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"Lawful Incest May Be on the Way" -- But It's Already Here!

Jeff Jacoby reports on calls in Germany for decriminalizing adult brother-sister incest. "Parts of Europe are already heading down this road. In Germany, the Green Party is openly supporting the Stubings in their bid to decriminalize incest. 'We must abolish a law that originated last century and today is useless,' party spokesman Jerzy Montag says. Incest is no longer a criminal offense in Belgium, Holland, and France. According to the BBC, Sweden even permits half-siblings to marry." He closes:

Your reaction to the prospect of lawful incest may be "Ugh, gross." But personal repugnance is no replacement for moral standards. For more than 3,000 years, a code of conduct stretching back to Sinai has kept incest unconditionally beyond the pale. If sexual morality is jettisoned as a legitimate basis for legislation, personal opinion and cultural fashion are all that will remain. "Should Incest Be Legal?" Time asks. Over time, expect more and more people to answer yes.

We've blogged about incest and the law before; in particular, I've discussed adult stepparent-stepchild incest, and it seems to me there are comparable arguments for continuing to ban adult sibling incest. I don't want to suggest that bans on adult incest are categorically improper, or that they're proper. But I do want to raise one interesting item related to the "code of conduct stretching back to Sinai" -- it turns out that this code doesn't ban uncle-niece incest.

What's more, at least one state (Rhode Island) exempts Jews from its ban on uncle-niece incest, including the ban on uncle-niece marriages. (given modern religious equality jurisprudence, I take it that this would be extended to anyone whose religious beliefs mirror orthodox Jewish beliefs on the subject). Colorado and Minnesota likewise follow the Uniform Marriage and Divorce Act in exempting uncle-niece marriages that are "permitted by the established customs of aboriginal cultures." Some states therefore not only fail to criminalize all such marriages, but will actually legally recognize them. At least one state, Oregon, doesn't criminalize uncle-niece sex at all (O.R.S. § 163.525) but doesn't recognize such marriages (O.R.S. § 106.020).

Now maybe this is just a historical oddity; my sense is that very few women want to marry their uncles. But my sense is also that very few siblings want to marry each other. So the questions for those who rest on the importance of 3000-year traditions remain: Should we be as respectful of this tradition when it allows adult uncle-niece sex, but bars adult sibling-sibling sex (including among siblings who were raised separately, which I believe is what had happened in the German case Jacoby mentioned)? Should we stick with the tradition, and allow uncle-niece marriages while barring sibling-sibling marriages? Or should we focus less on the 3000-year-old tradition, and more on what seems sensible now?

FantasiaWHT:

What's more, at least one state (Rhode Island) exempts Jews from its ban on uncle-niece incest, including the ban on uncle-niece marriages. (given modern religious equality jurisprudence, I take it that this would be extended to anyone whose religious beliefs mirror orthodox Jewish beliefs on the subject)


I'm curious why this is the case, but no exception for anti-bigamy laws exists for mormons?
5.2.2007 3:57pm
BruceM (mail) (www):
Just like with gay marriage and polygamy, it's none of the state's interest with whom people marry or have sexual relations. No matter how icky, it's simply not for the government to regulate, especially with the threat of criminal prosecution.

Of course, the counterarguement is something generic and nonspecific and factually nonsupported about detriment to "the children." Too bad. It's worth the deaths of a few children to preserve liberty and freedom, even for a right that 99.9% of people have no intention of exercising. I'd never sleep with my brother, but I would like to know that if I did it wouldn't be a damn felony.
5.2.2007 4:01pm
Houston Lawyer:
If we also lower the age of consent to 12 we can all party "family style".
5.2.2007 4:04pm
Jeek:
personal repugnance is no replacement for moral standards.

If something is immoral, shouldn't we find it personally repugnant? Or are we supposed to "tolerate" immorality in some sort of non-judgmental way now?
5.2.2007 4:12pm
Leah Guildenstern (www):
Jeek, I think the question is possibly if we don't find it repugnant does it still remain immoral?
5.2.2007 4:18pm
Jeremy Pierce (mail) (www):
My understanding of law codes in the ancient near east is that they weren't like our exhaustive lists of what is and isn't included but were more like exemplars that could be expanded to other cases by working from the underlying principles. There are examples of exactly such expansion within the Hebrew Bible itself, as the laws in one setting had to be applied in a new one.

Given that, it's not entirely clear to me that uncle-niece incest would have been viewed as ok by those following the Torah law code in its more immediate setting. They may easily have extrapolated the examples that are given to include that relation. Maybe there are reasons for thinking not, but that seems like a genuine possibility to me.

FantasiaWHT, the issue with polygamy laws and Mormons is more complicated. Remember that the rhetoric of the anti-polygamy issue included the idea that polygamy and democracy are mutually excluded.
5.2.2007 4:22pm
LTEC (mail) (www):
I'm confused about whether Eugene is talking about sex or about marriage. For example, it may be reasonable to allow adult sibling sex but not to authorize sibling marriage.

Jeek -- A modern liberal society is all about allowing most things we find personally repugnant. So it is correct to say that personal repugnance is no replacement for legal standards.
5.2.2007 4:22pm
Jeremy T:

I don't want to suggest that bans on adult incest are categorically improper, or that they're proper.


Well I have no problem suggesting that bans on adult incest are categorically proper. I think the vast majority of people agree with me.
5.2.2007 4:29pm
2L:
I'm curious why this is the case, but no exception for anti-bigamy laws exists for mormons?

I guess it's true that the Jews control ever-- NO CARRIER NO CARRIER NO CARRIER NO CARRIER
5.2.2007 4:33pm
John425:
This is legalese nit-picking. I am reminded of the remark that if you don't take a stand then you stand for nothing.
5.2.2007 4:34pm
gattsuru (mail) (www):
Just like with gay marriage and polygamy, it's none of the state's interest with whom people marry or have sexual relations

The state has no reason to bother with people having sexual relations once past the age of majority, and I don't think they really want to know about most of it, but marriage is something entirely different. Legal marriage is, by definition, requesting the state to pay attention.
5.2.2007 4:37pm
AppSocRes (mail):
I suspect the Rhode Island law dates back to colonial times. Rhode Island was settled by Baptists who were exiled from Massachusetts. (The unlucky ones were tortured and executed.) In an exception to the usual rule, the persecution that Rhode Islanders suffered made them more rather than less tolerant and Rhode Island became known for its religious toleration. (Massachusetts Congregationalists often referred to the colony as Rogue Island.) The colony was an early haven for Sephardic Jews and it would not surprise me if the law was written to accomodate trhe customs of this early Jewish community in America.
5.2.2007 4:37pm
Milhouse (www):
Uncle-niece marriage was certainly practised by Jews as late as the 19th century. Rabbi Shmuel of Lubavitch's first wife was the daughter of his (much) older brother.

I don't know any uncle-niece couples today, but were I to meet one I'd only find it mildly notable. I do know quite a few first-cousin marriages, including two in my own extended family.

It also used to be common for a widower to marry his late wife's sister. My great-aunt did that. I think that custom has become less common simply because women with young children and marriageable sisters don't die as often as they used to.
5.2.2007 4:40pm
CJColucci:
But if we OK adult sibling incest, no one will understand the old song where the father sheepishly tells his daughter that each of the several boys she (serially) wants to marry is actually one of his illegitimate offspring, the daughter explains her problem to her mother, and the mother solves it by telling her that "he's not the man who fathered you, so marry whom ye will."
5.2.2007 4:41pm
BruceM (mail) (www):
gattsuru: "legal marriage" should be a matter of contract between consenting parties, and the state should be involved only at the request of the parties in the event of a contract dispute. That the law requires marriage to be a matter of law is not to say that it should or must be. Somewhat circular logic there. If five women and four men want to contract together to be married, that should be permitted. There is no need for the state to be involved in a marriage ab initio.
5.2.2007 4:43pm
CEB:
BruceM:

"legal marriage" should be a matter of contract between consenting parties, and the state should be involved only at the request of the parties in the event of a contract dispute.



