Here’s a question that could reasonably be asked of President Bush’s nominee to the Supreme Court, John Roberts: Is there a constitutional right to engage in incest? The question is not “academic”; it is virtually guaranteed to make an appearance before the bar of the Court in the near future. Of course, the question’s foreseeable character is a reason not to ask about it to some minds. But as I have argued here on NRO, question-dodging on momentous issues of constitutional meaning shouldn’t be tolerated.
Oh no, you say–surely this really is merely an academic question. Not at all; it has been as far as a federal court of appeal already, just last month, and may soon be on the docket of the Supreme Court. On June 22, a three-judge panel of the Seventh Circuit in Chicago decided the case of Muth v. Frank, unanimously upholding Wisconsin’s criminal prohibition of incest as constitutional. But the court’s reasoning was extremely bad–surprisingly so, given the undoubted legal acumen of its author–in dealing with the precedent relied upon by the petitioner in the case. That precedent was Lawrence v. Texas, the Supreme Court’s 2003 ruling declaring the unconstitutionality of laws against homosexual sodomy. And the author in Muth was Judge Daniel Manion, a Reagan appointee. It is understandable that Judge Manion, like the rest of us, recoiled from the absurdity that the Constitution protects incest. But his effort to avert the consequences of Lawrence’s radicalism is unsustainable, for a fair reading of that case makes it hard to avoid the conclusion that the Supreme Court’s version of the Constitution does indeed protect incest (just as Justice Scalia claimed in his Lawrence dissent).
His argument is straightforward. Why shouldn’t he claim (in Judge Manion’s words) “a fundamental right, protected by the Constitution, for adults to engage in all manner of consensual sexual conduct”? In Lawrence, Justice Kennedy held for the Court that a state may not prohibit consensual homosexual sodomy, and did so on extremely broad grounds, holding that those who engage in such activity are “free as adults to engage in [such] private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.” Recognizing that laws forbidding certain sorts of sexual conduct are grounded in “profound and deep convictions accepted as ethical and moral principles” by many people, Justice Kennedy refused to accept the notion that “the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.” And he concluded with a critical passage that can be altered, just slightly, to cover the case of Allen and Patricia Muth (replacing references to homosexuality with ones to incest):
The present case does not involve minors [involved in a sexual relationship]. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that [incestuous] persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to [an incestuous] lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.
So why, with Supreme Court arguments like this at his disposal, did Allen Muth lose his case in the Seventh Circuit? According to Judge Manion’s opinion, there were two reasons. First, “Lawrence did not address the constitutionality of incest statutes.” This is true but trivial. The law proceeds not by the replication of old cases by new ones, but by the logical extension of principles abstracted from old cases to new situations in new cases. And Manion provides no reason why Lawrence’s reasoning should not apply to the Muths.
Second, and most decisive for Judge Manion and his colleagues, the Supreme Court in Lawrence did not proclaim a new “fundamental right” broadly related to consensual sexual conduct, homosexual or otherwise. This is where some close attention must be paid, for Manion’s reasoning, in just a few pages, turns several decades of Supreme Court jurisprudence upside down and inside out.
As Manion notes, when the Court decides it is dealing with a “fundamental right,” it generally uses a standard called “strict scrutiny,” under which the usual presumption that a law or policy is constitutional is effectively reversed. When “strict scrutiny” is applied, only the most “compelling interest” in a particular public policy will suffice to save a law from condemnation, and even then the law must be “narrowly tailored” so as not to jeopardize anyone’s rights in the course of its execution. It is widely understood among judges, lawyers, and students of constitutional law that “strict scrutiny” all but guarantees the outcome of a case: Even the best of justifications for a law will almost invariably fail to pass muster, while the alleged “right” advanced under this approach has an easy road to triumph over the principle of majority rule. Everyone familiar with this subject understands the game: Proclaiming that a “right” is “fundamental” is a way to leverage, by mere assertion more than by any constitutional principle, the destruction of public policies that actually have strong arguments going for them under traditional standards of legal reasoning. “Strict scrutiny” is therefore the Court’s preferred way to make the weaker argument defeat the stronger one. It represents the highest hurdle for any government to clear, and success is exceedingly rare.
Judge Manion is quite right that the Supreme Court did not apply “strict scrutiny” to the question before it in Lawrence. Instead it applied the far less stringent “rational basis” standard, under which the burden remains on the challenger to show a law is unconstitutional, whereas the government need only demonstrate that the barest “legitimate state interest” is present in the challenged policy. “Rational basis” is the Court’s easiest standard for the government to satisfy, and they rarely fail to do so. Rarely, but occasionally: In the Lawrence ruling, the Court held that laws banning homosexual sodomy rest on no “legitimate state interest” whatever, are thus fundamentally irrational under the due process clause, and are therefore unconstitutional. No “strict scrutiny” was necessary, and there was no heavy lifting about “fundamental rights” to engage in various sexual activities, because the Texas law failed to meet the easiest test the Court ever uses to measure a law’s constitutionality.
Judge Manion’s opinion for the Seventh Circuit is such a wrongheaded reading of the Court’s current jurisprudence on the due-process clause that we can only conclude he is either a) dishonest, b) incompetent, or c) desperate to avoid the plain consequences of the Court’s recent precedents on sexual liberty. We know that Judge Manion is neither dishonest nor incompetent. But no fourth option truly presents itself, for there is no form of legal reasoning that can distinguish a “right” to commit homosexual sodomy from a “right” to marry your sister and raise a family. Only political reasoning–moral reasoning of the sort the Court condemned as tyrannical in Lawrence–can accomplish such a distinction, if it is possible at all.
Therefore, I would vote for c), because it seems plain that Judge Manion would rather someone other than himself commit such moral horrors in the name of the Constitution. Let the Supreme Court clean up its own messes, or make them even worse. That’s why the justices get the big bucks–for they have arrogated the power to break our civilization, or to preserve it.
And don’t we want to ask questions about these sorts of things when we have the chance, every decade or so, when a Supreme Court vacancy occurs?
–Matthew J. Franck is a professor and chairman of political science at Radford University.