Bench Memos


Matt Franck’s piece on incest is a must read. Having just read it myself–and having never heard until now of the Seventh Circuit case (Muth v. Frank he discusses–here are four thoughts that come to my mind:

One: Judge Dan Manion is a most capable jurist, and and he is possessed of sound moral sense. Matt is therefore right that the only explanation for the weaknesses he sees in Manion’s opinion owe to the latter: Manion is too decent a guy to draw out the foul implications of Lawrence. Let the Supreme Court further foul its own nest, I guess.

Two: Lawrence surely puts incest in the dock. As bad as the Court’s “privacy” jurisprudence had been since 1965, it was not until June 2003 (in Lawrence) that the Court decreed that marriage could not be the principle of legally enforced sexual morality in this country. Fornication, adultery, homosexual relations could all be made crimes until then because, as Justice Harlan put it in a 1961 opinion, the state could “confin[e] sexuality to lawful marriage.” No more. Now the constitutional principles of enforceable sexual morality are consent and privacy (assuming adults are involved).

As Matt says: Then, why not incest?

Three: If brother and sister can have sex without the state saying “no”–as Lawrence seems to imply–then they can marry, too. Sometimes we think that the incest taboo owes to the genetic abnormalities that the children of siblings would likely suffer. But that is not the source of the legal ban on incest. If it were, we would have to rethink it anyway: Today, “brother” and “sister” often have an attenuated genetic relationship–blended families, artificial reproduction, and the like. Their issue may have no more genetic tendency to illness than that of any other couple.

The incest taboo arises instead from the eminently sound conviction that the right relationship of brother to sister is incompatible with sexual attraction between them. The law has long prohibited marriage between siblings precisely to buttress this norm of sibling chastity: There is no moral sense to sexual attraction between siblings if it is impossible for them to marry. The sexual attraction can’t lead to where sexual attraction tends to, and is morally supposed to, lead: marriage. Thus, it is all the less likely that the attraction will arise and that, if it does, well-formed kids will indulge or cultivate it.

Four: Matt is exactly right that Muth belongs on the list of topics senators should discuss with John Roberts next month.

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