You seem to say that as though it's self-evident, and/or the only reasonable position. Count me among those that believe that the state has no business regulating the sexual activity of consenting adults, but does have an interest in regulating marriage.
5.2.2007 4:57pm
CEB:
Oh, and I forgot to add that I got a good chuckle out of being reminded of Scalia's classic fret from Lawrence: "State laws against ... masturbation are ... called into question by today's decision." O NOES!
5.2.2007 5:00pm
Thorley Winston (mail) (www):
Oh, and I forgot to add that I got a good chuckle out of being reminded of Scalia's classic fret from Lawrence: "State laws against ... masturbation are ... called into question by today's decision." O NOES!


Well considering that the State laws were probably against doing it in public, including that in a list of possible unintended consequences of the Lawrence decision doesn’t seem that unreasonable.
5.2.2007 5:11pm
Some dude:
I believe Victor Frankenstein married his adopted sister.
5.2.2007 5:12pm
Guest Poster:
You seem to say that as though it's self-evident, and/or the only reasonable position. Count me among those that believe that the state has no business regulating the sexual activity of consenting adults, but does have an interest in regulating marriage.



Agreed. States can regulate contractual relationships; of which marriage is one kind.
5.2.2007 5:12pm
Crunchy Frog:
CEB:

Oh, and I forgot to add that I got a good chuckle out of being reminded of Scalia's classic fret from Lawrence: "State laws against ... masturbation are ... called into question by today's decision." O NOES!


The horror!

There are still state laws against masturbation? Why do I get the sense that it's the same states that don't have a problem with someone marrying his 12-year-old cousin?
5.2.2007 5:13pm
Kodell:
Current LDS (mormon) leaders would like very much to bury any reminders of polygamy, especially as practiced by some of the break-away sects. Utah is probably one of the few states where the practice of polygamy will be actively prosecuted, ironically for religious reasons.
5.2.2007 5:14pm
PatHMV (mail) (www):
If only a few people actually want to do it, why must we change our entire legal structure to accommodate them? Let them act like characters in some old story and just move to a new town and not tell anybody they are related. I realize it's a bit more difficult now, what with the government requiring Social Security numbers for 2 year olds and routine detailed background checks for all sorts of things, but there are as yet no background checks required for marriage. If you want to have sex with your sibling, just DON'T TELL ANYBODY.
5.2.2007 5:17pm
Owen Hutchins (mail):

If something is immoral, shouldn't we find it personally repugnant? Or are we supposed to "tolerate" immorality in some sort of non-judgmental way now?



There are things I find personally repugnant, and things I find immoral, with quite a bit of overlap. That does not necessarily mean I think they should be illegal.
5.2.2007 5:18pm
Thorley Winston (mail) (www):
The state has no reason to bother with people having sexual relations once past the age of majority, and I don't think they really want to know about most of it, but marriage is something entirely different. Legal marriage is, by definition, requesting the state to pay attention.


That’s pretty much it in a nutshell. For a contract to have any legal validity, it must be enforceable and States have since before the founding of the Republic had all sorts of public policy reasons for why they refuse to enforce contracts that violate these public policies.
5.2.2007 5:19pm
rc:
Eugene Volokh: "Or should we focus less on the 3000-year-old tradition, and more on what seems sensible now?"

What does sensibility have to do with anything?

I am amazed that EV, someone who is a strong proponent of gay marriage, would ask this about ANY issue. Consider if an activist favored outlawing gay marriage because it was not 'sensible.' EV would object strongly, claiming that the issue has much more to do with human rights and the role of government than with what people consider 'icky'. After all, he might say, two consenting adults can enter into any contract as another two.

LTEC "Jeek -- A modern liberal society is all about allowing most things we find personally repugnant."

I agree completely, and reluctantly. As a conservative guy, I have to cede ground all the time so that people can speak and practice things that I don't agree with. And then I have to hold my breath as they get all self-righteous and in my face about how neanderthal I am for not believing as they do.

But now the shoe's on the other foot, and look how EV (for example) has no idea what to do. 'Ohmigosh, my beliefs might allow folks to do what I consider to be sick.' Welcome to the plight of the modern conservative.

EV, even as a thoughtful guy, encounters this issue like it were unfamiliar territory. This simply vindicates my suspicion that progressive folk often have no idea what they're asking when they demand that traditional people set aside their sensibilities for the greater good.
5.2.2007 5:20pm
JB:
Personally, I want to divorce marriage from sex. There are people I'd be glad to raise children with, but wouldn't want to screw to get the kids. There are people I'd be glad to place in charge of my affairs and live with, but wouldn't want to have anything to do with their genitalia or offspring. There are people I'd love to screw, but wouldn't want to have kids with or live with til death or divorce do us part.

All this should be possible.
5.2.2007 5:25pm
ed o:
why should the age of "majority" matter under the progressive mindset? aren't those just vestiges of the icky moral judgments made in the past about the proper age for consenting to relations? shouldn't the consistent voice consider restrictions on the ability to have sex with 8 year olds a vestige of morality that must be destroyed so we can move on in society?
5.2.2007 5:27pm
Richard Nieporent (mail):
BruceM, this song is for you!
5.2.2007 5:34pm
Thorley Winston (mail) (www):
EV, even as a thoughtful guy, encounters this issue like it were unfamiliar territory. This simply vindicates my suspicion that progressive folk often have no idea what they're asking when they demand that traditional people set aside their sensibilities for the greater good.


I tended to agree more with Thomas than Scalia in the Lawrence decision but I’m starting to realize that Scalia’s dicta about the possible consequences of Lawrence was probably on the mark. Once you start inventing new “constitutional rights” based on the “mysteries of the universe” doctrine, there’s no visible end in sight aside from the personal preferences of the judges who will now be writing the law instead of elected legislators. You can have a libertine society or you can have a federalist Republic but I don't think you can have both.
5.2.2007 5:39pm
DGO:
There is another, more important issue to be considered by the state in the case of brother/sister marriage - genetic disease. Just look at the Hapsburgs and the Ashkenazi Jews. It's not just "icky", it's genetically very risky for any future progeny.
5.2.2007 5:40pm
somewheretonowhere:
Would pedophilia be the next step? I'm not saying this to be controversial, but asking a serious question. People often say that adult-child sex is different because it harms the child. But the research simply doesn't support that notion. See: http://en.wikipedia.org/wiki/Rind_et_al._(1998)
5.2.2007 5:40pm
Daniel950:

"I don't want to suggest that bans on adult incest are categorically improper"

"What does sensibility have to do with anything?"

"why should the age of "majority" matter under the progressive mindset?"

"Would pedophilia be the next step?"


Wasn't there a thread on this blog today about a legal absurdity so outrageous that it was a classic case of why people hate lawyers? Tell me why this thread isn't the exact same thing? We're talking about incest, and now apparently, pedophilia. This is what happens when you let an idiotic idea, that law should have no function in promoting morality, run wild. (And it's a wrong idea also, since there are plenty of examples of law promoting morality - like laws against racial discrimination).

I think it was Chesterton who said that an insane person was not a man who has lost his reason, but a man who has lost everything BUT his reason.
5.2.2007 5:54pm
Eugene Volokh (www):
rc: You write,
I am amazed that EV, someone who is a strong proponent of gay marriage, would ask this about ANY issue. Consider if an activist favored outlawing gay marriage because it was not 'sensible.' EV would object strongly, claiming that the issue has much more to do with human rights and the role of government than with what people consider 'icky'. After all, he might say, two consenting adults can enter into any contract as another two.
Any chance you might explain why you think that would be my view? Here, incidentally is my published explanation of my position on same-sex marriage:
I ... tentatively support[] same-sex marriage. Channeling sex and romantic love into long-term monogamous relationships is good for society. It reduces sexually transmitted disease. It provides a more stable home for children; and with or without marriage, same-sex couples will be rearing children, whether adopted or inherited from a previous heterosexual relationship. It helps people make long-term investments -- for instance, moving so that a spouse can get a better job -- with some confidence that the relationship will endure so that the short-term sacrifice can yield long-term benefits. Almost all the reasons to value opposite-sex marriage seem to me to apply to same-sex marriage (the exception being that same-sex relationships can’t result in accidental children, so same-sex couples may need marriage less than opposite-sex couples do).

