Mansfield Fox

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

Wednesday, April 27, 2005

Who Are We to Judge?

Just another alternative lifestyle:
A brother and sister were arrested on felony incest charges after the man's wife called sheriff's deputies, who allegedly caught the siblings having sex.
They are being held on $50,000 bond each. If convicted, the couple could face up to 10 years in prison.

I'm pointing this out partially to be cheeky, but also because I think this ought to be a genuinely difficult issue for people who think Lawrence v Texas was good law and/or good policy. On what ground, precisely, do we intend to justify sending these people to prison for 10 years? It can't be that the people of Alabama find incest immoral, since Lawrence seems to foreclose the possibility of morals legislation, at least in the area of regulating sexual activity.

There's also a public health / eugenics rationale - children of incestuous couplings have an increased chance of genetic disorders - but that's always struck me as a fairly thin justification onto which to hang so heavy a punishment. As I understand it, the risks of genetic anomalies from a single instance of inbreeding are really quite slight (the real problem comes from sustained inbreeding over time, as among the European royal houses).

Plus, anyway, if that were our rationale, the law would be both over- and under-broad. There are lots of non-incestuous couples whose mating will nevertheless produce children that suffer from genetic disorders, but we don't have a national system of screening to detect them, nor do we forbid such couples, where we do know them to exist, to reproduce, let alone to have sexual intercourse.

Moreover, there are lots of incestuous pairings that don't produce offspring with genetic disorders. The sister in question, for instance, was 41, and (I presume based on her age) unlikely to be able to conceive without assistance from medical science. Many other people have been artificially sterilized. Among those who haven't, contraceptive use is widespread, and the availability of abortion provides a final backstop.

I guess what I'm trying to say is: I don't think incest creates a substantial public health issue, and even if it does there are substantially less restrictive means of dealing with it than handing out felony convictions and 10-year prison sentences. Or, to put it differently: in order to combat a theoretical possibility of a slightly increased rate of hemophilia two or three generations hence, we're going to bring down the whole power of the state on two actual people, with hopes and dreams, which we're planning to crush so as decrease, 40 years on, the marginal rate of diseases that will probably be treatable by then.

Of course, what's really happening is that the anti-incest laws are, in fact, morals legislation, and all the purportedly neutral, scientific justifications for the law are just things we've talked ourselves into because we no longer feel comfortable legislating on the basis of right and wrong. Most of us (at least those of us in the elite, policy-making class that rules the country, though by now I suspect this is true of most ordinary Americans as well) know people who identify as actively homosexual (that is, attracted to members of their own sex and engaging in - or at least desiring to engage in - sexual intercourse with such persons) and as such we no longer feel comfortable treating intragender sodomy as a felony that ought to be punished. (While there are many people - such as Justice Scalia or, say, me - who'd still feel comfortable with such laws being on the books, I think the number of people who'd support vigorous, dragnet-style enforcement of such laws is vanishingly small.) On the other hand, virtually nobody knows anyone who's (openly at least) interested in engaging in sexual intercourse with their sibling. As such, it continues to be easier to treat consanguineosexuals as weird, dangerous outsiders it's legitimate to demonize and punish, and to talk ourselves into all kinds of implausible, scientific-seeming reasons for it.

Free the Trafford Two!

(original link via Best of the Web)