What Laws Are Constitutional Post-Lawrence?
I’m sure by now you have seen the news coverage of Columbia University Professor David Epstein’s arrest for incest with his adult daughter. And you probably know that among Epstein’s memorable writings was a criticism last year of Republicans “taking hypocrisy in their personal lives to new levels of self-indulgent weirdness....” (Stone, please meet glass house.) I’m not here to have fun criticizing Professor Epstein for projection or hypocrisy—after all, he has only been accused of this crime.
No, I’m here to ask a serious question: why is incest not constitutionally protected, since Lawrence v. Texas (2003)? Justice Kennedy’s opinion in that case struck down the Texas law prohibiting homosexual sex, arguing, “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” So why can states criminalize consensual incest between adults? Or not recognize polygamy? Or ban bestiality? These are all “private sexual conduct” and the various state laws against these activities do a lot more than “demean” someone’s existence—they subject people to prison time.
Let me emphasize, before the screeching and hollering starts: I support repealing laws against homosexuality, because they are nonsensical. What you are going to do if you convict a man of having sex with other men? Lock him up with thousands of other men who haven’t had sex with a woman in years? This may not produce the desired result!
At the time the Lawrence decision was handed down, Sen. Rick Santorum (R-PA) pointed out if homosexuality could not be prohibited, neither could bigamy, or adultery, or bestiality. Some misinterpreted (perhaps willfully) Santorum’s remarks as saying that homosexuality was equal to those other behaviors. Santorum’s point was that if the laws prohibiting homosexuality are unconstitutional, because it is a private sexual conduct, then how could states prohibit a variety of other activities that are also “private sexual conduct”?
Now, some people do seem to understand this reductio ad absurdum of Lawrence, and have no problem with it. The comments on the New York Daily News article about Epstein’s arrest are awash in people arguing that incest is a private consensual activity, and therefore not properly the government’s concern. Switzerland’s government, for example, is discussing repealing its law against incest. It is a very logical argument. If a majority of Americans are comfortable repealing criminal laws against incest, bestiality, polygamy, adultery because these are all leftovers from Western Civilization’s Christian past (and let me emphasize past), there will not be much that us stick-in-the-muds can do about it. But let me throw your argument back in your face: what criminal laws involving adult sexual conduct will survive by this reasoning?
The same problem of criminal laws applies even more strongly to age of consent laws. Different states and countries have widely varying ages of consent. The age is arbitrary, and like all arbitrary standards, different people can have honest disagreements about exactly what the appropriate standard is. (Of course, red means “stop” and green means “go” is also an arbitrary standard; imagine the chaos if we scrapped that.) If state legislatures choose to fiddle a bit with the age of consent, I might agree or disagree with the final result, but at least the legislature knows that there is an appropriate age limit, and the law may enforce that age limit. By the reasoning of Lawrence, why do the courts allow states to “oppress” people by saying that it isn’t okay to persuade an 8 year old to have sex with a 24 year old? It isn’t just the 24 year old who is the victim! Those reactionary narrow-minded legislators are preventing the 8 year old from getting what he or she wants—candy! There’s a free market mutual exchange that ideologues can love!
While there are a fair number of intellectuals who are prepared to follow the logic of Lawrence and abolish all laws regulating sexual morality, others are not. A great many Americans cringe at the prospect of repealing those narrow-minded Puritanical laws against incest, bestiality, and polygamy and yet were fiercely offended by Sen. Santorum’s comparison. They do not object to laws criminalizing sexual immorality; they object to the law defining homosexuality as a form of sexual immorality.
This is not a principled position; it is special pleading on behalf of a sexual minority that has done an exceptional job of advancing its position. The great difficulty is that Lawrence and similar decisions make the argument that the government lacks constitutional authority to criminalize private adult sexual behavior. Justice Kennedy and his counterparts across the land refuse to admit that homosexuality is in principle no different from bestiality, adultery, polygamy, and a number of practices that the government has constitutional authority to prohibit. Lawrence and its relatives in the state courts have created a special exemption for homosexuality from the legal model that applies to nearly all other private behavior.
Let’s stop pretending: if regulating “private sexual conduct” is unconstitutional, the courts need to strike down all laws that regulate what sex consenting adults have (incest, prostitution, adultery). If those other laws are constitutional, then the courts need to stop pretending that Lawrence is a principled position—and admit that homosexuality gets special treatment because judges like homosexuality—but don’t like people who want to have sex with their kids.