Kissing Sibs (SCOTUS & incest)

NRO ^ | August 04, 2005 | Matthew J. Franck

[neverdem]

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August 04, 2005,

8:12 a.m.

Kissing Sibs

Could the Supreme Court embrace incest?

By Matthew J. Franck

Here’s a question that could reasonably be asked of President Bush’s nominee to the Supreme Court, John Roberts: Is there a constitutional right to engage in incest? The question is not “academic”; it is virtually guaranteed to make an appearance before the bar of the Court in the near future. Of course, the question’s foreseeable character is a reason not to ask about it to some minds. But as I have argued here on NRO, question-dodging on momentous issues of constitutional meaning shouldn’t be tolerated.

Oh no, you say — surely this really is merely an academic question. Not at all; it has been as far as a federal court of appeal already, just last month, and may soon be on the docket of the Supreme Court. On June 22, a three-judge panel of the Seventh Circuit in Chicago decided the case of Muth v. Frank, unanimously upholding Wisconsin’s criminal prohibition of incest as constitutional. But the court’s reasoning was extremely bad — surprisingly so, given the undoubted legal acumen of its author — in dealing with the precedent relied upon by the petitioner in the case. That precedent was Lawrence v. Texas, the Supreme Court’s 2003 ruling declaring the unconstitutionality of laws against homosexual sodomy. And the author in Muth was Judge Daniel Manion, a Reagan appointee. It is understandable that Judge Manion, like the rest of us, recoiled from the absurdity that the Constitution protects incest. But his effort to avert the consequences of Lawrence’s radicalism is unsustainable, for a fair reading of that case makes it hard to avoid the conclusion that the Supreme Court's version of the Constitution does indeed protect incest (just as Justice Scalia claimed in his Lawrence dissent).

A Family Affair

The facts of the case are straightforward — if ugly. Allen and Patricia Muth, brother and sister, were “married” (the court does not say how or by whom) and had three children. When the neglect of one of their children brought them to the attention of Wisconsin authorities, the discovery of their incestuous relationship led first to the civil termination of their parental rights, and then to the criminal prosecution of both Allen and Patricia under the state’s law banning incest. Neither attempted to deny their crime, and they were both convicted and sentenced to prison — eight years for him and five for her. First in state courts and then in federal courts, Allen Muth challenged the constitutionality of the state’s prohibition of consensual incest.

His argument is straightforward. Why shouldn’t he claim (in Judge Manion’s words) “a fundamental right, protected by the Constitution, for adults to engage in all manner of consensual sexual conduct”? In Lawrence, Justice Kennedy held for the Court that a state may not prohibit consensual homosexual sodomy, and did so on extremely broad grounds, holding that those who engage in such activity are “free as adults to engage in [such] private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.” Recognizing that laws forbidding certain sorts of sexual conduct are grounded in “profound and deep convictions accepted as ethical and moral principles” by many people, Justice Kennedy refused to accept the notion that “the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.” And he concluded with a critical passage that can be altered, just slightly, to cover the case of Allen and Patricia Muth (replacing references to homosexuality with ones to incest):

The present case does not involve minors [involved in a sexual relationship]. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that [incestuous] persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to [an incestuous] lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

So why, with Supreme Court arguments like this at his disposal, did Allen Muth lose his case in the Seventh Circuit? According to Judge Manion’s opinion, there were two reasons. First, “Lawrence did not address the constitutionality of incest statutes.” This is true but trivial. The law proceeds not by the replication of old cases by new ones, but by the logical extension of principles abstracted from old cases to new situations in new cases. And Manion provides no reason why Lawrence’s reasoning should not apply to the Muths.

Second, and most decisive for Judge Manion and his colleagues, the Supreme Court in Lawrence did not proclaim a new “fundamental right” broadly related to consensual sexual conduct, homosexual or otherwise. This is where some close attention must be paid, for Manion’s reasoning, in just a few pages, turns several decades of Supreme Court jurisprudence upside down and inside out.

