Keep it in the Family

I've been waiting for a good issue to disagree with Ross about, and here we are: incest. He says he doesn't think we'll see a big push to legalize it: "not because the right to incest doesn't arguably follow from the logic of gay marriage, as Jacoby says, but because I think the demand for marrying one's sister is far too low to overcome the 'ick' factor involved. The gay population is small, but not that small - even at 2-4 percent of the American population, it's large enough to create both a mass constituency for gay marriage and a still-larger percentage of Americans who count homosexuals as their friends and neighbors, and understandably wish them happiness as a result."

Okay, wait, I sort of do agree with that. It's hard to see a mass movement to legalize incest emerging. That said, if you had a genuinely consensual, adult, incestuous couple and some prosecutor took it into his head to charge them with a crime, I think you would see a serious countermovement. The couple would, among other things, have a decent constitutional case after the Lawrence decision and that alone would ensure a drawn-out battle that eventually becomes reasonably high profile. And a lot of people who would never dream of pre-emptively joining a pro-incest mass movement (me, say) might still be horrified by the idea of throwing two people in jail just for having sex with each other.

At any rate, the punditry world needs new controversies since I think the gay marriage debate has already become dull, so I certainly hope incest becomes a hot issue. Bestiality, interestingly, strikes me as a morally tougher issue.

Comments

Talk about opening up a can of worms. On the other hand, I don't see it becoming a big deal, after all, who is gonna admit in public to incest? Hardly anyone I think, if that.

Posted by Joe Klein's conscience | May 3, 2007 12:04 AM

Bestiality, interestingly, strikes me as a morally tougher issue.

It should. The problem with bestiality is that, morally, clearly communicated consent has to be a precondition for sex. That's an absolute. A horse can't say yes; or more importantly, say no. Brothers and sisters can consent to have sex with one another, no matter how icky it is.

The problem of consent is also one of the problems with sex with kids. A child can't consent, no matter what he or she says, because a child doesn't have the emotional or intellectual capacity to make the decision.

Posted by Freddie | May 3, 2007 12:06 AM

I can completely understand a reluctance to interfere with the private consensual activities of consenting adults, but you're talking about sex; what about procreation? Identity-By-Descent is not a social construct.

Of course, if society is going to interfere with incest on the grounds of shared recessive alleles, doesn't the same argument mean society should try to prevent the joining of couples when both prospective parents carry the cystic fibrosis mutation (1% of much of Europe are carriers, as I recall ...)?

Posted by Warren Terra | May 3, 2007 12:34 AM

Matt, Matt, Matt, Matt, Matt. The purpose of the incest taboo is not to keep brothers and sisters from falling in love and living happily ever after. (Growing up together as brother and sister is usually quite enough to fend that off.) The purpose of the incest taboo is to prevent fathers from raping their daughters. Let's leave that one stand, shall we?

Posted by Doctor Memory | May 3, 2007 12:36 AM

Freddie is completely full of shit.

Take my horse, Look Sweet for example.

Hey sweetie, how about a kiss?
Neigh!

Ah, don't play hard to get. You really want it don't you?
Neigh, neigh!
I knew it!

Posted by Cowboy Bob | May 3, 2007 12:39 AM

The problem with bestiality is that, morally, clearly communicated consent has to be a precondition for sex. That's an absolute. A horse can't say yes; or more importantly, say no.

This has the appearance of a moral principle, but it's not well grounded. Horses can't consent to all sorts of things, but we take it upon ourselves to make decisions for them. Why is sex so special? The reason sex is so special in the case of human beings is because human beings put a lot of value on sex and the issues around it. Horses don't do this because horses don't value like human beings do. There's no reason a horse's incapacity for consent in this area should be treated differently from its incapacity for consent everywhere else. Except, of course, it's icky. Maybe that's enough.

Posted by David Penner | May 3, 2007 12:43 AM

I don't want to throw anybody in jail. But it seems to me that this is one of those good taboos for all sorts of reasons.

And I don't read Lawrence to provide much support for a pro-incest (yeesh) position. Lawrence turned on the lack of a compelling state interest to justify the sodomy statute. That finding turned largely on Kennedy's view that that the Bowers court was wrong in its conclusions that homosexual sodomy was widely and historically condemned. Maybe I've been living under a rock, but it's hard for me to imagine any Justice within our lifetimes doing a find/replace to change "homosexual sodomy" to "incest" or "bestiality" under that line of reasoning.

Posted by jbl | May 3, 2007 1:06 AM

A brother/sister incest case in Germany has been in the news.

