Skip to comments.Kissing Sibs (SCOTUS & incest)
Posted on 08/04/2005 12:24:55 PM PDT by neverdem
August 04, 2005,
Could the Supreme Court embrace incest?
Heres a question that could reasonably be asked of President Bushs nominee to the Supreme Court, John Roberts: Is there a constitutional right to engage in incest? The question is not academic; it is virtually guaranteed to make an appearance before the bar of the Court in the near future. Of course, the questions foreseeable character is a reason not to ask about it to some minds. But as I have argued here on NRO, question-dodging on momentous issues of constitutional meaning shouldnt be tolerated.
Oh no, you say surely this really is merely an academic question. Not at all; it has been as far as a federal court of appeal already, just last month, and may soon be on the docket of the Supreme Court. On June 22, a three-judge panel of the Seventh Circuit in Chicago decided the case of Muth v. Frank, unanimously upholding Wisconsins criminal prohibition of incest as constitutional. But the courts reasoning was extremely bad surprisingly so, given the undoubted legal acumen of its author in dealing with the precedent relied upon by the petitioner in the case. That precedent was Lawrence v. Texas, the Supreme Courts 2003 ruling declaring the unconstitutionality of laws against homosexual sodomy. And the author in Muth was Judge Daniel Manion, a Reagan appointee. It is understandable that Judge Manion, like the rest of us, recoiled from the absurdity that the Constitution protects incest. But his effort to avert the consequences of Lawrences radicalism is unsustainable, for a fair reading of that case makes it hard to avoid the conclusion that the Supreme Court's version of the Constitution does indeed protect incest (just as Justice Scalia claimed in his Lawrence dissent).
A Family AffairThe facts of the case are straightforward if ugly. Allen and Patricia Muth, brother and sister, were married (the court does not say how or by whom) and had three children. When the neglect of one of their children brought them to the attention of Wisconsin authorities, the discovery of their incestuous relationship led first to the civil termination of their parental rights, and then to the criminal prosecution of both Allen and Patricia under the states law banning incest. Neither attempted to deny their crime, and they were both convicted and sentenced to prison eight years for him and five for her. First in state courts and then in federal courts, Allen Muth challenged the constitutionality of the states prohibition of consensual incest.
His argument is straightforward. Why shouldnt he claim (in Judge Manions words) a fundamental right, protected by the Constitution, for adults to engage in all manner of consensual sexual conduct? In Lawrence, Justice Kennedy held for the Court that a state may not prohibit consensual homosexual sodomy, and did so on extremely broad grounds, holding that those who engage in such activity are free as adults to engage in [such] private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. Recognizing that laws forbidding certain sorts of sexual conduct are grounded in profound and deep convictions accepted as ethical and moral principles by many people, Justice Kennedy refused to accept the notion that the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. And he concluded with a critical passage that can be altered, just slightly, to cover the case of Allen and Patricia Muth (replacing references to homosexuality with ones to incest):
The present case does not involve minors [involved in a sexual relationship]. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that [incestuous] persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to [an incestuous] lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.
So why, with Supreme Court arguments like this at his disposal, did Allen Muth lose his case in the Seventh Circuit? According to Judge Manions opinion, there were two reasons. First, Lawrence did not address the constitutionality of incest statutes. This is true but trivial. The law proceeds not by the replication of old cases by new ones, but by the logical extension of principles abstracted from old cases to new situations in new cases. And Manion provides no reason why Lawrences reasoning should not apply to the Muths.
Second, and most decisive for Judge Manion and his colleagues, the Supreme Court in Lawrence did not proclaim a new fundamental right broadly related to consensual sexual conduct, homosexual or otherwise. This is where some close attention must be paid, for Manions reasoning, in just a few pages, turns several decades of Supreme Court jurisprudence upside down and inside out.
As Manion notes, when the Court decides it is dealing with a fundamental right, it generally uses a standard called strict scrutiny, under which the usual presumption that a law or policy is constitutional is effectively reversed. When strict scrutiny is applied, only the most compelling interest in a particular public policy will suffice to save a law from condemnation, and even then the law must be narrowly tailored so as not to jeopardize anyones rights in the course of its execution. It is widely understood among judges, lawyers, and students of constitutional law that strict scrutiny all but guarantees the outcome of a case: Even the best of justifications for a law will almost invariably fail to pass muster, while the alleged right advanced under this approach has an easy road to triumph over the principle of majority rule. Everyone familiar with this subject understands the game: Proclaiming that a right is fundamental is a way to leverage, by mere assertion more than by any constitutional principle, the destruction of public policies that actually have strong arguments going for them under traditional standards of legal reasoning. Strict scrutiny is therefore the Courts preferred way to make the weaker argument defeat the stronger one. It represents the highest hurdle for any government to clear, and success is exceedingly rare.
