"I will end my visit to your country in Philadelphia, where I will take part in the World Meeting of Families. It is my wish that throughout my visit the family should be a recurrent theme. How essential the family has been to the building of this country! And how worthy it remains of our support and encouragement! Yet I cannot hide my concern for the family, which is threatened, perhaps as never before, from within and without. Fundamental relationships are being called into question, as is the very basis of marriage and the family. I can only reiterate the importance and, above all, the richness and the beauty of family life."He did not specifically identify the attacks on "fundamental relationships" and "the very basis of marriage and the family." But considering the Catholic Church's opposition to gay marriage and its adoption of Thomas Aquinas's argument that natural law supports lifelong heterosexual and monogamous marriage as the only natural form of marriage, the Pope must be implicitly referring to the Supreme Court's Obergefell decision as the threat to marriage and the family.
Justice Kennedy and his defenders would not agree, however, that his opinion was an attack on marriage and the family. On the contrary, Kennedy argued, recognizing gay marriage as a constitutional right promotes the natural ends of marriage and the family--parental care of children and spousal bonding--by allowing gays to satisfy those natural ends for themselves.
So which position is correct?
A crucial turning point in this debate came in Lawrence v. Texas (2003), when Justice Kennedy once again wrote the majority opinion, and in this case, he struck down as unconstitutional the state laws punishing homosexuality as a crime. In his dissenting opinion, Justice Scalia warned that this "decrees the end of all morals legislation," which would lead in a few years to legalizing gay marriage and even incest as constitutional rights. Obergefell confirmed Scalia's prediction about gay marriage. And one can see evidence in the law reviews and in general discussion that the logic of Kennedy's reasoning is pushing towards making incest a constitutional right. One can see this, for example, in a widely cited law review article--"Inbred Obscurity: Improving Incest Laws in the Shadow of the 'Sexual Family,'" Harvard Law Review 119 (June 2006): 2464-2495--a Note written by a Harvard Law School student.
As I have suggested in some previous posts, this debate turns on some empirically falsifiable predictions. If Aquinas, the Pope, the Catholic Church, and all the defenders of traditional marriage law are correct, then we must predict that legalizing gay marriage and incest will destroy family life, and we will see that happen over the next few decades. In particular, children will suffer from the lack of proper parental care and the emotionally explosive consequences of legalized incest. But if the advocates of gay marriage and legalized incest are correct, then we must predict that family life will endure and even flourish, and children will prosper. It's one of the great experiments in social history.
Consider the argument of the Harvard Law Review article. The author proposes that the incest laws in the United States could be improved if they were based on the norm that sex between consenting adults that does not harm others should be protected as within a private realm of liberty, but sex is to be prohibited between those in a "natural dependency relationship," because those who are dependent on caretakers are presumed to be unable to consent to sex with their caretakers due to the coercive character of the authority of the caretakers.
By contrast to this proposed reform, the present laws of incest are said to rest on "outmoded norms" (2481, 2485) that create confusion and obscurity in the law. The present laws of incest depend on four norms. First, sexual conduct is permissible only in heterosexual monogamous marriages. Second, marriage is the core of the family. Third, marriage-based families are morally and legally superior to families not based on marriage. Fourth, sex in the family--other than within a marriage--is prohibited (2466).
These norms contradict the movement of American law towards protecting consensual sexual relations among adults as an exercise of liberty. Previously, state laws punished fornication, adultery, cohabitation, and homosexuality. But now all of those laws have been largely set aside. So it's hard to see the rationale for prohibiting consensual sexual conduct between adults who are relatives.
All fifty states have some prohibitions of incest--either through criminal punishment or through marital prohibitions. In most states, incest is punished with prison sentences, even life-time imprisonment in a few states. A few states, however, have no criminal penalties for incest between consenting adults (for example, Rhode Island and New Jersey). Ohio's criminal statute punishes only parental figures. All fifty states have some prohibitions on marriages between certain relatives (either biological relatives or in-laws). The primary variation among the states is in whether one can marry a first cousin or an in-law. Cousin marriages are permitted in 19 states. In the nineteenth century, cousin marriages were permitted in all the states. (All of the European nations permit cousin marriages.)
