After the Supreme Court declared Texas' anti-sodomy law unconstitutional in Lawrence v. Texas, there was substantial speculation about the implications of the decision for other laws targeting consensual sexual activity among adults. If state prohibition on consensual homosexual activity was unconstitutional, some reasoned, then it might be difficult to maintain state prohibitions on incest, at least among consenting adults. Not so, ruled the Ohio Supreme Court earlier this week.
In State v. Lowe, the Ohio Supreme Court considered the constitutionality of the state's prohibition on incest as applied to consensual sexual relations between a step-father and his adult step-daughter. After first concluding that the statute, by its terms, applied to adults as well as children, a six-justice majority rejected the defendant's constitutional challenge, concluding that the statutory prohibition passed muster under the rational basis test because the state has a legitimate interest in prohibiting sexual relations between relatives, even those related by law rather than blood.
Lowe cites Lawrence v. Texas to argue that he has a constitutionally protected liberty interest to engage in private, consensual, adult sexual conduct with his stepdaughter when that activity does not involve minors or persons who may be easily injured or coerced. In Lawrence, a Texas statute criminalizing homosexual conduct was held to be unconstitutional as applied to adult males who had engaged in private and consensual acts of sodomy. Lowe contends that Lawrence named a new fundamental right to engage in consensual sex in the privacy of one’s home.Justice Pfeifer was the lone dissenter. He argued that the true purpose of the statute was to protect children, not prohibit consensual sexual activity between adults who lack any blood relationship. He also speculated that the only interest this application actually serves is providing the state with a "shortcut to conviction," because the statute provides "a strict-liability, slam-dunk sex offense that does not allow the defendant to present any evidence regarding the consent of the victim." "This sort of use of the statute demeans its true purpose," Pfeifer wrote.However, the statute in Lawrence was subjected to a rational-basis rather than a strict-scrutiny test, with the court concluding that the Texas statute furthered no legitimate state interest that could justify intrusion into an individual’s personal and private life. In using a rational-basis test to strike down the Texas statute, the court declined to announce a new fundamental right arising from the case.
In addition to emphasizing that the court in using a rational-basis test did not name a new fundamental right, the state in this case distinguishes Lawrence as being limited to consensual sexual conduct between unrelated adults. Lowe and his stepdaughter were not unrelated. The state argues that since Lowe has no fundamental right in this case, and the state has a legitimate interest in prohibiting incestuous relations and in protecting the family unit and family relationships, the rational-basis test should apply. . . .
We agree with the state that a rational-basis test should be used to analyze the statute. Lawrence did not announce a “fundamental” right to all consensual adult sexual activity, let alone consensual sex with one’s adult children or stepchildren. Because Lowe’s claimed liberty interest in sexual activity with his stepdaughter is not a fundamental right, the statute affecting it need only have a reasonable relationship to some legitimate governmental interest. . . .
. . . as applied in this case, [the statute] bears a rational relationship to the legitimate state interest in protecting the family, because it reasonably advances its goal of protection of the family unit from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren. If Lowe divorced his wife and no longer was a stepparent to his wife’s daughter, the stepparent-stepchild relationship would be dissolved. The statute would no longer apply in that case.
Key to the majority's ruling was its conclusion that Lawrence failed to announce a fundamental right or apply heightened scrutiny, making it easier to sustain other state laws governing consensual sexual activity. This interpretation makes Lawrence a less significant decision as it limits the "threat" Lawrence poses to other state efforts to regulate morality and makes Lawrence a much less effective weapon against the criminalization of victimless crimes.
Related Posts (on one page):
- Bashman on the Limits of Lawrence
- Why Might It Make Sense To Bar Stepparent-Adult-Stepchild Incest?
- The Limits of Lawrence -- Consensual Adult Incest:
And Lowe made a good argument.
This is very true. It is a very weird justification, this protecting the nuclear family justification. How far can it go? Can you have sex with your brother-in-law? Or sister-in-law? Apparently not. But such a person is not within your immediate family unit (because it is the spouse of your sibling) and such a person is not in an elevated status to you (parent by law to child by law). Furthermore, the "get a divorce and then you can do it" retort does not work, because you cannot make your sibling-in-law get a divorce and it does not promote sanguine relations within your immediate family unit to encourage your blood sibling to get a divorce so you can boff their ex-spouse. Lastly, it makes no sense that the government can limit what sex can be had within the family if adultery is legal (i.e., fornication is not illegal). If you can step outside of the marriage to have sex without having to get a divorce, there is no reason why you should have to get a divorce just to have sex within the family, because some family members are outside of the marriage. The Ohio Supreme Court is saying here that you can penalize one subset of adulterers without penalizing another. That is an Equal Protection claim.* I would appeal this bull.
* "Should we allow the state to sterilize the chicken thief but not the embezzler [of chickens]?"
Or, are we to take that the Court in Lawrence, despite not designating a fundamental right, intended to create some intermediate level of liberty interest not quite subject to strict scrutiny but requring something more than a rational basis analysis? Seems like this court's decision is correct by precedent, at least under the Fourteenth Amendment liberty interest as described by Lawrence.
