Incest Repellent? If gay sex is private, why isn't incest?

Slate ^ | 4/23/03 | William Saletan

[William McKinley]

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 [gay] 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.

[William McKinley]

Not a bad piece, even if it gets Santorum's quote wrong in the same way the AP originally did (notice the parenthetical [gay]).

[HEY4QDEMS]

If gay sex is private, why isn't incest?

Because my sister can't keep a secret. just kidding

[smith288]

Because my sister can't keep a secret. just kidding

LOL

[Hodar]

"If the Supreme Court says that you have the right to consensual [gay] 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."

Right to incest? One equates consentual sex between adults to rape of a minor? Sorry, in the other cases, the partner is willing, and has the choice whether to participate or not. In the case of incest, the MINOR is unable to cooperate, as they are entirely dependant upon their rapist for food, shelter, clothing and necessities of life. And that's not mentioning that inconvenient little law about age of legal consent.

[smith288]

I think Santorum is wrong. But I can't explain why, and so far, neither can the Human Rights Campaign.

So he thinks Santorum is wrong but has no idea why? Here is a hint, if a person was banging dogs, and Santorum said dog banging is gross and disgusting, natural human nature would be defensive but in reality, they would know he was right because it just aint natural. A moment of clarity for this person perhaps?

[sharktrager]

His argument regarding banning incest to prevent confusing relationships, in my opinion, has the same problems the homosexal argument has. It opens too many doors.

Fits, and in my mind most obvious, if one is concerned about avoiding confusing relationships, we have to outlaw divorce. Clearly the change from spouse to ex-spouse is confusing. This is especially true in the case of married couples with children.

We also would have to prevent women from having children with more than one father. The children must be very confused if they have different fathers.

No more marriage after being widowed. If you do, we have 2 people who have filled the role of spouse. Too confusing.

Can't have inter-racial marriages. How will the child be able to fit in with either group?

2 people from different religions? Nope. How does the child worship?

People from different parts of the country better not get married either. There are very different customs in different areas. Very confusing. And don't get me started on accents.

The thing is, these arguments are all subject to being taken to an extreme once you open that door. Some of the things I list sound pretty good, until you see how the same logic can be twisted.

[sharktrager]

Incest need not be the rape of a minor. It is incest when 2 children of the same family have sex. And parental/child sex after the age of 18 remains incestuous.

[NittanyLion]

LOL - that's terrible! Terribly funny.

[mjustice]

Incest is not rape of a minor - it's sexual relations with a person you typically could not marry. Age is not an issue.

From the dictionary:
1. Sexual relations between persons who are so closely related that their marriage is illegal or forbidden by custom.

2. The statutory crime of sexual relations with such a near relative.

From NY Penal Law:
"A person is guilty of incest when he or she marries or engages in sexual intercourse or deviate sexual intercourse with a person whom he or she knows to be related to him or her, either legitimately or out of wedlock, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece."

This is what Santorum meant, not raping a relative.

MJ

[TRY ONE]

"If gay sex is private, why isn't incest?

Because my sister can't keep a secret. just kidding"


Insest: A fun game the whole family can play.

[mabelkitty]

I'm not at all convinced Bill Clinton isn't the spawn of such a union.

[RAT Patrol]

homosexuality isn't a choice Prove it. If we are going reorder all of society over this, prove it.

[RAT Patrol]

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.

I wonder, what gives him the right to decide that monogamy should be encouraged? Isn't that private too.

[RobRoy]

Inference is a scary thing in debate.

In the article or the quote, there is no mention of incest with a minor. Your response indicates the assumption on your part that incest, by definition, is sex with a close relative who is also a minor. It isn't.

Sex with a minor is separate from all the other mentioned examples and it is illegal and morally wrong whether it is incestual or not.

[Eva]

Santorum was saying that there is no guaruntee to privacy under the constitution. The comparison that he should have used is that there is no guaruntee to the right to use drugs if you do it withing the confines of your home. He said that Texas has the right to make laws as they see fit in Texas. He added that if New York wants to overturn their sodomy laws, that is their perogative. He said he would disagree with that decision,but it is the right of New York to pass laws as they see fit.

[Gargantua]

You're equating "incest" with "the rape of a minor."

Incest is not rape. Rape is rape. Incest is incest. You're assuming that incest refers to an adult taking sexual advantage of a child, and that is not incest.

Consensual adult brother and sister, adult cousins, 45 year-old mom and 25 year-old son, all of these are incest while none are rape, and none include a minor.

When the incest involves the rape of a minor, it is called rape.

[Wright is right!]

"Incest is not rape of a minor - it's sexual relations with a person you typically could not marry. Age is not an issue."

Correct. An example would be the presumptive activities of Angelina Jolie and her adult brother. I have personally known at least one "couple" consisting of an adult brother and adult sister.

Michael

[babygene]

"since gays "are not less productive—or more DANGEROUS—members of the community by mere dint of their sexual orientation." "

Hasn't this jerk ever heard of AIDS? ...and their sexual "orientation" is not what the court is about to decide on.

[bondserv]

I don't believe they were arguing for the Father/Daughter or Mother/Son version of incest. They were referring to the Brother/Sister or 1st kissing Cousin version of incest.

Keyword = consensual

Striking down this law may even open the door to Father/adult Daughter or Mother/adult Son consensual sex.

More scary shifts toward Satan, beware libertarians.

[MineralMan]

"Right to incest? One equates consentual sex between adults to rape of a minor? Sorry, in the other cases, the partner is willing, and has the choice whether to participate or not. In the case of incest, the MINOR is unable to cooperate, as they are entirely dependant upon their rapist for food, shelter, clothing and necessities of life. And that's not mentioning that inconvenient little law about age of legal consent."

Incest does not always involve minors. Those are the only cases we ever hear of because incestuous relationships between adults are almost never prosecuted. In fact, I can't remember ever hearing of such a prosecution, even though the incidence is not all that low.

It's important not to use incest only when referring to sex with minor relatives. Incest runs the gamut of ages and relationships.

That, of course, does not make it right. But we just don't prosecute adults in incestuous relationships with other adults.