Legal recognition of same-sex marriage is also good for society because it’s good for the spouses, who are members of society. Marriage seems to make people happier. If it doesn’t hurt others, and it helps the spouses, why not recognize it?

And legal recognition of same-sex marriage also does make the legal system more egalitarian. I don’t view legally recognized marriage as a moral right, but as a government-provided benefit, especially once the law has stopped requiring marriage as a prerequisite for the legality of sexual behavior. It may well be legitimate for the law to be purely instrumental in disbursing this benefit, and to provide it only to those relationships that especially help society. Giving same-sex couples equal marriage rights is thus not an overriding moral imperative for me. But it is definitely a plus....
5.2.2007 5:58pm
Ken Arromdee:
There is another, more important issue to be considered by the state in the case of brother/sister marriage - genetic disease.

So do you think homosexual sibling marriages (no possibility of genetic disease) should be allowed?
5.2.2007 6:09pm
rc:
Me: "I am amazed that [Eugene Volokh], someone who is a strong proponent of gay marriage..."

Eugene Volokh: "Any chance you might explain why you think that would be my view?"

Oh man, now I'm in trouble. I have read advocacy for gay marriage on this site in the past, and I projected it all to my desired level. It seems I've misrepresented EV's view.

Yet, in a more tempered tone, I would suggest that anyone who says "I ... tentatively support[] same-sex marriage." should along the same criteria tentatively support adult incest, or at least apply the same criteria to the argument.

The debate about gay marriage has shown a marked absense of the question of 'social sensibility.' Hard core constitutional lenses would eliminate that question, but my cynical suspicion has always been that even progressive people still harbor 'social feelings' for issues they still disagree with. This bugs me a lot.

I guess EV is a casualty in my rush to point out many progressive's desire to preserve their social qualms while condemning the qualms of others.
5.2.2007 6:22pm
CEB:
somewheretonowhere,

Laws against child molestation, statutory rape, etc. can be distinguished from laws against adult incest, homosexuality, fornication etc. because they include the elements of majority status and consent. These elements are not ad hoc, but are present across the board in criminal, tort, contract, and property law. Of course I realize that it's not quite that simple and statutory rape laws are constantly being tweaked, but there are some clear legal distinctions at work.
5.2.2007 6:24pm
Daniel950:
CEB,

If majority-status "consent" is the only criteria for distinguishing an activity as legal, then what's stopping us from consentual gladitorial contests involving lethal duels?

Why do I get the impression that Western Civilization is sliding back to barbarity, on the heels of its most educated members?
5.2.2007 6:32pm
Owen Hutchins (mail):
Speaking of ancient traditions, the Ptolemaic Dynasty wed uncles and nieces, aunts and nephews, and siblings, all to keep power in the family.
5.2.2007 6:33pm
Taeyoung (mail):
Re: Eugene Volokh:

I think part of the surprise -- I'm quite surprised too -- is that basically everything you say above about same-sex marriage there applies to incestuous relationships and incestuous marriage too. Indeed, with double force, since (heterosexual) incestuous couples can actually have children with each other. We're not even talking about adopted children or children from extramarital relationships or prior relationships.

After all, it's not like the law actually prevents adult siblings from developing loving, ah, sexual relationships and having sex if they want to. There's not a policeman sitting in the bedrooms making sure they don't. I suspect only a small fraction of incestuous couples are even prosecuted anyhow, and then only when they're particularly egregious (e.g. adults abusing minors -- this seems to be the frame through which many people view incest, just as many others view homosexuality primarily through the lens of pederasty and child molestation). And I would not be surprised to discover that some incestuous couples do, in fact, have such relationships, and do have children (with each other, that is, not other people). Are they less deserving of concern and accommodation than gay couples?

What appears to be your proffered rationale for banning adult incest (not even marriage, it appears -- just sex) boils down to, as far as I can see, a concern for preserving the "family unit." Which is nice, as far as that goes, and something I support. Except that we're talking about adult incest here -- i.e. the children are grown up and independent, and any harm is worked on the adult parents, and maybe other siblings. In an age where easily obtainable divorce allows those selfsame parents to work a considerably greater harm on their dependent minor children, this is a rationale so thin as to be risible. I'm not arguing here that divorce should not be permitted, mind. Only that given the social and legal context in which this argument is being made, it's wholly unconvincing.
5.2.2007 6:36pm
Taeyoung (mail):
Whoops --

I completely misread Eugene's earlier post on adult-stepchild interaction. I've seen the rationale he actually gets to before, and think it's only slightly more compelling, but . . .

whoops.
5.2.2007 6:37pm
Taeyoung (mail):
Put simply -- the problem with the rationale Eugene actually articulated is, as far as I can see, that the incest laws have little or nothing to do with the fact that people don't sleep with their stepparents, and still less to do with the fact that they don't sleep with their sisters and brothers. Social expectations play a much stronger role here. The law itself hardly gets enforced at all, as far as I am aware. Insofar as it plays a role, its role is more or less like the old ban on sodomy -- a largely symbolic proscription only occasionally applied. And just like the ban on sodomy, we can expect that it is utterly ineffective.

These kinds of relationships are inherently rare (certainly in the adult-sibling case) -- they are exceptional. And yet, we know they happen anyhow. We would have to be hopelessly naive to believe otherwise. Does that knowledge poison my relationship with my sisters? Hardly.

I interpret people according to my understanding of the norm. When a man looks at me, however friendly he may seem, I don't interpret that as hitting on me (I am male). When my sisters or my mother look at me, I don't interpret that as impropriety. My world -- like the world for most people -- is hetero-normative and non-incest-normative. So to speak. For marginal behaviours, affecting only a tiny proportion of the population, like incest (or homosexuality), whether the law makes some symbolic statement about banning it or whatever really makes little difference. It's uncommon either way.
5.2.2007 6:49pm
tvk:
Dear Eugene,

Your prior post on stepparent-stepchild incest made perfect sense to me. To recap, if I understood your argument, it was that there was a social ex ante interest in preventing the stepfather from taking an inappropriate interest (or at least from acting on that interest) in the stepdaughter, and thereby preserving the family relationship ex ante. Most importantly, this protects an innocent third party -- the wife.

I don't see how that applies to adult sibling incest. There is no third party to be protected ex ante. There is a sibling relationship that might be fundamentally altered -- but if preserving that type of relationship is a legitimate interest, then the state can pretty much ban any sexual relationship between any two people to preserve their ex ante relationship. And if it is the interest of any unfortunate children from the relationship (whether it be their mental distress or physical health), then again that permits the state to intrude on all manner of sexual relationships, at least those that might produce children.
5.2.2007 6:56pm
KeithK (mail):
I believe that we as a society should always do what seems sensible now when making policy decisions. However, long standing traditions often provide a very good guidepost for what is sensible. There's often very good reasons whey these traditions arose that may be just as appropriate today. Traditions and customs should not be scorned simply because they are old.

To go a step further, if something is enshrined in law and ancient custom the burden should be on those who would change the law/custom to demonstrate that the change is sensible.
5.2.2007 6:59pm
CEB:
Daniel950:


If majority-status "consent" is the only criteria for distinguishing an activity as legal, then what's stopping us from consentual gladitorial contests involving lethal duels?