Posted by live | May 3, 2007 1:15 AM

-- ah, I see, if I had clicked through Douthat on to Jacoby, I wouldn't have bothered to post that.

Posted by live | May 3, 2007 1:16 AM

I second David Penner's comment.

Do you think a pig would rather be porked or be pork?

Posted by MikeN | May 3, 2007 1:31 AM

As a previous commenter has pointed out, this post is, frankly, idiotic. (Maybe it was supposed to be? That last bit about gay marriage getting "dull" makes me wonder.) The whole point of anti-incest laws is to protect CHILDREN. I've never heard of them being used against consenting adults. There's some potential genetic issues there, but the issue here is child abuse, not preventing adults from having sex.

Posted by beckya57 | May 3, 2007 1:49 AM

Incest laws will never be overturned because of the religious objections to it. I can't imagine the courts saying a state may forbid a citizen from buying beer on Sunday but must allow him to fuck his sister any day of the week. But there are also three secular reasons that the state has a strong interest in enforcing the incest ban.

1. The increased genetic risk to offpring. Cousins and especially siblings who have children put them at a dramatically increased risk of birth defects. Society has an interest in declaring this a form of child abuse and thus ban incestous sexual relations.

2. Family relations are so private and outside the scope of effective government regulation, the state has an interest in preventing the sexualization of relationships in such close-knit group. The risk of unwanted sexual attention is so high and the ability for the police to uncover such behavior so low, the state has a right to ban sexual relations between closely related individuals. For this reason, even adult incestous relations can be banned, it puts a child at risk for abuse if a family member could look at her (or him) as even a future sexual partner.

3. Society has an interest in encouraging trust and relationships between unrelated individuals. Advanced societies have a high level of trust between (genetic) strangers. With social, business and romantic relationships, we live our lives interacting and cooperating with outsiders. This leads to a higher level of civic virtue, that we have an obligation to treat everyone fairly and not just family members. In contrast, "low trust", dysfunctional societies tend to have little civic virtue and a high degree of family-centric relationships, in every sense of the word. For example, cousin marriages are by and large illegal in this country, while in Iraq, 55% of marriages are between cousins. Our society works as well it does because different families (tribes if you will) interact and intermarry. Thus, the government has a strong interest in encouraging out-marriage and the most basic way to do this is banning incest, even among adopted or step-family relations.

Posted by beowulf | May 3, 2007 2:23 AM

The Drive-by Truckers Song "The Deeper In" appears to be about consensual brother-sister incest, in which the protagonists end up imprisoned.

And if the whole point of anti-incest laws is to protect childrne, why not have a law that is, you know, narrowly tailored to do that?

Posted by John | May 3, 2007 2:23 AM

Just to add a note on anti-incest issues: we do actually require genetic screening when first cousins and other legally-marriageable related couples get married for the specific purposes of recessive diseases. I'm not sure whether a positive test makes you ineligible for the license, it's probably supposed to be more of a precaution. It's not federal, but I'm pretty sure that most states have a law to that effect.

Posted by Vikingkingq | May 3, 2007 3:21 AM

Identity-By-Descent is not a social construct

Well, it's a consequence of reproduction-by-naughtyparts, which means it's got two, maybe three generations left in it.

Posted by Senescent | May 3, 2007 3:32 AM

Even if animals can't give consent, it's sometimes possible to tell whether or not they're having a good time. For example, if male animals ejaculate in response to penile stimulation, they're probably enjoying it.

Do you think a pig would rather be porked or be pork?

Well said.

I've excerpted some of Bentham's writings on the matter here.

Posted by Neil the Ethical Werewolf | May 3, 2007 3:33 AM

To object that incest laws are there to protect children seems to miss the point right? I mean, are there not other laws protecting children? Is outlawing incest the only way to keep people from molesting their offspring?

It reminds me of polygamy laws. While they may be justified by the interests society has in protecting exploited girls under 18, it seems to be more motivated by religious or other (like the ick factor) concerns, since surely we could find a way to outlaw kidnapping, rape, molestation, etc.

Outlawing marriage between consenting adults seems like a weird way of protecting children. If we want to protect children, we can just make laws against hurting children, then enforce them.

Posted by Jay J. | May 3, 2007 4:21 AM

While its true that procreating cousins will have a much higher chance of having children with birth defects, etc, so do some other people, (like people who have children with birth defects). Government doesn't interfere in people's lives just because of their genetic make-up in these cases.

