Earlier this month, in a unanimous opinion by Judge Richard Posner for a three-judge panel in Baskin v. Bogan, the U.S. Court of Appeals for the Seventh Circuit struck down Indiana and Wisconsin laws denying recognition to same-sex marriages (SSMs) in those states, as violations of the Equal Protection Clause of the Fourteenth Amendment. Judge Posner’s opinion does an excellent job of refuting the various arguments that the ban’s defenders presented in their briefs and in court, including the proposal that the purpose of marriage is to serve as insurance for accidental procreation and that because same-sex couples necessarily cannot “accidentally” procreate, they have no need for such insurance. Readers can find an outstanding review of Judge Posner’s opinion (as well as of a less distinguished district court opinion going the other way) in Michael C. Dorf’s Verdict column on the subject.
In the course of responding to the defenders of SSM bans, Judge Posner’s opinion points out a flaw in the argument that the purpose of marriage (and, according to the government of Indiana, its only purpose) is to serve as accidental procreation insurance. The flaw emerges in the observation that although both Indiana and Wisconsin prohibit incestuous marriage (in particular, marriage by first cousins), each suspends its respective prohibition for some couples (those ages 65 and older in Indiana and those that include a female 55 or older in Wisconsin, as well as younger couples in Wisconsin with a doctor’s note attesting to sterility in one of the parties). While gay people cannot marry because they cannot accidentally procreate, it thus seems that straight first cousins may marry only if they cannot procreate, a situation in which they would plainly need no insurance against accidental procreation. The laws governing incest thus provide a useful means of testing the sincerity of government rationales offered in defense of SSM bans.
In this column, I will take up the question of incest/incestuous marriage prohibitions for a different purpose. Defenders of anti-gay legislation have often invoked incest laws as part of making their case. The claim is that laws against incest (or against incestuous marriage), which garner little controversy, are in fact indistinguishable from laws against gay relationships or SSM. Justice Scalia famously said in his angry dissent from Lawrence v. Texas that “[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” all rest on the same basic principles as laws against sodomy between two people of the same sex. Putting aside the other items in the list, this column asks whether Justice Scalia was right in his claim with respect to incest or whether there is in fact a real difference between banning incest (including through prohibitions against incestuous marriage) and banning homosexuality (through SSM bans).
Different Ways of Thinking About the Question
There are at least two distinct ways in which we might assess the legitimacy of distinguishing between bans on SSMs and bans on incestuous marriages. The first would involve focusing on the interest, if any, that the government might have in barring the type of marriage in question. Put differently, we could dwell on the negative impact, if any, that society experiences from the practice at issue. Second, we might consider the harm that the prohibition in dispute inflicts on the population to which it applies; that is, we might ask how much of an interest people have in being free to enter into the marriages that the laws, respectively, seek to ban.
The Governmental Interest Served
The first approach is to consider what legitimate goals a government might have in prohibiting incestuous and same-sex marriages, respectively. A common argument that people have long made in favor of (consensual adult) incest prohibitions is that incestuous unions are far more likely than other, non-incestuous, unions to produce offspring with serious genetic anomalies. A society has an interest, along these lines, in trying to maximize the odds of producing healthy offspring and therefore in preventing unions that are more likely than others to yield genetic abnormalities. An analogous argument for prohibitions against SSM might be that same-sex unions are unlikely to produce children (a proposition that no longer remains true but that used to be relatively accurate) and that society has an interest in encouraging unions that will produce the next generation of (healthy and productive) societal members.
For different people, these two rationales may sound more or less reasonable. Let us begin with the incest ban. Most of us feel some revulsion at the idea of incest, perhaps because evolution has programmed us to feel this revulsion, given the increased odds of negative genetic consequences when close relatives find each other sexually attractive. As a result of our revulsion, we might find ourselves relatively uncritical of the genetic-anomaly-avoidance rationale (or any other rationale, however weak) offered in defense of a ban.
One problem with the genetic rationale, however, is its under-inclusiveness. If government were truly trying to prevent couplings at increased odds of producing offspring with genetic anomalies, then it would hardly seem optimal to begin with incest (which most people find unappealing already). We might instead prohibit unions of people over a particular age, given that older eggs and older sperms are far more likely to yield genetic anomalies than their younger counterparts. We might also require that people seeking to marry first undergo genetic testing and evidence a genetic “clean bill of health.” If testing revealed genetic risks to a union, the law could then either prohibit marriage or require sterilization for that couple as a precondition to marriage.