Even if the law was overbroad, wouldn't the court at most have to limit its application to 'parent or stepparent sexual relations with children or stepchildren' rather than strike the law entirely - which would be a moot decision in this case?
However, it bears repeating: The state has an interest in preventing people from being coerced based on unequal power. If the state can prevent adults in a lawyer-client relationship from having sex, then it can prevent adults in a parent-child relationship from having sex, regardless of consanguinity.
Though, given that we're talking about incest here, I suspect Classmate-Wearing-Yarmulka's "Ick Factor Test" (which I'm going to have to remember) also comes into play.
K
Oh, and one more thing: did anyone ask the wife if she was cool with it? If the state's trying to prevent the breakup of the family unit.. well, no harm no foul.
As far as this particular decision it seems to run into the same problems that all applications of the rational basis test do, namely the ambiguity over what must have a rational basis. If the question is whether there is a rational basis for having the law as opposed to having no law than far too much can be justified. One could easily justify a law forbidding consensual sex between men so long as it also did something else useful. Yet if the question is merely whether there is a rational basis for enacting the law in this particular fashion it rejects too much. There is ALWAYS some list of exceptions that could be written into the law without noticeable harm. I mean surely one does not want a situation where the justices are deciding whether there was a rational basis for not excepting Joe Blow from a particular law.
By choosing what question to ask the justices have so much control over what result to get I tend to think of the rational basis test as little more than an invitation for the judge to apply their own policy judgments and a stand in for the collection of past examples that suggest how it should be applied. This is in contrast to other test where the statement of the test itself gives the layman fair insight into what it means.
http://caselaw.lp.findlaw.com/data2/circs/7th/033984p.pdf
I think my Burkean side is showing, but I have never had much problem with the "Ick Test." Law should both reflect and defend a society's values. The prohibition against incest being one of those.
Icky!
I wonder if the court would have reached the same decision regarding sublings-in-law. There are really two kinds of siblings-in-law: one type where one is the other's spouse's sibling (and reciprocally, the other is the first's sibling's spouse); the second type is where each is married to one of two siblings. The first type are within two degrees of separation, the second type three. However, the respective siblings of two spouses are not siblings-in-law (that is, my sister and my wife's brother are not siblings-in-law). THis rather arbitrary definition of who is a sibling-in-law makes this whole classification suspect, I would think, under a rational basis test for the purposes of the application of an incest law.
"A German brother and sister who live together and have had four children have filed an urgent suit with Germany’s constitutional court demanding the “right” to incest and have retained retired University of Dresden CrimProf Knut Amelung as their legal counsel."
[...]
"CrimProf Knut Amelung will argue that a ban on sex between siblings breaches their civil rights and is a “relic of the past.”"
Folks, a democracy can only function, if it is based on the premise that people are free to make decisions, some of which will be bad.
It is, I submit, not productive to choose the highly charged topics of sex and incest to come to conclusions regarding distribution of power in a society and the degree of protection government should afford.
Not to mention that the power distribution bit reminds me of the old communist "Everybody should be equal" slogan.
There is a case going to the German constitutional court challenging the legality of criminalising incest. The argument is that forbidding sex between relatives violates basic rights.
http://www.spiegel.de/panorama/justiz/0,1518,467295,00.html
Kudos if anybody gets this analogy.
To put it another way: When society bans incest, it is simply telling people who might be tempted to incest to pick someone else (who is unrelated to them) to have sex with; it is not denying who they are as human beings, or cutting off the only form of meaningful sexual expression that their wiring (whether biological or so deeply psychological as to be the equivalent of psychological) allows to them. The same thing is true for polygamy, sex toys, etc.
Now, of course, it could be argued that there are people for whom incest, or polygamy, is similarly a "deep," "wired," part of their identity. But I doubt that.
(There are also, of course, other forms of sexual attraction, such as pedophilia, that, even if "deep" and "wired," are quite properly forbidden because of their demonstrable harm to victims who are incapable of genuine consent.)
I believe you are talking about Yibbum, but that deals with the situation where a man dies childless, not that he's infertile.
I'm as pro-family as the next guy, but these people are adults. A family is a social unit for raising and civilizing children. When everyone is grown up, what is the compelling state interest? Making sure everyone gets together for holidays?
What is particularly amusing is that all the guy has to do is divorce his wife, and everything is hunky-dory. So... he just has to get divorced, and then his sex life is OK for "the family"? But, then they're not a family anymore, and how is that good for the family? I'm so confused....
This is just more inconsistent, incoherent rule-by-judge. No underlying principle, no way to predict the future behavior of the courts... just a hodge-podge of arbitrary decisions.
I never enjoyed family reunions because any interesting girl I met there would be a relative, and therefore unavailable.
Woody Allen was not married to Mia Farrow, nor did he adopt her children. Yes, there is a certain unseemliness to the affair, going after your girlfriend's adult (adopted) daughter, but no incest.
That's a reference to Levirate Marriage, idnit? (I'm married to a Hebrew philologist, and she's written on this.)