If the government revoked all laws against incest tomorrow, I doubt cousin-marriage would become all-the-rage. Our society interacts (socializes, dates, marries outside the family) the way it does because of all sorts of factors. That the law discourages incest is among the least of these reasons.

Posted by Jay J. | May 3, 2007 4:29 AM

This discussion strikes me as eerily pertinent, as I am in the process of writing a term paper on Vivian Q. Darkbloom's infamous, indigo novel Lolita. And what this wondrous, winking, harsh and harrowing novel has illumined for me is that all sorts of "taboo" sex are justifiable; what is inherently unjustifiable is systematic exploitation.
Deflowering a curious and coquettish cusp-pubescent is illegal and icky at best, and, due to "ability to consent," probably properly defined, in our modern morality, as rape. Though this definition is partial and problematic, failing to take up borderline mentally disabled cases of legal age but mental innocence and hyper-mature, sexually precocious adolescents who falsify or simply steamroll the age-based safeguards and restraints of their technically older sexual peers.
Humbert does not just diddle his Dolly; he passionately possesses his Lolita, pinning her like a rare lapidary artifact in some kind of Spectorian (look it up, Spector trial!) glass coffin, abusing her, draining her of curiosity and lust and imprisoning her in his clammy claw. If he had let her mature naturally after the initial sex act in the burbling belly of the Enchanted Hunters Hotel, she might have just stretched her tender, tawny shanks and moved on to the next inevitable pit-stop of sexual exploration on her way to bewitching womanhood. To me, his carnal crime is minor compared to the vicious plumage plucking of the callow canary, thrust deep the claustrophobic coal-mine of his lust.
18 is arbitrary, and fear of nub-gnawing NAMBLAnistas or wife-hoarding Mormons or kitty-impaling Priapi prevent us from addressing these hyper-legislated taboos honestly. Conscientious dogfuckers bother me not. Many 15 year olds, I'm sure— maybe not in our hermetic, gestation-prolonging nanny state— are, in the immortal words of Bad Company, "Ready for Love."
Legislating "love"— or, more likely lust, in most cases— is a losing proposition undertaken my a misdirected, misdirecting, muddled legislature. If this makes me a libertarian of love, so be it. But brittle barks like Santorum's "man on boy, man on dog" doggerel make my eyes roll and reveal the hypocritical, puritanical, flesh-denying streak that soils America's rugged underclothes with tight-sphinctered repressiveness.
More later, thanks for broaching this tasty, but tedious topic, Mr. Y! A can of wriggling purple nightcrawlers indeed, and I slurp them down with like lips!

~CQ (as always)

Posted by Clare V. Quilty | May 3, 2007 5:47 AM

sorry, but mentioning incest and bestiality in the same post as gay marriage is buying into the Rick Santorum line - yikes

Posted by novakant | May 3, 2007 6:30 AM

Speaking as someone who's close friends with someone who's achieved her lifelong dream of owning a horse ranch, I've happened to browse through her collection of horse-keeping books, and can speak with some authority that if the concern here is that horses (and, by extension, other animals) are unable to given consent and thus are off-limits to sexual interactions, then we already have a serious, serious problem in this country.

And let's not even talk about what happens in zoos that are trying to breed endangered species.

The fact of the matter is that we humans make decisions as to the welfare (and in the case of food animals, the non-welfare) of the animals we keep, and that already extends profoundly into the realm of the sexual and reproductive. The tools that we use to keep ourselves on the sides of the angels in the circumstances that we are already in with our animals aren't bad ones.

Or, to put it more succinctly, we're already jacking off male horses and then shoving their semen into female horses, and I'm pretty sure nobody got clear consent first. If the distinction being made that it's ok if the humans are just trying to get a baby horse made, but not ok if the humans are getting off on it, I'm not sure that that's a legally sustainable position.

Posted by NBarnes | May 3, 2007 7:01 AM

Douhat's biggest error was to suggest that gay marriage has something to do with it. This issue has nothing to do with gay marriage. The Lawrence case was not about the right to gay marriage it was about the right to gay sex.

I've seen that mistake often in the gay marriage debate. People should remember that the gay marriage debate is happening in a context where gay sex is already considered tolerable at least to a large segment of our society. That's what makes it very different from the issue of polygamy or incest or whatever.