A fair point, I suppose, and one that I don't have a knock-down answer to, other than to say that it's off the topic of traditional consentual sexual crimes, which is what I'm talking about. I've always found them to be ad hoc, inconsistent, and rooted in a warped view of sex.
5.2.2007 7:01pm
CEB:
Re: my previous post, "warped view of sex" was a very poor choice of words. I meant an inordinate amount of interest in the sex lives of one's fellow citizens.
5.2.2007 7:06pm
Anonymo the Anonymous:
A hypothetical for supporters of the bans in question:

You're walking down the street and suddenly become aware, with certain knowledge, that inside the house you're passing two mentally competent adult siblings are having sex. For purposes of this example, let's assume they are perfectly infertile or using an infalliable contraceptive. Would you feel morally justified in kicking down their door, ordering them to stop and using sufficient physical force against them to make them stop if they did not comply? Why or why not? If your answer to that hypothetical is different than your answer to "Should the aforementioned activity be legally banned?", resolve this contradiction.
5.2.2007 7:17pm
Clayton E. Cramer (mail) (www):

If majority-status "consent" is the only criteria for distinguishing an activity as legal, then what's stopping us from consentual gladitorial contests involving lethal duels?
We used to have quite a bit of consensual dueling in the U.S. See my book Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999), and it produced certain social problems that legislatures in their narrow-mindedness tried to stop.

Your comments apply equally to racial discrimination in employment, or building a machine gun in your home, or having sex with animals, or torturing animals to death for a paying crowd. "Let's see how long this dog stays alive, screaming in pain, while we slowly rip its skin off its body!" A lot of things involve consenting adults that civilized societies don't considerable acceptable--but in the pursuit of making one small group feel good about themselves, we are slowly destroying those rules.

And why does majority status matter? That's just another artificial rule!


Why do I get the impression that Western Civilization is sliding back to barbarity, on the heels of its most educated members?
Bingo. That's part of why I am not a libertarian. Libertarian ideas carried about 85% or 90% of the way are often quite useful; when carried to their extreme, you get reductio ad absurdum.
5.2.2007 7:19pm
Clayton E. Cramer (mail) (www):

Would you feel morally justified in kicking down their door, ordering them to stop and using sufficient physical force against them to make them stop if they did not comply? Why or why not? If your answer to that hypothetical is different than your answer to "Should the aforementioned activity be legally banned?", resolve this contradiction.
How about if you were walking down the street, and suddenly became aware that someone inside was making a hiring decision based on race? Would you feel justified in kicking in the door of the business and ordering them to stop?
5.2.2007 7:26pm
Aleks:
Re: Just look at the Hapsburgs and the Ashkenazi Jews.

I don't know about the Ashkenazi Jews, but the Hpasburgs did not marry their siblings. They did marry cousins, but by the late Middle Ages the uppermost echelons of European royalty and nobility were so entwined that almost every such marriage was a cousin (of some degree) marriage.
5.2.2007 7:43pm
Clayton E. Cramer (mail) (www):

What's more, at least one state (Rhode Island) exempts Jews from its ban on uncle-niece incest, including the ban on uncle-niece marriages. (given modern religious equality jurisprudence, I take it that this would be extended to anyone whose religious beliefs mirror orthodox Jewish beliefs on the subject).
I'm just amazed by this. This means that members of one religion enjoy certain legal benefits that members of another religion do not. Imagine if an American state had a law on the books that said that the laws against child molestation didn't apply to Catholics. How many nanoseconds would it take for the ACLU to file suit for violating the First Amendment's guarantee against establishment of religion?

There might an argument that not writing such an exemption for Jews into the law would violate the freedom of religion clause--but even then, such a provision would have to apply to every religion or to non-religious persons to avoid establishment of religion problems.
5.2.2007 7:44pm
happylee:
Houston lawyer is right. If the gov would just lower the age of consent (or, heck, just eliminate it outright) all would be swell. No one would have to leave the home for sexual companionship. Imagine, a man could have, say, three daughters and, when the wife is unwilling to share his love, take his pick of of the litter. Afterall, there is no compelling reason to disallow polygamy any more than there is a reason to outlaw incest.

But wait. What the heck! Why did my example have only three daughters? Perhaps the man's tastes are broader than that. Toss in some boys too.

To limit our choices based on some pesky 3,000 year old custom is foolish. Afterall, we are smarter than 3,000 years of experience, right? For that matter, why can't I covet my neighbor's hot wife? She sure looks bored. Oh, and look, her livestock is looking mighty yummy too.
5.2.2007 7:46pm
Clayton E. Cramer (mail) (www):

I don't know about the Ashkenazi Jews, but the Hpasburgs did not marry their siblings. They did marry cousins, but by the late Middle Ages the uppermost echelons of European royalty and nobility were so entwined that almost every such marriage was a cousin (of some degree) marriage.
The Catholic Church in the early medieval period adopted a rule that prohibited marriage within seven degrees of consanguinity, primarily to break up the type of clan tendencies that you see in Iraq, where first cousin marriage is common. (Take a look at a picture of Saddam Hussein's Cabinet--their appearances suggest that there's a distinct lack of diversity in the gene pool!)

For royal families, this rule was relaxed, because there was no way to do this without marrying royals from other continents. Hence, some rather unpleasant problems with genetic diseases such as hemophilia and porphyria in the European royal families.
5.2.2007 7:48pm
Daniel950:
"A fair point, I suppose, and one that I don't have a knock-down answer to, other than to say that it's off the topic of traditional consentual sexual crimes, which is what I'm talking about. I've always found them to be ad hoc, inconsistent, and rooted in [inordinate amount of interest in the sex lives of one's fellow citizens]."

Perhaps you should re-think your view of traditional consentual sexual crimes. You should see that it's possibly likely that they're built on more wisdom than you currently perceive. After all, consent is a ridiculous floor on which to base legal activity, because as you acknowledge it's a fair point that it hardly stops society from prohibiting outrageous activities like gladitorial contests. Maybe the wisdom of the ages isn't so wacky after all?
5.2.2007 7:49pm
Amanda (mail) (www):
Professor Volokh,

Would gender-neutrality (admitting that it gender does receive less than strict scrutiny) require that a state which allows uncle-niece marriages also allow aunt-nephew marriages among members of a newly-formed religious group who thought such pairings were lawful? The degrees of consanguinity are the same, and the beliefs (of this hypothetical religion) are as sincerely held as those of the Jews. But this hypothetical religion isn't grandfathered-in: a problem for CO and MN, though not RI.

(Having no nephews, I can safely say that I would never wish to marry a nephew of mine: he would certainly be nearly three decades younger than I).
5.2.2007 7:55pm
Jon Rowe (mail) (www):

Indeed, with double force, since (heterosexual) incestuous couples can actually have children with each other


And indeed with triple force. Given that Adam's and Eve's sons propagated the planet through brother sister incest marriages, I don't see how any Bible believing Christian can be against it!
5.2.2007 8:28pm
Anonymo the Anonymous:
Mr. Cramer: "How about if you were walking down the street, and suddenly became aware that someone inside was making a hiring decision based on race? Would you feel justified in kicking in the door of the business and ordering them to stop?"

Sorry to spoil the hypocrisy hunt, but no, I would not.
5.2.2007 8:53pm
Michael S. Kochin (mail) (www):
I wrote a story about this around 2000, entitled "Ophir." One character is a law professor!
5.2.2007 9:07pm
Michael S. Kochin (mail) (www):
I wrote a story about this around 2000, entitled "Ophir." One character is a law professor!
5.2.2007 9:07pm
Pendulum (mail):
To limit our choices based on some pesky 3,000 year old custom is foolish. Afterall, we are smarter than 3,000 years of experience, right? For that matter, why can't I covet my neighbor's hot wife? She sure looks bored. Oh, and look, her livestock is looking mighty yummy too.

You *can*. That's the point of a free society.

Many 3000 year old traditions are toast and rightfully so: slavery, public hangings, death penalty for adulterers, a variety of attitudes towards women, and a cornucopia of others. In fact, I'd guess we have a 3000 year old tradition of marrying and having sex with 12-14 year old girls, only recently abandoned. That something is a long held 'tradition' doesn't validate it.