Re: The German Verfassungsgericht-- They will look at what Kant wrote, the law in Borneo, and the Lyrics to "99 Luftbalon" by Nina in order to decide. It's an insane way of deciding what the Basic Law says.
When I was clerking for Justice Brennan, my co-clerks and I once took then-Justice Rehnquist out to lunch. We ended up discussing the hypo of whether it might be unconstitutionally "irrational" to apply incest laws to biologically unrelated, adult, step-siblings who had not been raised together. He actually said that this application of the law might cross the constitutional line. (I'm actually not sure I agree).
Similarly, consider this little dilemma: Imagine two unrelated adults meeting, falling in love, and getting engaged. Their parents happen both to be divorced (or widowed, or single). When the parents meet, they, too, fall into love with each other, and get engaged. Now, as I understand some state laws, if the kids get married first, there is no obstacle to their parents subsequently marrying each other. But if the parents get married first, the adult kids are now barred from marrying. This does seem odd. I still think it's constitutional. But it is odd.
Or am I misunderstanding incest law?
And as this decision demonstrates, the power to "slip" is entirely in the hands of the judges themselves, as any particular case's holding can be read as broadly or narrowly as the court desires. Therefore, the notion that because of Lawrence, we must therefore recognize a right to incest is false.
In terms of the practical effects of incest, it has the potential to do far more harm to the family than homosexuality. There is very little choice involved in whether one is a "homosexual" and any damage done to family "the family" results almost entirely from other family members' mistreatment of homosexuals in their family.
Incest on the other hand, unlike homosexuality, is invariably connected with abuse of minor children. And even if the relations are entirely consensual or non-abusive, incest has the potential to release an element of sexual jealously -- again, entirely absent from homosexual relations -- that can seriously harm the family. For instance, a mother should not have to compete with her nubile teenage daughter for the sexual affections of her husband. If the lesson of Woody Allen's example should have taught us anything, it is that.
There is no way a bunch of lawyers can rationally uphold incest laws because of "family issues" and still strike down sodomy laws. They are not family experts, and I doubt there's conclusive evidence about the effects on "family" of either. Or which type of "family" the state has the right to protect.
They absolutely rise and fall together. The Court, after weighing its views of the policy implications of one vs. the other, just likes one and doesn't like the other. They don't like the rationale of sodomy laws, but that's different from saying that they don't have one (and that somehow incest laws do).
I question whether a divorce would have helped this guy.
The Ohio Supreme Court answered that pretty clearly in the opinion at paragraph 26. "If Lowe divorced his wife and no longer was a stepparent to his wife’s daughter, the stepparent-stepchild relationship would be dissolved. The statute would no longer apply in that case."
There is a different aspect of the court's decision which I find interesting. Other commenters have noted that there is a possibility of a coercive element in any stepfather-stepdaughter relationship, regardless of the respective ages of the parties. States have successfully regulated coercive relationships to prevent doctors, teachers, etc. from taking advantage of their clients. Protecting those who are at a disadvantage because of the nature of the relationship from a person with the opportunity to take advantage of his or her power may, therefore, may be a legitimate state interest.
However, this was not the "legitimate state interest" that the court used to validate the statute. Instead, the court found that "protecting the family unit and family relationships" is a legitimate state interest. This is potentially a much broader interest. For example, there does not appear to be any reason to think that anti-adultery laws would not be covered by a similar interest. I'm sure I and others could imagine other ways that the the government coudl use such an "legitimate interest" to gain access into people's bedrooms.
Thus, the part of this decision that I find most troubling is not the outcome, but the rationale used to reach that outcome. I will be curious to see if defense counsel will try to appeal this issue and whether the USSC will find it cert. worthy.
http://www.ndaa.org/pdf/ncpca_statute_incest_06.pdf
Note that your Sister-in-Law is usually fair game so go to town.
Why? Why is that an issue? Sexual competition exists in other social settings, why is this vestige of the past, the "family," so sacrosanct?
If that is indeed the proper definition of the state's legitimate interest, then I can't see how it makes sense to say it covers an affair between two people who are not blood relatives, regardless of their legal relationship.
I would hope it goes without saying that none of this is any kind of moral defense of the "woody allen example", which is off-the-charts icky, but is there a dimension to incest law that I'm missing? I've never heard it explained in any terms other than prevention of inbreeding...
The incest taboo, though, is not only legal; it is also cultural and psychological. The relevant question, it seems to me, is whether the law can properly seek to reinforce the cultural and psychological incest taboo, even by drawing lines that seem to go beyond what might arguably be the functional "purpose" of the taboo, whatever that functional purpose is. In other words, is some legal "overbreadth" tolerable as a way of maintaining the cultural and psychological force of the core prohibition.
I would say that, absent some special reason to be constitutionally vigilant, the answer should be yes.
judges see a slippery slope doesn't mean they have to ski it all the way to the bottom.
Stacy) One might argue adopted siblings should be allowed to marry, I suppose. But a parent and child? There's no way that is an equal relationship.
By that reasoning we could ban interracial marriages, since most people are not attracted *only* to people of other races. In fact, we could make homosexual activity illegal for people whose orientation is bisexual, for the same reason: you're not eliminating the complete pool of people whom the bisexual is attracted to. (Of course, it would be hard to keep bisexuals from lying and claiming to be homosexual, but ease of enforcement is a different issue.)