Posted by Erik | May 3, 2007 7:05 AM

However many undetected-by-me layers of 20-something cornball irony are in this post, I still find it breath-takingly casual to the issue at hand.
1. There are serious genetic consequences.
2. The state has a compelling interest in defining family-values. Banning sexual activity for certain relations means that people may look for interaction outside of their families, stimulating diversity. Similarly, the love that family members are supposed to feel for each other would be damaged if they were to take on an erotic aspect. There is the possibility of losing it from rivalry. I am fully aware that this familial love is often lacking, but its current privileging is very important.
3. Fraterno-sororal consent is disease.
4. Gee, why couldn't we beat a retarded psychopath in the last presidential election? Everyone wants a brave new world of bloggin' and yahoo news where you can f your brother but it's ok cuz he was wearing a condom (I have no problem with birth control. I just thought I'd include this anyway) and then you have a magic little cup that can make a child of you and someone whom you've never seen.
4. Changes in how (and which) people make more people are bad. This is the fundamental act of human life, and I don't really have time to go into it futher.
5. I will never read this blog again.

Posted by Trolly McTroll | May 3, 2007 7:48 AM

I would like to withdraw my description of Bush as a retarded psychopath. That was unfair of me.

Posted by Trolly McTroll | May 3, 2007 7:50 AM

There's a reason incest is icky. It's icky.

Posted by Jeffrey Davis | May 3, 2007 8:01 AM

Just to note Lawrence would have no impact on homosexual marriage. What will, if its every tried, is Loving V. Virginia which got rid of miscongeniation laws.

And as for incest. It will never happen. I don't go after my siblings not because their is a law about it or even that there is a cultural taboo over it. I don't do it because its not interesting. And its not interesting because we grew up together. Most incest cases, like the one in germany, where there are two presumably consenting adults are cases where the people did not grow up togethor.

There has been some research (I can't find the link right now) that indicates that children who grow up togethor in the same household, even if their not related, will rarely look at each other as possible sexual partners.

Posted by Parmenides | May 3, 2007 8:43 AM

We look forward to a Ross-Matt bloggingheads.tv incest/bestiality special.

Posted by otto | May 3, 2007 8:53 AM

The purpose of the incest taboo is to prevent fathers from raping their daughters. Let's leave that one stand, shall we?

Well why don't we just change the taboo then? It seems ridiculous to punish people completely randomly to get at another kind of problem

Posted by chad okere | May 3, 2007 9:35 AM

Matt: This isn't goodL As someone has already mentioned this buys into the Santorum line. I agree with Ross' logic here. And just because you and I wouldn't want a brother and sister to go to jail over this, doesn't mean I approve of state sanctioned marriage between the two, or even the "right" for the two to have sex. (Just because it doesn't "seem" right for them to have to go to prison, it also doesn't "seem" right for them to be having children. A lot of people will feel this way.) I think you should have picked a different issue to disagree with Ross on. I am also crossing my fingers that you won't be quoted by Santorum on the stump or in direct mail letters "proving" that liberals want incest and that gay marriage is the first step in that direction.

Posted by Castorp | May 3, 2007 9:42 AM

I personally agree with bestiality being a tricky issue morally, I thought that you (Matthew Yglesias) were pretty much indifferent on animal welfare issues. Have you changed your mind?

(Incidentally, MY inspired me to becoming a vegan by writing an anti-vegan post, which called vegetarianism the "desperately inconsistent sister" of veganism (I can't find that post anymore). In short, Matt said that veganism was stupid, but that (lacto-ovo?)-vegetarianism was even more stupid. I was a vegetarian, so I figured that I'd go vegan a few weeks after reading that post. Go figure.)

Posted by Julian Elson | May 3, 2007 9:57 AM

The problem of consent is also one of the problems with sex with kids. A child can't consent, no matter what he or she says, because a child doesn't have the emotional or intellectual capacity to make the decision

Can mentally handicapped people, with say the mental and emotional development level of a 15 year-old, meaningfully give consent?

Posted by TW Andrews | May 3, 2007 9:57 AM

So much for not putting every random crazy thought that pops into your head.

Posted by James Kabala | May 3, 2007 10:05 AM

I think the best defense of the criminalization of adult incest is the "stop fathers from raping their daughters" rationale noted in comments above. Commenters rightly question the overbreadth of incest laws for this narrow purpose, but I think the rationale still has a place, especially in a society where individual families are very autonomous and fathers and sons may exercise excessive control over girls in the family. The point is not that adult incest laws prevent fathers/brothers from raping their underage daughter/sisters. The point is that they may use their control of the family to sexualize the girls at a young age (though not actually physically molest them) and essentially prep them for incestual servitude to their male family members once they reach the age of consent. I think this rationale made more sense in a world where families were more autonomous, children could be shielded from exposure to society, and men exercised more dictatorial control over their families. Today, the prevalence of the scenario I laid out seems more and more remote. My reasons for hesitation in normalizing polygamy and the way it is actually practiced are similar.

