree that to be consistent you need to allow for sex between adult siblings who can furnish proof of infertility. That's the problem with current law. Otherwise, though, sibling sex should be illegal (unlike gay sex between unrelated individuals). And it should be illegal precisely because of the greatly increased risk of birth defects.
--Engram
(To reply, click here)
Whatever the legal arguments available to non-procreating, adult relatives who want to have heterosexual sex with each other, the analogy to gays fails – for the reasons that Saletan identifies. While it's true that, whether or not you're homosexual, you can't choose who love and that instead love chooses you (cf. bluegrass singer Laurie Lewis, but contra. Antonin Scalia at oral argument in Lawrence v. Texas, the Texas sodomy-statute case), it's also true that sexual gender-orientation is a personal involuntary trait like race and gender and that a sexual attraction to any one particular person is not. That's the "class" at issue in the homosexual-sodomy-statute case: men who have the inherent involuntary trait of homosexuality, that is. The anti-incest laws prohibit any one person only from having sex with a tiny subset of people whom they might be sexually attracted to, rather than from having sex with all people with whom they are or will ever be attracted to. An anti-incest statute comparable in nature to the homosexual anti-sodomy statute would be one that bars, upon pain of criminal penalty, say, all the uncles of a particular identified young woman who are attracted to that young woman from having sex with her. But an anti-incest statute comparable in effect to the homosexual anti-sodomy statute would be one that bars, upon pain of criminal penalty, anyone who's sexually attracted to a close relative of the opposite sex from ever having heterosexual sex with that relative or with anyone else.
--BeverlyMann
(To reply, click here)
(4/23)
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Remarks from the Fray:
I still think the best argument is that sex, like all non-financial actions committed in private, is only subject to legal sanction if one of the parties involved is being involuntarily harmed by the other. Rape and sexual abuse are clearly illegal. Consensual sodomy should clearly not be. Incest and bigamy are a tad more complicated. One can argue that these practices are INHERENTLY harmful to one of the parties (generally the woman) because they are inherently coercive. One can also make the case that incest is harmful to society as a whole (risk of birth defects) and I would not dismiss that argument as readily as Saletan does. Unfortunately, the same sort of arguments are generally (mis)used by gay-bashers, so it's a fine line to walk developing a cogent Constitutional argument that isn't predicated on one's own subjective feelings about the actions in question. My thinking is that incest should be very strongly discouraged by all elements of society. Yet throwing an adult brother and sister (or two sisters, for that matter) in jail for shagging each other is unreasonable. So is there a "right to incest?" Not in so many words. But perhaps we SHOULD conclude that the definition of criminal incest should be limited to forceful or coercive acts, and to acts committed against minors.
--ShriekingViolet
(To reply, click here)
….It is worth pointing out that, because private consensual sexual conduct is not currently a fundamental right, current laws against incest must merely meet "rational basis" test. That is, the state's law is OK if there is a "rational basis" for its existence. The catch is that, unlike Mr. Saletan's take on the level of scrutiny, it need not be the *actual* basis for the law. It need merely be some cognizable, rational reason for the state's law. Regarding incest, just think creatively, and you're bound to find something that justifies it. Once incest is a right that falls under the consensual sexual privacy right that the court may hypothetically find, however, the "legitimate government purpose" must be its actual, stated purpose for a law that prohibits incest. And it must be "necessary" -- there cannot be any less restrictive alternative. I can't think of much that would make a sodomy law meet this level of scrutiny. But incest? What about the state's need to protect minors in the family who are susceptible to the power of their parents? What about the state's need to prevent hospital expenses for incest that leads to pregnancy? What about the difficulty of proving that it was consensual, especially between parent and child? What about the possible psychological damage that could occur even from a purely consensual act of incest that would be unknown for years to come? These sorts of problems do not present themselves with regard to sodomy laws. But because of family power relationships, age discrepancies, and psychological tenderness, they permeate issues of incest. Yes, the two "rights" would exist -- to private, consensual, homosexual sex and to private, consensual incest -- if Bowers were to be overturned, but that does not make the two acts equal, and it does not make the state impotent in its ability to create laws that limit one, even if it would be rendered impotent in creating laws that ban the other.