According to the original post, the stepdaughter was an adult. Granted, that could mean she's as young as 18, or as old as, say, 35. I think it's fair to say that our estimate of the equality of the relationship would be different in the one case than in the other.
Anyway, I was mainly concerned with why the state has a legitimate policy interest in banning "incest" between (nominally) consenting adults whose relationship is legal not biological. On that score I'll take Perry Dane's explanation of how lawyers see it, although I am not sure I personally buy the logic. The point is that the courts do buy it, which is what I was asking.
-- Except that there are other excellent reasons to strike down bans on interracial marriages, in particular that they constitute a form of racial discrimination and subordination.
I do think that this conversation has highlighted a real difference between a certain type of liberal and a certain type of libertarian. I believe that the constitution does, and the courts should, aggressively protect certain core principles, such as equal human dignity, racial non-subordination, freedom of religion, whatever. But I don't believe that every law that the courts should strike down every law that doesn't comport to some mechanical standard of instrumental rationality. And I also believe that, unless it violates some core principle such as equal human dignity, society does have the right to take the "ick factor" into account in writing its laws. So I think that
Lawrence is correctly decided, but so is Lowe.
You choose consistently loaded words. Sacrosanct refers to spiritual consecration; vestige implies current uselessness. You make strong claims, and should provide strong support.
In the absence of legal support, it's not the judge's job to determine which institutions are 'vestiges of the past' and which are vestiges of the future (or appendages of the present, or whatever). The family exists in law; the judge must apply that law.
I'm not making any claims about this decision. I just think your comment should be either elucidated or abandoned.
Easy distinction. Incest laws protect a child from being coerced into a relationship with the child's parent. Sodomy laws have nothing to do with that. Incest laws don't stop at age 18 because turning 18 doesn't magically shed the baggage of one's upbringing.
Now I think I see why I'm hesitating at this principle. That's a highly subjective standard, or at least highly dependent upon the definition of "core principals" (constitutional rights?) Also, where you say "mechanical standard" I would say "reasonable nexus" relating the law to the policy goal. If our hypothetical state wants to ban all sexual contact between biological and/or legal relatives, that may be fine but I think the text of the law would need to either
1) Explicitly include both types of relatives, or
2) Invoke some definition of the government's rationale for banning incest that covers the 'ick factor' in addition to the public health basis.
Again, IANAL so if I'm missing something else that plays into this, by all means correct me.
Presuming there was no adoption, would the stepparent-stepchild relationship also be dissolved upon the death of the spouse?
I think there is clearly a difference between a vanilla extra-marital affair, and sex with your step-daughter. It's actually a bit disturbing that some don't see that. One is merely abandoning the marital relationship. The other is continuing in the relationship while battering it beyond repair. You're allowed to fall in love with your step-daughter. You just can't proceed to boffing her while you are still married to her mom.
I'm interested in the rationalization of the posters who are sure that incest between "consenting" adults is OK, even when the adults are in unequal positions. We let parents decide what is best for their children every day. Even when those decisions are objectively not the right thing, in most cases we uphold the parent's right to make the choice. If step-father, step-daughter sex is OK, why does it matter that the step-daughter is of age? Why not allow the mother to consent on her behalf? What's the purely legal and logical argument against that?
But if the step-daughter was already an adult (and I mean a real adult, not an 18-year-old) when the marriage happened, the ick factor is less compelling, particularly if the step-father married an older woman to start with, so that the step-daughter was somewhat close to the step-father's age.
Another one of those moralists out to impose his narrow point of view on others! Where's your rational basis for this claim? All I see is someone trying to impose Judeo-Christian morality on a poor, victimized minority! (And yes, this is sarcasm.)
Odd. Most families that I have known with homosexual children are profoundly supportive of it.
It wasn't in this case. So why didn't the judges strike down the law and tell the legislature to rewrite it to apply only to children? Because they just know that incest is morally wrong--and are prepared to keep it criminal--unlike the Lawrence case.
This reads just like the arguments that homosexuality "has the potential" to lead to molesting little boys or rape or the spread of AIDS.
If it is wrong to have our laws reflect the dominant moral code, rather than requiring a "rational basis," then all sorts of laws have to go away: bestiality; incest (at least involving adults); polygamy; marrying animals. But to argue for laws based on "ick factor" shows that Lawrence wasn't based on any rational theory of what the law should be, but just "we want this."
How about the guy who marries a woman, but gets the hots for her 35-y/o daughter. The law prohibits a sexual relationship under incest laws. But this is not an issue of a minor child being abused.
The issue of 'inbreeding' may or not matter. Birth control's been around for a while, after all. And first cousin marriages, while nominally prohibited by law, happen with a certain regularity in the US. There are state mechanisms to approve such marriages and various churches also have waiver mechanisms.
The state may declare and the courts affirm that there is a general interest in preventing incest that may not apply to all specific cases, but they should publicly recognize that they are encumbering the behavior of consenting adults to further that interest.