Let's assume we institute a law banning having children by incestuous couples. Doesn't that solve the societal problem, and leave the issue as a Lawrence protected behavior?*

*Of course, secondary issues would arrise, such as whether criminalizing reproduction between couples with a genetic predisposition to Down Syndrome would be legitimate.
5.2.2007 9:20pm
Tracy W (mail):
JB:
Personally, I want to divorce marriage from sex. There are people I'd be glad to raise children with, but wouldn't want to screw to get the kids. There are people I'd be glad to place in charge of my affairs and live with, but wouldn't want to have anything to do with their genitalia or offspring. There are people I'd love to screw, but wouldn't want to have kids with or live with til death or divorce do us part.
All this should be possible.


Most of this is possible - assuming you can get the other person to agree to your plans - which the law is wisely silent about.

Want to marry someone and raise kids but not have sex? No worries - get pregnant by someone else or adopt kids (assuming you can find some babies up for adoption).

Want to place someone in charge of your affairs and live with them without sex or children? Give them your power of attorney and invite them to be your roommate.

The one problem is wanting to screw someone without having kids with them. While the law doesn't stop you from sex outside marriage, wearing condoms, taking contraceptive pills, etc. However the law can't supply perfect contraception, so you may wind up getting pregnant anyway. This is not something the law can fix.
5.2.2007 9:21pm
Jeremy T:
I hope all the liberals commenting here are happy that they've proved Jerry Falwell and Pat Robertson et al. correct. When gay marriage was pushed on us, they said "this will lead to worse things." Now a serious debate among intelligent people is taking place about legalizing pedophilia and incest.

I'm happy that Jerry Falwell and Pat Robertson have been proved right, because I agree with them. Those who deride the slippery slope argument have been inarguably proven wrong.

Here's a simple reason to oppose gay marriage and legal gay sex: it is leading to the absolute destruction of all sexual mores in society.
5.2.2007 9:49pm
Anonymo the Anonymous:
Here's a simple reason to oppose gay marriage and legal gay sex: it is leading to the absolute destruction of all sexual mores in society.

Asserting that an activity is immoral is one thing. Saying armed men in the employ of taxpayers should assault those who do it and lock them in cages is another entirely.
5.2.2007 10:00pm
Bleepless (mail):
Adolf Hitler's parents were uncle and niece. In fact, those words were their pet names for each other.
5.2.2007 10:07pm
Spartacus (www):
Personally, I want to divorce marriage from sex. There are people I'd be glad to raise children with, but wouldn't want to screw to get the kids. There are people I'd be glad to place in charge of my affairs and live with, but wouldn't want to have anything to do with their genitalia or offspring. There are people I'd love to screw, but wouldn't want to have kids with or live with til death or divorce do us part.

All this should be possible.


If wishes were horses . . .
5.2.2007 10:10pm
Adam K:

Here's a simple reason to oppose gay marriage and legal gay sex: it is leading to the absolute destruction of all sexual mores in society.


And yet human society has persisted for millennia in spite of gay sex. No, no, you're right; this time it's really going to end it all.
5.2.2007 10:21pm
thewagon:
This entire meme of eliminating notions of morality from law is completely and utterly absurd. People can talk and talk all they want about not "legislating morality," but it's inescapable. For pete's sake, one is setting up a moral law when they say it's wrong to legislate morality...
5.2.2007 10:57pm
Aleks:
Re: This means that members of one religion enjoy certain legal benefits that members of another religion do not.

During Prohibition severa; churches that absolutely insist on wine in their Eucharist were permitted to use it, even the 28th Amendment notwithstanding.

Re: Here's a simple reason to oppose gay marriage and legal gay sex: it is leading to the absolute destruction of all sexual mores in society.

One could make the same point about legalizing interracial marriage. After all, the Loving decision is ultimately what the argument for gay marriage rests on. Why not overturn it? And as far as "legal gay sex", heck why not whine about any sort of legal sex. I mean, if sex is so dirty and awful as you imply, maybe we shouldn't allow anyone to have it.

Re: This entire meme of eliminating notions of morality from law is completely and utterly absurd.

Maybe, but what about eliminating purely religious sectarian morality from the law? If you can't come up with a convincing secular and rational reason why something should be against the law, withiout invoking God, Scriptures, etc., then you don't have a reason to make that something illegal.
5.2.2007 11:15pm
therut:
Well, I now learn that all those "hillbillies" were just real progressive or liberal way before society caught up with their ideas and customs.( I say this as a true hillbilly not the sterotype the left makes fun of) I agree with one of the above. I could never be a liberterian. I have strong agreement with alot of their ideas but will never call myself one. Somethings just go too far.
5.2.2007 11:39pm
Daniel950:
"Why not overturn it? And as far as "legal gay sex", heck why not whine about any sort of legal sex. I mean, if sex is so dirty and awful as you imply, maybe we shouldn't allow anyone to have it. "

It's not only about sex, it's about children and families. Gay sex and incest are almost by definition activities that have nothing to do with children and families. Heterosexual sex, anti-incest laws, and marriage, are all about children and family. And family is broad enough to include infertile couples that serve as role-models for others.

"but what about eliminating purely religious sectarian morality from the law?"

It's not purely religious, for the reasons I state above. Calling these laws "purely religious" is a complete straw-man, and evidence of a weak argument. Or is it a position that athiests are all for eliminating laws about incest, pedophilia, and homosexual sex? That'll probably be news to many.
5.2.2007 11:43pm
Clayton E. Cramer (mail) (www):

Sorry to spoil the hypocrisy hunt, but no, I would not.
So you agree that laws against racial discrimination should be repealed--indeed, that the courts should strike them down.

A consistently held position like this wouldn't make me happy, but it would be far superior to the "the government has too much power, except when we want to pass laws telling businesses that they have to print gay marriage invitations or be subject to punishment."
5.2.2007 11:52pm
EricH (mail):
insist on wine in their Eucharist were permitted to use it, even the 28th Amendment notwithstanding.

Well, off topic, but not entirely accurate. The 18th Amendment forbid the "manufacture, sale, or transportation of intoxicating liquors" but not the consumption.

The Church was, as you point out, allowed to manufacture wine used in communion.

Back to sex.
5.3.2007 12:09am
Anonymo the Anonymous:
So you agree that laws against racial discrimination should be repealed--indeed, that the courts should strike them down.

Correct. Another example of things I believe are wrong, but I don't believe call for state-sponsored violence to stop them. Appreciate your implicit acknowledgment that such is the nature of law, but still curious how you would respond to my original question. What is it about the subject of this post that gives you the right to use violence to stop it?
5.3.2007 12:09am
Malvolio:
If majority-status "consent" is the only criteria for distinguishing an activity as legal, then what's stopping us from consentual gladitorial contests involving lethal duels? Why do I get the impression that Western Civilization is sliding back to barbarity, on the heels of its most educated members?
Gladiatorial contests, I should point out, was invented by pretty much the same people who invented Western Civilization. And pretty much every US president up to Lincoln engaged in dueling.

I find such contests to be pretty much déclassé, but less so than, for example, adult sibling incest.
5.3.2007 12:13am
gattsuru (mail) (www):
"Legal marriage" should be a matter of contract between consenting parties, and the state should be involved only at the request of the parties in the event of a contract dispute.

By that definition, you can marry anyone and everyone capable and willing to sign a legal contract. I could go out now and sign a contract with three or four individuals in any gender combination, and say it'd be a violation of contract to screw anyone outside that group. Setting up funding and similar is a bit more difficult, but should be coverable.

On the other hand, if your definition of marriage is "legal recognition by the state, saying these individuals are in a specific legal relationship with its own rules and regulations as to the government's response to it", then that's a different matter.