As Manion notes, when the Court decides it is dealing with a “fundamental right,” it generally uses a standard called “strict scrutiny,” under which the usual presumption that a law or policy is constitutional is effectively reversed. When “strict scrutiny” is applied, only the most “compelling interest” in a particular public policy will suffice to save a law from condemnation, and even then the law must be “narrowly tailored” so as not to jeopardize anyone’s rights in the course of its execution. It is widely understood among judges, lawyers, and students of constitutional law that “strict scrutiny” all but guarantees the outcome of a case: Even the best of justifications for a law will almost invariably fail to pass muster, while the alleged “right” advanced under this approach has an easy road to triumph over the principle of majority rule. Everyone familiar with this subject understands the game: Proclaiming that a “right” is “fundamental” is a way to leverage, by mere assertion more than by any constitutional principle, the destruction of public policies that actually have strong arguments going for them under traditional standards of legal reasoning. “Strict scrutiny” is therefore the Court’s preferred way to make the weaker argument defeat the stronger one. It represents the highest hurdle for any government to clear, and success is exceedingly rare.

Judge Manion is quite right that the Supreme Court did not apply “strict scrutiny” to the question before it in Lawrence. Instead it applied the far less stringent “rational basis” standard, under which the burden remains on the challenger to show a law is unconstitutional, whereas the government need only demonstrate that the barest “legitimate state interest” is present in the challenged policy. “Rational basis” is the Court’s easiest standard for the government to satisfy, and they rarely fail to do so. Rarely, but occasionally: In the Lawrence ruling, the Court held that laws banning homosexual sodomy rest on no “legitimate state interest” whatever, are thus fundamentally irrational under the due process clause, and are therefore unconstitutional. No “strict scrutiny” was necessary, and there was no heavy lifting about “fundamental rights” to engage in various sexual activities, because the Texas law failed to meet the easiest test the Court ever uses to measure a law’s constitutionality.

Super-Important Fundamental Rights

Let’s cut through the legal fog. Yes, the Court has never identified any form of consensual sexual conduct as a “fundamental right” triggering “strict scrutiny” of legal prohibitions on such conduct. Yes, the Court has refused to apply its hardest test to such challenges. But Manion’s reasoning here is, pardon the word, perverse. States enforcing one of Western Civilization’s most ancient prohibitions on sexual deviancy have been declared by the Supreme Court to be acting irrationally, with no conceivable legitimacy granted to any argument they care to advance. They cannot pass its easiest test. What would we call a right that is so obvious, so unquestionable, that laws prohibiting its exercise are declared incapable of clearing the lowest hurdle the Court sets for any public policy? “Fundamental right,” as used in the Court’s current vocabulary, would seem to be too weak an expression. Perhaps “super-important fundamental right” would be appropriate. The case for homosexual sodomy is not weak under the Court’s reading of the Constitution — it is extraordinarily strong. Hence the argument is very powerful, on logical grounds, for an expansive interpretation of its meaning and scope, which lends support to Muth’s view that the right should encompass consensual adult incest as well.

Judge Manion’s opinion for the Seventh Circuit is such a wrongheaded reading of the Court’s current jurisprudence on the due-process clause that we can only conclude he is either a) dishonest, b) incompetent, or c) desperate to avoid the plain consequences of the Court’s recent precedents on sexual liberty. We know that Judge Manion is neither dishonest nor incompetent. But no fourth option truly presents itself, for there is no form of legal reasoning that can distinguish a “right” to commit homosexual sodomy from a “right” to marry your sister and raise a family. Only political reasoning — moral reasoning of the sort the Court condemned as tyrannical in Lawrence — can accomplish such a distinction, if it is possible at all.

Therefore, I would vote for c), because it seems plain that Judge Manion would rather someone other than himself commit such moral horrors in the name of the Constitution. Let the Supreme Court clean up its own messes, or make them even worse. That’s why the justices get the big bucks — for they have arrogated the power to break our civilization, or to preserve it.

And don’t we want to ask questions about these sorts of things when we have the chance, every decade or so, when a Supreme Court vacancy occurs?

— Matthew J. Franck is a professor and chairman of political science at Radford University.

	http://www.nationalreview.com/comment/franck200508040812.asp

[Ichneumon]

[Neither attempted to deny their crime, and they were both convicted and sentenced to prison — eight years for him and five for her.]

