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.

[Right Wing Professor]

So if we're going to start outlawing things based on the transmission of AIDS then we have to expand the sphere well past sodomy.

Why do we have to do that?

Sodomy is one of the leading mechanisms of AIDS trnasmission in the country. AIDS costs the country billions of dollars a year. There is an obvious state interest in reducing that cost. Other major means of transmission (e.g. intravenous drug use, prostitution) are also illegal, or illegal in most jurisdictions. Minor mechanisms of transmission have very little social impact and the state can simply decide they're not important enough to deal with.

This is like arguing that because we enforce helmet laws on motorcyclists, and because pedestrians are also injured in auto accidents, we should impose hemet laws on pedestrians.

[discostu]

But it isn't the only method. The only reason there's a "state interest" is because bad people are slowly converting us to socialized medicine. A better answer would be to re-privatize medicine so we can erradicate all the nanny laws being foisted onto us with that sorry assed excuse. As for your other methods, WOD is the biggest single threat to the Constitution we have today. And prositution is the exact same disease vector as normal sex you just have one population that's crawling with illness because they have a lot of sex, an equally sized population of sluts and sorority girls have just as many diseases and neither of those behaviors is illegal.

No I'm arguing that helmet laws are a direct violation of our rights. The state shouldn't have the ability to tell us to live in a safe little nerf world. People take assumed risks based on their behavior, some behavior is more risky than others, unless they're posing a danger to unwilling participants it's none of the state's business.

[Right Wing Professor]

I agree that in a libertarian society, the arguments for helmet laws and other laws against reckless behavior are no longer valid. However, we do not live in a libertarian society, and I, for one, would be hesitant to try to implement one, except by very gradual steps.

[Laurie S]

"The case pending is about two gay men, yes. But what the gay men are arguing is that there is a constitutional right of privacy (and any form of consensual sex within the home) for any people. It as a response to that assertion that Santorum was commenting"

The law on the books in Texas outlaws gay sex. It doesn't outlaw sodomy in general. If the cops busted in on a male and female committing sodomy, they would not have been arrested, unlike these two men. It is specifically about gay sex, not sodomy in general. Santorium decided to lump gay sex in with incest, polygamy and other stuff that aren't related. Where does it stop? Does the married couple have a right to privacy in their bedroom? What specific sexual positions are they allowed to engage in before the cops arrest them?

[discostu]

Not in a libertarian society, in a society that at least remotely resembles the one the Founding Fathers designed. Where is the part of the Constitution that says the government is allowed to keep us from being self destructive idiots? We went nearly 80 years in between the invention of motorcycles and helmet laws, how was America worse in the 1980s than it is now? Same with seatbelt laws. Most of this crap are recent inventions and have no place in a free society. Gradual steps is how this "state's interest" crap has made us all property of the government. Time to get rid of it ALL NOW. If I want to put my freaking head through my freaking windshield then by God I'm gonna put my freaking head through my freaking windshield and if the government doesn't want to pay for my rehab that's fine by me because socialized medicine sucks ass anyway. This isn't about libertarianism, this is about getting America back. The state doesn't own me and doesn't have the right to make me live to a ripe old age.

[William McKinley]

You are arguing over what the law says.

The case before the court is over what the legal foundation for the law is.

The question isn't over if it is a good law or if the law sets a bad precedent. The question is over if there is a legal foundation at all for the law or not.

I have to say, I am not even sure exactly what you are trying to get at anyway. What side are you arguing, and to what end? I am not sure if I am in agreement with you or not, since I can't tell. But what I do know is that you don't seem to be getting the gist of what Santorum was arguing. If you have not read the article at the top of the thread, please take the time to because the author does get the point and goes into it in detail about it (he doesn't agree with the point, by the way).

[Laurie S]

Sorry if I have not been clear. First, I don't see why there is even a law against gay sex in Texas in the first place. The laws should apply to all people equally and not single out any one group for harsher punishment than all others.

Secondly, I see that Santorum is in effect, defending the anti-gay sex Texas law which tells me that he thinks it should stay on the books. I still don't get why he decided to compare adult consentual gay sex to incest and polygamy because that's apples and oranges. If he thinks gay sex is wrong he should just say it and stop beating around the bush with these other comparisons.