I'm pretty sure the second is what people are interested in, here.
5.3.2007 1:07am
whit:
this analogy is frequently used, but illogical

"One could make the same point about legalizing interracial marriage. After all, the Loving decision is ultimately what the argument for gay marriage rests on. "

from a biological (as well as behavioral, etc.) basis, there is FAR FAR FAR more difference between men and women, as there is between the races.

heck races are pretty changeable i guess. whites can marry blacks, and the child is neither (exclusively) white nor black.

yes, there are some differences beyond pigmentation, but they are nothing like the difference between men and women.

i think whether one is for or against gay marriage, one should be honest enough NOT to make the analogy between interracial couplings and intragender vs. intergender couplings.

they are not analogous.

that's the science argument.

from a cultural standpoint, prohibitions against interracial marriage were basically invented. they have not been part of the fundamental definition of marriage, like the fact that marriage has been between (not among) the two genders. iow, gay marriage is arguably NOT marriage. clearly, interracial marriage IS marriage, since there is nothning fundamentally different between a white man marrying a black man vs. a white man marrying a white woman, in the way there is a distinction between opposite vs. same-sex marriage.

i think there are excellent arguments for gay marriage. i do not think that ignoring history and biology are among them.
5.3.2007 1:14am
Mark F. (mail):
I think sibling incest is icky, but I fail to see how such conduct violates anyone's rights. I support legalizing it.
5.3.2007 1:29am
Daniel950:
Mark F: "I think [pedophilia] is icky, but I fail to see how such conduct violates anyone's rights. I support legalizing it."

There, I fixed your post. What, you don't like it? Why draw the line of consent at 18? 16? 14? 12? 5? Why require consent when an adult can make the decision in the "best interests" of a child? Adult-infant sexual relationships may be icky, but that's just your own cultural hangups at work...
5.3.2007 1:42am
Elais:
Mark F

Incest is icky. Sex between two men or two women is not.
I support legalizing same-sex marriage, but not sibling-marriages. One thing does not relate to the other.
5.3.2007 1:43am
Clayton E. Cramer (mail) (www):

Appreciate your implicit acknowledgment that such is the nature of law, but still curious how you would respond to my original question. What is it about the subject of this post that gives you the right to use violence to stop it?
The same right that gives government authority to prohibit child molestation, murder, rape, robbery, treason, and fraud--it is a violation of the moral codes that our society has long accepted, and still accepts (except for intellectuals, who have decided to start playing pick and choose with which ones they like and don't like).

If you really want to go to anarchy, fine. But that needs to be a consistent position, not, "Laws against homosexuality are stupid, but laws prohibiting discrimination against homosexuals are ABSOLUTELY ESSSENTIAL." You'll find that your friends on the left aren't going to allow a consistent libertarian policy on this.
5.3.2007 1:54am
Clayton E. Cramer (mail) (www):

Gladiatorial contests, I should point out, was invented by pretty much the same people who invented Western Civilization. And pretty much every US president up to Lincoln engaged in dueling.
You are confused. Jackson dueled, but quite a number of the others were quite emphatically in opposition to it, such as Washington. To my knowledge, Adams, Jefferson, Madison, and Monroe never engaged in a duel.
5.3.2007 1:57am
Clayton E. Cramer (mail) (www):
Elais writes:

Incest is icky. Sex between two men or two women is not.
I support legalizing same-sex marriage, but not sibling-marriages. One thing does not relate to the other.
So it's okay to prohibit something that is "icky"? What if a majority agrees that homosexuality is "icky"? Is it okay to ban it then?

The problem is that a whole generation of liberals have decided that they like laws that tell others how to behave (you can't smoke in restaurants, you can't own a gun, you can't discriminate in employment), but want an excuse for striking down laws that intellectuals don't like. The only reasoning other than a naked exercise of power that justified it was that what consenting adults do in private is none of the government's business. Now you conclude that adult incest is "icky" and doesn't have anything to do with the argument that you find so attractive.

I'll make a deal: if you want this "what consenting adults do in private is none of the government's business," I'll buy that--but you won't. The list of laws that would have to be scrapped is huge. The obvious hot button liberal love affairs are gun control; antidiscrimination laws; environmental laws (as least until the pollution leaves private property).

A fair number of liberals will be uncomfortable with repeal of incest laws (because that's "icky"), and many others won't be happy about repealing the polygamy laws (especially when they see the crap that is right now limited to places like Colorado City, Arizona spread more widely).

Right now, this is about the left's exercise of raw power through its control of the federal courts. We're stripping off the fig leaf and exposing where this society where morals do not influence law leads to--and you aren't going to like it, because it exposes that liberalism's claims are really not, "What consenting adults do in private is none of the government's business" but "It's all about sex, and we want freedom here that we won't grant to people in any other area of human activity."

Liberalism is hypocrisy and dishonesty. It bears the seeds of the destruction of our society.
5.3.2007 2:07am
JB:
Homosexuality is not a choice, incest is. There are homosexuals, but there are no mysistersexuals. Forbidding gay sex and gay marriage closes that part of life off entirely from part of the population--anyone attracted to their siblings can go boff someone else.

It's much less of a restraint or reduction in freedom.
5.3.2007 2:10am
Informant (mail):
"Right now, this is about the left's exercise of raw power through its control of the federal courts."

You are aware that the overwhelming majority of Federal appellate court judges (not to mention 7 of 9 Supreme Court justices and roughly 55% of district court judges) have been appointed by Republican Presidents, right?

http://www.csmonitor.com/2005/0414/p01s02-uspo.html

"Republican appointees outnumber Democratic appointees in every federal appeals court except the Second Circuit in New York City (seven Democratic appointees to six Republican), the Sixth Circuit in Cincinnati (six Democratic appointees to six Republican), and the Ninth Circuit (16 Democratic to eight Republican)."
5.3.2007 2:57am
ReaderY:
Oliver Wendell Holmes said that there is no sharp, clear line between day and night -- there are only shades of twilight -- yet this fact doesn't make these concepts useless. Similarly, the fact that human cultures have slightly different definitions of incest, and there may be gray cases, isn't evidence that the whole concept makes no sense.
5.3.2007 3:04am
ReaderY:
Oliver Wendell Holmes said that there is no sharp, clear line between day and night -- there are only shades of twilight -- yet this fact doesn't make these concepts useless. Similarly, the fact that human cultures have slightly different definitions of incest, and there may be gray cases, isn't evidence that the whole concept makes no sense.
5.3.2007 3:04am
Anonymo the Anonymous:
The same right that gives government authority to prohibit child molestation, murder, rape, robbery, treason, and fraud--it is a violation of the moral codes that our society has long accepted, and still accepts (except for intellectuals, who have decided to start playing pick and choose with which ones they like and don't like).

There's a categorical difference between the crimes you just listed and adult sibling incest. We can identify a victim for those, but please name the victim of adult sibling incest. If you say "society," then you can quit making those smug little remarks about people on the left because you share the same collectivist ideology they do -- you just pick and choose different cases where it suits you.

If you really want to go to anarchy, fine. But that needs to be a consistent position, not, "Laws against homosexuality are stupid, but laws prohibiting discrimination against homosexuals are ABSOLUTELY ESSSENTIAL." You'll find that your friends on the left aren't going to allow a consistent libertarian policy on this.

The principle I'm advocating does not necessarily entail anarchy, unless you define "anarchy" as any state of affairs you find distasteful. And yes, it does need to be a consistent principle. As I illustrated in my response to your question about racial discrimination, I believe I do hold it consistently. If my "friends on the left" don't, that's their problem, not mine.
5.3.2007 3:21am
Anonymo the Anonymous:
I'll make a deal: if you want this "what consenting adults do in private is none of the government's business," I'll buy that--but you won't. The list of laws that would have to be scrapped is huge. The obvious hot button liberal love affairs are gun control; antidiscrimination laws; environmental laws (as least until the pollution leaves private property).

