Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Tuesday, November 18, 2003

JUST TO MAKE TROUBLE, I ASK "What about consanguinosexual couples?" As I've said, I haven't read the Goodridge v. Massachusetts opinion for want of a working link, but the gist of the court's reasoning seems to be 1) that marriage is a fundamental right, 2) that denying access to that right to homosexual couples creates a caste of second-class citizens 3) in violation of the Massachusetts Constitution's guarantee of equality of citizenship.

The question, then, is this: why don't these arguments apply with equal force to enforcing the rights of consanguineous couples to marry? After all, if marriage is a fundamental right, then the government must summon up a compelling state interest in order to restrict it, and must do so in a narrowly tailored way. What are the compelling state interests supporting a ban on sibling marriage? I can think of three: morality, tradition, and the public health. But I don't think any of these three will withstand judicial scrutiny.

1. Morality. The ban on consanguineous marriage is justified on the grounds that people think its wrong for siblings to marry one another. But the public morality justification seems no longer to be a valid argument for restricting a fundamental right after Lawrence v. Texas. If a public belief in the wrongness of homosexual sodomy wasn't sufficient ground for a law restricting the fundamental right to private consensual sexual relations, then why would the public belief in the wrongness of sibling marriages be enough to restrict the fundamental right to marry?

2. Tradition. The ban on consanguineous marriage is justified by a kind of constitutional adverse possession. The law in the United States has always barred marriage between siblings. At no point in the drafting of the various "equality" provisions of the federal Constitution or any of the state constitutions did anyone, let alone a majority of people, think those guarantees of equality threatened the laws against incestuous marriage. But the tradition argument seems, at least implicitly, rejected by the Goodridge decision. Surely the denial of marriage rights to homosexual couples has at least as long a pedigree as the laws against sibling marriage. If tradition could not save heterosexual-only marriage, why should it be able to preserve a regime of law that forbids incestuous marriages?

3. Public health. The ban on consanguineous marriage is justified by the risk to the public health created by allowing too-closely-related people to marry and reproduce. The children of consanguineous couples are more likely to suffer from birth defects and diseases related to inbreeding. It is in the public interest to prevent these birth defects and diseases, and a ban on sibling marriage is an acceptable way to achieve that. Even if we accept the idea that incestuous procreation overwhelmingly leads to these problems (and I think the science is far from clear on this point) this justification still won't pass proper constitutional scrutiny.

The problem with the public health justification is that it is significantly under- and over-inclusive. It's over-inclusive in the sense that sterile incestuous couples, who by definition can't breed, are covered under the ban even though they pose none of the public health risk that justified the ban. It's under-inclusive because the ban doesn't cover those non-incestuous couples who nevertheless have the right combination of recessive genes to create those birth defects and diseases should they breed. It's also under-inclusive because it doesn't touch those consanguineous couples that choose to breed outside of marriage, who pose precisely the same risk to the public health as married sibling couples that breed do.

It's also worth considering whether this public health justification is generalizable. Does the state have the right to forbid HIV-positive individuals to marry, on the grounds that they might reproduce and produce HIV-positive offspring? Should the state require couples to submit to genetic testing to determine whether both are carrying the recessive genes for sickle-cell anemia, or hemophillia, and refuse them a marriage license if they do? If we don't think so, then isn't our refusal to grant equal rights to consanguineous couples simply a product of our animus against such couples, no matter how much we dress it up in the language of science and public health?