A number of states allow first cousin marriage--in fact, a majority. I'm not sure that this is wise (as some of the Colorado City inbreeding examples demonstrate), but that's a matter for the state legislatures to decide, not the courts.
So are you acknowledging that Lawrence decision should lead to a striking down of this overly broad incest law?
I don't think any court should strike down incest laws, but that just shows how intellectually bankrupt Lawrence was. It set up the slippery slope that the courts will have to resist skiing down.
I don't know if that "compromise" on the slope is good or bad, or whether based on the number of cases of sodomy vs. incest, or their effects, or the percentage chance of it wrecking a marriage or family or of involving coercion makes a difference. All I know is that the Court has never made a habit of cutting such policy-minded compromises over issues that aren't enumerated in the Constitution, and they shouldn't have done it in Lawrence.
I think the generic "protecting the family unit" when all members of the unit are adults is a pretty unpersuasive rationale, except to the extent that its actually geared to protecting children of the family unit while they are children.
Incest doesn't need to be biological parent/child. It can be biological siblings, non-biological siblings, non-biological parents or biological or non-biological grandparent/grandchild. E.g., the case at hand, also the German case noted above as well.
Too, incest laws that pertain to siblings often (typically?, always?) don't begin until some other minimal age.
"... Sacrosanct refers to spiritual consecration; vestige implies current uselessness. You make strong claims, and should provide strong support.
"In the absence of legal support, it's not the judge's job to determine which institutions are 'vestiges of the past' and which are vestiges of the future (or appendages of the present, or whatever). The family exists in law; the judge must apply that law." W.T.
Sacrosanct - common usage and formal definition - doesn't need to refer to "spiritual" consecration, it can and often does refer to something that is treated as if it is beyond discussion, dispute, critique, violation, etc.
What was being addressed was not the law in its present state, rather, what was being addressed was the moral/ethical justification which undergirds the law in its present and historical role; it was rhetorical and moral, not directly legal per se. Every law is a reflection of society's moral/ethical concerns, i.e. that portion or subset of society's moral/ethical concerns which society additionally believes to be worthy of legislative/legal attention and redress.
For example, should the law be able to punish someone who ran a red light when (1) visibility was ideal, (2) the offending driver first made a full stop and looked in all directions, and (3) there were no other cars anywhere in sight? The answer is of course, if for no other reason than that persons should not get in the habit of running red lights, regardless of the circumstances, and society has a legitimate interest in trying to get drivers to internalize the norm against running red lights.
The law, it seems to me, can legitimately conclude that, once the incest taboo is weakened, it will erode across the board. That, even without additional arguments, justifies enforcing the taboo even in cases to which the rationales for the taboo (and those rationales are themselves multiple, varied, and complicated) might (emphasize on "might") not strictly apply.
My argument does not apply, as I said, when there's some other principle involved. But what's the other principle here?
Private employment discrimination based on race is again a consenting adults in private action, but it has consequences that affect the entire society.
Male to male anal sex accelerates the spread of AIDS in a way that male to female anal sex does not.
A consistent application of the individualist Lawrence theory that laws must have a rational basis will strike down all sorts of laws, making our society a considerably uglier and less pleasant place to live. Refusing to apply it consistently allows the "ick factor" to determine which laws are Constitutional and which are not. If judges are going to use the "ick factor" to decide which laws are Constitutional and which are not (which is clearly the situation in this case), why aren't state legislatures allowed to do so as well?
It therefore seems to me if it might be best for you to rename yourself. I'm not positive this is necessary, since I expect that misunderstandings about this will be rare indeed. But it still seems to me worthwhile to avoid these misunderstandings. (I would have taken a different view as to, say, parodies, where there's a lot -- whether insight or entertainment -- gained from a literally false description, so that the risk of a few people being misled is relatively small in comparison. But here it seems to me little profit from the name, other than, I take it, something of an homage to Justice Stevens.)
These incest laws also prevent relationships between adult children whom have never known their biological parent's new spouse; between siblings biological/step/adopted; and between siblings-in-law.
I'm not a lawyer, but isn't it pretty standard that when the legal basis for a law that does not provide for situations where the basis does not apply usually get struck down (for example, anti-abortion laws that don't provide exceptions for rape/maternal health)?
More than fundamentalist Islam Sects, more than poverty, many feel that the real problem with the middle east is tribalism – and that tribalism is not consistent with a civil society.
Europe descended completely into tribalism for a long time. These were not small matters, limited to a few picturesque families in Florence. Cansider most of the Capetian history in France. Consider the hundreds of years of war between the Guelphs and Ghibellines, which spanned so far that the name Fitzgerald identities ones families as allies of the Ghibellines, not as an interesting Swords and Dirt Hollywood extravaganza, but as tribalism, or perhaps think of one as the House of Saud, and the other as the Ticritis of Iraq.
One of the strongest markers for tribalism is inbreeding. The tendency in many countries throughout the Middle East for the daughter to be married off to an Uncle, or to a cousin, has been considered one of the greatest re-enforcers for tribalism, with an associated mistrust of society, of anyone outside ones neighborhood and mosque. It is unclear how any understanding of the genetics of kinships affects this.
