May 03, 2007
The Supreme Court's slippery slope
I had a discussion with a colleague back in 2003, when the Supreme Court issued its ruling in Lawrence v. Texas, striking down as unconstitutional laws that had criminalized homosexuality between consenting adults.
What troubled me about the decision wasn't the elimination of Texas' ban on gay sex, but the underlying premise that anything between consenting adults -- anything -- was okay, and therefore anything that interfered with the if-it-feels-good-do-it ethos was unconstitutional.
The Court essentially eliminated morality-based, societal-normative rationales for setting public policy, which inevitably led to slippery-slope arguments.
Analogizing from the Lawrence decision, I argued that same-sex marriage inevitably followed, and following the same logic, polygamy and incest couldn't be denied.
My colleague scoffed, saying that I was clearly engaged in wild-eyed rhetorical excess. All the government needed to do was articulate a compelling state interest, and the Court would uphold a ban on such conduct, even when between consenting adults.
Take incest, he said. Because the state has a clear, uncontroverted need to prevent the birth defects and mutations that arise from incest, the marriage of parent to child could be banned without violating the U.S. Constitution.
"Well," I said, "what if we have a father and daughter who have themselves sterilized -- rendered incapable of having children and polluting the gene pool -- eliminating the compelling state interest needed to restrict a 'fundamental privacy right,' because it's not kids they want. Maybe they just like hot, sweaty father-daughter monkey sex."
Yeah, I know.
Gross.
Which was his reaction, too.
But the rationale of the Supreme Court in favor Lawrence is broad enough to easily be adapted to darn near any human mania -- including those who practice animal husbandry with unseemly fervor.
Let's flash forward four years, to Boston Globe columnist Jeff Jacoby's article.
When the justices, voting 6-3, did in fact declare it unconstitutional for any state to punish consensual gay sex, the dissenters echoed [the slippery slope argument]. "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . called into question by today's decision," Justice Antonin Scalia wrote for the minority. Now, Time magazine acknowledges: "It turns out the critics were right."
Time's attention, like the BBC's, has been caught by the legal battles underway to decriminalize incest between consenting adults. An article last month by Time reporter Michael Lindenberger titled "Should Incest Be Legal?" highlights the case of Paul Lowe, an Ohio man convicted of incest for having sex with his 22-year-old stepdaughter. Lowe has appealed his conviction to the Supreme Court, making Lawrence the basis of his argument.
In Lawrence, the court had ruled that people "are entitled to respect for their private lives" and that under the 14th Amendment, "the state cannot demean their existence or control their destiny by making their private sexual conduct a crime." If that was true for the adult homosexual behavior in Lawrence, why not for the adult incestuous behavior in the Ohio case?
The BBC program focused on the case of Patrick and Susan Stubing, a German brother and sister who live as a couple and have had four children together. Incest is a criminal offense in Germany, and Patrick has already spent more than two years in prison for having sex with his sister. The two of them are asking Germany's highest court to abolish the law that makes incest illegal.
" We've done nothing wrong," Patrick told the BBC. "We are like normal lovers. We want to have a family." They dismiss the conventional argument that incest should be banned because the children of close relatives have a higher risk of genetic defects. After all, they point out, other couples with known genetic risks aren't punished for having sex. In any event, Patrick has had himself sterilized so that he cannot father any more children.
Some years back, I'd written about a similar case in Wisconsin -- that of Allen and Patricia Muth, a brother and sister who fell in love as adults, had several children together, and were prosecuted, convicted, and imprisoned as a result. Following the Supreme Court's decision in Lawrence, they appealed their conviction and lost in the Seventh Circuit Court of Appeals. Lowe will probably lose too.
[...]
In Germany, the Green Party is openly supporting the Stubings in their bid to decriminalize incest. According to the BBC, incest is no longer a criminal offense in Belgium, Holland, and France. Sweden already permits half-siblings to marry.
Your reaction to the prospect of lawful incest may be "Ugh, gross." But personal repugnance is no replacement for moral standards. For more than 3,000 years, a code of conduct stretching back to Sinai has kept incest unconditionally beyond the pale. If sexual morality is jettisoned as a legitimate basis for legislation, personal opinion and cultural fashion are all that will remain. "Should Incest Be Legal?" Time asks. Expect more and more people to answer yes.
Shush! Listen carefully; is that Nero fiddling?
Posted by Mike Lief at May 3, 2007 11:23 PM
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Comments
And _Lawrence_ and a GERMAN case are related just how? That's as bad as Kennedy, J. and his "foreign law" stuff.
Posted by: andrewdb at May 4, 2007 09:28 AM
Well, that's the point, isn't it? Urbane legal sophisticates -- like Justices Kennedy and Ginsberg -- point to our more enlightened European cousins when discussing evolving judicial standards.
Given that many Americans who think of themselves as broad-minded, more-sophisticated-than-thou types seem to gravitate to the BBC and NPR for their information, these kind of stories serve to mainstream behaviors that until fairly recently were universally condemned as repugnant.
And, to be clear, I'm not comparing homosexuality to incest, implying some commonality between the two. My criticism is simply that once we eliminate morals or community standards as a valid element in the drafting of laws, then darn near anything goes.
Posted by: Mike Lief at May 4, 2007 09:53 AM
Two points -
1. Kennedy, J. is wrong - much as I dislike admitting it, Scalia, J. is right on this one - how come no one ever suggests using _sharia_ law (it's also foreign law!) as a guide?
2. I don't want politicians to set morals - that's what rabbi's, priests, etc. are for. Get government out of that business. I gusss I am a libertarian (big shock that).
Posted by: andrewdb at May 4, 2007 01:34 PM