It is time to throw some cold water, and a stiff dose of common sense, on the infernal racket running around the internet concerning a constitutional right to marry your youngest sister, or oldest brother, or to commit any other form of incest. I expect that 99.9% of Americans over the age of puberty would immediately recognize what a ridiculous idea that is. Well, the highly educated brains at the National Review suggest that such a right may exist. What will those fuzzy-brained intellectuals come up with next? Convicted felon Charles Colson, who morphed into a born-again disciple of Jesus Christ, then morphed into his old manipulative political self, but kept the Gospel as a fig leaf, sees some merit in the argument also.
What brings on this orgy of twisted philosophizing? It was set off by an obscure case from Wisconsin called Muth v. Frank. Look it up, the summary of facts by the Seventh Circuit federal appeals court will ruin your lunch. The plaintiff did indeed have a very sad childhood. Incidentally, the federal appeals judges who heard the case unanimously upheld the Wisconsin state law making incest a Class F felony.
But, the National Review's sharp legal minds observed, "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." (There isn't? Well... they haven't found one...) In an article entitled Could the Supreme Court embrace incest?, Matthew J. Frank assures us that the high court will simply have to do just that to remain faithful to its own precedents.
The article offers a long-winded analysis, twisting the legal standards "strict scrutiny" and "rational basis," into a Gordian knot nobody could untie. But it can easily be cut. Frank simply demonstrates that going round the mulberry bush of legal rhetoric can lead to some really useless conclusions. A simple look at the plain truth, a due regard for facts, even a teeny weeny drop of common sense, puts all this rhetorical nonsense to rest. The late Supreme Court Justice William O. Douglas remarked that "Common sense often makes good law." Amen to that Justice Douglas. Where are you when we really need you?
Of course the foundation of sand for this red hot rhetoric is the Supreme Court's ruling in Lawrence v. Texas. In that case, the Supreme Court held that states may not impose criminal penalties on homosexual acts between consenting adults in the privacy of their own homes. A majority of states no longer had such laws anyway a Republican governor of Arizona signed the repeal of that state's penalties, commenting that "government does not belong in our private lives."
The fundamental constitutional right is the right to privacy, the right to be left alone by the government. It is not and never has been an enumerated right to commit any and all deviant sexual acts, no matter who they may harm. We all learned in elementary school the age-old principal, "A man's home is his castle." That castle can be breached if a homeowner (or tenant) is using their residence to commit rape, murder or torture, or to warehouse illegal drugs for sale, or explosives that may level the entire neighborhood. No citizen may use their own right to privacy as a cover to harm their neighbors, or even their own children.
Prohibitions against incest are not merely a rejection by society of private behavior that the majority finds personally disgusting. (Incidentally, the Supreme Court did NOT restrict the right of any person to call homosexual acts either disgusting or sinful. It just said the police can't barge into private homes to arrest people for it.) Incest has an impact on the children which result from the union. Laws against incest also reflect the fact that brothers and sisters have generally been raised in an intimate family setting, which was explicitly NOT a sexual relationship (except between mom and dad). Incest is not limited to siblings: sex with closely related sometime custodial adults is also prohibited for the same excellent reasons.
Colson, mercifully, is not so cerebral as the pundits at William F. Buckeley, Jr.'s family magazine. He arrives by a plain and simple path at the same wrong-headed conclusion. ( Taking the Plunge: A Case of Incest). If people are “free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause of the 14th Amendment to the Constitution” then of course it goes without saying that every choice a person makes is an exercise of their liberty! "Substitute 'incestuous' for 'homosexual' in Kennedy’s opinion and its meaning remains exactly the same," according to Colson.
Hmmm... so if I say "I love my wife" and you substitute into the same sentence "I love my racing car," we have both expressed the same sentiment? If I fill out a withdrawal slip, and hand it to the teller at a bank, that is the same thing as writing "I have a gun, give me all your cash" and handing it to the same teller? I have a right to hand a teller one piece of paper, obviously I have the right to hand a teller any piece of paper bearing any message I choose to write on it! We must expect Supreme Court justices to have better sense than that, even the ones we sometimes disagree with. (There is no justice I always agree with, and no justice I never agree with either. They are falliable human beings, like all of us. Fortunately, nine heads really are better than one.)
It is true that SOME human societies have not only approved of incest, but required it for certain elites who could find no mate worthy of them outside their own family. The pharaohs of Egypt come to mind. (One must be grateful that the self-proclaimed elite snobs at National Review have not rated their own family pedigrees quite so highly as that). But many cultures, including those based on Jewish tradition, recognized that incest produced seriously deformed children, or in the long run a seriously deformed people. We knew that long before genes were mapped or the structure of DNA unraveled.
Any informed citizen could see at least two plain and obvious reasons there is a "rational basis," not to mention a "compelling state interest," in prohibiting incest. As the 7th circuit's judge Evans wrote, in a concurring opinion, "Muth can only prevail (1) if he can rely on Lawrence v. Texas and (2) if Lawrence v. Texas can be read to decriminalize incest. He can’t satisfy either “if,” but even if he could slip past the first one, he could never get by the second." Now, would anyone care to maintain that the Supreme Court has obligated itself to find a constitutional right to commit incest?
Well, National Review after all is the magazine that wrote "the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally... because for the time being it is the advanced race." If the magazine existed at the time of the American Revolution, the entire staff would have enlisted in Lord Buckley's Loyal Rangers and marched off to fight for King George. National Review has never met a constitutional right it fully approved of.
From that viewpoint, legalization of incest would be a small price to pay, if it stampeded the rest of us in sheer revulsion to abandon all our real constitutional rights. Maybe we would even throw away the right to keep and bear arms, along with free speech and freedom of religion. Few Americans would really want to see the constitutional right to privacy thrown out wholesale. We all expect that there is a zone of our lives the government may not intrude upon. We only argue over its boundaries.
Private consensual adult homosexual conduct harms nobody but those who engage in it. Incest harms entire families, up and down the family tree. It generally involves at least one partner to the incest taking unfair advantage of the other, based on prior family roles and association. No federal court has found a constitutional right to commit incest, for the very good reason that there is none. Beware of poisonous spiders weaving rhetorical webs, to protect us from dangers dredged up out of their own perverted imagination.