Europe spent 400 years breaking tribalism by progressive expansion of rules against incest to encourage out-breeding, and membership in a greater society. This is no doubt the “remnant of an earlier age” cited by the German couples defender.
Believing that Society has no legitimate interest in this shows a profound ignorance of history. Convincing oneself that we are now all “new men” and freed from all constraints is merely foolish. Asserting that whatever the great Id wants is socio-pathologically narcissistic.
Bring on the Hatfields and McCoys. WooHoo!
I'm not a lawyer, but isn't it pretty standard that when the legal basis for a law that does not provide for situations where the basis does not apply usually get struck down (for example, anti-abortion laws that don't provide exceptions for rape/maternal health)?
Very generally speaking, a law must further a legitimate state interest in order to pass constitutional muster. In some cases, the law must be narrowly drafted in support of that interest. In others -- not so much.
In this case, the Ohio Supreme Court did not find that the law was in place because of the coerciveness of many incestuous relationships, the reason which some could argue may not apply in some situations covered by the statute. Indeed, this was the dissent's point of view -- that the statute focuses on coercion and that this is bad because not all situations covered by the law are coercive.
However, this was not the basis for the court's opinion. Instead, it found that the law was for "protecting the family unit and family relationships" - whatever this means. That concern, of course, does not go away merely because everyone is a consenting adult. But it also applies to many other things which the government could choose to regulate.
By the way, the girl in this case was 22. There is no indication in either the Ohio Supreme Court opinion or that of the underlying appellate court of her age when the mother and stepfather married.
The court ruled Wednesday against former Stark County Sheriff's Deputy Paul Lowe, 42, when his 22-year-old stepdaughter accused him of having sex with her in 2003 while she was passed out after a night of partying. He claimed the sex was consensual.
Lowe pleaded no contest to sexual battery in 2004. Lowe's attorney, J. Dean Carro, asked the Ohio Supreme Court to overturn the conviction, saying the incest law was ambiguous and inconsistent. He said consenting adults have a right to personal intimacy.
I recall that Texas recently passed a law against teachers having sex with students (even if they're over 18), and they actually brought a case against a 25 year old female teacher for having a relationship with an 18 year old male student (I don't remember if he was in her class at the time or not.) I think the case has been dropped because it struck too many people as unduly intrusive in the private lives of consenting adults. Many legal commentators said she should be fired, and even SUED, but not criminalized...
Yup. And male to female sex accelerates herpes, HPV, clamydia and many other STDs in a way that male to male anal sex does not.
Additionally , female to female sex doesn't accelerate anything, which is why lesbians have among the lowest rates of AIDS in the world.
Perhaps then, based on your argument, hetersexual sex should be more tightly regulated than homosexual sex, and lesbian sex should be the form that government should promote.
BTW, you would also have the backing of scripture, since there are over 300 admonisments regarding heterosexual sex vs. only a few regarding homosexual sex. So James Dobson &Co. would be all in favor!
And the Court didn't. In fact, if you read the Constitution, you will find the words' due process of law.' The Court held that gay people, ALL citizens in fact, have a right to due process of law. All gay people, ALL citizens in fact, have equal protection under the law. (EP, for your information, is also in the Constitution). The Court said you cannot deny someone DP or EP based solely upon animus towards that class. Therefore, you cannot subject gay people to any law that doesn't also apply to straight people, nor can you deny rights to gay people that you give to straight people, unless there is a valid state interest. Mere animus is not enough.
What part of that do you disagree with?
The problem wasn't the Court cutting out new policy: The problem was the Texas legislature cutting new policy, which was to discriminate against a group of people merely because they don't like them.
These incest laws also prevent relationships between adult children whom have never known their biological parent's new spouse; between siblings biological/step/adopted; and between siblings-in-law.
The problem is that if you try to carve out an exception for once the person turns 18, you'll get the situation of the perpetrator coercing the victim from 16 onwards (or even earlier) such that you'll really not going to have a valid consent at 18. If you try to carve out an exception for siblings who don't know each other, you'll get situations where they spoke a few times on the phone, or saw each other once at a large gathering without realizing they're related. It's really hard to carve out an exception without getting into really hard cases, so the choice is to go with a clear rule which applies in the vast majority of cases. It's pretty much another rules versus standards things. You could go the other way and allow such relationships on a demonstration of no harm, however one wants to define that. The downside is you'd have to adjudicate a lot of really tough cases, you'd probably get a certain amount of cases involving coercion that's hard to prove and that sort of thing.
I'm not a lawyer, but isn't it pretty standard that when the legal basis for a law that does not provide for situations where the basis does not apply usually get struck down (for example, anti-abortion laws that don't provide exceptions for rape/maternal health)?