Um, WTF? Same exact crime, yet he got 60% more jail time? Is this pure anti-male bias or is there more to it?

It might be something as simple as different judges/juries. They were probably tried separately, and maybe his judge/jury just had stronger feelings about sentencing than hers did. If he had instead been tried by her judge/jury and vice/versa, she might have been the one to get eight years, and he could have gotten five.

There could be a lot of factors involved in the different lengths of the terms, not necessarily having to do with any anti-male bias.

[little jeremiah]

Moral Absolutes & Homosexual Agenda Two-fer Ping.

Well, well, well. What exactly was it Santorum said about a "slippery slope"? Do the words "screaming nosedive" mean anything to you?

Here's my take: If there are no moral absolutes, unchangeable right and wrong, then every single ethicl/moral issue is now on the table, up to and including bestiality, child/adult sex, consensual cannibalism, involuntary euthanasia, and anything else your (and THEIR) fevered brain can come up with.

It's all on the table now. If the mind of man is the arbiter of right and wrong, the law of the jungle will be the law of the land. If "God says it's wrong so it's wrong" doesn't count, the end of civilization is nigh. And I mean that seriously.

Freepmail me if you want on/off this pinglist.

[little jeremiah]

Don't take it easy on me! Ping me again if you don't see something appearing on the pinglist.

I hate to lose important articles. If only my "comments page" would show more than 20!!! I can't get it to show more, that's one way stuff gets lost in the shuffle.

[BykrBayb]

Mine won't show more than 20 either. I wonder if anybody can see more than 20.

[biblewonk]

Punishment for a given crime should not be subjective. It isn't in the bible.

[thoughtomator]

This strikes me as being by definition an error in the process of adjusticating justice, when two convictions for the exact same crime in the same jurisdiction carry different penalties.

[monday]

Let me break this down so it is easy to understand. Incest isn't banned because it is icky. Incest is banned, and is icky, because the children produced by such a union are inbred, and genetically inferior, and often deformed and/or retarded.

Incest is banned not only for the good of the children but for the genetic health of the human species. There is no constitutional right to produce mutated children.

[monday]

"For this reason he is also probably wrong when he says: "But no fourth option truly presents itself, for there is no form of legal reasoning that can distinguish a “right” to commit homosexual sodomy from a “right” to marry your sister and raise a family." A court may very well find a rational basis for prohibiting incestuous marriage."

That are complete morons if they can't. see #27

[Pilsner]

This year the Texas Legislature made is a second degree felony -- maximum punishment 20 years in prison -- to commit incest by having sexual relations with your first cousin.

The Texas Legislature did not see fit to change the law that makes it a third degree felony -- maximum punishment 5 years in prison -- to commit incest by having sexual relations with your sister.

The legislative update I heard that at, being full of South Texas lawyers, blamed this discrepancy on the proclivities of Legislators from East Texas, near the Arkansas and Louisiana borders.

[WOSG]

I'd vote for 'pure anti-male bias' which is rampant in courts of law. Dontcha know, its the man's fault.

[IamConservative]

Hillbilly to son: "Son, never marry a virgin. If she ain't good enough fer her own family, she ain't good enough fer 'arn."

[IonImplantGuru]

... And lest we forget bestiality...

Be careful, Doc. You better not screw with my sheep!
Heh heh

[monday]

"This year the Texas Legislature made is a second degree felony -- maximum punishment 20 years in prison -- to commit incest by having sexual relations with your first cousin."

Thats interesting because I read that studies have shown that children produced by marriages between first cousins have no more genetic defects than that of the general population.

I guess this is a law that was passed because legislators find relations between first cousins icky. lol

[Kozak]

So what if said siblings were only engaging in sodomy, would that then be protected?

[RatSlayer]

RE: "Had he married his brother instead of his sister there would be no problem."

Yep. If they had been gay, the current court would have said they have the right to both sodomy and marriage.

All that this goes to show is, in reality, there is no "rational" basis test for any of this stuff. The rulings are just whatever 5 jackasses in black robes prefer. Then they write a bunch of self contradictory BS that supports whatever their position is.

