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Jewish World Review
May 3, 2007
/ 15 Iyar 5767
Lawful incest may be on the way
When the BBC invited me onto one of its talk shows recently to discuss the
day's hot topic legalizing adult incest I thought of Rick Santorum.
Back in 2003, as the Supreme Court was preparing to rule in Lawrence v. Texas,
a case challenging the constitutionality of laws criminalizing homosexual
sodomy, then-Senator Santorum caught holy hell for warning that if the law were
struck down, there would be no avoiding the slippery slope.
"If the Supreme Court says you have the right to consensual sex within your
home," he told a reporter, "then you have the right to bigamy, you have the
right to polygamy, you have the right to incest, you have the right to
adultery. You have the right to anything."
It was a commonsensical observation, though you wouldn't have known it from the
nail-spitting it triggered in some quarters. When the justices, voting 6-3, did
in fact declare it unconstitutional for any state to punish consensual gay sex,
the dissenters echoed Santorum's point. "State laws against bigamy, same-sex
marriage, adult incest, prostitution, masturbation, adultery, fornication,
bestiality, and obscenity are . . . called into question by today's decision,"
Justice Antonin Scalia wrote for the minority. That opinion too was scorned by
the politically correct. But now Time magazine acknowledges: "It turns out the
critics were right."
Time's attention, like the BBC's, has been caught by the legal battles underway
to decriminalize incest between consenting adults. An article last month by
Time reporter Michael Lindenberger titled "Should Incest Be Legal?" highlights
the case of Paul Lowe, an Ohio man convicted of incest for having sex with his
22-year-old stepdaughter. Lowe has appealed his conviction to the Supreme
Court, making Lawrence the basis of his argument. In Lawrence, the court had
ruled that people "are entitled to respect for their private lives" and that
under the 14th Amendment, "the state cannot demean their existence or control
their destiny by making their private sexual conduct a crime." If that was true
for the adult homosexual behavior in Lawrence, why not for the adult incestuous
behavior in the Ohio case?
The BBC program focused on the case of Patrick and Susan Stubing, a German
brother and sister who live as a couple and have had four children together.
Incest is a criminal offense in Germany, and Patrick has already spent more
than two years in prison for having sex with his sister. The two of them are
asking Germany's highest court to abolish the law that makes incest illegal.
"Many people see it as a crime, but we've done nothing wrong," Patrick told the
BBC. "We are like normal lovers. We want to have a family." They dismiss the
conventional argument that incest should be banned because the children of
close relatives have a higher risk of genetic defects. After all, they point
out, other couples with known genetic risks aren't punished for having sex. In
any event, Patrick has had himself sterilized so that he cannot father any more
Some years back, I'd written about a similar case in Wisconsin that of Allen
and Patricia Muth, a brother and sister who fell in love as adults, had several
children together, and were prosecuted, convicted, and imprisoned as a result.
Following the Supreme Court's decision in Lawrence, they appealed their
conviction to the Seventh Circuit Court of Appeals, where they lost. Lowe will
probably lose too.
But the next Lowe or Muth to come along, or the one after that, may not lose.
In Lawrence, it is worth remembering, the Supreme Court didn't just invalidate
all state laws making homosexual sodomy a crime. It also overruled its own
decision just 17 years earlier (Bowers v. Hardwick, 1986) upholding such laws.
If the court meant what it said in Lawrence that states are barred from
"making . . . private sexual conduct a crime" it will not take that long for
laws criminalizing incest to go by the board as well. Impossible? Outlandish?
That's what they used to say about normalizing homosexuality and legalizing
Parts of Europe are already heading down this road. In Germany, the Green Party
is openly supporting the Stubings in their bid to decriminalize incest. "We
must abolish a law that originated last century and today is useless," party
spokesman Jerzy Montag says. Incest is no longer a criminal offense in Belgium,
Holland, and France. According to the BBC, Sweden even permits half-siblings to
Your reaction to the prospect of lawful incest may be "Ugh, gross." But
personal repugnance is no replacement for moral standards. For more than 3,000
years, a code of conduct stretching back to Sinai has kept incest
unconditionally beyond the pale. If sexual morality is jettisoned as a
legitimate basis for legislation, personal opinion and cultural fashion are all
that will remain. "Should Incest Be Legal?" Time asks. Over time, expect more
and more people to answer yes.
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Jeff Jacoby is a Boston Globe columnist. Comment by clicking here.
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