Judge Manion is quite right that the Supreme Court did not apply strict scrutiny to the question before it in Lawrence. Instead it applied the far less stringent rational basis standard, under which the burden remains on the challenger to show a law is unconstitutional, whereas the government need only demonstrate that the barest legitimate state interest is present in the challenged policy. Rational basis is the Courts easiest standard for the government to satisfy, and they rarely fail to do so. Rarely, but occasionally: In the Lawrence ruling, the Court held that laws banning homosexual sodomy rest on no legitimate state interest whatever, are thus fundamentally irrational under the due process clause, and are therefore unconstitutional. No strict scrutiny was necessary, and there was no heavy lifting about fundamental rights to engage in various sexual activities, because the Texas law failed to meet the easiest test the Court ever uses to measure a laws constitutionality.
Judge Manions opinion for the Seventh Circuit is such a wrongheaded reading of the Courts current jurisprudence on the due-process clause that we can only conclude he is either a) dishonest, b) incompetent, or c) desperate to avoid the plain consequences of the Courts recent precedents on sexual liberty. We know that Judge Manion is neither dishonest nor incompetent. But no fourth option truly presents itself, for there is no form of legal reasoning that can distinguish a right to commit homosexual sodomy from a right to marry your sister and raise a family. Only political reasoning moral reasoning of the sort the Court condemned as tyrannical in Lawrence can accomplish such a distinction, if it is possible at all.
Therefore, I would vote for c), because it seems plain that Judge Manion would rather someone other than himself commit such moral horrors in the name of the Constitution. Let the Supreme Court clean up its own messes, or make them even worse. Thats why the justices get the big bucks for they have arrogated the power to break our civilization, or to preserve it.
And dont we want to ask questions about these sorts of things when we have the chance, every decade or so, when a Supreme Court vacancy occurs?
Matthew J. Franck is a professor and chairman of political science at Radford University.
Isn't this the same topic Santorom got jump on for a few years ago, the whole slippery slope of Lawrence v. Texas
Um, WTF? Same exact crime, yet he got 60% more jail time? Is this pure anti-male bias or is there more to it?
They sent adults to prison for this? This is an example of vicious prosecutors and judges who need power taken away from them.
That one statement alone should result in Kennedy's impeachment. If this philosophy were to expand, it would literally mean the end of the rule of law. For what are criminal laws, if not the codification of the "moral views" of the majority?
Why is theft illegal? Because the majority have said it is immoral.
Why is murder illegal? Same reason.
To so broadly prohibit the constitutionally provided means of exercising the moral judgment of the majority of our citizens is a direct blow to the very principles upon which our nation is founded. It is reprehensible that a justice of SCOTUS would utter such vile thoughts!
IIRC, yes. IMHO, public health arguments apply in both cases, especially when the statists require mandatory seatbelt use and prohibitions on second hand smoke.
Not quite sure about that.
Surely, you must agree that there are some elements of individual liberty regarding which the majority has no right to legislate.
I suspect that Justice Kennedy (although I disagree with many of his decisions) feels the same way, although he would draw the line differently.
"The case for homosexual sodomy is not weak under the Courts reading of the Constitution it is extraordinarily strong. Hence the argument is very powerful, on logical grounds, for an expansive interpretation of its meaning and scope, which lends support to Muths view that the right should encompass consensual adult incest as well."
Let the black-robed vultures squirm their way out of this one.
And lest we forget bestiality...
So laws you don't agree with should be ignored?
That bothered me more than any other aspect of this whole thing actually.
I had to disagree with his article, because there is a fundamental difference. The incest case was about two people who got married illegally. So, despite the author's claim that they are similar, they aren't. The cited case specifically stated it was not dealing with whether the couple could get married, nor about whether the government had to acknowledge it. It was in fact simply whether two adults could do what they wanted in private.
And it was because of this that the judges couldn't find any legitimate government function which would justify the prohibition. They couldn't find anything in the record about how the government was effected.
In the incest case, the couple was married, which meant the government had been involved, and therefore could say they had an interest in promoting only certain unions.
I don't disagree with Scalia's dissent in the cited case, but I think the author of this piece is a little out to lunch.
Why? ("Weaker vessel," etc.)
And what happens when it involves a fellow and his 18-year-old daughter?
Our court -- and legal establishment -- is trying to destroy this country.
" Um, WTF? Same exact crime, yet he got 60% more jail time? Is this pure anti-male bias or is there more to it?"
Had he married his brother instead of his sister there would be no problem.
Here's one for the moral absolutes ping list.
Thanks for the miserable ping. I'll do the list right now. If you ping me to something that I don't ping out, re-ping me - I get swamped sometimes!
Okay. I try to take it easy on you. I know you have a very busy list.