[Graymatter]

Keep it up, lefties. Never thought I'd see the day when a major political party extinguished itself, but your moment is coming.

[Mack the knife]

...For what are criminal laws, if not the codification of the "moral views" of the majority? Why is theft illegal? Because the majority have said it is immoral. Why is murder illegal? Same reason.

I suggest that you are a little confused here -- there is a significant difference between immoral and the illegal, and always has been, even in Biblical times; and the US Constitution recognizes that the majority is not always right, and should not be able to make illegal anthing it wants. For example:

* the "immoral" is something you disapprove of, something against your personal code of morality, and perhaps something you would be willing to personally convey your disapproval of, e.g., treating your spouse unkindly, allowing children to run around creating havoc unsupervised;

* the "illegal" is an action you would be willing to use force to prevent (or require penalties extracted by courts and men with guns, e.g., theft, murder).

For actions in which something of value is taken by one person from another by either fraud or force(e.g., fraud, theft, assault, murder), the line is pretty clear. Ultimately someone is taking something of value from another against their will, whether by fraud and deceit or by force, and that is almost universally recognized as both immoral and illegal. Over the past 2000 years, Western civilization has evolved the concept of a government using force to prohibit or take vengence rather than allowing people to avenge themselves; so laws are passed to codify transgressions, and police and courts enforce them. Of course, Islam still allows "honor killings" and "blood feuds" to settle scores.

The line is not so clear when there is no "victim". In the Old Testament, the Jews were prohibited from a number of activities, which made such actions immoral, but for which no specific punishment was specified. For example, working on the Sabbath was clearly a violation of one of the 10 Commandments (with an exception if an Ox fell into a ditch), but this was enforced by disapproval, not by stoning. Prostitution was clearly disapproved of, but evidently not prevented by force, since there are stories in the Bible about prostitutes; but, on the other hand, a couple could be stoned if caught in adultery if the woman was married (because this was stealing "something of value" from the husband). So even then, there was a difference beteween illegal and immoral.

That line has been moving.

*100 years ago there were laws in the South prohibiting places of business being open on the Sunday (i.e., the blue laws), and those laws had penalties; Walmart is now open 7 days a week 24 hours a day nation wide.

*100 years ago there were laws prohibiting the selling of alcoholic beverages in some states and localities -- a nation wide Prohibition was found to cause more problems than it solved, so Prohibition was eliminated by a 2nd Constitutional Amendment. If there is no difference between illegal and immoral, would you now say that drinking alcohol to excess is now moral???

*100 years ago, there were laws in many States prohibiting cursing in the presence of women or children. Some of those laws are still on the books, but now not enforced (although many of us would prefer that they were enforced, in Parks, and especially during TV family hour).

This then leads to the next question -- how should you draw the line between the immoral and the illegal? You can't say, strictly by the "will of the majority". The Declaration of Independence proclaims that all people have the G-d given right to life, liberty, and the pursuit of happiness. The Bill of Rights in the Constitution prohibits Congress from making laws about some lower level issues (i.e., establishing a religion, abridging the freedom of the press, even infringing on the right of a citizen to keep and bear arms, etc.) So, even if a majority of the people wanted such a law, the Consitution prohibits it. It takes in fact a supermajority to abridge such rights (e.g., with a Constitutional Amendment, like Prohibition).

Which brings us to things like prostitution, sodomy, homosexuality, cigarettes, recreational drugs ... the so called "victimless crimes".

Some these things involve the actions of a single person - use of sexual toys, masturbation, smoking cigarettes, taking any kind of drug, etc. The question asked in the 60s and not yet answered is ... what gives the "majority" the right to say that alcohol is legal, prescription drugs are sort of legal, and grass is illegal? The British fought a war with China to get the right to import Opium into China, so they obviously thought it was "moral". The history of drug laws in the US is covered quite nicely by the History Channel program, "Hooked, and how we got that way" -- and morality played less a role than press inflamed hysteria. My personal view is that drugs are bad, but drug prohibition is much much worse.

What gives the "majority" the right to make the purchase or posession of a "vibrator" illegal, when it is used by a single solitary individual in the privacy of their own bedrooms? Isn't that part of "the pursuit of happiness"? Yet Alabama has such a law.

