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Monday, August 08, 2005

Muth V Frank - Fundamental Sexual Liberties

Carl at No Oil For Pacifists noted the Seventh Circuit's ruling in the case of Muth V. Frank (incest) which relied upon Lawrence V Texas.

To succeed in his appeal, Muth had to argue successfully that Lawrence retroactively made his conviction for incest unconstitutional. The conclusion of the court:
Given, therefore, the specific focus in Lawrence on homosexual sodomy, the absence from the Court’s opinion of its own “established method” for resolving a claim that a particular practice implicates a fundamental liberty interest, and the absence of strict scrutiny review, we conclude that Lawrence did not announce a fundamental right of adults to engage in all forms of private consensual sexual conduct.
But will it stand? From Lawrence (which overturned Bowers):
Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention.
I think Justice Manion was deliberately interpreting the case as narrowly as possible in an attempt to send it back to the SC and let them split their own hairs.. He focuses upon the "all", which is a bit difficult given the bolded sentences in the quote from Lawrence above. The idea that an eight year prison term does not somehow touch on a fundamental liberty interest is a bit odd to me, and I don't think it can withstand scrutiny.

Perhaps the Supreme Court might conclude that the state does have a rational basis for incest laws, but the reasoning would be a bit strained. The only likely distinction would be that because children could result from the incestuous union, the conduct involved circumstances which were not truly "private". In doing so, the Court would rule that the same exception it had enunciated governing prostitution applied here and announce due deference to a legislature's interest in protecting the children of such a union. (In this case, there were children.)

However, it would be an almost ludicrous distinction. Rationally speaking, post-Lawrence a legislature may not bar incest on the grounds that it regarded incest as immoral. The argument would have to be that incest can produce children with a higher rate of genetic diseases (which is true, and it is why incest is nearly universally regarded as immoral). However, if that is the rational basis, then certainly petitioners could argue that such a law should not be valid if one of them were sterile or they took precautions to ensure that their union did not produce children. (In Wisconsin the incest statute does allow marriage between two first cousins if one of the partners is sterile.)

This then would put the courts in the difficult position of creating a situation in which either sterilization or abortion must be committed in some instances in order to avoid a hefty jail term. Most of us would gulp at that result. From Lawrence:
Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
Furthermore, the Court might dislike to make such a ruling, because in the future it could be used as a post-Lawrence precedent to argue either that a state's recognition of marriage is inherently a public function (and so creating a legislative due deference precedent against same-sex marriage) or that a state has a legitimate interest in regulating childbearing among those who might produce defective children. We have been there before and I don't think they want to go back.

In Lawrence the Court wrote:
The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court's obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850.
I don't see any way in which one can properly argue that the Court was not mandating its own moral code in Lawrence, unless its statements about private sexual conduct are very broadly applied. I agree with the court's moral statement - I believe that it was morally wrong for Texas to pass the law and convict under it - but I don't believe that the Supreme Court does have the right to impose its own moral code upon the entire population of the United States.

I don't see how the Supreme Court can deal with the future elaboration of the Lawrence decision. It would have been better simply to strike the law on the equal protection grounds that it only applied to same sex partners. That would have left the states in the position of defining certain acts as illegal for all its citizens or none of them and would have accomplished nearly the same result.

I think the entire logical fiasco here points out the difficulties inherent in results-oriented judgments not supported in the law. The truth is that the Supreme Court cannot accomplish only what it believes to be morally correct - that homosexuals must be treated as a protected class under the Constitution - without having the power to legislate. Instead, the Court must either legalize all private sexual conduct or stay entirely out of the bedroom business and leave it to the legislatures.

Well, the SCOTUS is now firmly in the bedroom, and it is going to find that matters are getting a bit steamy in there. I believe that the Seventh Circuit decided to stay out of this affray as a matter of policy, reasoning that once you start striking down taboos you have to strike them all. I got a good chuckle out of this one. Muth, of course, is not laughing.

So my questions to my two remaining conscious readers are the following:

I haven't yet read the cases in full, so I'll preserve full judgment until such time as I do. But I have to comment on a couple of things.

"... I don't believe that the Supreme Court does have the right to impose its own moral code upon the entire population of the United States."