That said, I don't think these rationales ultimately justify punishing adults for entering consensual incestuous or polygamous relationships, but there is what seems to me a legitimate child-protection rationale for criminalization of polygamy and adult incest that is not based on "ick" or ancient religious proscriptions.

Posted by Joseph Hovsep | May 3, 2007 10:08 AM

The Santorum line was basically correct. That doesn't mean it articulated a good reason for opposing gay rights. But once that battle is over, you really will see a number of people switching their response to the "this will lead to man on dog" argument from "no it won't" to "good". There isn't really a clear principled distinction between the gay issue and all these other issues - the reactions to incest in this thread aren't any different from the reactions to gays that you would have heard even from most liberals two or three generations ago. At some point, you either have to be willing to draw an arbitrary line somewhere (though not necessarily where Santorum wants to draw it), or you have to accept everything across the board.

This has the appearance of a moral principle, but it's not well grounded. Horses can't consent to all sorts of things, but we take it upon ourselves to make decisions for them. Why is sex so special?

Wouldn't this argument also apply to children? We make them do all kinds of things against their will too.

Posted by JP | May 3, 2007 10:29 AM

Matt, your test case already exists. Unfortunately, my Googling skills are not up to the task of finding it. I believe the article appeared in the Times several years ago. The case concerned a brother and sister who were separated at birth. They later met, fell in love, and only then discovered their genetic relationship.

Despite various court orders insisting that they stay away from each other, they maintained that they were deeply in love and carried on the relationship. I believed they were looking at jail sentences, although my memory of the details is not be trusted.

Anyway, I do remember the story being tragic and sympathetic, but a nationwide pro-incest movement did not spring up as a result. Some other somewhat similar cases here:

http://www.abcnews.go.com/Primetime/story?id=2886819&page=1

Posted by Adam | May 3, 2007 10:38 AM

What worries me about this issue is how it confirms Justice Scalia's "slippery slope" argument from Lawrence v Texas: that is, if consensual homosexual sexuality is constitutionally protected from "morals" based legislation, what is the constitutionality of laws prohibiting incest, bestiality, bigamy, adultery, and prostitution? (He also was concerned about laws prohibiting masturbation, but I'll let that one slide for now).

More to the point, I worry about the stability and stare decisis longevity of Lawrence itself, seeing as how Justice Kennedy (the author of the Lawrence decision) appears to have reversed tack in Gonzales (the recent abortion decision). Are "morals" still a legitimate state interest that can constitutionally regulate consensual, non-commercial, private adult activity? How does that square with Lawrence?

If incest is argued before SCOTUS to be a protected, inferred 14th amendment constitutional right from the reading of Lawrence v Texas (or Loving v Virgina, or even Eisenstadt for that matter), it seems possible that five (cough cough Catholic cough cough) justices on the bench will distinguish Lawrence and whittle the decision down to its bare bones; effectively destoying its precedential stare decisis value (and we're starting to see how little the current SCOTUS values previous decisions they don't "morally" agree with).

Basically: arguing that incest is equatable with homosexual conduct, no matter how intellectually defensible that position is, is simply a disaster politically and culturally. We've certainly become aware that an "ick" factor is a persuasive argument for the current court (Gonzales again).

Posted by SGW | May 3, 2007 10:41 AM

The core issue, in my mind, that has been hinted at in the comments and Matt's post is consent. There are many places in our society where we have deemed certain romantic relationships between "consenting" adults inappropriate. Most are not laws: professors can't date their students, Doctors cannot have relationships with their patients etc. . . These relationships are taboo because there exists an imbalance of power such that whether both parties are truly "consenting" is fuzzy at best. This, I think, is true in incest as well where family dynamics can make the idea of consent somewhat ambiguous.

Posted by DP | May 3, 2007 10:49 AM

Generally, justified sexual taboos rest on some combination of consent problems and externalities. In the case of incest both apply to some extent. As discussed above, there are frequently power differentials between the participants that make consent problematic. This is especially true of inter-generational incest, but even within the same generation I would imagine the the dynamics are often a bit ... disfunctional.

The externalities of incest, of course, are the genetic problems that start to crop up. These may be trivial in individual cases, but they are potentially a serious problem over a few generations.

