Saturday, January 22, 2011

Is Incest a Constitutional Right?

Last month, David Epstein--a professor of political science at Columbia University--was charged with having an incestuous relationship with his daughter. According to news reports, Epstein (age 46) began the affair in 2006 when his daughter was 21 years old and then stopped in 2009. If he is convicted, he could be in jail for up to four years.

This case has provoked an interesting debate among constitutional law scholars as to whether punishing Epstein for his incest would violate his constitutional rights. In 2003, the U.S. Supreme Court decision in Lawrence v. Texas struck down state criminal laws against homosexual sodomy as an unconstitutional violation of liberty. The reasoning in that decision seemed to be that consenting adults have a right to engage in any sexual behavior in private that does not harm anyone else. That reasoning would seem to extend to incestuous sexuality between consenting adults, and therefore punishing Epstein and his daughter would seem to violate their constitutional liberty. If homosexuality between consenting adults is constitutionally protected, then why isn't incest between consenting adults also protected by the Constitution?

We might think that incest is harmful because of the risk of offspring with genetic defects. But if Epstein and his daughter practiced safe sex, of if she is his step-daughter, or if he has had a vasectomy, then there would be no genetic harm.

We might also think that children can be exploited by parents in such cases. But here the daughter apparently consented to this as an adult.

William Saletan at Slate has argued that we can rightly condemn and punish incest--even between consenting adults--because it destroys the structure of family life by introducing an explosive sexual tension. This then would provide a "rational basis" for laws against incest as constitutional, and this would be consistent with the Lawrence decision, because homosexuality does not threaten family life the way incest does.

Nevertheless, Saletan doesn't believe that Epstein should be locked up.

I wouldn't prosecute David Epstein. It isn't necessary. The incest taboo is strong enough to withstand the occasional reckless fool, and I don't want cops poking around in people's sex lives. But incest is wrong. There's a rational basis to forbid it. And we shouldn't be afraid to say so.

Matthew Franck agrees with Saletan's family-structure argument for why incest is wrong. But he disagrees with Saletan on three points.

First, Franck thinks we need a legal enforcement of our moral condemnation of incest.

Second, he thinks that this contradicts the reasoning in the Lawrence decision, which really does make the mistake of giving constitutional protection to any sexual activity between consenting adults, which would include not only incest, but also polygamy and bestiality.

Third, he thinks that legalizing homosexual marriage could be just as destructive of marriage and family life as incest.

Franck agrees with Robert George that our marriage laws should enforce the norms of "real marriage" as a natural union of husband and wife for the procreation and care of children. Consequently, attempts to legalize homosexual marriage or incest should be rejected as contrary to the human nature of marriage and family life as the foundations for a good social order.

Thus, like George, Franck implicitly appeals to a conception of natural law as rooted in human biological nature. But he never explains--as I would--that that biological nature can be understood as a product of Darwinian evolution.

As I have argued in previous posts, the incest taboo illustrates the evolutionary nature of morality, particularly as elaborated by Edward Westermarck's Darwinian account of the incest taboo.

If the incest taboo and traditional marriage are deeply rooted in our evolved human nature, then we should expect that those natural propensities will be expressed as cultural norms that arise spontaneously in civil society. But whether those cultural norms must be legally enforced by governmental coercion is a matter of prudential judgment.

Conservatives like Franck and George think that moral norms like the incest taboo and traditional marriage will collapse if they are not enforced by the coercion of a bureaucratic state. But if these norms really are deeply rooted in human nature, why shouldn't we expect them to be expressed in the customary order of civil society even without legal enforcement?

I will elaborate these points in connection with George's arguments about "real marriage" in my next post.

Some of my posts on Westermarck and incest can be found here, here, here and here.


Troy Camplin said...

Well, if law should reflect our evolved human nature, then there can be no argument against homosexual behavior or polygamy. As for cultural norms, well, that gets into the debate regarding the differences between law as common law/spontaneous order and law as legislation. Should all conventions become legislation? I would argue, no. After all, one of the strengths of common law is that it evolves in response to local conditions. Legislation crystalizes the law, which means that it is no longer adaptable. There should be very few laws that are not (quickly) adaptable.

One of the problems of the government legislating everything under the sun is that you do end up with issues like gay marriage. The government should perhaps not be involved in this social convention at all, in any way, other than as enforcer of mutually entered and agreed to contracts. The details of such contracts as the government enforces should be relatively abstract -- you can't contract to enter into slavery, that sort of thing.

Beyond that, social norms do a great job of preventing people from doing most things.

Empedocles said...

"if law should reflect our evolved human nature, then there can be no argument against homosexual behavior or polygamy."
Could you clarify what you mean by this? For example, why did sexual attraction evolve? What is its job? Clearly it evolved because it brings male and female together to produce offspring. It could be argued, and I am not arguing it here, that homosexuality is not part of our evolved human nature, that it is a malfunctioning sexual attraction. It is possible that the way things have evolved to proceed is that after fertilization and once sex has been determined, a process kicks off to determine the object of sexual attraction being the opposite sex, and that in homosexuals this process has malfunctioned and hooked the individual up with the evolutionarily incorrect target. Again, I am not claiming this, only that it is a possibility, but if it were correct, and no one knows yet, then homosexuality would not be part of our evolved human nature. I know there have been attempts to explain how homosexuality could evolve, and that homosexuality might have a different function that heterosexuality. Anyway, this was just a long way of saying I didn't understand what you were saying in your post and asking for some further explanation.

Grant said...

I think the more relevant argument here is over calling this an act between "consenting adults". The problem being that the relationship between parent and child readily gives the parent an undue level of psychological leverage over the child whether they're 16 or 25. Sure, most likely less so when they're 25 than when they're 16, but "less so" isn't none.

The lines where real legitimate consent to the act can be determined in such a situation are too murky and easily violated. You're talking about one prson who largely ran the other person's life from the day they were born until they reached adulthood, the ability to manipulate that other oerson into "consenting" by virtue of having enjoyed that position is too obvious for the law to just pretend it doesn't exist. And since the law also provides the parent with that position of privilege it has a responsibility to see it isn't horribly abused.

Larry Arnhart said...


From where are you deriving the quotation?

Empedocles said...

The first post by Troy Camplin started that way.

Troy Camplin said...

There are many things which evolved for one purpose and have since been used for other purposes. Sexual behavior is one of them. Certainly it initially evolved for procreation, and continues to be used for that. However, we see homosexual (really, bisexual, in contemporary parlance) behavior among the most highly intelligent social mammals, such as dolphins, bonobos, and humans. Among bonobos, sex is used to strengthen social bonds among all members, regardless of sex. It is used to greet and trade. Sexual contact between members of the same sex is used in the same fashion as between members of the opposite sex in these social situations.

Bonobos are our closest genetic relatives, though in many ways our behaviors are more like chimpanzees than bonobos. Nevertheless, we can see that sex has been used in cases such as the bonobo for strengthening social bonds, and not just for reproduction. May humans not have been on the same path, only to have it somewhat derailed by our self-awareness and ability to reason leading us to understanding fully the relation between sex and reproduction and the relation between population and competition with other tribes? Thus we may have abandoned one social behavior that was useful for social bonding in favor of another that was useful for population growth. As we have become less tribal, those kinds of pressures have been released, and our more typical sexual nature has been revealed. However, other social elements have done strange things such as impose a dichotomy -- an act has been turned into a state of being. You are either straight or gay, and people look at you weird if you stray from your norm. The reality is an off-center bell curve of attraction, with behaviors dichotomized by our culture.