“Lawful Incest May Be on the Way” — But It’s Already Here!

Jeff Jacoby reports on calls in Germany for decriminalizing adult brother-sister incest. “Parts of Europe are already heading down this road. In Germany, the Green Party is openly supporting the Stubings in their bid to decriminalize incest. ‘We must abolish a law that originated last century and today is useless,’ party spokesman Jerzy Montag says. Incest is no longer a criminal offense in Belgium, Holland, and France. According to the BBC, Sweden even permits half-siblings to marry.” He closes:

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. Over time, expect more and more people to answer yes.

We’ve blogged about incest and the law before; in particular, I’ve discussed adult stepparent-stepchild incest, and it seems to me there are comparable arguments for continuing to ban adult sibling incest. I don’t want to suggest that bans on adult incest are categorically improper, or that they’re proper. But I do want to raise one interesting item related to the “code of conduct stretching back to Sinai” — it turns out that this code doesn’t ban uncle-niece incest.

What’s more, at least one state (Rhode Island) exempts Jews from its ban on uncle-niece incest, including the ban on uncle-niece marriages. (given modern religious equality jurisprudence, I take it that this would be extended to anyone whose religious beliefs mirror orthodox Jewish beliefs on the subject). Colorado and Minnesota likewise follow the Uniform Marriage and Divorce Act in exempting uncle-niece marriages that are “permitted by the established customs of aboriginal cultures.” Some states therefore not only fail to criminalize all such marriages, but will actually legally recognize them. At least one state, Oregon, doesn’t criminalize uncle-niece sex at all (O.R.S. § 163.525) but doesn’t recognize such marriages (O.R.S. § 106.020).

Now maybe this is just a historical oddity; my sense is that very few women want to marry their uncles. But my sense is also that very few siblings want to marry each other. So the questions for those who rest on the importance of 3000-year traditions remain: Should we be as respectful of this tradition when it allows adult uncle-niece sex, but bars adult sibling-sibling sex (including among siblings who were raised separately, which I believe is what had happened in the German case Jacoby mentioned)? Should we stick with the tradition, and allow uncle-niece marriages while barring sibling-sibling marriages? Or should we focus less on the 3000-year-old tradition, and more on what seems sensible now?