--ChrisH
(To reply, click here)
The issue may not hinge on the acts themselves, or the presence of consent, but of the context from which the consent comes….The same principle holds true for sexual relationships between, say, criminal defendants and judges, parolee and parole officers, teachers and students, bosses and employees, or priests and altar boys who've reached the age of consent. Granted, most of those examples except maybe the first two aren't crimes, but they illustrate the principle at work. In these cases and incest, the sex is non-traditional, the participants are adults and the consent is mutual, but the circumstances are much shadier for them than for homosexual sex between two adults who don't have this kind of "authority relationship." What is abhorrent is not the sex, or the presence or absence of consent, but the degree of potential coercion--push coercion far enough, and it's rape. Obviously, if any potential for coercion would re-classify sex as rape, there wouldn't be enough cops to enforce it, but I think the law draws a line at certain levels of authority, and family relationships fall beyond that line. If Saletan can draw and comfort from this principle, it would be that it can be applied equally to dads and sons, and to gay judges and gay criminal defendants. Something else to take into account is the potential for recrimination, which is typically much greater in a family or one of the relationship types listed above than a consensual gay relationship. Often, this potential is cited as a factor in the silence of rape victims. A similar principle would seem to hold re: torture and coerced confessions--even though the victim *says* they did it, their word is not considered solid evidence; the circumstances outweigh it. The same should hold true for "consent" in incestuous relationships.
--CaptainRonVoyage
(To reply, click here)
I thoroughly enjoyed reading this typically thought-provoking article from the deepest thinker at Slate. And I agree that if you avoid the easy answer to the question Saletan poses, you certainly do encounter a conundrum. But the easy answer is the right answer. Here is how Saletan does away with what I see as the actual solution to this problem:
The easy answer—that incest causes birth defects—won't cut it. Birth defects could be prevented by extending to sibling marriage the rule that five states already apply to cousin marriage: You can do it if you furnish proof of infertility or are presumptively too old to procreate. If you're in one of those categories, why should the state prohibit you from marrying your sibling?
Not so fast! Imagine that sibling sex yielded especially fit offspring (i.e., offspring that were especially intelligent, especially attractive, especially athletic, etc.) instead of increasing the risk of birth defects. Further imagine that, unlike sex between brothers and sisters, sex between unrelated individuals greatly increased the odds of mental retardation and the like. Do you think that the current taboo (and the current sense that sex between brothers and sisters is "icky") would exist? I doubt it. Sibling sex might even be the norm, and the thought of sex between unrelated individuals might even give one the willies. So, I agree that to be consistent you need to allow for sex between adult siblings who can furnish proof of infertility. That's the problem with current law. Otherwise, though, sibling sex should be illegal (unlike gay sex between unrelated individuals). And it should be illegal precisely because of the greatly increased risk of birth defects.
--Engram
(To reply, click here)
Whatever the legal arguments available to non-procreating, adult relatives who want to have heterosexual sex with each other, the analogy to gays fails – for the reasons that Saletan identifies. While it's true that, whether or not you're homosexual, you can't choose who love and that instead love chooses you (cf. bluegrass singer Laurie Lewis, but contra. Antonin Scalia at oral argument in Lawrence v. Texas, the Texas sodomy-statute case), it's also true that sexual gender-orientation is a personal involuntary trait like race and gender and that a sexual attraction to any one particular person is not. That's the "class" at issue in the homosexual-sodomy-statute case: men who have the inherent involuntary trait of homosexuality, that is. The anti-incest laws prohibit any one person only from having sex with a tiny subset of people whom they might be sexually attracted to, rather than from having sex with all people with whom they are or will ever be attracted to. An anti-incest statute comparable in nature to the homosexual anti-sodomy statute would be one that bars, upon pain of criminal penalty, say, all the uncles of a particular identified young woman who are attracted to that young woman from having sex with her. But an anti-incest statute comparable in effect to the homosexual anti-sodomy statute would be one that bars, upon pain of criminal penalty, anyone who's sexually attracted to a close relative of the opposite sex from ever having heterosexual sex with that relative or with anyone else.
--BeverlyMann
(To reply, click here)
(4/23)