It's not standard at all. Sometimes statutes that partially violate constitutional provisions have to be narrowed in some way so that they're no longer violating the constitutional provision, but that's a very complicated subject that varies a lot depending on the type of statute, the constitutional provision in question and the nature of the partial violation. There isn't any general rule that a legislature can't be overbroad in enacting laws. A legislature can enact a speed limit of 60 mph that will apply even in situations where it's perfectly safe to drive 65 mph.
if you are going to bring the bible into it
the bible makes NO mention of lesbian sex whatsoever
it makes mention (negatively) of MALE ON MALE homosexual sex.
not lesbian sex.
so, those who are using the biblical argument thang could be against male homosexuality, but not lesbianism, since the latter is not even mentioned in the bible.
The current solution to this little constitutional speedbump is that you solve the problem by saying "it's not animus, it's values." QED
I think you meant that in the opposite sequence--suspect class leads to unequal treatment being unconstitutional.
There are several problems with this approach:
1. The notion of "suspect class" developed because the targets were blacks, and segregationists, for many decades, had the best lawyers. (The best lawyers work for those with money, obviously.) Racial discrimination was clearly the target of the 14th Amendment, even if the language used in the equal protection and due process clauses wasn't specific to race. No one seriously thinks that the 14th Amendment was adopted to protect the rights of homosexuals from discrimination. (Well, maybe the sort of idiots who think laws that discriminated against homosexuals were a 20th century inventiion.)
2. Some of the state laws prohibit oral and anal intercourse without regard to the sex of the parties. Idaho, for example, still has a descendant of Henry VIII's buggery statute on the books, which applies to both heterosexual and homosexual couples (as well as interspecies loving relationships). These laws would be pretty well safe against such an approach.
---
I must say I was unaware of this exactly. How do you figure?
If a male with AIDS anally penetrates an uninfected female without a condom, the uninfected female is just as likely as an uninfected male in that position to suffer the small rectal tears generally necessary for the AIDS virus to be transmitted.
If an uninfected male anally penetrates a female with AIDS without a condom, she is just as likely to suffer the small rectal tears as would a male AIDS sufferer in her position, which then backflows into the uninfected male's penis for eventual infection. (or a certain probability thereof).
Do you refer perhaps that if a male with AIDS infects a female via anal sex, that female is not as likely to continue infecting others since she will usually be having vaginal sex, with a far lesser degree of transmission? I'm not certain there's good data on that - from the example we already know that she's willing to have anal sex.
Paraphrasing: "wherever there are laws regulating heterosexuals, those laws must regulate homosexuals equally" is hardly more broad than "all consenting adults can do what they want" (exaggerating).
Ooooo... "equal treatment" how scary!!!
There have been plenty of state rulings that find the result I would have preferred. Whether you agree with them or not, to argue that they are "out of nothing" is just silly.
Obviously, a female recipient of anal sex can pass AIDS on to men who have sex with her, or who share needles with her, but the risk on this seems a bit less certain than male recipients of anal sex having penetrative sex with other men.
Nearly all of our laws discriminate. The laws against robbery discriminate against those who take the property of others by force or the threat thereof. Our gun control laws discriminate against convicted felons, against minors, against U.S. citizens that have given up their citizenshp. School attendance laws discriminate against (or you might argue, in favor of) minors. They discriminate based on geography--you can't send your kid to a certain school unless you live in that district. Our laws discriminate based on age as to what public offices you may hold. Our laws discriminate against people who drive with more than a certain amount of alcohol in their blood--even if they haven't hit anyone yet!
The entire basis of law is discrimination based on criteria established legislative bodies and in some cases, by federal and state constitutions. The only reason that "discrimination" became a dirty word is because discrimination based on race was determined by a strong majority of those who decided to stay in the Union as wrong.
Now, you certainly regard discrimination based on sexual orientation as wrong. I would certainly agree that in many situations, it is wrong, and with a few exceptions, I don't regard such discrimination as particularly sensible. But equal protection of the law means quite a bit less than you think.
Had I intended to indicate sequence, I would have used something other than a simple "and".
I'm one of those idiots who thinks that they would have said "race" if they had meant it.
And, if they were applied equally, Idaho would have a lot fewer people wandering about -- they'd either leave or be in jail. Something I and the wildlife wouldn't mind a bit. More likely, the antiquated law would be repealed, thus rendering you a non-criminal.
Wrong. Gay men manage to spread herpes, and while men are far less at risk from HPV, they aren't completely safe. A friend works with someone whose HPV infection has required repeated surgeries on his throat to remove cancers--and he has now gone through the lifetime cap of his health insurance, and has to pay for it himself.
Most importantly, syphilis is almost entirely a male homosexual disease now. There are straights who get it, but they are typically a minority of all cases.
This is popularly believed, but it turns out that there have been some cases reported in CDC's Morbidity and Mortality reports on AIDS of female-to-female sexual transmission. At least one study of IV drug abusers found that about 30% were lesbians, so this is not surprising.
There's no constitutional problem with the government prohibiting adultery (and some states still have such laws on the books: Idaho, for example), or premarital sex, and reducing STDs would be a legitimate state interest in doing so.
Let me know when homosexuals are 4% of the STD cases, okay?
