Posted on 08/28/2005 10:01:18 PM PDT by goldstategop
"I believe severe punishment is required in this case," the judge said at Allen and Pat's sentencing in November 1997. "I think they have to be separated. It's the only way to prevent them from having intercourse in the future."
Allen and Pat were lovers, but a Wisconsin statute enacted in 1849 made their sexual relationship a felony. The law was sometimes used to nail predators who had molested children, but using it to prosecute consenting adults -- Allen was 45; Pat, 30 -- was virtually unheard of. That didn't deter Milwaukee County Judge David Hansher, however. Nor did the fact that the couple was genuinely in love and didn't understand why their relationship should be a crime. Allen and Pat didn't "have to be bright," the judge growled from the bench, to know that having sex with each other was wrong.
He threw the book at them: eight years for Allen, five for Pat, to be served in separate maximum-security prisons, 25 miles apart.
If this had happened to a gay couple, the case would have become a cause celebre. Hard time as punishment for a private, consensual, adult relationship? Activists would have been outraged. Editorial pages would have thundered. Politicians would have called for the prosecutor's and judge's heads.
But Allen and Patricia Muth are not gay. They were convicted of incest. Although they didn't meet until Patricia was 18 -- she had been raised from infancy in foster care -- they were brother and sister, children of the same biological parents. They were also strongly attracted to each other, emotionally and physically. And so, disregarding the taboo against incest, they became a couple and had four children.
When Wisconsin officials learned of the Muths' relationship, they moved to strip them of their parental rights. The state's position, upheld in court, was that their "fundamentally disordered" lifestyle made them unfit for parenthood by definition. "A child raised by incestuous parents," it argued, "is a child raised in a home that mocks even the most rudimentary conception of family." Allen and Patricia's children were taken from them. Then they were prosecuted for incest and sent to prison.
I wrote about the Muths' case shortly after their conviction, asking why social liberals were not up in arms over it. Where were the people who always insist that the government should stay out of people's bedrooms? That what goes on between consenting adults is nobody's business but their own? That a family is defined by love, not conventional morality or deference to ancient taboos? The voices of "diversity" were nowhere to be heard. Patricia and Allen Muth were one "nontraditional" family it seemed no one cared to defend.
But then came Lawrence v. Texas, the Supreme Court's decision in 2003 that the Constitution protects the freedom of Americans to engage in "the most private human conduct, sexual behavior," when it is part of a willing relationship between adults.
"The petitioners are entitled to respect for their private lives," Justice Anthony Kennedy wrote in striking down the Texas law under which John Lawrence and Tyron Garner had been convicted of homosexual sodomy. "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."
Armed with Lawrence's sweeping language, Allen Muth appealed his conviction.
The taboo against incest may be ancient, and most Americans may sincerely regard it as immoral or repugnant. But Lawrence was clear: "The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law." If the Supreme Court meant what it said, Muth argued, his and his sister's convictions for incest were every bit as unconstitutional as the Texas men's convictions for sodomy.
Earlier this summer, the Seventh Circuit Court of Appeals ruled against Muth. But it did so on the strained and narrow ground that since Lawrence had dealt specifically with homosexual sodomy, it could not be invoked retroactively to overturn a conviction for incest. The opinion was written by Judge Daniel Manion, a Reagan appointee, and as legal scholar Matthew Franck observed, Manion must have been "desperate to avoid the plain consequences of the [Supreme] Court's recent precedents on sexual liberty."
But those consequences cannot be outrun forever. What Judge Manion declined to do, another judge may embrace. (Or perhaps the high court itself will: Muth has until Sept. 20 to file an appeal from the Seventh Circuit.) There is simply no principled escape from the logic of Lawrence: If the Constitution forbids the states to criminalize private sexual conduct between consenting adults, lovers who happen to be siblings can no more be considered lawbreakers than lovers who happen to be men.
Dissenting in Lawrence, Justice Antonin Scalia warned that the decision "effectively decrees the end of all morals legislation." It was a prediction the majority made no effort to refute.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
are you being sarcastic as to the liberal point of view on the definition of love, hopefully so, but prison for them was not the right answer to me either and now there are those four children out there totally destroyed no doubt. (borrowed your 'in memory of...' idea for a tag, hope you don't mind!)