That's not what the Supreme Court is doing. In fact, that's the complete opposite of what it's doing. It's not defining a moral code for the nation, but rather it's prohibiting a state from narrowly defining its own moral code. There's a difference between saying "you can't do that" to an indidividual and saying "you can't do that" to a state. By this ruling, it appears that SCOTUS is telling the states (as well as the federal government) that, absent some sort of constitutional amendment restricting liberty, the government is not allowed to impose ANY moral code on the people.

"Instead, the Court must either legalize all private sexual conduct or stay entirely out of the bedroom business and leave it to the legislatures."

Not that I want to stir the pot too much, but according to your reasoning, this would allow not only incest, but rape (or limit the crime of "rape" to mere "assault and battery," since the sexual element would become irrelevant). I certainly don't think this was the intent, the rational interpretation, or the future precedent this case will have.

"Well, the SCOTUS is now firmly in the bedroom, and it is going to find that matters are getting a bit steamy in there."

SCOTUS has been in the bedroom for a very long time, ever since it struck down laws preventing the sale of contraceptives, struck down laws about miscegenation of blood (race-mixing by intermarriage), struck down laws prohibiting abortion. The bedroom is one of the few places where liberty is at its fullest, and therefore the Supreme Court is necessarily there from time to time over its history to preserve rights infringed upon by the state.

To answer your questions:

Yes, I think the state has the right to prohibit incest, just as it has the right to set the age of consent, regulate child-porn, and enact public health laws. While first-generation incest may not be a straight-line to genetic defects, over time such incestuous insularity clearly leads to bad genes (see the blue people of West Virginia, etc.). Incest also usually involves children below the age of reason, so there is the "child abuse" element to it. There is a clear risk to children (both by direct consequences of incest (as in father-daughter, underage sex) and by by future generations' consequences (as in people being born looking like Prince Charles)). That is, there is a rational reason for the law; it is not merely a "moral" issue, but a health issue.

No, I don't think the state has the right to regulate homosexual activity, because there is no threat (direct or indirect) to the public welfare or the people engaged in the act. That is, there is no rational reason for the law; it is nothing more than a "moral" issue which the government has no business passing.
Boomr - but what of infertile incestuous couples? Remember, at the time these mores developed, there was no effective means of birth control. I don't think your argument stands up to scrutiny.

And you are right that SCOTUS has been in the bedroom (or rather booting the state out of it) for a long time. But now we get to the very difficult issues. I wonder if they just shouldn't stay out of it.
More later Boomr. Your points are good and deserve consideration and reasoned reply.
I think before I answer your question about infertile incestuous couples, we need to define incest. If you're talking about relationships between cousins or other consenting adults, then maybe the infertility rule should apply. But to blanket the issue with the general "incest" rule without specifically dealing with children as a separate subgroup would be to ignore a problem bigger than just the potential for genetic defects. In terms of child incest, infertility shouldn't be a factor, it should just be criminalized and punished harshly.

I should note that with regards to various states' prohibitions of first cousins marrying, many of them have grandfather clauses that say that couples born after X date (usually significantly long in the past to preclude child-bearing) do not fall within the law's prohibition. As a side note, and as a factor weighing against stereotypes with regards to southerners, I should note that more states outside of the South allow first cousins to marry than states below the Mason-Dixon line. I'm not sure of the state of the various states' infertility laws, but I don't see why those rules shouldn't be in place (i.e., consenting adults who are no threat to public health shouldn't be prohibited from engaging in sex).

I really don't see how gay sex is any more of a "very difficult issue" than the use of contraceptives within or without of the marriage bond. That had as large a "moral" stigma to it at the time (probably even more) than gay sex does now. Like I've said before, I believe that within our lifetimes we'll see court rulings holding gay people as a "suspect class" like minorities or women. To be honest, this is the natural progression of the law.

And when it regards constitutional rights, there is simply no argument that the Supreme Court should "just ... stay out of it." Guarding constitutional rights is the SOLE function of SCOTUS.

I await your "reasoned reply." Thanks for bringing the issue up.
Boomr - no, the issue of adults molesting children is absolutely off the table. I believe Lawrence made that quite clear. It marked out consensual and private conduct as being off the table (IMO). In the Muth case, this was purely a case of brother and sister marrying as adults.

You are self-consistent on the sex issue so far.

