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

Slate ^ | 4/23/03 | William Saletan

[js1138]

In a world that paid attention to reality, there would be public health reasons for banning sexual acts that spread disease.

[MineralMan]

"They were referring to the Brother/Sister or 1st kissing Cousin version of incest.
"

In a number of states, first cousins can freely marry. Sex between first cousins isn't incest in those states. Shoot, a lot of us would be in trouble if it were.

[Luis Gonzalez]

"...there would be public health reasons for banning sexual acts that spread disease..."

All sexual acts can potentially spread disease.

[AnalogReigns]

The whole legal argument, on incest, bigamy or polygamy---mentioned by Santorum, and bandied about in this article, assumes consenting adults, not minors.

Back to the issue at hand, without a moral compass--and necessarily intrinsic and dare I say religious values behind it our law is in big trouble. The gay argument applies perfectly to adult incest or even bestiality, as gross as these things are to most of us. It's slightly farther reaching regarding bigamy or polygamy but not much. Once a moral standard cannot be applied to people behind closed doors who knows what can happen.

We need to remember the pernicious application of an imagined-in-the-Constitution "right to privacy" allowed the intentional killing of 50 million+ Americans by abortion.

"If God does not exist, everything is permitted."

- the character Ivan Karamazov of Dostoyevsky's The Brothers Karamazov

[William McKinley]

You are missing the point. He is not equating the acts, he is saying that if you pin the rationale for the law on privacy, then the same rationale can be used for the other things.

If there is a constitutional right to privacy for consentual sex acts within the home, then it does cover those other things.

If you say there is a legal basis for outlawing incest (leave aside minors- let's just stick with another example, namely brothers and sisters of mature age), what is that legal basis?

If you can come up with a legal basis for outlawing such things, does this legal basis also have applicability for sodomy laws? Why or why not?

And go the other direction, if there is no legal basis for sodomy laws, how can there be for laws outlawing incest? Prostitution? Bigomy?

He is making a slippery slope argument. In no way does making a slippery slope argument equate things at the top of the slope with things in the abyss.

[Servant of the Nine]

Santorum sees no reason why, if gay sex is too private to be banned, the same can't be said of incest.

Exactly right, and you can throw in Bestiality and Necrophilia too.
The answer is that The Constitution does not prohiibit the States from criminalizing these activities.
Just because a State can constitutionally pass a law does not necessarily mean they should.
Most States have decided that criminalizing homosexuality is wrong and have repealed their laws against it.

That is what States Rights is all about.

So9

[Lil'freeper]

Interesting that Slate of all mags is actually addressing the real issue- namely the limits of law- and not some supposed bigotry on Santorum's part.

[William McKinley]

I found that interesting as well.

If only Saletan tried to think about the division of powers, he would find his answer. He wants to find a judicial answer to the problem of the existence of laws to which he objects (sodomy laws), when the Constitutional answer is that the answer is to have them removed through the political process, through legislation, if the public has decided that the prudent dictums of learned knowledge over time has shown that the laws should be changed.

That is where the remedy is found, if there is an ill here. Not in the courts.

[babygene]

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

Homosexuality probably isn’t a choice if you are a young person surrounded by a bunch of homos. However I agree with you. A sexual union between two (or three) homo’s is just as much of a choice as a union between a man and a goat…

[ClearCase_guy]

He is not equating the acts, he is saying that if you pin the rationale for the law on privacy, then the same rationale can be used for the other things.

Exactly so. And I don't see why everyone has to focus on sex. Is unlicensed surgery between consenting adults a private matter? Gambling? Drugs? Just because you do something in the privacy of your own home does not mean that society no longer has an interest. This whole privacy thing REALLY throws out all the rules.

[sharktrager]

All I addressed was the weakness of saying we need to act a certain way to avoid role confusion.

[joesnuffy]

Thats the problem with a "free" society.. without the internal police (aka the conscience) given to man through The God of Abraham Isaac & Jacob and His Holy Spirit

Man being evil by his own nature tends to always push the envelope of morality- not to excerise freedom- but to destroy "the confines" of a decent and just society...carnal man sees no freedom in marriage and family...no salvation in law...and no road to destruction in the unleashing of his own destructive nature

On the other hand all a free society needs to justify its morphing into a tolatarian one is the destruction of the internal restraint of its individuals...therefore its needs for externally imposed restraint... Sharia Law *Nazi Germany* Stalinist Russia* Maoist China*

[MineralMan]

"Once you start picking and choosing pretty soon adultry will no longer be a crime "

In most jurisdictions, adultery isn't a crime at all. It is, under the UCMJ, but I don't know of any other place where it is a crime, at least not one that's ever enforced.

