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.
Um, WTF? Same exact crime, yet he got 60% more jail time? Is this pure anti-male bias or is there more to it?
It might be something as simple as different judges/juries. They were probably tried separately, and maybe his judge/jury just had stronger feelings about sentencing than hers did. If he had instead been tried by her judge/jury and vice/versa, she might have been the one to get eight years, and he could have gotten five.
There could be a lot of factors involved in the different lengths of the terms, not necessarily having to do with any anti-male bias.
Moral Absolutes & Homosexual Agenda Two-fer Ping.
Well, well, well. What exactly was it Santorum said about a "slippery slope"? Do the words "screaming nosedive" mean anything to you?
Here's my take: If there are no moral absolutes, unchangeable right and wrong, then every single ethicl/moral issue is now on the table, up to and including bestiality, child/adult sex, consensual cannibalism, involuntary euthanasia, and anything else your (and THEIR) fevered brain can come up with.
It's all on the table now. If the mind of man is the arbiter of right and wrong, the law of the jungle will be the law of the land. If "God says it's wrong so it's wrong" doesn't count, the end of civilization is nigh. And I mean that seriously.
Freepmail me if you want on/off this pinglist.
Don't take it easy on me! Ping me again if you don't see something appearing on the pinglist.
I hate to lose important articles. If only my "comments page" would show more than 20!!! I can't get it to show more, that's one way stuff gets lost in the shuffle.
Mine won't show more than 20 either. I wonder if anybody can see more than 20.
Punishment for a given crime should not be subjective. It isn't in the bible.
This strikes me as being by definition an error in the process of adjusticating justice, when two convictions for the exact same crime in the same jurisdiction carry different penalties.
"For this reason he is also probably wrong when he says: "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." A court may very well find a rational basis for prohibiting incestuous marriage."
That are complete morons if they can't. see #27
The Texas Legislature did not see fit to change the law that makes it a third degree felony -- maximum punishment 5 years in prison -- to commit incest by having sexual relations with your sister.
The legislative update I heard that at, being full of South Texas lawyers, blamed this discrepancy on the proclivities of Legislators from East Texas, near the Arkansas and Louisiana borders.
I'd vote for 'pure anti-male bias' which is rampant in courts of law. Dontcha know, its the man's fault.
Hillbilly to son: "Son, never marry a virgin. If she ain't good enough fer her own family, she ain't good enough fer 'arn."
Be careful, Doc. You better not screw with my sheep!
So what if said siblings were only engaging in sodomy, would that then be protected?
RE: "Had he married his brother instead of his sister there would be no problem."
Yep. If they had been gay, the current court would have said they have the right to both sodomy and marriage.
All that this goes to show is, in reality, there is no "rational" basis test for any of this stuff. The rulings are just whatever 5 jackasses in black robes prefer. Then they write a bunch of self contradictory BS that supports whatever their position is.
Keep it up, lefties. Never thought I'd see the day when a major political party extinguished itself, but your moment is coming.
I suggest that you are a little confused here -- there is a significant difference between immoral and the illegal, and always has been, even in Biblical times; and the US Constitution recognizes that the majority is not always right, and should not be able to make illegal anthing it wants. For example:
* the "immoral" is something you disapprove of, something against your personal code of morality, and perhaps something you would be willing to personally convey your disapproval of, e.g., treating your spouse unkindly, allowing children to run around creating havoc unsupervised;
* the "illegal" is an action you would be willing to use force to prevent (or require penalties extracted by courts and men with guns, e.g., theft, murder).
For actions in which something of value is taken by one person from another by either fraud or force(e.g., fraud, theft, assault, murder), the line is pretty clear. Ultimately someone is taking something of value from another against their will, whether by fraud and deceit or by force, and that is almost universally recognized as both immoral and illegal. Over the past 2000 years, Western civilization has evolved the concept of a government using force to prohibit or take vengence rather than allowing people to avenge themselves; so laws are passed to codify transgressions, and police and courts enforce them. Of course, Islam still allows "honor killings" and "blood feuds" to settle scores.
The line is not so clear when there is no "victim". In the Old Testament, the Jews were prohibited from a number of activities, which made such actions immoral, but for which no specific punishment was specified. For example, working on the Sabbath was clearly a violation of one of the 10 Commandments (with an exception if an Ox fell into a ditch), but this was enforced by disapproval, not by stoning. Prostitution was clearly disapproved of, but evidently not prevented by force, since there are stories in the Bible about prostitutes; but, on the other hand, a couple could be stoned if caught in adultery if the woman was married (because this was stealing "something of value" from the husband). So even then, there was a difference beteween illegal and immoral.
That line has been moving.
*100 years ago there were laws in the South prohibiting places of business being open on the Sunday (i.e., the blue laws), and those laws had penalties; Walmart is now open 7 days a week 24 hours a day nation wide.
*100 years ago there were laws prohibiting the selling of alcoholic beverages in some states and localities -- a nation wide Prohibition was found to cause more problems than it solved, so Prohibition was eliminated by a 2nd Constitutional Amendment. If there is no difference between illegal and immoral, would you now say that drinking alcohol to excess is now moral???
