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

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."

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?

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.

"I don't think anyone in their right mind would say that "consent and privacy" by themselves are the two criteria by which one establishes whether or not sexual behavior of any kind should be legal."

I beg to disagree. The two ideas at work concerning this issue are the issues of consent and privacy. If you are aware of others, I'm willing to listen.

"As a citizen, you are neither in charge of enforcing your morality, nor imposing your ethos upon anyone else."

In other words, my citizenship in a free country doesn't extend to my own morality or moral conscience. I have no business deciding issues of right and wrong at all, right?

That's some idea of freedom, isn't it? If I'm not qualified to use my moral judgement as a citizen of a free country, perhaps you could start by telling me who is?

Its called being part of a society. As a group "We the People" have decided to live in the same society. This means as part of "living together" we accept limitations on what we can and can not do. Speeds are limited on roads, there are limitations on what you can or can't do on real property based on location.

We also have accepted limitations can and are subject to state by state determinations. There are states which accept common law marriage and others that do not. States that allow common law marriage have various standards to establish common law status.

With that said, as a society we have determined that there ARE limitations to the sexual act. The only aspect of sex that has been protected as a fundamental aspect of society is the right of procreation. Non-procreation sex is not protected. If non-procreation sex is elevated to the status of a fundamental right then NO LIMITATION on sex is valid. The adult incest example is valid and then legally allowed.

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?

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No, this is a red herring, this is about sex for fun. Sodomy is clearly only sex for enjoyment since reproduction is not possible. If any sex for fun is allowed then ADULT incest for fun is therethore legally allowed.

What about children who have reached the age of consent in states with consent laws as low as 14, 16, 17? Guardians are empowered to consent to children entering marriage, why not consentual sex?

Once open, our population of 300 million is bound to have those squeeky wheel weirdo minority that will want their sexual pleasure passion permitted.

All this homosexual mobilization to disregard slippery slopes, or claim the addition of MORE LAWS (?!!!) will somehow stop the fringe groups comparing themselves to homosexuals is delusional.

In other words, my citizenship in a free country doesn't extend to my own morality or moral onscience.

It extends to YOU, not me. That's the difference between freedom and domination. Your values are YOURS, mine belong to me. You need never associate yourself with people who do not share your values.

If I'm not qualified to use my moral judgement as a citizen of a free country, perhaps you could start by telling me who is?

You are free to make whatever moral valuation you deem fit, as it applies to you and your family. However, once you decide to cross the line and impose your views on someone else, you have ceased to be a freedom loving american and have become a dominating dictator.

"I don't think anyone in their right mind would say that "consent and privacy" by themselves are the two criteria by which one establishes whether or not sexual behavior of any kind should be legal."

I beg to disagree. The two ideas at work concerning this issue are the issues of consent and privacy. If you are aware of others, I'm willing to listen.

I would say there is the overriding issue of social norms based on currently accepted morality and beliefs... by which our society deems the need to reject certain behaviors.

Our society values the idea of "consent and privacy" when it comes to the rights of adults...but there are limits.
My original point was that nobody in their right mind thinks "consent and privacy" means *anything goes*....But consent and privacy does protect against unecessary intrusion by the govt into the private affairs of adults.

I belief this is a completely reasonable position...and one that Santorum should have clarified.

"You are free to make whatever moral valuation you deem fit, as it applies to you and your family. However, once you decide to cross the line and impose your views on someone else, you have ceased to be a freedom loving american and have become a dominating dictator."

I understand now. Those who value freedom and democracy are nihilists who would permit everything and still expect liberty. Those who want to prohibit certain acts in their communities are actually the enemies of liberty and freedom. They are only qualified to practice a private morality that applies to their own lives and the lives of their families; they are not allowed to have their "private" morality influence their community, the state government, or the federal government. I understand your position.

Evidently, since the Founders saw fit to allow the states to prohibit private sexual behavior, it follows that they were enemies of liberty. Only the nihilist, since he permits everything, is a true friend of freedom and democracy. Do I have that about right?

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