Thirdly, the whole 'privacy' argument should apply to all regardless of whether they are gay or heterosexual. If there is no right to privacy for gay sex then the same (stupid) rule should apply to heterosexual (including non-baby making type sex). Incest, polygamy, etc are not part of the argument except that santorium is trying to throw them in for some strange reason.

[Clint N. Suhks]

One equates consentual sex between adults to rape of a minor?

Umm…I’m pretty sure they’re NOT equating pedophilic incest with homosexuality. The two consenting adults in the privacy of their own home red herring still applies here.

[discostu]

BTW, new tag line, the old one is now available for theft. ;}

[Remole]

Your suggestion that the doctrine of states rights might lead to a solution to the problem seems appealing, and for a while I was an adherent to it. But there seems to be a serious weakness, and I would like to hear your reply.

The doctrine of States Rights and the system of Federalism that we have works wonderfully to allow local communities to develop and enforce their own customs and laws; and to an extent, I like it. Across these 50 states there are thousands of different ways to handle similar things, from running school boards to enforcing zoning laws to setting speed limits. But I wonder about the suitability of this system when the issue at hand is something foundational to that society, such as life and death (abortion and euthanasia etc) and the family (marriage, adoption and divorce laws). Just as in the case of Slavery in the 1840's and 1850's, there is something about those issues that simply do not allow a situation where some states will allow abortion and some not; some states allow the euthanizing of the elderly and some not; some states allow homosex and some not; some states allow incest and some not. If you have enough locally diverse customs on these fundamental cultural issues across the land, what you may end up with are the Diverse States of American instead of the United States of America. I worry about that. But I also worry about the power of the central government to compel everyone in the land to observe the same law. At that point, if you are in the opposition, where do you go?

[William McKinley]

Sorry if I have not been clear. First, I don't see why there is even a law against gay sex in Texas in the first place. The laws should apply to all people equally and not single out any one group for harsher punishment than all others.

Ok, there are a number of issues here. I hope you will take my arguments for what they are, which is the argument of one who believes in the proper role for each branch of the government.

If there should be such a law or not is, in my eyes, one of merit. Does the benefits from such a law outweigh the costs of such a law (with benefits and costs involving a lot more than money). Such deliberations are the role of the legislature, not of the courts.

However, this is in the courts, because the plaintiffs are charging that there is a constitutional right to consensual sex of any stripe within the home. It is the proper role of the Supreme Court to decide if this is the case or not. The Supreme Court will not be deciding if there should be sodomy laws, but if there is the privacy right that they are arguing.

When you get into if there should be a law or not, my answer is that those are matters a legislature should decide, not courts.

Secondly, I see that Santorum is in effect, defending the anti-gay sex Texas law which tells me that he thinks it should stay on the books.

I agree he probably thinks the law should stay on the books. But just be aware that not always does it follow that if someone argues against a particular line of legal reasoning that they want to support something; occasionally you will see the ACLU defending with legal arguments groups like the National Alliance. This does not mean the ACLU wants what the National Alliance wants.

I still don't get why he decided to compare adult consentual gay sex to incest and polygamy because that's apples and oranges.

He didn't compare the two. He did point out that they share the same legal foundation- namely that the Constitution does not prevent a state legislature from passing laws regarding sexual conduct.

If he thinks gay sex is wrong he should just say it and stop beating around the bush with these other comparisons.

Comparisons he has not made, but others have said he has made.

Thirdly, the whole 'privacy' argument should apply to all regardless of whether they are gay or heterosexual.

That is his point. Either that right is there, and then all those other types of laws will face being struck down in the same manner, or that right isn't there, in which case they won't be.

If there is no right to privacy for gay sex then the same (stupid) rule should apply to heterosexual (including non-baby making type sex).

What is the rule you are referring to? Because you are coming close to making the same argument Santorum is making. He is arguing, not that any rule should be equally applied, but any rule must be equally applied. And if the rule is "the state may not make any laws regarding sexual conduct in the privacy of one's home" then the rule must be equally applied and sodomy laws come down, as do incest laws, bigamy laws, adultery laws, bestiality laws.

Incest, polygamy, etc are not part of the argument except that santorium is trying to throw them in for some strange reason.

