Tuesday, December 14, 2010

Another Unsold Article

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.


  1. Clayton, there is a fundamental difference between homosexuality and consensual incest, at least heterosexual incest, namely that there is no possibility of reproductive activity between members of the same sex, but there IS the possibility of reproductive activity, whether intentional or accidental, in an incestuous relationship and it is THIS that the laws are intended to prevent. Children born of such incestuous relationships have a 50% chance of genetic deformity of one form or another. Even relations between first cousins bring a much higher chance of genetic deformity. Therefore the laws are not there to legislate morality so much as to prevent the birth of genetically handicapped individuals.

    Further, there is the issue of consent. The familial relationship may cloud the ability of an adult child to give consent, particularly if the child was raised in a controlling environment where the parent exerted undue emotional control over the child, such that the child may not have had the emotional ability to give informed consent. Essentially the Stockholm syndrome.

  2. You answer your own question, really.

    Many believe that people in certain relationships are not capable of full or true consent - such as parents/children, teachers/students, and of course people before an age of consent.

    Many Western countries - France, for example, and ISrael - do not have adult incest laws. No chaos results.

  3. Incest certainly increases the risk of genetic defects--but that's not why we have laws against incest. And it fails to explain laws against bestiality, which does not have that problem.

    The notion that an adult child can't give "true" consent is a rationalization, perilously close to the feminist claim that because men oppress women, no woman can truly consent to sex with a man--she is always a victim of an oppressive system.

    Incest remains a profoundly taboo behavior--perhaps why lack of laws doesn't make that much of a difference yet.

  4. Clayton, can you support your hypothesis that the genetic defect issue is not the reason for the law? because frankly I think you are wrong. The laws originated as a result of the inbreeding that took place among European royalty and all the hemophilia and congenital defects that resulted.

    And there ARE laws against bestiality, at least in Texas there are. It is considered animal abuse/cruelty.

    I did not say that NO adult child could give informed consent, but certainly some cannot for the reasons stated.

  5. See http://www.rootsweb.ancestry.com/~medieval/consang.htm for a discussion of the roots of consanguinity laws. They far precede European royalty and the hemophilia defect.

    My recollection is that one of the arguments advanced in Lawrence v. Texas (2003) for why the law prohibiting homosexual sodomy was based on hatred of homosexuals is that when the then current law was written in the 1970s, it replaced an existing law that banned all oral and anal sex (regardless of orientation) and the law against bestiality. If so, it was probably the crime against nature statute that was common in much of the United States, being a descendant of Henry VIII's buggery statute.

  6. Genetic defects were certainly not the reason for laws against oral sex that were common in many states until the not to distant past.

    Some people believe that genetic defects was part of the reason for the biblical prohibition (God knows genetics) and STDs may account for the prohibitions of adultery and prostitution, but they would not account for all of the other sexual prohibitions.

    The genetic argument also carries less weight in a society with effective contraceptives.

    The inbreeding among the Hapsburgs was not incest per se, but centuries of marrying close relatives will take its toll. Similar effects can be seen in small towns with very little migration.

  7. I think your right on most of this. However, age of consent laws relating to young children I think could stand, since an 8 year old is too young to give informed consent. If you apply it to adolescents, then this argument goes away. How can we argue that sexual activity between a 15 year old and a 22 year is someone especially wrong when in the past a 15 year old could legally be married?

  8. Oh and Rorsach, I think the hole in your argument that incest reduces the chance of birth defects is that I'm pretty sure the incest laws apply even when one or both of the individuals are sterile. Not arguing for incest, but what if the good professor wanted to argue that he had a vasectomy and therefore could not actually father any children in the relationship? Then his behavior ought to fall into the same category as sex between to consenting men by the Lawrence standard.

  9. I actually argued that the states have authority to set age of consent based on their best judgment. Some states have strict limits; some have a sliding scale based on the difference in age of the participants (so an 18 year old and a 16 year old is far less serious than a 25 year old and a 16 year old).

    Even limiting the argument to adult participants: why do some of these acts qualify as criminal, while others enjoy constitutional protection? Why is it constitutional to criminalize sex with an animal, but not slaughtering it and barbecuing it?

  10. Let me also point out that royalty were usually given exemptions from the consanguinity rules that the Catholic Church applied to everyone else, because it was difficult to find royals that were not too closely related. The royals were not the cause of the ban; they were exceptions from a ban that appears in the Old Testament, and most (but not all) cultures around the world.

  11. Some comments:

    Hemophilia cannot result from inbreeding, except in the very rare circumstance that a male hemophiliac lived long enough to father children. (This did happen: Queen Victoria was a carrier, her youngest son Leopold had it, and lived to be 31 and fathered two children.)

    European royalty was allowed to infringe on the incest rules, but only uncle-niece marriages AFAIK. It was not because they had to marry other royals, but because they wanted to. (The only family I know of that did this was the Spanish Hapsburgs - and their problem was not marrying only other royals, but marrying only other Hapsburgs.)

    Another, more blatant case of royal privilege involved Henry VIII. He had no legitimate son, and his wife Catherine seemed incapable of bearing another healthy child. He did have a bastard son (Henry Fitzroy). He proposed to have Fitzroy legitimated, and to get a Papal dispensation to allow Fitzroy to marry Mary, Henry's daughter by Catherine - Fitzroy's half sister. The commentary I've seen say this proposition failed only because of political difficulties with the Pope, not because anyone said "WTF?"

    Polygamy is not private consensual behavior. Marriage is a social act, which includes state recognition and imposes requirements on others.

    Eugene Volokh recently noted a law in Rhode Island (dating back to colonial days) which exempts marriages of Jews from consanguinity restrictions if permitted by Jewish law.

    Some years back, when Howard Dean was a Vermont legislator, he voted to permit the incestuous marriage of an uncle and niece. No, this isn't a right-wing fantasy - a majority of the legislature voted that way. The couple were 80 and 65 or so.

  12. Even if the laws have basis in the old testament, that does not negate the probability that such religious restrictions arose out of a noticeable coincidence between incest and mental retardation or other deformities/defects. Just as the jewish and islamic religious rules concerning the consumption of pork probably arose from the fact that pigs are able to catch many diseases that we can and vice versa and therefore they have to be cooked extremely well and either cooked promptly or refrigerated (an impossibility then) or food poisoning or other diseases were likely.

  13. often "morality" however it might be defined, has a valid basis/origin and serves a beneficial purpose to the society that spawned them.

  14. Yup. Complete agreement. I used to regard the Bible's prohibitions on homosexuality as being antiquated. I am more inclined to think now that homosexuality is rather like the canary in the coal mine: an early warning sign that your society is about to go off the rails making sex of all types into an idol. In that sense, it is like $200,000 automobiles--not intrinsically wrong, but an indication that people have more money than sense.