Posted on 04/24/2003 7:31:58 AM PDT by 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.
Incest as a non-violent sexual practice among consenting adults is constitutionalI do not think you are going to find widespread agreement and acquiescence on this point.
Sodomy is only dangerous to the participants, period.I disagree with most of the points you just made. Which is a bigger risk, that a person will have a vasectomy reverse itself and have him impregnate his sister in the hypothetical above, or a HIV infected person accidentally infecting someone else by mixing of blood in an accident of some sort? Sodomy increases the risk of HIV transmission, which increases the number of people who have it, and the more people who have it the more likely it is that someone will contract it through accidental means (as opposed to through sexual contact).
Given the fact that I have heard of a multitude of incestuous rapes (father/daughter) and very few adult-family relationships, I assumed he was equating the predominate with the more rare case.
In the case of adults consenting to sex, as long as they are aware of the factors involved, I see no reason why my tax dollars should be spent incarcerating prostitutes, incest, pologamy, or other adulterous behavior. Frankly, where someone else sticks his 'weenie' is of no concern to me, or to you. Unless you are involved, it simply is none of your business. I think a majority of people have a heck of a time managing their own life, let alone having the skill, sense or time managing someone elses.
I just wanted to show that what ends up happening when the strings are all pulled here, that the person being castigated as the extremist (Santorum) is making a mainstream argument, and the real objections come from those who hold out of mainstream views, such as that prostitution and polygamy and adult-incest should be constitutionally protected activities.
According to the Random House Dictionary, incest is defined as: "sexual intercourse between persons so closely related that marriage is legally forbidden." It says nothing about the age or sex of the two parties. Therefore, see my question on #63.
On who's authority? Why are you so concerned about what people do with Mr Winky? Are you afraid that you are going to miss out? Or do you find that behavior offensive, so you are going to impose your belief structure upon them? What a group of adults does, consentually and amongst themselves is of no concern to you, or to me. It's simply none of our business. I think most people have their hands full trying to run their own lives; let alone having the wisdom, skill and intelligence to attempt to run somone else's.
There was a time in America (1944 in fact) when hatred of Jews peaked.Non sequitur.If there was general agreement then why not outlaw Jews or at least some of their practices?
As to adult behavior concerning consentual sex, I see no reason why the law needs to be involved. Where people stick Mr. Winkie is none of yours, or my business. Whether it's done to family members (adult and consentual) prostitution, pologamy or whatnot. It's simply none of our business.
1. If incest is outlawed, only outlaws will live in Arkansaw.
2. You can have my sister when you pry her from my cold dead hands.
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