If you're selling, I'm buying. Honestly, not trying to come off as overly combative, but you seem to be arguing with the straw man liberal in your head, to whom you can legitimately raise objections of hypocrisy, instead of engaging the arguments that are actually being made here. The fact that some might inconsistently hold a principle similar to the one being used to object to the laws in question doesn't invalidate my arguments.
5.3.2007 3:28am
Adeez (mail):
"The problem is that a whole generation of liberals have decided that they like laws that tell others how to behave (you can't smoke in restaurants, you can't own a gun, you can't discriminate in employment)"

Wow. A smart guy like you can't see the distinction between these two sets of laws? Lemme try: smoking in restaurants is a public health issue. The laws do not prohibit smoking in private, they prohibit smoking in places where it'll affect the public generally. Show me how many liberal legislators propose an outright ban on all smoking, and then you may begin to have a point. Employment discrimination, again, affects the public at large. How can you say that employment discrimination is something done in the privacy of one's own home? In any event, these laws state that while employers may discriminate against workers on many bases, race, gender, creed, and a few others are illicit. And as for guns: I do not know any liberal, including myself, who flatly denies the right of Americans to "own a gun." But I do know many who support the right of Americans to own one, but just want reasonable regulations so that it's not as easy for someone to buy a gun as a candybar.

But don't let the truth get in the way of your usual attack on all things Liberal. I always get a kick out of reading your anti-liberal rants, and you never disappoint.
5.3.2007 11:54am
Just another guest (mail):
I do not know any liberal, including myself, who flatly denies the right of Americans to "own a gun." But I do know many who support the right of Americans to own one, but just want reasonable regulations so that it's not as easy for someone to buy a gun as a candybar.

Two quick points:

First, I'm sure for some definition of "own a gun" this is true, although at least some liberals would have all guns kept in an armory when they are not being used to hunt with, and would use extensive police searches to enforce said law. Just the other day in the Toledo Blade there was a modest proposal along those lines. It would be comparable to asserting support for a free press, so long as all the newspapers, web sites, etc. were licensed by government agents and the content approved by government censors...and would be essentially the same as "no free press". There are liberals who are dead set against what Clayton or anyone else does in the privacy of their own home, if "gun" is involved. That's the point I think he's trying to make.

Second, would you please be so kind as to explain the process in your state for buying a gun, and compare it to purchasing a candybar? HINT: Do you have to put your name into an FBI database in order to buy a candybar?
5.3.2007 12:11pm
Larry2:

Now a serious debate among intelligent people is taking place about legalizing pedophilia and incest.


There is a debate going on, but it's very unlikely that these things will be made legal in the US because of the policy views of the people who become judges, and the social class to which those judges belong. That class favors abortion but does not favor incest.

It may be true that most federal judges were appointed by Republican presidents, but they are still part of the same social class as the judges appointed by Democrat presidents. Many of them (ex, Anthony Kennedy) will "grow" during their time on the bench and will vote with the Dem. judges on these sorts of issues.

As for the person who wanted a relationship in which he would get married and raise children, but not have sex, he should just get married. I'm reminded of an old joke:
scientists have discovered a food that dampens a woman's libido. It's wedding cake.
5.3.2007 12:20pm
Mark Field (mail):

Oliver Wendell Holmes said that there is no sharp, clear line between day and night -- there are only shades of twilight -- yet this fact doesn't make these concepts useless.


Interruption for pedantry. Edmund Burke said this first. Cite.
5.3.2007 12:51pm
John D (mail):
Jeremy T noted:


I hope all the liberals commenting here are happy that they've proved Jerry Falwell and Pat Robertson et al. correct. When gay marriage was pushed on us, they said "this will lead to worse things." Now a serious debate among intelligent people is taking place about legalizing pedophilia and incest.

I'm happy that Jerry Falwell and Pat Robertson have been proved right, because I agree with them. Those who deride the slippery slope argument have been inarguably proven wrong.

Here's a simple reason to oppose gay marriage and legal gay sex: it is leading to the absolute destruction of all sexual mores in society.


But they don't have legal same-sex marriage in Germany. Are you proposing that legalization of same-sex marriage leads to incest in other places? Or is it just the gay sex that bothers you?
5.3.2007 2:04pm
whit:
"Homosexuality is not a choice, incest is. There are homosexuals, but there are no mysistersexuals. Forbidding gay sex and gay marriage closes that part of life off entirely from part of the population--anyone attracted to their siblings can go boff someone else. "

it is true that for most, homosexuality is not a choice. it's an orientation thang. however, people can be and are oriented towards children as well. just because society hasn't accepted that orientation as a "good thang" doesn't make it any less real. and of course we can make it illegal. it does not necessarily follow that just because you are oriented to do X, that that means automatically that govt. should not be allowed to restrict X.

also note that there is a difference between prohibiting behavior and prohibiting orientation.

i find this debate much like the abortion debate. even though i am pro-choice, i find most people arguing for "choice" to be extremely illogical. similarly, i support civil unions for gays (still undecided on marriage), but i find the arguments for civili unions, gay marriage etc. usually anti-scientific and non-logical.
5.3.2007 4:26pm
Fred C. Dobbs (mail):
What about adult brother-brother incest? No genetic disease issues there, and how could same-sex "marriage" states possibly discriminate against loving brothers who wish to "marry?"

And if that, why not grandfather-adult grandson incest? And if that, whither the marital deduction for estate and gift taxation? The federal fisc could be out a substantial sum if Bill Gates ever "marries" his adult grandson...
5.3.2007 4:40pm
Clayton E. Cramer (mail) (www):

You are aware that the overwhelming majority of Federal appellate court judges (not to mention 7 of 9 Supreme Court justices and roughly 55% of district court judges) have been appointed by Republican Presidents, right?
The Supreme Court makes the final decisions, and until quite recently, Democratic appointees--and Republican apointees who might as well be Democratic apointees, like Stevens and O'Connor--were in control.
5.3.2007 4:49pm
Clayton E. Cramer (mail) (www):

If you're selling, I'm buying. Honestly, not trying to come off as overly combative, but you seem to be arguing with the straw man liberal in your head, to whom you can legitimately raise objections of hypocrisy, instead of engaging the arguments that are actually being made here.
If only they were in my head, instead of the Supreme Court--which found that virtual child pornography could not be prohibited (freedom of speech) but that political advertising could be. The same Supreme Court that intruded on state constitutions by deciding "one man, one vote" but then decided that the voters of Colorado didn't have the authority to limit the power of local governments.
5.3.2007 4:51pm
Clayton E. Cramer (mail) (www):
Adeez writes:

Wow. A smart guy like you can't see the distinction between these two sets of laws? Lemme try: smoking in restaurants is a public health issue. The laws do not prohibit smoking in private, they prohibit smoking in places where it'll affect the public generally.
You realize that the same argument can be used to justify bans on sexual promiscuity (increased risk of STDs) and homosexual sodomy (increased risk of both transmission and retransmission of AIDS)? Yet liberals suddenly change all the rules when it comes to sex.

Show me how many liberal legislators propose an outright ban on all smoking, and then you may begin to have a point.
You mean like when Carmel was discussing a ban on smoking on public streets?
Employment discrimination, again, affects the public at large. How can you say that employment discrimination is something done in the privacy of one's own home?
How can you say that homosexual sodomy is a private matter when all of us get stuck with the bills for AIDS? The reasoning is identical.

In any event, these laws state that while employers may discriminate against workers on many bases, race, gender, creed, and a few others are illicit.
So if the legislature wants to ban sexual promiscuity (say, having more than one sexual partner per year)--as long as it doesn't ban homosexuality--then this is okay?

