Bench Memos

The Supreme Court and a Right to Commit Incest

Today, at Public Discourse, I have an essay called “Incest and the Degradation of Our Vocabulary,” prompted by the news last month that a Columbia  professor has been charged with the crime of incest with his adult daughter.  As I wrote here at NRO more than five years ago, we are closer than one might think to a constitutional right to incest, at least if the law has any logic to it.  A sample of my new essay:


The story of David Epstein, the Columbia University political scientist and Huffington Post blogger now facing criminal charges of incest, has launched a very interesting discussion. What is fascinating about it, and deeply disturbing, is the inability of some commentators to articulate what is morally wrong about the act of incest. It is almost equally disturbing that a legal argument for a “right” to engage in adult, consensual incest stands on surprisingly firm footing, thanks to precedents the United States Supreme Court has already established in other cases on the “autonomy of the person” under our Constitution.

Professor Epstein, 46, has been charged with third-degree incest for carrying on a sexual relationship over a three-year period with his daughter, now 24. From what little has emerged about the case, there are no charges that the relationship antedated the daughter’s eighteenth birthday, nor has it been alleged that the sexual relations were other than consensual. (The daughter herself has not so far been charged with a crime, however.) So powerful is the contemporary opinion that “consenting adults” may engage, in private, in any acts that commit no “harm” (narrowly understood in almost purely physical terms) to the parties in question or to others, that some observers have merely shrugged indifferently at the Epstein case, while others have striven to find grounds for condemning such incestuous acts but finally confessed their failure to find them.

I give William Saletan, at Slate, credit for grasping something essential here, but criticize him for not seeing what stares us in the face, thanks to the road paved by the Supreme Court in its 2003 sodomy ruling:

What we must notice is that Saletan’s strictures against incest rest on moral arguments of a kind that the Supreme Court has already rejected in the Lawrence case. Above all other considerations, the Court has elevated autonomy, choice, a freedom from being trammeled in one’s private preferences regarding intimate matters of sexual partnering, and even a freedom from being “demeaned” by public disapproval in law or policy of one’s choices in such matters. A majoritarian moral preference for the integrity of the family cannot, in this arena, claim a “rational basis” in the law as against the autonomous choices of free individuals to disregard that integrity if it suits them.

A colleague and old friend writes me with 

a few thoughts based on Genesis, chapters 15 through 18 . . .  Remember the contempt shown by Hagar, Sarai’s handmaid, for Sarai because she, Hagar, had borne a child (Ishmael) to Abram whereas Sarai was barren.  Think of that contempt (only lessened by the counsel of an angel of God).  Think of the contempt for the wife and mother shown by the incest of father and daughter.  Even if the wife is dead (or, less, has been divorced), the contempt is there.  The wife, or friends and family on the wife’s behalf, are humiliated and angered by that contempt, that infidelity multiplied a thousandfold.  The insulting, contemptuous incest is the death blow to everything for which the marriage and the family stand.  Further, think of Lot and of the weak excuse his daughters make to themselves so that they might get their father drunk and lie with him.  The broken faith is evident to all.  It is the family’s love and the family’s faith in that love that is spat upon by incest.  The prohibition against incest is not just a taboo.  It is a pillar of the law of the family.

I wish I’d said all that!  But to see what I did say, go here for the whole thing.


The Latest