[js1138]

All sexual acts can potentially spread disease.

That's true, and I expected this response. I am personally opposed to laws regulating private, consentual behavior, but I can still imagine rational arguments for such regulations.

All promiscuous sex has much greater risks than monogomous sex. In fact it has probably lead to more deaths than all the known wars in history. (We worry about smallpox, but the great pox was syphilis, and was as deadly as aids is now.)

I'm not arguing in favor of laws, just arguing that there can be a rational basis for them. Sex certainly kills more people than guns.

[AnalogReigns]

Bizzarre...I had no idea:

First cousins may legally marry in: AK, AL, CA, CO, CT, FL, GA, HI, MD, MA, NJ, NM, NY, NC, RI, SC, TN, TX, VT, VA
and Washington DC


Here's a thorough discussion about how incest law(s) came about:


For centuries the law of the Medieval Church prohibited first cousin marriage without prior dispensation. It is unclear why this law was started, but it gradually grew in scope, and it was not long before second cousin and third cousin marriages also were forbidden. In 1059, Pope Nicholas II allegedly issued a law forbidding marriage between relatives as closely related as sixth cousins (!!!!!). Some historians say that these prohibitions were motivated by a desire to prevent members of wealthy families from marrying close relatives solely as a means of keeping wealth in the family line, and there are, of course, better reasons for marrying. Since persons could seek and easily obtain dispensations from this law, the law seldom worked as intended. Other historians say that the Church was opposed to close kinship ties in general, and not just cousin marriage itself, since kinship represented a rival source of power, and individualism suited the Church better than the close kinship ties that cousin marriages would have produced. Since non-Medieval church splits have been known to follow family lines, there may be some truth to this. That the prohibition of marriage between sixth cousins is quite extreme can be seen from just one example: though I don't believe they ever acknowledged it, Presidents Nixon and Carter were sixth cousins, sharing common ancestors in a Quaker farming couple named Morris who lived near colonial Philadelphia. Under this extreme law, they, their siblings, and close relatives were considered too closely related for marriage!

After the Protestant Reformation in the 1500's, various Protestant churches naturally turned away from Catholic Church law on prohibited degrees of marriage, and turned to the Bible, particularly Leviticus, as a guide for marriage law. While Leviticus prohibits marriage between many affinal or "marriage" relationships (such as prohibiting a widower from marrying his dead wife's sister), and some consanguinal or "blood" relationships (such as prohibiting a man from marrying his niece), it does not include any prohibition against first cousin marriage. Leviticus became the guide for the canon law of many churches, and later it became the guide for the civil law of many countries as well. Before the 1850's, almost all European countries and most existing American states passed laws on marriage that closely reflected the very words of Leviticus. First cousin marriage in the 1800's was not uncommon: Queen Victoria married her first cousin, Charles Darwin married his first cousin, etc. There are many other examples of first cousin marriage from this time, including my great-great grandmother, who married her first cousin after her first husband, my great-great grandfather, had died.

Martin Ottenheimer, writing an article entitled "Lewis Henry Morgan and the Prohibition of Cousin Marriage in the United States" in the third 1990 issue of Journal of Family History, describes how after about 1850 there developed a great prejudice against first cousin marriage in American society. Prior to 1850 first cousin marriage was not uncommon, and few states prohibited it, but after 1850 the incidence of first cousin marriage in the United States gradually diminished and many states commenced to make laws against it. To many Americans, marriage among cousins became equivalent with vulgar and uncivilized behavior. Today, 30 states prohibit marriage between first cousins, and one state (North Carolina) prohibits marriage between double first cousins (but not single first cousins), while 19 have no laws against first cousin marriage at all. In Europe, by contrast, not a single country prohibits first cousin marriage. What caused the United States to change its attitude and laws?

It is most interesting that the same states that altered their laws to prohibit first cousin marriages generally dropped from these new laws the Biblical prohibitions of marriage between affinal relatives (relatives through marriage). States were turning away from the Bible as a source of law, and turning to beliefs and attitudes formed by developing notions of biology, evolution, and public health. As society became more secular, so too did the law. Ottenheimer writes how the anthropologist Lewis Henry Morgan, himself married to a first cousin, experienced personal and family tragedy, and consequently spoke out vehemently, if irrationally, against first cousin marriage. He also relates how the Bemiss report to the American Medical Association in 1858 was instrumental in its effect on the existing laws. This report stressed that marriage between cousins "does incontestably lead ... to the physical and mental depravation of the offspring." This report is probably a good summary of the prevailing modern attitude toward cousin marriage, and probably influenced greatly the zeal to change the laws to prohibit first cousin marriage. The report is, however, wrong; later investigation revealed inadequate research methods in the Bemiss report, and a later, more careful analysis of the same data arrived at very different conclusions. But it was too late; the later studies were not received nor believed by the population at large.

