Boston Globe columnist Jeff Jacoby may have a shit storm on his hands. The outspoken journo has penned a column entitled “Lawful Incest May Be On Its Way,” in which Jacoby argues that Lawrence v. Texas – the groundbreaking case that people have the right to consensual sex, even sex of the anal variety – may have laid the groundwork for broader sex laws.
Jacoby – who looks like the poster boy for incest – writes:
In Lawrence, it is worth remembering, the Supreme Court didn’t just invalidate all state laws making homosexual sodomy a crime. It also overruled its own decision just 17 years earlier (Bowers v. Hardwick, 1986) upholding such laws. If the court meant what it said in Lawrence — that states are barred from “making . . . private sexual conduct a crime” — it will not take that long for laws criminalizing incest to go by the board as well. Impossible? That’s what they used to say about normalizing homosexuality and legalizing same-sex marriage.
Jacoby’s argument’s nothing new.
Conservatives have been equating gay sex with incest for years. Former Senator Rick Santorum – whom Jacoby cites earlier in this article – once said,
If the Supreme Court says you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.
Santorum got reamed for these comments, but it seems to us that he may be right. And, what’s more, legal incest may be right, as well.
Jacoby brings up the case of a man named Paul Lowe. Lowe had a sexual relationship with his 22-year old stepdaughter and a court sent him to jail for incest.
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?
It shouldn’t be. The argument against incest hinges on the increased risk of genetic maladies. As Jacoby points out, however, couples predisposed to gene-based diseases are not restricted from mating. Thus, this judicial argument barring incest falls flat. Yet, the Ohio Supreme Court rejected Lowe’s appeal, thus maintaining the anti-incest laws. Time‘s Michael Lindenberger reports:
The Ohio Supreme Court rejected the plantiffs’ argument that Lawrence created a new fundamental privacy right that made laws restricting consensual, private sex among adults unconstitutional. Instead, prosecutors successfully argued that Lawrence said only that anti-sodomy laws bore no rational relationship to a legitimate state interest – the lowest of Constitutional barriers. Agreeing, the Ohio Supreme Court ruled that state interests in preventing incest – even among adults or step-relations – were perfectly legitimate.
This legitimacy, however, rests less on a state interest and more on morals. For centuries, man has fought against familial love: the last taboo. The mass revulsion over incest, as Jacoby points out, comes more from its “ick” factor than any clear and present danger. It seems to us that the legal system’s sexual double standard compromises its legitimacy. We may not personally approve of incest, but it seems to us that if a brother and sister or mother and son or grandmother and granddaughter want to get it on, they should be allowed. Yes, it’s may be a bit distasteful to much of the population, but so is anal sex.
A lot of conservatives will argue that if we make incest legal, we’ll continue to fall down the proverbial “slippery slope” until men are fucking horses out in the open. This, of course, isn’t true. The laws apply to consensual sex. Since animals can’t consent, such sex acts should remain illegal. If, by some miracle, an animal learns English and can say, “Let’s have a go” – well, that would be a different story. Of course, that’s as unbelievable as the fact that Jacoby and his ilk feel the need to stick their noses into other people’s sex lives.
Lawful incest may be on its way [Boston Globe]
Should Incest Be Legal? [Time]
Irving Johnson
So what. Any gay person who thinks that incest should be illegal is a hypocrite. It doesn’t matter how icky you think someone’s sexual tastes are, it’s none of your business, period.
Paul Raposo
Ya ever notice that the people who oppose homosexual activity are usually butt ugly? I know that’s an old argument, but this guy, Mark Steyn, Fred Phelps, James Dobson; all these ogre’s are hideous. I’ve never seen a handsome man rail against gay sex. Could someone provide an example to contradict this? Could it be that their inside ugliness pours fourth into an outward grotesqueness?
Ryan
Well, genetically, lots of things can happen with close relations. While lots of shit can happen anyway, it’s going to happen far more frequently in cases of close relation. So, in theory I tend to agree (stay out of my bedroom), but more kids being born with hemophilia, down syndrome, etc. isn’t a fun prospect. If we can solve that problem, that’s one thing, but it’s not a very easy problem to solve. That said, the answer probably isn’t a legal one, so much as it is an educational one.
'( '-' )' Bearnaked Joe
Paul, the cute homophobes are always the gay-bashing killers.
Matt
Bring on the three legged babies.
el polacko
i’m often described as having a third leg and i do enjoy it when my bf calls me ‘daddy’ … does this mean i’m incestuous ?? it’s all so confusing.
anna
In any case, I hope Lawrence is used to get rid of laws against adultery, fornication, and sex toys. Making America look backward and cramping my style.
Brian
Also bear in mind that the other problem with incest (besides the whole genetic malady thing) is that it’s about power and consensual relationships. If your dad (or step-dad in this case) comes at you seeking a relationship, you have no way of objectively weighing the situation. The father figure has power here and is, deliberately or not, coercing the other party. In gay relationships, the consentuality is much more (if not perfectly) balanced.
On the whole incest/beastiality/polygamy to homosexualty comparison, the issue of consent is how we win.
nystudman
Brian:
what about brother-sister? or first cousins? equal parties.
personally, I think if procreation’s not involved and there’s mutual adult consent, who cares? I mean, I find it personall skeevy, but that’s societally conditioned, right?
Matt
Good point, Brian. I agree.
Matt
Oops, I meant nystudman, who replied to Brian. Sorry, guys.
dizzyspins
I think one problem here is that some people believe that everything distasteful or morally repugnant must be made illegal.
Incest is repugnant for a variety of reasons and, as a society, we condemn it. Should people go to jail for it? Probably not–maybe get some counselling. Besides–does anyone ever get brought up on incest charges? Or is it just there to be ignored?
Brent
Thinking that incest should be illegal is not necessarily incompatible with believing that same-gendered sex shouldn’t be. In Lawrence v. Texas, the Court merely said that sodomy laws had no rational basis in a legitimate governmental interest. Since a bare desire to sanction conduct viewed as immoral by some could not be a legitimate interest, and since the government could not advance another, independent interest, the law failed even the most deferential rational basis test. It is not at all clear (and indeed the Court explicitly reserved judgment on this issue) that incest would similarly fail the test. Laws against incest need not necessarily be premised on an ick factor, and the government may well have an legitimate interest in proscribing it. Incest, for instance, by definition introduces an element of sexuality between family members, along with the resulting instability and uncertainty. Government may want to avoid such a result. It may also have an interest in preventing sex between parents and their offspring, or between step-parents and step-children, even when both parties are adults, because such relationships may well be as coercive as relationships between parents and minor children. Of course, finding out the government’s interest in any particular crime is never a scientific undertaking, and the government does not have to show that the law it uses to protect that interest is the best of all worlds scenario. It need only be a plausible rationale. The Court rejected the rationale in Lawrence but it isn’t at all clear that the government could not produce a more plausible explanation for outlawing incest, that is independent of any moral judgment involved.