And as for guns: I do not know any liberal, including myself, who flatly denies the right of Americans to "own a gun."
Oh come on. Professor Volokh has been keeping a list of such supporters of complete confiscation for several years. How about the second director of Handgun Control? How about Michael Gartner, who used to be president of NBC News? How about Rep. Lynne Woolsey (D-CA), who used to misrepresent me in the House?
But I do know many who support the right of Americans to own one, but just want reasonable regulations so that it's not as easy for someone to buy a gun as a candybar.
It's not 1967, you know. Gun Control Act of 1968. You might want to inform yourself a bit about the subject.
5.3.2007 4:58pm
Clayton E. Cramer (mail) (www):
Larry2 writes:

There is a debate going on, but it's very unlikely that these things will be made legal in the US because of the policy views of the people who become judges, and the social class to which those judges belong. That class favors abortion but does not favor incest.
Unfortunately, they are judges, not legislators, so the only way to get what they want, since they can't persuade the masses, is the exercise of raw judicial power.
5.3.2007 5:00pm
Clayton E. Cramer (mail) (www):

There's a categorical difference between the crimes you just listed and adult sibling incest. We can identify a victim for those, but please name the victim of adult sibling incest. If you say "society," then you can quit making those smug little remarks about people on the left because you share the same collectivist ideology they do -- you just pick and choose different cases where it suits you.
I actually agree that there are laws that serve a useful purpose in making the society a nicer, more civilized place to live. It isn't lawful to urinate on a public street, or drop your pants in the middle of the street and defecate there--even if you clean up the mess so there's no public health issues.

I disagree with the left's hypocrisy in using libertarian arguments about sex but social benefits arguments to justify antidiscrimination laws, public education, and the rest of their agenda.
5.3.2007 5:04pm
Mark F. (mail):
There, I fixed your post. What, you don't like it? Why draw the line of consent at 18? 16? 14? 12? 5? Why require consent when an adult can make the decision in the "best interests" of a child? Adult-infant sexual relationships may be icky, but that's just your own cultural hangups at work...

Well, I think reasonable people can differ as to when a child/young person can consent to sex, but surely there is a point where that is impossible. Adults have no right to rape children in their "best interest." That's absurd. Physical abuse is always a rights violation. Adult brother/sister sex is not.
5.3.2007 5:13pm
Mark F. (mail):
Incest is icky. Sex between two men or two women is not.

Agreed, but that is just a personal opinion. How does that relate to what the law should be? Two siblings having sex does not violate anyone's rights. Should the law prohibit anything you find icky?
5.3.2007 5:17pm
Bah (mail):
Well, I think reasonable people can differ as to when a child/young person can consent to sex, but surely there is a point where that is impossible. Adults have no right to rape children in their "best interest." That's absurd.

Look, just because you find people who are the same as you except for whom they love to be "ikky" is no reason to write your particular phobia into law, is it? Some people are just born to love members of their own family differently that you do, as long as it doesn't hurt you, why is it your business?

Come on, how would a father showing his 8 year old daughter how much he really loves her affect you in any way at all?
Get over your phobia and stay out of other people's bedrooms.
5.3.2007 5:22pm
JunkYardLawDog (mail):
Well can the acceptance of polygamy, incest with minors, the Man Boy Love Society protection act, and bestiality be far behind in the thoughts of those advocating the destruction of our societies and cultures.

And to think the liberals scoff when those opposed to gay marriage say its just a slippery slope tip of the iceberg attack on our entire culture and society.

Sometimes you just want to slap silly these effete europhile morons in the dim hope they might actually start rubbing one or two neurons together as a result of the vibrations from their face.

Says the "Dog"
5.3.2007 6:23pm
John D (mail):
Lima beans, for the record, are icky.

While I would question the psychological health of adult siblings in a sexual relationship (what? are you that lazy? can't you travel as far as next door in search of a sex partner?), I don't know if it ought to be a matter for the law.

It's like adultery; I disapprove of adultery, but I wouldn't want to see it recriminalized.

And, for that matter, if I saw a couple kissing, I'm not going to assume that they're siblings. So, no ick.

A lot of posters here have said that permitting same-sex marriage will lead to legal incest. They are entitled to disapprove of adult homosexuality. When they compare it to child molestation, they've gone a bit far.

Sure, there are people who are going to claim that gay sex is harmful and should be forbidden. Let's be serious. Gay sex isn't harmful, no matter what Paul Cameron may rave. (And, bluntly, the sexual activities of gay people are enthusiastically practiced by many heterosexuals. Hardwick, of the Supreme Court case, was caught engaging in the ever-popular activity of oral sex. I am aware that many heterosexual males, including a former President, are happy recipients of oral sex.)

Since gay people do in bed the same things that straight people do in bed, how icky can it be? This was the finding of Lawrence, right?

Let's leave children (and pets) out of this. We all know that's a wholly different discussion.

What's left is question of how much say the law should have about the sexual activities of consenting adults.

Adults get to consent. Even when it involves mild electrial currents, but that is icky.
5.3.2007 7:00pm
Bah (mail):
Since family-love people do in bed the same things that gay people do in bed, how icky can it be? That's a logical extension of Lawrence, right?

So long as the love that dare not say its name is suppressed, no one is free! No one!
5.3.2007 8:18pm
John D (mail):
I was out of the country when the Lawrence decision was issued. (Given the choice between tourism and finding an English-language newspaper, I went to castles.) I left a country with enforceable sodomy laws and came back to a land in which adults could consent to sodomy. Cool.

Shortly thereafter, I got into a discussion about Lawrence at a party. A slightly inebriated Physics professor confided that he wasn't that keen on sodomy, though he knew woman who enjoyed it.

Of course, his definition of sodomy was a bit off. I started enumerating the activities that count as sodomy. (What? It's more than that?)

"I'm a sodomite," he said.

And this must be remembered every time a (so called) conservative brings up the "unnatural" aspects of gay sex in an argument that should be focussed on civil rights: heterosexuals do these things too.

If sodomy is an argument against same-sex marriage, it must also be an argument against opposite-sex marriage.
5.3.2007 9:04pm
Pub Editor:
Regarding the Rhode Island statute mentioned in the post and by some of the commenters, I recently read an older case (for a Conflict of Laws course) that deals with one effect of that law: In re May’s Estate, 305 N.Y. 486, 114 N.E.2d 4 (1953). The New York Court of Appeals had to decide whether New York would recognize an uncle-niece marriage contracted in Rhode Island by two New York residents. Sam and Fannie May, uncle and niece, were Jews living in New York, NY. They traveled to Rhode Island in 1913 and were married there. They subsequently returned to New York, where they lived together for 28 years (Fannie died in 1945) and had six children. After Fannie died, there was a dispute among the six children and Sam as to who should administer Fannie’s estate. If New York recognized the marriage, then Sam, as surviving spouse, would automatically have the “paramount right” to administer the estate. Otherwise, the court might allow one of the daughters of the union to be administrator.

Under New York law, an uncle-niece marriage is void ab initio; however, states normally recognize valid marriages from out of state; that is, normally a court will determine the validity of a marriage according to the law of the state where the marriage was celebrated. (Needless to say, this was decades before DOMA.) Ultimately, the court recognized the marriage. The majority of the New York court concluded “that such marriage, solemnized, as it was, in accord with the ritual of the Jewish faith in a State whose legislative body has declared such a marriage to be ‘good and valid in law,’ was not offensive to the public sense of morality to a degree regarded generally with abhorrence and thus was not within the inhibitions of natural law.” 305 N.Y. at 493. One Justice, Desmond, dissented: “It is fundamental that every State has the right to determine the marital status of its own citizens.” Id. (citations omitted)

See also In re Dalip Singh Bir’s Estate, 83 Cal. App. 2d 256, 188 P.2d 499 (1948), where a California court recognized the two wives of the decedent (under Indian law) to be joint administrators of his estate.
5.3.2007 9:51pm
R. Richard Schweitzer (mail):
How would (or do) incest laws find a proper place if we follow the precepts of Mill's On Liberty?
5.3.2007 11:21pm
whit:
i think sodomy is absolutely something the govt. should not legislate. i don't think it's morally wrong, either.

it does not follow that sodomy laws are unconstitutional. i know lawrence says they are, but... cmon.
5.4.2007 1:11am