He throws them in because the question before the court is "Does the state have the power to enact laws regarding sexual activity, even in the privacy of the home". The answer to the question before the court impacts all of those other things. That is why he made the argument.

If the court answers "the state has no such authority", then the ramifications are huge, and the ramifications touch each of the things Santorum listed. He wasn't saying gay sex and bigamy are the same. He was saying that the legal basis for laws regarding them are the same.

[William McKinley]

I'd be happy to reply, if I understood what the question is.

[Remole]

BTW, I just read your post # 191 and it is excellent. I agree completely with your perspective on the issue and the need to clarify just what Santorum was talking about. The problem with much of the media's and public's discussion of this issue is that our culture does not conduct discussion on principles very well; we are far too eager to reach the bottom line on an issue, and usually that bottom line is a choice between A or B.

[Remole]

Question: Whether laws regarding sexual behavior should be entirely reserved to the States.

[Laurie S]

"If the court answers "the state has no such authority", then the ramifications are huge, and the ramifications touch each of the things Santorum listed. He wasn't saying gay sex and bigamy are the same. He was saying that the legal basis for laws regarding them are the same. "

I wouldn't say the 'ramification would be huge.' I belive the ramifications will be much worse if the court rules against these men and decides the state does have authority in this matter. The law would have to include heterosexual sex and we will have the jails full of lawbreakers of every color, creed, religious preference, and political offiliation.

[William McKinley]

Should be, or are according to the Constitution? I have answer to one of them, and a non-answer to the other.

By my read, the Constitution does not forbid states from passing laws regarding sexual behavior. This is obvious to me, since there were dozens upon dozens of such laws on the books during the framing of the Constitution and in the decades that followed.

Should there be such laws? On that, I am torn. I am not convinced of the utility of the laws. I see a benefit in a society setting standards of acceptable behavior, but I also see a detriment in that when laws are enacted that are difficult to enforce and likely to be ignored you foster a culture of disrespect for the law. I am convinced that not every gay person is born that way; I am not convinced that none are. I know that I consider it to be sinful behavior, but everyone sins, and not every sin should be a crime. My ambivalence on the matter of laws of this stripe lead me to appreciate federalism. If California wants to have it be legal, but Utah doesn't, I am comfortable with it.

I do know that I think that incest SHOULD be illegal, as should bigamy, polygamy, and that adultery should have legal consequences in matters of divorce and separation, so I am very uncomfortable with the idea that the legal basis for such laws being struck down.

[William McKinley]

I guess we disagree on the ramifications.

By my eyes, if the state cannot pass laws regarding sexuality, then prostitution laws, bigamy laws, incest laws, bestiality laws, and laws regarding the impact on adultery when it comes to divorce proceedings all are subject to the same legal attack. To me, that looks like fairly large ramifications, especially compared to the status quo, which is that certain areas have sodomy laws (and despite these laws, sodomy occurs).

[William McKinley]

By the way, I almost let this pass, but I can't.

we will have the jails full of lawbreakers of every color, creed, religious preference, and political offiliation.

Seeing as the law has been on the books for a long time, and similar laws have been on the books in various areas for quite some time, and we have not seen jails filled with people charged with this, I don't think this assertion has merit.

[Laurie S]

"Seeing as the law has been on the books for a long time, and similar laws have been on the books in various areas for quite some time, and we have not seen jails filled with people charged with this, I don't think this assertion has merit. "

Sorry, but people have been arrested for having consensual sex. The difference in this case, is that the two men from Texas are actually FIGHTING their conviction all the way to the highest court in the land and will (hopefully) get this outrageous law off the books for good. If the court says there's no right to privacy in one's own bedroom, we're all in trouble. I don't know about you, but I don't want some hate filled neighbor of mine calling the cops on me when I'm in the bedroom with my husband. There's no need for the cops to bust in and arrest adults having consensual sex.

[William McKinley]

I refer you back to my previous statement of opinion:

If the question is over if there should be such a law or not, I believe the place that should be decided is in the legislature, not the courts.

My other point stands. You asserted the jails would be filled if this law stands. The law has stood, and the jails were not filled with people charged with it. You may think that even one person charged is too many, and you may be right (see my reply above to someone else on my opinion of sodomy laws). But to claim that suddenly there will be a homosexual gulag is just plain silliness.