To illustrate the confusion and obfuscation in American incest law, the author of the Harvard Law Review article points to five cases. In In re May's Estate (NY, 1953), a New York court had to decide whether an uncle and a niece who had legally married in Rhode Island had a valid marriage in New York. The marriage had lasted for 32 years, until the wife's death, and resulted in six children. The court said this marriage "was not offensive to the public sense of morality to a degree regarded generally with abhorrence and thus was not within the inhibitions of natural law." The Court also observed that this marriage was "between persons of the Jewish faith whose kinship was not in the direct ascending or descending line of consanguinity and who were not brother and sister." The author criticizes this reasoning by observing that there was no consideration of whether anyone had been harmed by this marriage, and that the appeal to "natural law" was based on "a subjective weighing of family norms"--that is, the norm against sex among family members versus the norm for protecting the family created by the Mays.
The author is silent, however, about the Westermarck effect--that human beings are naturally evolved to avoid incest with those with whom they have been reared from an early age, and thus that people generally feel more moral repugnance to sex within the nuclear family (sexual conduct with one's parents, one's children, or one's siblings) that outside the nuclear family. If this is correct, then the marriage of uncle and niece might be judged with little abhorrence.
Moreover, while the author denigrates the appeal to natural law in this case, the author's own appeal to the "natural dependency relationship" seems to implicitly appeal to the natural law principle that children are by nature dependent on parental care.
In the case of Israel v. Allen (Colo., 1978), the Colorado Supreme Court struck down as unconstitutional an incest statute that prohibited the marriage of adoptive siblings. A couple's parents had married when their children were teenagers, and the husband adopted his stepdaughter. The two stepchildren wanted to marry, and the proposed marriage was approved by the whole family. In upholding their right to marry, the court noted that biologically unrelated people are less likely to produce children with genetic problems. The court also noted that the adoptive stepchildren had never lived together in the same household. For these reasons, their marriage would not arouse "natural repugnance" or "moral condemnation." The argument for the state was that such marriages could disrupt "family harmony." But the court observed that since the marriage was supported by all members of the family, prohibiting it would bring "family discord."
The author of the Harvard Law Review article argues that a simpler and clearer rationale for the court's decision would be that these adoptive stepchildren were consenting adults whose marriage would harm no one.
In the case of Rhodes v. McAfee (Tenn., 1970), a court declared invalid a fourteen-year marriage between a man and his former stepdaughter that resulted in three children. The husband had died, and the effect of the decision was to deprive the widow of her homestead and dower rights. The stepdaughter had lived with her mother and her stepfather prior to their divorce. For the court, this illustrated how allowing such marriages between stepfathers and stepdaughters promotes "discord and disharmony in the family."
But as the author indicates, protecting the harmony of the first family creates disorder in the second family, because the wife in the second family has been deprived of her legal rights to inheritance. The author concedes that in allowing stepfathers to marry their stepdaughters, "sexual jealousies could potentially damage the harmony of family life in general" (2480). But the ultimate cause of this problem is the move of the law to no-fault divorce. Moreover, the common law tort for "alienation of affections" has been largely abolished, and so people cannot be punished for interfering with a marriage relationship. To assume that the law must protect "family harmony" rests on the "outdated norm" that marriage is life-long, and so divorce and remarriage are rarely permitted.
In the case of Tiffany Nicole M. (Wisc., 1997), the court upheld a Wisconsin statute that the incestuous relationship of a parent could justify termination of parental rights and applied this statute to an illegal marriage of siblings who had produced three children. The court declared that this statute served "the welfare of children, preservation of family, and maintenance of an ordered society." The author of the Harvard Law Review article points out, however, that it seems contradictory to invoke "preservation of family" to justify destroying a family--the family of these illegally married parents and their three children. The court cited no evidence that these parents were bad parents and that their children were suffering from abuse or neglect. The court simply declared that this family could not be a true family, because "the fundamentally disordered circumstances in which the child of an incestuous relationship will be raised" create "a home that mocks even the most rudimentary conception of family." And yet there is no proof that this family really was "disordered."
