Bench Memos

Taboos

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.

Most Popular

Culture

White Cats and Black Swans

Making a film of Cats is a bold endeavor — it is a musical with no real plot, based on T. S. Eliot’s idea of child-appropriate poems, and old Tom was a strange cat indeed. Casting Idris Elba as the criminal cat Macavity seems almost inevitable — he has always made a great gangster — but I think there was ... Read More
World

Who Is Boris Johnson?

By next week at this time, Boris Johnson will be prime minister of the United Kingdom. Not since Margaret Thatcher has such an outsized personality resided in Number 10 Downing Street. Not since Winston Churchill has such a wit presided over Her Majesty’s Government. Wit is actually the chief reason for ... Read More
Health Care

The Puzzling Problem of Vaping

San Francisco -- A 29-story office building at 123 Mission Street illustrates the policy puzzles that fester because of these facts: For centuries, tobacco has been a widely used, legal consumer good that does serious and often lethal harm when used as it is intended to be used. And its harmfulness has been a ... Read More
Energy & Environment

Ohio Bans ‘Nature Rights’

Finally! After voters in Toledo granted "rights" to Lake Erie -- in a special election, it should be noted, with minuscule turnout -- Ohio has outlawed the enforcement of "nature rights" in a budget bill signed by the governor. From the legislation: Sec. 2305.011...[Definitions omitted] (B) Nature or any ... Read More
Politics & Policy

The Ungrateful among Us

This is the transcript from Episode 156 of The Editors. Rich: How bad were the president’s tweets? What does Ilhan Omar owe to her country? We will discuss all of this and more on this week’s edition of The Editors. I’m Rich Lowry, and I’m joined as always, or at least most of the time by the right, ... Read More