*100 years ago, there were laws in many States prohibiting cursing in the presence of women or children. Some of those laws are still on the books, but now not enforced (although many of us would prefer that they were enforced, in Parks, and especially during TV family hour).
This then leads to the next question -- how should you draw the line between the immoral and the illegal? You can't say, strictly by the "will of the majority". The Declaration of Independence proclaims that all people have the G-d given right to life, liberty, and the pursuit of happiness. The Bill of Rights in the Constitution prohibits Congress from making laws about some lower level issues (i.e., establishing a religion, abridging the freedom of the press, even infringing on the right of a citizen to keep and bear arms, etc.) So, even if a majority of the people wanted such a law, the Consitution prohibits it. It takes in fact a supermajority to abridge such rights (e.g., with a Constitutional Amendment, like Prohibition).
Which brings us to things like prostitution, sodomy, homosexuality, cigarettes, recreational drugs ... the so called "victimless crimes".
Some these things involve the actions of a single person - use of sexual toys, masturbation, smoking cigarettes, taking any kind of drug, etc. The question asked in the 60s and not yet answered is ... what gives the "majority" the right to say that alcohol is legal, prescription drugs are sort of legal, and grass is illegal? The British fought a war with China to get the right to import Opium into China, so they obviously thought it was "moral". The history of drug laws in the US is covered quite nicely by the History Channel program, "Hooked, and how we got that way" -- and morality played less a role than press inflamed hysteria. My personal view is that drugs are bad, but drug prohibition is much much worse.
What gives the "majority" the right to make the purchase or posession of a "vibrator" illegal, when it is used by a single solitary individual in the privacy of their own bedrooms? Isn't that part of "the pursuit of happiness"? Yet Alabama has such a law.
Next are the so called "victimless" crimes between consenting adults. For example:
* What is the justification for using force to prohibit sex acts between consenting unmarried adults? 100 years ago, fornication was illegal; now, it is displayed on family hour TV shows.
* What is the justification for using force to prohibit prostitution in 49 and 1/2 states (it's legal in some counties of Nevada)? A Prostitute is listed as one of the ancestors of David ... and Jesus.
* What is the justification for using force to prohibit heterosexual sodomy? During the past 100 years, that line has moved - it is now legal nation wide, and legally exhibited millions of times a day on the internet.
* What is the justification for using force to prohibit homosexual sodomy? The laws have been on the books for over 100 years, but not really enforced for the past 50 years. The Supreme Court recently moved that line, rightly or wrongly, by balancing the right of the majority to make such laws against the rights of the participants to pursue happiness.
What is the justification for using force to prohibit polygamy? (It seems that G-d approved of this during Old Testament days, and I have been unable to find the Biblical commandment that now makes it immoral. Islam supports Polygamy as moral. The Mormons believed it was moral for a number of years; on the other hand, US Government troops occupied Utah under Martial Law until the Mormon Prophet had a revelation that switched this from "moral" to "immoral" for Mormons in the 1880s).
* What is the justification for using force to prohibit incest between consenting adults? Egypt's rulers were required to practice this. If your justification is the fear of reinforcing bad genes, then why don't you make it illegal for people with genetic markers for Sickle Cell Anemia to get married to each other? Or Tay Sachs? Or Obesity? or baldness? or ...?
When you are done with victimless crimes, consider the morality of self defense! Genesis requires you to rise up and slay an attacker at night. Jesus said ... if you don't have a sword, sell your cloak and buy one. Some states allow people to carry concealed firearms to protect themselves with no restrictions. Some 38 States have some kind of "shall issue" legislation which requires the police to issue "good citizens" a concealed carry permit, and laws which allow you to use such weapons to protect yourself and others from predators. Some states almost prohibit you from defending yourself with deadly force. What is moral?? All these laws were passed by representatives of the people (majority rule ???) So ... is morality dependent on whether you are in the majority??
The point of this rant is, your assertion that "...criminal laws (are) the codification of the "moral views" of the majority..." is too simplistic, and does not hold up to analysis. The question, "Which immoral things am I willing to use force to prohibit?" is a very serious one, and I would encourage you to find some principles by which to make such decisions, and to subject those principles to intense scrutiny and bounce them against the principles of the Consitution. Don't tell me "It's all in the Bible" -- because then you are saying that if you were born differently, you would be saying "It's all in the Koran". And you know where that leads.
But, as you so abundantly show in your post, the supposed "significant difference" between the immoral and the illegal is shifting rapidly! If today you can dismiss sodomy and incest as being in the realm of "immoral but not illegal", then what, exactly, is the basis for declaring bank robbery illegal? Why, inherently, is stealing illegal? If it is not because our society has declared it to be wrong, what is the reason? What is the basis for laws at all?
You might say something should be illegal if, and only if, it harms somebody else. While there is plenty of debate to be had over that idea in the first place, I would press further and ask, Why? Why is that the standard for individual liberty? Why should it be illegal for me to harm someone else? What makes that standard more desirable than a biblical standard, or a simple majority rule standard?