Of course, the incest laws are almost certainly overbroad to achieve these ends. One can certainly imagine the adult, infertile, consenting brother-sister couple that raises none of these problems. But perhaps that case is sufficiently rare for us to ignore it. The alternative is a narrowly tailored law that tries to get at both actual consent and possibility of procreation -- which sounds like an evidentiary nightmare to me.

Posted by Leo | May 3, 2007 10:51 AM

It strikes me that the conservatives have been very prescient on these issues, from the beginning. They warned that the legalization of divorce would lead to the breakdown of the traditional nuclear family. They warned that widespread access to birth control would change attitudes towards sexual behavior, which would in turn lead to a far more sex-infused culture. They warned that the new right to privacy would lead to social acceptance of deviant sexual behavior. They warned that basic gay rights would lead to gay marriage. They now warn that acceptance of gay rights will lead to an acceptance of incest and polygamy.

At every step liberals argued precisely the opposite. They denied that divorce and birth control and gay rights would do those things. It was a narrowly tailored argument. And if they weren't willing to accept the conservative logic at the time, if they were willing to grant gay rights but didn't support gay marriage, it didn't matter much. To them it wasn't about what could happen, but what was: whether this was right and good, now.

Conservatives were on the wrong side of the culture wars, of course; but they were absolutely right about the consequences that would follow. They understood that one thing almost inevitably leads to another thing--and that there would be no going back.

And the liberals, in this respect, were wrong. They are wrong.

Posted by Korha | May 3, 2007 11:04 AM

Just wondering Matt, do you have a hot sister? Interestingly there was a case in the news recently in the North East where a man tried (unsuccessfully, to evade a bestiality charge against him because the dog was dead. (It was his girlfriend’s dog that had been hit by a car and he was caught in the act with it outside near an Elementary School). Talk about taking the Hell Express.

Posted by exlitigator | May 3, 2007 11:06 AM

First of all, the old "well, we kill animals, so we nothing else we do to them can be morally condemned" line is bullshit. Pigs might rather be porked than be pork, Neil, but so what? The fact that we do other bad things to animals has no bearing on the individual act of nonconsensual sex. I find it a deviant morality that suggests that, because other bad things are done to someone or an animal, there can't be moral objections to anything else that is done to the. Does the fact that cows are routinely slaughtered for meat mean that I'm morally permitted to torture a cow? Because we kill them, you know. So that makes the torture morally neutral.

As far as the "we can assume that they enjoy it" lines... do you extend that logic to kids? If someone has sex with a severely intellectually disabled person--someone nonverbal and incapable of consent-- and then claims that "they were acting like they wanted it", you wouldn't have a problem with that? There is no difference between saying "the horse was showing me he liked it" and saying "your eyes are saying yes." Consent to sex is an area where we absolutely have to err on the side of being explicit.

But, no, guys, you're right. Your golden retriever seduced you, not the other way around.

Posted by Freddie | May 3, 2007 11:18 AM

I sense a tongue-planted in one's cheek. But, treating the matter more seriously.

1. Is there a good health/genetic argument against incestous relationships? My elementary knowledge of genetics would indicate that recessive genes have a better chance of matching up the closer the genetic relationship of the parents. In David Quanmmen's "Song of the Dodo," one of his arguments for the greater risks small populations have of extinction is the inbreeding and narrow genetic base of the populations. But without some real research I don't know if this would amount to a compelling state interest.

2. Abuse and how to define it. I think of the old Jack Nicolson/Faye Dunaway movie, Chinatown, as directed by Roman Polansky, where the sister is also the mother (which is implied in Ray Chandler's "The Big Sleep.".) Since Lot, father-daughter, not brother/sister has been the more common form of incest, and brother/sister, usually is a case where an older half-brother or step-brother is abusing a younger sister.

Posted by Rick Kane | May 3, 2007 11:21 AM

Hey, who did Cain & Abel marry?

Posted by judson | May 3, 2007 11:28 AM

Guys, there's a "compelling" public health argument against homosexual sex too. Or did we forget about AIDS?

Someone above had it right. Almost every objection to legalizing incest between two consenting adults is essentially the same as the objections raised against gay rights and gay marriage a few decades ago.

Posted by Korha | May 3, 2007 11:38 AM

Interestingly, Korha, the oft-cited public health argument cuts against the anti-gay-marriage position. Providing incentives for monogamy can hardly be construed as a public health problem.

What's interesting to me is the way Ross conflates gay marriage with the mere decriminalization of gay sex in Lawrence v. Texas. These are very different issues--positive rights vs. negative rights and all that. I made the mistake of commenting on his original post without clicking the link, and assumed he was referring to brother/sister or father/daughter marriage, which I feel comfortable saying will never be allowed ever.

