Wednesday, August 31, 2005

Private Sexual Conduct and Incest:

In Muth v. Frank pdf the Seventh Circuit considers the habeas corpus petition of a person imprisoned for incest. After many unnecessary pages, the court concludes that Lawrence v. Texas, which held that a Texas law outlawing consensual homosexual sex could not be enforced, must be applied retroactively, but that Lawrence only applies to homosexual sex, and did not create a more general rule that applies to all private sexual conduct. However, because this case was in federal court on habeas corpus review, the court did not address whether a law against incest is unconstitutional, but just determined that the state court decision was not contrary to clearly established law as announced by the Supreme Court.

I think the Seventh Circuit ignored quite a bit of Lawrence to come to its conclusion that Lawrence only applied to homosexual sex (but I can understand why they would want to avoid reaching the merits of the cliam in the incest case). The Court in Lawrence explicitly said that they were not dealing with just homosexual behavior, but the liberty to engage in private sexual conduct more generally:

The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Id., at 190. That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.


The court in Lawrence concluded there was no legitimate purpose in the Texas law banning homosexual sexual relations. In order for a law banning incest to be constitutional it must be rationally related to a legitimate government interest. Lawrence held that "the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law." Some suggest that following Lawrence there is no legitimate government interest in outlawing consentual incestuous relationships by adults.

Jonathan Rowe thinks there are two good reasons, 1. incest usually involves a minor (or, I would say, an abuse of power) and 2. "incest is bad for the species because inbreeding heightens the chances for biological defects."

The Muth case does not involve a minor, but the brother and sister did have three children together. This NYTimes aricle reported that marriage of 1st cousins does not substantially increase the chance of a serious genetic defect,

In the general population, the risk that a child will be born with a serious problem like spina bifida or cystic fibrosis is 3 percent to 4 percent; to that background risk, first cousins must add another 1.7 to 2.8 percentage points, the report said.

However, incest, including relationships between brothers and sisters, would might have a higher rate of serious problems.

Thus, a ban on incest is rationally related to reducing the number of children born with genetic diseases. Is reducing the number of children with genetic defects a legitimate government interest? I don't think the government can try to help what is good "for the species," as Johnathan puts it with a eugenics spin, but you might claim that society will have to pay more for the medical treatment or schooling of these children. You could argue you are protecting the children themselves, but that would mean you believe that the potential child is better off not being alive.

But imagine all the objectionable laws that could be passed under such reasoning: felons cannot have children because the children are more likely to grow up with a parent in jail, forcing the state to care for the child, and the children are more likely become criminals themselves; no person who is blind, deaf, has Huntington's disease, etc. may have children (or a less harsh measure, they cannot have sex with others who are blind, deaf, etc., respectively); all people must have genetic screening to determine their risk and those that may pass on tay sacs or sickle cell anemia may not have sex. "...no one questioned the right of people with genetic disorders to have children, even though some have far higher levels of risk than first cousins." The same can be true for siblings.

And what about an adult relationship between a brother and sister where one is sterile? What interest does government have in this relationship other than, "it's just wrong and icky, ooh its icky!"?

Proponents of an incest ban would argue in court that while the rational does not apply to consenting adults where one is sterile, for purposes of ease of administration, all incest should be included: it could be impossible to tell is someone is sterile or when the relationship is not the product of past manipulation or abuse. Second, one could argue that because incest is so harmful to victims, whether through an abusive father/daughter or brother/sister relationship, the government must ban all similar behavior as a means of reinforcing the social taboo. I have some trouble with this reasoning, however, because it relies on the purpose of the law to be a message of stigmatizing behavior, including behavior there is no rational reason to stigmatize (other than to stigmatize similar conduct). Third, you could say the government has an interest in the family structure. Marriage regulate the relationships between husband and wife, and laws give special rights and duties to parents and children with respect to each other. I think these reasons would be sufficient to pass rational basis review.

However, a rational relationship between the ban and harm may not be enough to support an incest ban. The right to an abortion and the right to contraception were each based on a fundamental right to privacy or liberty. In Lawrence the court focused on a right to private sexual conduct, but was not explicit as to whether this right is fundamental. In order for the government to regulate a fundamental right, the government law must be narrowly tailored to meet a compelling interest. A law banning incest might not be narrowly tailored if it does not exclude consenting sterile adults. The Court in Lawrence specifically noted that the Texas statute was being applied to consenting adults, not minors or "persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused." And the risk of increased genetic disorders might not be a compelling interest, given that the government clearly allows many people that will probably pass along disorders to have sexual intercourse. There is a problem with a complete ban on incest because is is both over-inclusive -- there are some relationships that will not produce children or abuse -- and under-inclusion -- the government does not ban many people who are more likely to have diseased children).

Under the right circumstances, I think a good case could be made for the unconstitutionality of enforcing an incest law, but I think the court would probably reject the claim because of an association between incest and abuse within family relationships, and (though not admitting it in the decision) fear of the political consequences.

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