Legalized Incest

This may seem just like a transparent attempt to generate traffic, but the idea points out a slippery slope argument that former Senator Rick Santorum and Justice Antonin Scalia made following the 2003 case of Lawrence v. Texas, a case involving laws that criminalized homosexual sodomy. As Jeff Jacoby writes:

Back in 2003, as the Supreme Court was preparing to rule in Lawrence v. Texas, a case challenging the constitutionality of laws criminalizing homosexual sodomy, then-Senator Santorum caught holy hell for warning that if the law were struck down, there would be no avoiding the slippery slope.

"If the Supreme Court says you have the right to consensual sex within your home," he told a reporter, "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."

It was a common-sensical observation, though you wouldn't have known it from the nail-spitting it triggered in some quarters. When the justices, voting 6-3, did in fact declare it unconstitutional for any state to punish consensual gay sex, the dissenters echoed Santorum's point. "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."

While most people are repulsed by the thought of legalized incest, there is a certain logic in the slippery slope. I am not so sure about some of the law Scalia feared, as I am sure there are other grounds for upholding laws against bigamy. But the "sexual liberty" right that the majority in Lawrence found is pretty much all around us.

Adultery, fonication and obsecenity are facts of life and in some relationships explicitly consented to by the parties involved, i.e. swingers. I am not aware of any laws that ban masturbation and aside from public masturbation, I am not sure how such a law would be policed. Prostitution is still a crime in most places, but it is legal and regulated in other places. But let us not kid ourselves, and Justice Scalia and Sen. Santorum shouldn't kid themselves, despite the legal bans on these practices, they still occur and have been occuring for a long time, probably longer than most people are willing to acknowledge.

Bringing out a parade of horribles is nothing new in dissenting opinions from the Court and the fact that Justice Scalia did so is not surprising. Many of the practices he feared would become common place already are, just underground. This is not to say that we should be legalizing all these practices, but by the same token, should the government be in the business of policing them?

My only worry about the legalizing of incest is not sexual but precedential. Just like Lawrence, the cases about legalizing incest are not really about sexual behavior but about societal norms. To be honest, who you sleep with really doesn't interest me (unless it is my daughters or my wife), but why do we need to judge such things in court? If you keep your relationship discrete, no matter who your partner or partners might be, is it really anyone's business and why do you need a court to tell everyone it is not their business. The societal norm in the past that kept such practices, if not completely secret, at least not something spoken of in open public settings like a court room has been replaced by the norm that everything is fair game for litigation and for public hearing.

Taking these cases to court forces the public to choose sides on an issue, that like abortion and other sexually related cases, which is better kept private and personal. But we as a nation, fascinated with our own sometimes Puritanical positions on sexuality, can't help but litigate such matters. That, in and of itself, is not the sign of a healthy society, let alone our fascination with incest.