Kissing Sibs (SCOTUS & incest)

NRO ^ | August 04, 2005 | Matthew J. Franck

[neverdem]

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August 04, 2005,

8:12 a.m.

Kissing Sibs

Could the Supreme Court embrace incest?

By Matthew J. Franck

Here’s a question that could reasonably be asked of President Bush’s 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 question’s 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 shouldn’t 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 Wisconsin’s criminal prohibition of incest as constitutional. But the court’s 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 Court’s 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 Lawrence’s 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 Affair

The 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 state’s 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 state’s prohibition of consensual incest.

His argument is straightforward. Why shouldn’t he claim (in Judge Manion’s 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 Manion’s 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 Lawrence’s 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 Manion’s 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 anyone’s 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 Court’s 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 Court’s 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 law’s constitutionality.

Super-Important Fundamental Rights

Let’s cut through the legal fog. Yes, the Court has never identified any form of consensual sexual conduct as a “fundamental right” triggering “strict scrutiny” of legal prohibitions on such conduct. Yes, the Court has refused to apply its hardest test to such challenges. But Manion’s reasoning here is, pardon the word, perverse. States enforcing one of Western Civilization’s most ancient prohibitions on sexual deviancy have been declared by the Supreme Court to be acting irrationally, with no conceivable legitimacy granted to any argument they care to advance. They cannot pass its easiest test. What would we call a right that is so obvious, so unquestionable, that laws prohibiting its exercise are declared incapable of clearing the lowest hurdle the Court sets for any public policy? “Fundamental right,” as used in the Court’s current vocabulary, would seem to be too weak an expression. Perhaps “super-important fundamental right” would be appropriate. The case for homosexual sodomy is not weak under the Court’s 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 Muth’s view that the right should encompass consensual adult incest as well.

Judge Manion’s opinion for the Seventh Circuit is such a wrongheaded reading of the Court’s 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 Court’s 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. That’s why the justices get the big bucks — for they have arrogated the power to break our civilization, or to preserve it.

And don’t 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.

	http://www.nationalreview.com/comment/franck200508040812.asp

[45Auto]

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.

[Mack the knife]

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.

[Mack the knife]

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.

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.

[45Auto]

I wasn't really trying to be sarcastic. You have brought up and thoroughly explained many points, most of which revolve around "just who do we want and trust to make law", and "what kind of law do we want", and "what do we use as a basis for law?". All valid questions that men have wrestled with for millenia.

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.

[45Auto]

Oh, and murderers, serial child molesters, and treasonous SOB's pay the ultimate penalty.

[Right Wing Professor]

So if you have sex with a sheep who also happens to be a blood relative, will Anthony Kennedy approve?

[45Auto]

The problem with the law as currently written and practiced in the US is that it has gone a long way down the wrong road since the Constitution was written. And respect for the law is probably at an all-time low. That's because many people think that special interests have teamed up with the legal profession to set things up so that some people will greatly benefit by forcing others to comply with certain laws.

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.

[Dr. Eckleburg]

So if you have sex with a sheep who also happens to be a blood relative, will Anthony Kennedy approve?

LOL. Just as long as it's a consenting sheep.

Or else they might cry "fowl!"

[trubluolyguy]

"Oh there's no slippery slope..."


Says the lie-berals as their constituents are f---ing their siblings.

[nosofar]

It was in fact simply whether two adults could do what they wanted in private.

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.)

[nosofar]

Are you seriously proposing that everything you personally believe to be immoral should be illegal -- with men with guns to enforce it?

I think the initial point was that criminal laws are based on public morality, not that all public morality should be made into criminal laws. At some level, any law is created because some person or group of people wants that law to be created. It could be for any reason. For the major criminal laws, it's usually morality of some kind. Any belief you have as to how people should behave (including yourself) is morality. If you happen to take a more libertarian position and think people should be able to do anything they want as long as it doesn't 'hurt' someone else, that's also a morality. You are saying hurting someone else (without their consent) is immoral. It always falls back on morality, how you think people should behave. Since we don't all have the same moral values, we need some way to harmonize them. You should not be allowed to force your morality on everyone else any more than I should. However, laws must follow some morality and the only way we can decide which moral values to follow (and 'none' is not an option) is majority vote, though this is tempered by our form of government.

[Doctor Stochastic]

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.

Not necessarily. They might claim: "It's for The Children."

[TChris]

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.

I believe you are being disengenuous, or at least exaggerated, in your protests. Of course I wouldn't advocate jailing those who don't attend church. But the issue at hand is far from that, blatantly extreme, example.