Jacoby is actually lamenting that Lawrence imposed a privacy principle that will eventually make it impossible for the state to throw adults in jail for having icky, yet consensual sex with each other. He's probably right. Somehow, I think the Republic will survive this trauma.

Posted by LaFollette Progressive | May 3, 2007 12:18 PM

My daughter asked me if she could marry her guinea pig. I advised her to wait until after the gay marriage issue settled down. So, the issue is coming.

Posted by peter | May 3, 2007 12:20 PM

"Is there a good health/genetic argument against incestous relationships?"

I can't point to a study, but I've never heard anyone really question the conventional wisdom that incest can lead to genetic problems if the relationship is sufficiently close. I have heard that cousin-cousin relationships are genetically non-problematic, but never that brother-sister were. And, of course, cousin-marriage isn't even illegal in some states.

Korha: Neither non-consent issues nor externalities arise from homosexual sex (or, at least, no more than heterosexual sex). The people who get AIDS from sex, gay or otherwise, are the participants, not people outside the relationship.

Posted by Leo | May 3, 2007 12:23 PM

I sound like such an asshole above. Whenever I write at work everything sounds so much more combatitive than I mean it. Sorry about that.

Posted by Freddie | May 3, 2007 12:45 PM

For an interesting permutation on some of the above, may I suggest the Australian actor Jack Thompson's menage a whatever with sisters. But I guess the pertinancy depends on details best left to the imagination.

http://en.wikipedia.org/wiki/Jack_Thompson_(actor)

Posted by Nat | May 3, 2007 1:21 PM

I agree with the commentors above who note that "consent" with respect to animals is meaningless. As the "pork or porked" question suggests, it seems strange to say that the owner of an animal has the power of life and death over that animal (which animal owners generally do), but not the right to touch the animal's no-no parts. Nevermind that an animal owner can have the animal's no-no parts removed entirely. You have anti-cruelty laws in most places, but most forms of bestiality would not amount to cruelty to the animal (letting a male horse pierce your colon with his dick, to pick an example at random, is many, many sad and sick things, but it ain't cruel to the horse).

On the incest issue, while you can make all sorts of public health arguments about reproduction, and maybe a public policy argument about legal incest for adults leading to the abuse of minors, it really comes down to the ick factor, as it does with bestiality. Unlike bestiality, however, with incest it is possible to imagine scenarios that have little to no ick factor at all. The movie "Lonestar," for example, has one such scenario as a central plot device. Particularly if you removed the possibility of reproduction, it is hard to see how the state has a compelling interest in, say, keeping a 30 year old man from screwing and/or marrying his long-lost, but damned attractive, 40 year old aunt. It is not my cup of tea (and, anyway, I've no such aunt), but it is not clear to me how, from the state's perspective, this weird couple would be any worse than the thousands of weird couples that get married every year, but who happen to be unrelated, opposite-sex pairs.

Posted by Jeff in Texas | May 3, 2007 1:26 PM

The risk of close genetic relations procreating and thus causing genetic disease is both real and often overstated. The chance that siblings share a particular recessive gene is greatest, of course; but it's not as if a bunch of recessive genes aren't out there in the gene pool, anyway. A bigger problem is when intermarriage occurs within the same closely related population often.

At any rate, the health concerns related to this used as a justification for law seem very inconsistent to me. I have a dominant mutation that causes a debilitating joint condition that means that there's a 50% chance I'll pass it on to my offspring. But society doesn't say I can't reproduce. In fact, our culture doesn't illegalize anyone's ability to reproduce based upon public health concerns and we believe that reproduction is a human right. I'm not claiming that this is necessarily what's right—but it's very inconsistent to single out this one risk for legislation and ignore all the others.

And of course we can continue to protect children from abuse without continuing to illegalize what two consenting adults wish to do.

On the topic of bestiality, it's rather silly to pretend that laws against it are protecting the animals. It's an example of legislated gut moral instinct and nothing more. Some, like Kaplan, argue that this makes perfect sense. Others argue the opposite. But that's all this is unless one makes a larger argument of blanket non-interferences or exploitation of animals. However, it's interesting and notable that Pete Singer argued famously in favor of the moral acceptability of bestiality.