Next are the so called "victimless" crimes between consenting adults. For example:

* What is the justification for using force to prohibit sex acts between consenting unmarried adults? 100 years ago, fornication was illegal; now, it is displayed on family hour TV shows.

* What is the justification for using force to prohibit prostitution in 49 and 1/2 states (it's legal in some counties of Nevada)? A Prostitute is listed as one of the ancestors of David ... and Jesus.

* What is the justification for using force to prohibit heterosexual sodomy? During the past 100 years, that line has moved - it is now legal nation wide, and legally exhibited millions of times a day on the internet.

* What is the justification for using force to prohibit homosexual sodomy? The laws have been on the books for over 100 years, but not really enforced for the past 50 years. The Supreme Court recently moved that line, rightly or wrongly, by balancing the right of the majority to make such laws against the rights of the participants to pursue happiness.

What is the justification for using force to prohibit polygamy? (It seems that G-d approved of this during Old Testament days, and I have been unable to find the Biblical commandment that now makes it immoral. Islam supports Polygamy as moral. The Mormons believed it was moral for a number of years; on the other hand, US Government troops occupied Utah under Martial Law until the Mormon Prophet had a revelation that switched this from "moral" to "immoral" for Mormons in the 1880s).

* What is the justification for using force to prohibit incest between consenting adults? Egypt's rulers were required to practice this. If your justification is the fear of reinforcing bad genes, then why don't you make it illegal for people with genetic markers for Sickle Cell Anemia to get married to each other? Or Tay Sachs? Or Obesity? or baldness? or ...?

When you are done with victimless crimes, consider the morality of self defense! Genesis requires you to rise up and slay an attacker at night. Jesus said ... if you don't have a sword, sell your cloak and buy one. Some states allow people to carry concealed firearms to protect themselves with no restrictions. Some 38 States have some kind of "shall issue" legislation which requires the police to issue "good citizens" a concealed carry permit, and laws which allow you to use such weapons to protect yourself and others from predators. Some states almost prohibit you from defending yourself with deadly force. What is moral?? All these laws were passed by representatives of the people (majority rule ???) So ... is morality dependent on whether you are in the majority??

The point of this rant is, your assertion that "...criminal laws (are) the codification of the "moral views" of the majority..." is too simplistic, and does not hold up to analysis. The question, "Which immoral things am I willing to use force to prohibit?" is a very serious one, and I would encourage you to find some principles by which to make such decisions, and to subject those principles to intense scrutiny and bounce them against the principles of the Consitution. Don't tell me "It's all in the Bible" -- because then you are saying that if you were born differently, you would be saying "It's all in the Koran". And you know where that leads.

[TChris]

I suggest that you are a little confused here -- there is a significant difference between immoral and the illegal, and always has been, even in Biblical times; and the US Constitution recognizes that the majority is not always right, and should not be able to make illegal anthing it wants.

But, as you so abundantly show in your post, the supposed "significant difference" between the immoral and the illegal is shifting rapidly! If today you can dismiss sodomy and incest as being in the realm of "immoral but not illegal", then what, exactly, is the basis for declaring bank robbery illegal? Why, inherently, is stealing illegal? If it is not because our society has declared it to be wrong, what is the reason? What is the basis for laws at all?

You might say something should be illegal if, and only if, it harms somebody else. While there is plenty of debate to be had over that idea in the first place, I would press further and ask, Why? Why is that the standard for individual liberty? Why should it be illegal for me to harm someone else? What makes that standard more desirable than a biblical standard, or a simple majority rule standard?

See, the slippery slope is this: Once enough people deny any difference between right and wrong in their personal lives, then the laws created by and for those same people will inevitably follow the same path, albeit in something of a delayed fashion. If there is no good and evil in our personal, private lives, there is necessarily a similar attitude toward our civic attitudes and actions. Those who think they can completely separate their personal and public lives are deceiving themselves.

[unlearner]

I happen to know a Texas couple who are cousins and are married. (They did not know each other as children.)

While it is odd for someone to marry their cousin, it is not incest by Biblical standards. (See Leviticus 18.)

[Dr. Eckleburg]

lol