Scientists and physicians do caution that the health of society at large can be better served by marriage between people who are not very closely related. Alex Shoumatoff, in his book The Mountain of Names: A History of the Human Family, writes in the sixth chapter "The Kinshipof Mankind", that according to geneticist Francisco Ayala, "the incidence of defective newborn children is about twice as high when the parents are first cousins as when the parents are unrelated." Implied in that statement is that not only cousin marriages, but marriages between people who are apparently unrelated can and do result in genetic health problems for their children, though the chance is small;indeed, marriages between first cousins generally have only twice that small chance of producing unhealthy offspring. Shoumatoff relates how geneticist Bob Williamson suggests that each "normal" person may carry "twenty or so potentially lethal recessive genes, from whose lethality we are protected by also carrying a healthy, dominant version of the same gene." Marriage between close cousins definitely increases the chance that one of these recessive genes will pair up with itself; that is, that two genes, identical but passed down through different family lines from a single common ancestor, may double up and produce the unhealthy trait in a child of close cousins. First cousins, who may hold about 1/8 of their genes in common, may be somewhat concerned about the possibility of a harmful recessive gene in their common ancestry, particularly if they know that one exists; second cousins, who may hold about 1/32 of their genes in common, probably have no more risk of producing unhealthy offspring from a dangerous recessive gene than apparently unrelated people, but their concern should be greater if they are related through multiple close family lines; third cousins, who may hold 1/128 of their genes in common, have a risk that approaches that of people who are apparently unrelated. Consideration before marriage of possible genetic consequences is wise, especially for people who know of unhealthy recessive genes in their family line; this may include cousins, but it also includes the very many who are otherwise apparently unrelated.

I mentioned "apparently unrelated" because it is obvious that all humanity is somehow related. The question is one of degree. Guy Murchie, in his book _The Seven Mysteries of Life_, tells how geneticists such as J. B. S. Haldane, Theodosius Dobzhansky, and Sir Julian Huxley accept the notion that no human being can be less closely related to any other human than approximately fiftiethth cousin, though most of us are a whole lot closer. The mathematics is engaging: the family trees of all of us meet and merge into one gigantic family tree that includes all humanity within only 50 generations; we are all cousins, now. But this is a whole new topic than the question at hand.

In review: In the late 1800's, many states in the U.S. dropped the Biblical prohibitions against marriage between affinal relatives (relatives by marriage) and adopted prohibitions against first cousin marriage in their stead; they justified the change with developing notions of biology, evolution, and public health. Greater than the legal change was a total change in attitudes toward the subject of first cousin marriage. Health reports were wildly exaggerated and wildly accepted, and while there is some medical or genetic basis for concern about the marriage of very close cousins, it is not to the degree that would justify the great prejudice against cousin marriage that is held by the average person in the U.S. today.

A note: the states (in the USA) which currently prohibit first cousin marriage are: AZ, AR, DE, ID, IL, IN, IA, KS, KY, LA, ME, MI, MN, MS, MO, MT, NE, NV, NH, ND, OH, OK, OR, PA, SD, UT, WA, WV, WI, AND WY. In addition, NC prohibits marriage between double first cousins, persons who are first cousins on both the father's and the mother's side, but not between single first cousins.

No European country, to my knowledge, prohibits first cousin marriage, though some churches or cultural groups within those countries may do so. I don't know the status of Canadian or provincial law on the subject.

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[ChemistCat]

Now that is FUNNY!

[legman]

There is something more important here than the specific moral and philisophical arguments of this issue.

The larger issue is this. What is the standard of morality? This is a religious argument, regardless of how one tries to position it. Whether it is a standard proposed by Judeo/Christians or a standard proposed by Secular Humanists, it is a standard that is religiously held and preached.

The humanists would like to paint Judeo/Christians as being intolerant -- as trying to impose their version of morality on everyone else. Yet they are intolerant of people like Senator Santorum.

This is bigger than this particular attack. It is an attack on people of Theistic faith and the very foundation of our nation's heritage.