See, the slippery slope is this: Once enough people deny any difference between right and wrong in their personal lives, then the laws created by and for those same people will inevitably follow the same path, albeit in something of a delayed fashion. If there is no good and evil in our personal, private lives, there is necessarily a similar attitude toward our civic attitudes and actions. Those who think they can completely separate their personal and public lives are deceiving themselves.
You make a good argument for anarchy. I will bet that there is not a single law on the books that someone has not violated at one time or the other. I would futher venture that there are people who every day violate some law of which they are entirely unaware. I probably violate speed limits every day.
Evidently you missed the point of my rant. Anarchy is the absence of law, and leads to the rule of the strong, so I was definitely not advocating Anarchy - I was asking how we decide what should be in law.
One of the great advances of Western Civilization was the concept of the "rule of law" as opposed to the "whim of the King". Laws are written down so people can understand them and not violate them -- that tends to promote cooperation, which builds wealth enjoyed by all.
One of the great setbacks of Western Civilization was the invention of the "regulation". Given the 40,000 pages of IRS Regulations, the 1,000,000 or so pages of regulations by Federal OSHA, EPA, ... etc. as well as similar duplicative regulations by the States ... and similar duplicative regulations by the Cities (e.g., building codes) ... I would not be surprised if every one of us violated multiple laws every day. So I agree with that part of your assessment.
As Ayn Rand noted, honest men cannot be ruled. So passing a million laws enables the honest men to be ensnared and thus ruled.
And the results can create absolute disasters. How many people died at Waco because it was suspected that Koresh didn't pay a $200 tax? And how many people at the Murrah building died because no one was punished for those deeds? A woman and her child died at Ruby Ridge because it was asserted that her husband, at the insistance of a BATF agent, cut off the barrel of a shotgun 1/16 of an inch too short. Vin's "Send in the Waco Killers" is full of this kind of insanity. The rule of law is one thing --- the rule of 10,000,000 laws is quite another - a sane person couldn't even read them all before he died.
If you are going to have a government, you should ask, "How do I decide which immoral things I am willing to use force to prevent?"
Libertarians generally conclude, "Only when others are using force or fraud against another".
Moslems conclude: "Everything that is not allowed in the Koran is forbidden", with death penalties, lashings, and amputations to show they are serious.
The founders of our Republic appear to have concluded: "Only give the Federal Government limited powers, but the States and Localities can pass any laws they want to", including the Stocks for adultery, and death for sodomy.
It is a serious question, and I hope it is not too hard a question for the populace at large to consider. In general, people get the kind of government they deserve.
On the positive side, I am encouraged that, after the Supreme Court said it was OK for a State or City to take someone's property for any potential public benefit ... enough people sent enough nastygrams to enough politicians that Laws are being passed to prevent cities from doing this.
Are you seriously proposing that everything you personally believe to be immoral should be illegal -- with men with guns to enforce it? That is a conclusion that can be drawn from "no separation between public and private lives". For example:
If you belive people should go to church on Sunday -- then should everyone who doesn't be placed in Stocks?? And businesses which open on Sunday should be confiscated??
If you belive that people should only worship in a Protestant Church -- or a particular sect of a Protestant Church -- then should all Catholic Churches, and all other churches of all other Protestant sects, be confiscated or burned?
Europe had about 400 years of that kind of thinking, with more than enough death and destruction to go round, and they finally declared an exhausted truce, and saw the benefits of "tolerance" for other religions. Islam has not yet seen this light, and is due for a lot of death and destruction until they do.
I never even implied that there was no difference between good and evil. I strongly suggested that there was a difference between what you require of yourself, and what you should be willing to require of others by force of law. And once you have agreed that there is a difference, you should start to think about how you should decide; then you can persuade others to decide using the same principles.
For me it comes down to sort of a small "l" libertarian view: I don't care what consenting adults do in the privacy of their own homes as long as 1)they don't shove it in my face, and 2) they don't ask me to pay for the consequences of their actions.
Oh, and murderers, serial child molesters, and treasonous SOB's pay the ultimate penalty.
So if you have sex with a sheep who also happens to be a blood relative, will Anthony Kennedy approve?
Its become a corrupt little money game. Perhaps the law has always been so. I am what used to be known as a strict constructionist when it comes to making law supposedly based on the Constitution. I think that every 4th year the various legislatures should be instructed not to make new law, but to repeal old law. And I might like to see rock solid sunset clauses built into most laws. That way the cowards in Congress wouldn't really have to vote to repeal some egregiously unconstitutional monstrosity, they could just let it expire, like the rotten 1994 AW ban.
LOL. Just as long as it's a consenting sheep.
Or else they might cry "fowl!"
"Oh there's no slippery slope..."
Says the lie-berals as their constituents are f---ing their siblings.
Still, the article does bring up a good point that if gay marriage is found to be constitutional, incest would be constitutional for the same reasons. (Although, that reasoning may not be quite the same as in Lawrence v. Texas.)