In the case of State v. Buck (Oregon, 1988), a stepfather had been convicted of sexual incest with his adult stepdaughter. The court upheld the conviction with an argument that implied that incest statutes can properly protect marriage-based families as superior to sexual conduct outside of marriage: "Marrying the natural or adoptive parent of a child creates the relationship that the statutory proscription against incest is intended to protect. The different treatment accorded to those who fit within that relationship . . . is closely and rationally related to the legitimate governmental purpose of protection of the family." The court did not show--and saw no need to show--that the stepdaughter was coerced or was in any way harmed by this sexual relationship with her stepfather. By implication, therefore, the government was justified in punishing this sexual conduct because it was outside of marriage and a threat to a marriage-based family. But this contradicts the movement of American law towards allowing sex outside of marriage and allowing families to form without being based on marriage.
We might think, however, that at least in the cases where sexual conduct is between closely related biological kin, the law can properly prohibit or punish this because of the increased risk of genetic deformities. The problem with this is that justifying the prohibition or punishment of incest because of its genetic risks suggests the coercive eugenics that was once legally enforced but now abolished. American law no longer denies people their right to reproduce based on the claim that they are "unfit" to reproduce because of the risk of genetic defects. In fact, all reproductive activity runs some risk of producing genetically defective offspring. If people are to be left free to judge whether reproduction is too risky or not, then must not incestuous couples be given the same freedom? This allows for voluntary eugenics, in that people can be genetically tested before they reproduce, and then refrain from reproducing if they judge the risk to be too great.
The author of the Harvard Law Review article proposes an improved standard for incest laws. Families should be defined as based not on marriage but on relationships of "natural dependency," in which sex is prohibited, because it would be assumed that dependents are not in a position to consent to sex with their caretakers. Marriage would no longer be a legally licensed status, but marriage-like relationships could be enforced through contract law. Thus, marriage would be totally privatized in that sexual intimacy would belong to a private realm of liberty for consenting adults; and this would include the freedom for adult relatives to engage in sexual conduct with one another as long as they are not in a relationship of dependency.
The author favors the standard set in Ohio law that punishes as "sexual battery" any sexual conduct with another where the offender is "the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person." Notice that biological siblings and stepsiblings are not included, presumably because they do not generally have the authority of caretakers over dependents, although if a biological sibling or stepsibling were exercising such custodial authority over another sibling, then presumably sexual conduct between them would be prohibited.
In 2009, in Ohio, a stepfather had consensual sex with his 22-year-old stepdaughter. He argued that this was not sexual battery under Ohio law because the law obviously did not apply to a stepfather's consensual sex with a stepdaughter over 18. The Ohio Supreme Court ruled, however, that the statute did not have any language about consent or age creating an exemption from the law of sexual battery. And thus, by implication, a stepfather was assumed to have a coercive authority over a stepdaughter even after the stepdaughter became an adult. The author of the Harvard Law Review article does not consider this case, but the author would seem to disagree with the court, because the author's assumption seems to be that once they have reached the age of maturity, children normally have the freedom of consenting adults (with the possible except of those who are mentally disabled?).
While apparently dismissing natural law as an inadequate standard for incest law, the author actually appeals, at least implicitly, to natural law. The "natural dependency relationship" in which sex is prohibited secures the natural end of parental care for children who cannot survive or flourish without such care.
According to Aquinas, that is the primary natural end that is secured by a monogamous marriage in which both mothers and fathers care for children. Aquinas concedes, however, that there are "exceptional cases" where marriage is not necessary to provide proper parental care. A rich unmarried woman might care properly for her children (SCG, III, ch. 122, sec. 7). And an unmarried man who conceives a child through fornication might care properly for his children (ST, II-II, q. 154, a. 2).
The author of the Harvard Law Review article seems to say, however, that in the economic and social conditions of America today, such "exceptional cases" have become the norm. The "natural dependency relationship" can satisfy the natural end of parental care, as long as parents or parental surrogates are prohibited from sexual conduct with their dependents, but without any necessity for a marital union of two parents.
According to Aquinas, the secondary natural end of marriage is spousal bonding. The author suggests that in the conditions of today marital spousal bonding is not necessary for parental care, and therefore the law does not need to enforce marriage as a special status. But even so, the natural inclination to spousal bonding in a marriage can be achieved through the voluntary choices of individuals and enforced through contract law, but without any need for marriage licensing by the government.
My first post on incest includes links to all of my other posts on incest.
I have argued in defense of Justice Kennedy's opinion in the Obergefell case in some posts last July and August.