Finally, all of what I wrote above notwithstanding, it's simply true that the slippery-slope counter-argument or its converse consistency argument both ignore the reality that we always necessarily make arbitrary distinctions and draw lines where we say that this one thing is acceptable but this other thing like it is not. So many of these sorts of arguments seem oblivious to this reality and thus one side will say that if we don't make a distinction here then we'll have to do away with the distinction entirely while the other side will say, no, we'll just make the distinction over here because that's where the qualitative distinction can be found. Very few have the courage to simply say: "It's hard to convincingly argue for a qualitative distinction, but so what? There are a host of other reasons we draw lines where we do. Some are quantitative, others involve secondary factors."

Posted by Keith M Ellis | May 3, 2007 2:31 PM

"[I]t's simply true that the slippery-slope counter-argument or its converse consistency argument both ignore the reality that we always necessarily make arbitrary distinctions and draw lines where we say that this one thing is acceptable but this other thing like it is not."

I love this comment. Bright line rules have lots of advantages over vague standards, even if the standards better comport with abstract justice. Incest seems like a classic example of a rule that is greatly aided by its clarity and places a fairly minimal burden on safe, consensual conduct.

Posted by Leo | May 3, 2007 3:01 PM

Brother-sister incest is not much in demand, but first cousin marriage is the most fashionable relationship in most of the Middle East. I've seen three studies of what percentage of Iraqis are married to a first or second cousin, and they came out 46%, 53% and 59%, with first cousin marriages more numerous than second cousin.

This has become a big problem for Britain, where at least 55% of Pakistanis are married to a first or second cousin. Arranged cousin marriages are a big engine of immigration -- Dad in Birmingham forces his daughter to marry his brother's son in Peshawar because that generates an automatic immigration visa for the extended family. Plus, Dad and his brother will now have an heir in common, their mutual grandson. The daughter's wish to marry somebody else is overriden in the family's general interest.

Posted by Steve Sailer | May 3, 2007 3:16 PM

As the "pork or porked" question suggests, it seems strange to say that the owner of an animal has the power of life and death over that animal (which animal owners generally do), but not the right to touch the animal's no-no parts. Nevermind that an animal owner can have the animal's no-no parts removed entirely.

Again, says who? Doesn't anyone else think that it's a twisted moral center that says that, because humans sometimes kill animals, we have no moral obligations to those animals at all? What sense does that make? If you apply that logic, you have to allow that the same thinking means you can torture an animal with no moral qualms. Does anyone really think that? Simply because we have power of life and death over animals doesn't mean that we suddenly have no moral obligation to them.

Posted by Freddie | May 3, 2007 3:38 PM

An arranged marriage to a cousin may be K-Lo's only hope for having a family. Who would want to stand in the way of her hapiness?

Posted by Kuas | May 3, 2007 3:40 PM

Freddie: Clearly we have ethical and moral obligations to our animal companions, even food animals. That said, you've yet to demonstrate that jacking off a horse violates those ethical boundaries in some way that castrating that same horse does. Or, for that matter, that jacking the horse off for sexual gratification is unethical in some way that jacking them off so that you can inseminate a mare isn't.

Posted by NBarnes | May 3, 2007 5:47 PM

As far as the "we can assume that they enjoy it" lines... do you extend that logic to kids?

Ask yourself if adults having sex with kids is necessarily immoral, or if it's immoral because of contingent facts that obtain in the real world. We live in a world that values sex highly and has all sorts of (socially constructed) hangups about it. Absent these factors, I can imagine a world in which adults having sex with kids isn't wrong. But adults having sex with kids is wrong in our world because, given our social context, it harms them. Animals don't have that social context, so it's unclear how they're harmed.

Frankly, I agree with Keith M Ellis that this is legalized gut instinct. This admission is inconvenient for people who argue for gay rights on the grounds that "ick" reactions are insufficient to establish immorality, but it seems obviously true to me.

Posted by David Penner | May 3, 2007 6:45 PM

Freddie-- if you want to argue animal rights, animal free will, whatever, that's fine. Maybe we should not castrate animals. Certainly, we generally find that procedure wrong and cruel when applied to humans. My point is, it is widely accepted that the owner of an animal can castrate that animal, kill that animal, refuse to go to extraordinary lengths to save that animal's life, and all sorts of other things, provided that the owner does not engage in "cruelty" toward that animal. And cruelty toward animals means, basically, starving them to death or torturing them in some way. Putting bullets in their heads, not so much. My point is not that this is "right," but that it is commonly considered right by our culture and legal system. In that context, it seems very odd to say, "you may blow your dogs brains out for no reason at all, but you may not under any circumstances do anything to that dog for sexual pleasure." It is moral and legal distinction resting entirely on the ick.

Posted by Jeff in Texas | May 3, 2007 6:48 PM