Now, another question. If you believe that the state has no right to prevent the Muths from cohabiting as long as they don't produce children, then you agree that the state's prevailing interest is the long-term genetic consequences of such relationships. In other words, the state has the right to regulate the result of such a relationship, but not the relationship itself.

Tell me if I am wrong about the above reasoning, because I don't want to put words in your mouth. If the state can only regulate incest on a "rational basis" which does not include any moral judgment, doesn't that give the state the right to prohibit unrelated people who carry genetic diseases from having children?

I am very serious about that question.
If there is sterilization, I don't think there is much of a rational basis for precluding incest marriages (as icky as I find the concept).

Naturally, we are of the disposition to not mingle with our close relatives due to the whole genetic issue. In fact, it is more difficult for a brother and a sister to conceive a child than two strangers because the reproductive process has natural defenses to it happening - the same genetic makers on cells that make it easier for you to catch the flu from your child as opposed to catching it from the neighbors kid also make it harder to reproduce with your kid and easier with the neighbors kid (sorry, I know it doesn't paint the best picture).

In actuality, homosexuality is more natural than incest.
I see you painting an interesting (and logical, if somewhat "big brother"-ish) slippery slope to the government's control over all reproduction. I think it's good to debate the issue, but I think ultimately the government will not be able to complete such a coup.

In response to your comment, first I should say that IN EVERY CASE the state may only regulate ANY issue "on a "rational basis" which does not include any moral judgment," whether the issue is infertile incest or the manufacture of widgets. EVERY LAW must have a "rational basis" to some governmental interest or it's unconstitutional. Some laws must meet an even higher standard (the "strict scrutiny" or "heightened" standards applied to "suspect classes" and other groups), but in any case the government must at least produce some sort of rational basis for any law that it passes. For instance, it could not just announce that every American must wear green on Sundays, because the law is illogical and has no rational basis to any significant government interest. So, in all cases, the state must meet at least the "rational basis" test.

As for your particular question, I'll answer the question with a question (yes, bad form, I know): Apart from the genetic or other public health consequences, what is the danger in consenting-adult incest? I mean, what purpose is served by prohibiting it? I agree with Dingo that the subject frankly disgusts me, but if you look at it objectively, absent any "moral" judgments placed upon the practice by religious or social mores or any public health dangers, it's really just the matter of two adults consenting to a relationship, and therefore a matter of individual values.

I think the legislature and the judiciary would be EXTREMELY wary of expanding this concept to blanket government control over any disease-causing union -- although it has already stuck its head in on the subject in a couple of ways. It's illegal to pass on AIDS knowingly through consensual sex without telling the other person that you have it, and the government has a compelling interest in preventing such knowing conduct from occurring. Even this state interest took a while to take shape.

You're really making me think on this one, because it's somewhat difficult to come up with a reason to prohibit incestuous births but not other genetic-defect births. I think the best way to explain it is that the government has a compelling interest in preserving the multiplicity of the gene pool, as most evidence points to a general strengthening of genetic stock by intermixing various family and racial lines. There is much less of a probability that two carriers of a disease-causing gene will produce a "defective" child, than there is if bloodlines fail to branch and continue in a straight line. The further down the insular genetic family "tree" you go, the greater the likelihood of defects or disease; the same can't be said of unrelated carriers -- their child will have the SAME odds of passing the gene on as each parent did, not a greater chance, which would again depend on the introduction of new blood through his choice of spouse.

To be honest, I'm a lawyer, not a geneticist, and I'm not well-versed enough in the science behind genetics to explain in detail. But I think the probability of public health dangers is much greater in a society of incest than there is in society where unrelated carriers are free to procreate.

But the question is a good one -- at what point does government intrusion stop?
Let's get real here. Suppose I sodomize my son when I am 35 and he is 8 ( very common occurance)? Clearly that is statutory rape, probably slavery, and a few other things. Ditto if I screw my daughter when she is 12 (another common occurance). These are clearly predatory acts on helpless prey. What has to be clear is consent once both parties are adults BUT rape is never OK. There is so much grey in this thing---the preditor setting up the victim for years---and so on. I'd say incest happens between two consenting adults---brother and sister---and there is no coercion involved it is no affair of the state. But I have really been around, and from shocking personal involvement with incest victims I can tell you that almost every time incest occurs there is predator and prey. In fact, and this may really shake your shit, any time you see a really fat girl or woman, especially if they would be considered pretty if they weren't fat, think possible incest; the female wants to be as unattractive as possible to ward off the father or brother.