That we've come to the point in our society that incest is seriously being considered as an entirely private matter, a protected personal liberty, is utterly shocking. It is a long way from "placing in stocks" those who don't go to church.

You also try to impose an absolutist, all-or-nothing attitude on my argument. It's absurd on the face of it. My argument is that laws do and must have a moral foundation to them. You have never responded to that claim. Instead, you go off on an inflammatory rant about imposing my morality on others. You set up a straw man, then light him on fire.

Democratic principles at work in our nation generally impose the judgment of the majority to the whole. What is judged to be wrong by that majority is declared to be illegal, with varying degrees of severity. (No stockade for the non-believers.) On what basis do voters declare what is illegal and what is not? It is based upon their collective moral judgment.

Therefore, the "you can't legislate morality" line simply couldn't be more incorrect. That's exactly what legislation is. So, as the moral restraint of the majority of voters declines, so do our laws follow.

[Aquinasfan]

Why is theft illegal? Because the majority have said it is immoral.

No! Because it's intrinsically evil. And the fact that it's intrinsically evil is knowable to everyone.

Whether specific acts of theft should be criminalized, and what penalties should be applied to violations of laws regarding theft, are a matter for prudential judgement.

[TChris]

Because it's intrinsically evil. And the fact that it's intrinsically evil is knowable to everyone.

...unless you count thieves in your "everyone". See, I would put homosexuality and abortion into the "intrinsically evil" category too. Sadly, our society's "intrinsically evil" list shrinks with every passing day.

[longtermmemmory]

I find it consitent that the homosexal marriage lobby talks of marriage as if it was just another sexual position for gratification.

Marriage is about society creating an institution that maximizes the raising and producitno of the next generation. Homosexuals do nothing of that.

Incestual relations do not maximize the gene pool.

All the talk of love and comitment are irrelevant window dressing.

[TheForceOfOne]

West Virginia ping! :P

[RightWingAtheist]

Up next for the SCOTUS:

As creator Matt Groening described them: "Brothers or lovers, possibly both"

[GoLightly]

Your rants were pretty good, however...

And how many people at the Murrah building died because no one was punished for those deeds?

This justification doesn't cut it.

The moral fabric of a society needs to built into the hearts of the citizens, which allows for the government governing them to stay out of the morality business. Many people believe the way to reverse moral decay is more laws, more external force to make people behave better. The federal government was never constitutionally given power over society's morality, but through our courts it has grabbed up a lot of power in that area, which is how we've gotten into much of the fix we're in. Misuse of the tenth & fourteenth amendments has done harm to our society & using it further, in the attempt to reverse that destruction is not the answer, the magic bullet which will make all right again.

This incest case should have been sent back, left to the state. If any state wants to allow marriage between a brother & sister, so be it.

[Mack the knife]

Let me see if I can boil down your position:
1) Laws do and must have a moral foundation to them.
2) Not all moral judgements should become law.
3) Which moral judgement should become law are decided by the collective moral judgements of a majority of the citizens.

For the purposes of this discussion, I will accept Position #1 - and ignore the critical question of which code of morality the law should be based on.

I certainly agree with Position #2. I started off this conversation with the critical question -- how do you decide which things which violate the code of morality should be the subject of laws, of force to prohibit them??

Your position #3, that the majority of voters decide, is both untrue and begs the question. It is untrue because the concept of "individual rights" as codified in the Constitution limits what the majority can make illegal (in fact, the purpose of the Consitution is to limit the power of the majority, you know, all that ... Congress shall make no law ... stuff). It begs the question because each voter must decide the question before they vote, and they must and will use some criteria to make that decision.

And that brings you back to my original question -- how SHOULD people decide which "immoral" things should be made "illegal"? How do YOU decide, especially for the so called "victimless crimes"?

For example, a person could simultaneously believe that:
* taking addictive drugs for recreation is very very dangerous, and thus very very bad; and
* everybody has the right to go to hell in their own way, as long as they don't ask me to pay for the consequences; and
* the demonstrated cost of enforcing laws against drugs (including loss of privacy, loss of liberty, the corruption of the justice system, and the cost of the taxes to support such laws) far exceed the value of its demonstrated results...

and thus conclude that the immoral behavior of taking addictive drugs should not be made illegal.

This is NOT the same as saying that my morality is to let everybody do their thing, regardless of consequences, or that law is not based on morality.

So... again I ask ... how do YOU decide which immoral things should be made illegal, i.e., restrained by the use of force??

I don't expect an answer. I just suggest that it is a serious question that should be the subject of serious thought.