Perhaps not. From The Guardian (UK):
"But even the David and Jonathan stories cannot rival the story of Ruth and Naomi. Ruth's declaration of love for Naomi is not only one of the finest and most profound in the Bible, it is the only speech in scripture that approaches our wedding vows. Indeed it goes beyond them, exceeding the promise of "till death do us part". And it brings Naomi back to life. Naomi is sunk in bitter grief and despair, but as the story unfolds we witness her resurrection, until at the end the women of Bethlehem celebrate her and Ruth as a couple, and declare of the child born to Ruth and Boaz: "A son has been born to Naomi", as if Naomi is the father and the husband."
And, as we all know, discrimination based on religion is just fine...
And, fortunately, a great deal more than you think it does.
So based upon your theory, we really should be regulating hetero sex more than gay sex.
Of course, my point is that this is all ridiculous -- sex should not be regulated based on who gets people more ill than others. It's a silly argument, and I'm rather surprised you keep trying to raise that as a reason. But even if you do, you have to admit that the world has far more to fear from hetero sex than homo sex. Not the least is that the latter never results in unwanted or unprovided children.
How many prosecutions have there been against homosexuals under that law? I mean, aside from guys arrested in public restrooms?
I agree that vigorous and equal enforcement of this law would rapidly lead to its repeal. But unless you are doing something in a public place, or leave the blinds open and the neighbors complain (which would likely lead to a public indecency charge, in any case, as it should), these laws are not enforced. How would you get evidence? The Lawrence case was quite unusual in how their actions led to an arrest.
Actually, a couple of consensually minded Hatfields, without the McCoys, or vice versa, is the issue at hand.
In the U.S. (you know, where U.S. laws apply), AIDS is overwhelmingly the result of two actions: homosexual promiscuity, and IV drug abuse--typically 85% of more of all AIDS cases has one of those two factors.
Once again, someone needs to learn to read. The government certainly has the authority regulate sexual behavior based on concerns about public health and order. Whether it does so, and how it does so, are separate issues from whether it may.
Except that I have not been making that argument. My point is that public health might be a valid basis for governmental regulation of private activity, and homosexual actions are certainly higher risk for deadly STDs than heterosexual actions, relative to their fraction of the population. That alone could justify differences in how the laws are written.
Hence the Constitutionality of laws against adultery and premarital sex.
Doesn't sound terribly consensual to me.
The Framers enacted the Fourteenth Amendment, they didn't enact "the concerns behind the 14th Amendment." The 14th Amendment was drafted broadly for a reason.
I think the Framers had more foresight that you give them credit for in drafting the 14th Amendment, and not even Thomas, the only originalist on the Supreme Court, would agree with you that the 14th Amendment has no application at all except in cases of racial discrimination.
The problem is you can't just enact an exception for cases where the perpetrator didn't know the step-child until the step-child was already 18 without getting a lot of borderline cases over "didn't know." Suppose they lived in different houses but each was aware of the other's existence? Suppose they spoke, but only over the phone and only two or three times? Suppose they saw each other in some public place but didn't speak?
The difference is that telling people not to run safely runnable red lights poses only a minor inconvenience to any specific person; the inconvenience is randomly distributed in small bits over lots of people.
It's hard to come up with a better analogy because the cases are so different. But here's a try: Imagine that a "red light" is legally defined in some odd way related to the viewer's perception, so a color-blind person who sees red and green as the same is legally considered to be running a red light even if a non-lawyer would call the light green.
The color-blind person objects to getting a ticket for running a red light on the grounds that although the light is legally red, cars are not crossing, and it's safe to run through this particular light. Shouldn't we accept that, since having a too broad law is affecting this guy constantly?
There's plenty of discussion of the dangers of freedmen and free blacks being disarmed and terrorized, subject to laws that were unequally applied (the Black Codes) where race was the basis for discrimination. Where are the examples of either side in the 14th Amendment debates arguing about the rights of sexual minorities?
Why are borderline as-applied challenges a problem?
Or, for that matter, the sexual majority: women?
The problem with the "Ick Factor" approach is that it is not universal. What is icky here might not be icky there. One of the reasons pornography is not prosecuted much any more. Which community standards prevail?
Laws should deal with actual harm. In the interests of justice judges should rule that way as well.
I would say that incest laws protect the child from being persuaded or seduced into such relationship. In my view, if the child is an adult, such persuasion should be free from state action. Coertion should be the subject matter of rape laws, not incest laws.
As some one pointed out above inter racial sex was banned in some places because of the ick factor (I'm not discounting other more pernicious reasons).
It is a slippery slope. In Germany years of propaganda and cultural stereo types identified Jews with the ick factor. The rest as they say is history.
To be safe from this type of hysteria laws must conform to actual harm to individuals and judges should so rule.
You will notice that the 14th Amendment's equal protection clause didn't grant women the vote. That was done state by state as a matter of majority vote, and then federally, by amending the Constitution. Nor did the 14th Amendment give women equality in divorce proceedings, or property. That was done again state by state, through the democratic process. When women were protected from discrimination by federal law, it was again done primarily through statutory changes--you know, by persuading the majority that it was a good idea.
That's a hint.
I had in mind the situation in which the step-parent manipulates, abuses the child psychologically for years before the child is 18, such that she (typically it's going to be a male step-parent / female child) is not goin