Disagree. A brother and sister are more likely than two strangers out of the general population to carry the same recessive genes. For instance, both my brother and I have flat feet, though neither of our parents do. We appear to have both gotten their recessive genes for flat feet, which were then expressed in both of us. Should we marry and have kids (ew, that's a digusting thought), they would almost certainly have flat feet. Now, flat feet are a small burden to bear, but there are many more harmful recessive genes that carry heavy burdens. I don't think it's fair or right for children to be put at an elevated risk of physical harm.
If you are a professional biologist and can scientifically support your statement that the children of an incestuous union would be at NO more risk than the general population of birth defects, etc., then I am willing to be corrected.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
Doesn't the story imply that the principals were not bright? Is this a story about mentally challenged people?
And another thing (boy, you've really got me going here!): If you accept incestuous relationships as a "norm," then they WILL be "accepted practice," and you'll have two- and three-generation streaks of incest -- which will produce a royal genetic mess. You see the problem, I trust: if you accept the first incestuous relationship, how do you have grounds to deny the second, third, etc.? If it was okay for Mom and her brother to get married, why can't sis and I now that we are grownups? Why shouldn't it be a proud family tradition to marry your sibling?
It has to stop with the first generation. If people are nutsy-cuckoo in love with their siblings and just can't help themselves, they should get their tubes tied and have vasectomies. And it should never be dignified with the name of marriage.
later pingout.
The same is true of children whose parents are both Ashkenazi Jews.
You really want to go down that road?
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
...is the only kind that is even legitimate.
How soon till NAMBLA floats a test case?
Society is pretty fallen these days, and is getting worse.
ping
I blogitized this.
Dan
As Scalia has said many times since "The Constitutional Right to Privacy" was conjured up from penumbras and emanations, "Privacy to do what?". Without an answer to that question the right to privacy gives cover to any kind of pernicious act.
Are YOU a professional biologist?
If not, why do you require that qualification of me?
As to the chances, read this:
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Some have suggested that the incest taboo is a social mechanism to reduce the chances of congenital birth-defects that can result from inbreeding.
Scientists have generally rejected this as an explanation for the incest taboo for two reasons.
First, in many societies partners with whom marriage is forbidden and partners with whom marriage is preferred are equally related in genetic terms; the inbreeding argument would not explain the incest taboo in these societies.
Second, the inbreeding argument oversimplifies the consequences of inbreeding in a population. Inbreeding leads to an increase in homozygocity, that is, the same allele at the same locus on both members of a chromosome pair. This occurs because close relatives are more likely to share more alleles than nonrelated individuals.
If an individual has an allele linked to a congenital birth defect, it is likely that close relatives also have this allele; a homozygote would express the congenital birth defect.
If an individual does not have such an allele, a homozygote would be healthy. Thus, the frequency of a defect-carrying gene in a population may go up, or down, when inbreeding occurs.
Thus, in small populations this dynamic would lead to an initial increase in birth defects.
But if health care is limited, it is likely that such children would not reproduce; consequently, the frequencies for the allele in question would go down.
Ultimately the result would be a population with a large number of homozygotes and a small number of birth defects.
In large populations with good health care, however, it is likely that there will be consistently high levels of heterozygosity despite periodic inbreeding.
Consequently the alleles linked to congenital birth defects will remain in the population, with a significant chance of a homozygote with the linked allele.
-------------------------------------------------------
And another thing (boy, you've really got me going here!): If you accept incestuous relationships as a "norm," then they WILL be "accepted practice," and you'll have two- and three-generation streaks of incest -- which will produce a royal genetic mess.
You actually quoted me and then ignored my statement..
In other words, it has to be more than a "singular" occurance within a familial group, it has to be an accepted practice.
I DID NOT "accept incestuous relationships as a "norm"..
I SPECIFICALLY STATED: "singular occurance"..
This translates as: "exception to the norm"..
Was this antagonistic response some sort justification to attack me for daring to disagree with you?
Are you somehow offended when someone disagrees with you?
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