Similarly the number of gay men as a result of either child rape or incest with a relative (including the mother) is astonishing. And I have heard stories that would make your entire body convulse.

I am willing to bet the farm that incest that is free from some form of coercion, is rare as Kosher food at a Baptist convention.
Howard - according to the facts of this case, it was not an adult molesting a child. As everyone agrees, the Supreme Court is not going to throw that door wide open. It did mark out clear exclusions in Lawrence V Texas. I just don't think all of them can be justified on a rational basis.

I think the principle of special protection for minors and those not able to consent is so well enshrined in the law that we need have no fear that illegal abuse would be condoned under Lawrence.

However, see below - the family was "dysfunctional" with the kids being placed in foster care at times. So you are correct in observing that this situation probably had very abusive and legally (& morally) criminal roots.

However, as Boomr points out, it is hard to draw a "rational basis" line that permits outlawing incestuous families (this brother and sister had at least three children) while not by the same logic entitling the state to widespread interference in reproductive decisions.

Dingo, in this case maybe the natural instinctive prohibition didn't work because of the situation and a lack of contact:
Among fourteen children in a dysfunctional family, Allen was one of the oldest and Patricia
one of the youngest. During their childhood they were in
and out of foster care, and they and several other siblings
were involved in a cycle of sexual abuse and incest. Although
they were separated for some length of time, at about the time Patricia reached the age of majority she and
Allen became reunited and got married. During their marriage
they had three children (apparently she had one other child prior to the marriage).

Boomr, I don't think your reasoning holds. For instance, the Old Amish in PA have been interbreeding for so long that there are now certain genetic diseases (among the worst a severe kidney defect) occurring at a very disproportionate rate among them. This is not a result of incest by the legal definition. It arose in the same way as Tay-Sachs over hundreds of years. See this for information on microcephaly among this population.

The state would have a far more compelling reason to genetically test and prohibit interbreeding among two carriers of the mutated genes than it ever could in barring simple brother-sister incest.

Basically the trouble that I see is that the enunciation of the principle that the state should stay out of the bedroom except under certain circumstances seems to me to logically lead to a situation in which the state greatly expands its field of control over private behavior.

The Ashkenazi have developed their own testing program, but of course it is not mandatory. And then you have entire lineages that have a very high risk for Huntington's Disease, for example. So you are absolutely wrong that incest on average produces the worst problems. Inbreeding does. And there are historical populations that do have these problems. Some Indian tribes, for example.

I am not done with my comments, but it's hard to divorce myself from my own instinctive repulsion over the incest thing. I want to think carefully about this. I also want to thank all three of you for your comments. It's kind of a disgusting subject and it's somewhat hard to react rationally rather than viscerally.

Howard, I agree that incest and sexual abuse are particularly difficult problems. I think the Muth case illustrates just what you are writing about.

I believe the incest problem will become more of an issue because of artificial insemination. It is relatively easy for half-brothers and sisters to meet as adults and get together without knowing of their relationship. There have been several famous cases.

Research has shown that women select their mates partially on the basis of whether they smell right (they seek a match to some genetic factors of their fathers), and I am guessing that this accounts for some of these cases. If you doubt the research, I can tell you that it is true. I met several men that I really adored, but their hands didn't smell right and so they were not a prospective mate to me.
"Research has shown that women select their mates partially on the basis of whether they smell right (they seek a match to some genetic factors of their fathers), and I am guessing that this accounts for some of these cases."

yes, this is true. It is again part of the natural defenses to bad genetic lines. You will find that men that ware more genetically compatible smell better. But this only occurs in about half of women and never occurs in men.
You propose, we dispose.

But the problem is that it is only a very partial defense - something about immunological blood factors or something.

The incest avoidance reflex, I have read, does seem to only work for adolescents raised communally.
I asked my girlfriend about the whole smell thing. She just emailed me with more information on it that I could even try to summarize, but I will leave you with this (incase you have any daughters)... being on birth control pills can reverse a females preference (I emphasize "can" not not "will").
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