The sorts of laws we would pass if we were truly serious about preventing genetic-anomaly-producing couplings would plainly be extremely intrusive. It is far easier to implement an incest ban, because the government can readily determine whether two people are siblings or first cousins. But if it were really important to protect the gene pool, then even such intrusive laws would perhaps be acceptable to us, and the reality is that genetic testing could prove necessary to determining that a couple would be incestuous, especially if the parties were not raised as part of one household.
More importantly, legislation of this sort (including the incest ban) is expressly eugenic in nature: that is, the government is imposing prohibitions on the population as a means of improving its “quality.” Outside of the incest context, we tend to find eugenics legislation offensive. Though the U.S. Supreme Court has given its stamp of approval to the forcible sterilization of “imbeciles,” concluding that “[t]hree generations of imbeciles are enough” in Buck v. Bell, modern audiences likely find this language and ideology appalling and far too resonant with the policies of Nazi Germany.
For homosexuality, the concern about wanting to ensure procreation seems, on its face, less convincing than the eugenics rationale for incest prohibitions. It appears, first, that we have lots of people voluntarily procreating with members of the opposite sex—so many, in fact, that Indiana and Wisconsin are expressing worries about “accidental procreation.” If the only way to motivate gay people to produce offspring were to prohibit SSM (or same-sex relationships more generally), moreover, it would appear terribly intrusive into their lives to do so.
The stigma that once attached to homosexuality and that motivated many gay men and lesbians to be closeted and to (unhappily) marry members of the opposite sex to gain social acceptance is surely not something that any compassionate person would want to resuscitate, even if it were necessary to building our numbers. And a prohibition on SSM would be under-inclusive, because heterosexuals are not required by law to reproduce. Finally, of course, gay men and lesbians are now reproducing without having to sacrifice their authentic sexual identities, through artificial insemination and other reproductive technologies, so prohibiting SSM does nothing to increase their reproductive prospects and might instead diminish them.
If one were focusing on societal rationales, then, one might say that incestuous marriage prohibitions serve a somewhat more plausible benefit than SSM prohibitions but that neither is truly necessary or essential, as evidenced at least in part by under-inclusiveness (apparent in the lack of general eugenics laws or procreation mandates for heterosexuals).
Harm to Targets
Another way to assess differences between incest bans and SSM bans would be to think about them from the perspective of their targets. The targets of (adult consensual) incestuous marriage bans are adults who might wish to have sex with and marry one of their close relatives, a sibling or a first cousin, for example. For someone who is already in love with a sibling, such as the fictional Siegmund and Sieglinde, the prohibition could be quite burdensome. However, most of the people who might feel attraction to a sibling or a cousin would likely have learned early in life that such relationships are prohibited and would probably direct their sexual feelings toward a non-relative instead. That is, people who might commit incest or marry incestuously if it were not prohibited by law are, for the most part, going to be capable of sexual relationships with other people. To my knowledge, people do not generally have an exclusively incestuous “sexual orientation.”
Along similar lines, Judge Posner says in one part of his opinion that prohibitions against interracial marriages were, despite their racist ugliness, “in one respect less severe” than bans on SSM, because “[m]embers of different races had . . . abundant possibilities for finding a suitable marriage partner,” even under the anti-miscegenation regime. Laws prohibiting interracial marriage thus left African Americans with many potential marriage partners with whom they could fall in love.
By contrast, a prohibition against SSM has the effect—for the many people whose sexual orientation is toward only people of the same sex— of “prevent[ing] a homosexual from marrying any person with the same sexual orientation, which is to say (with occasional exceptions) any person a homosexual would want or be willing to marry.” Judge Posner makes this point to argue that SSM bans are, in this sense, more onerous than anti-miscegenation laws, which were ruled unconstitutional in Loving v. Virginia and which are almost universally condemned.
The point that Judge Posner makes is arguably even more applicable when SSM is compared to the case of incest. Anti-miscegenation statutes (in addition to having extremely destructive symbolic meaning) made huge numbers of potential marriage partners unavailable to a given individual, whereas the prohibition against incestuous marriages leaves in place almost all of the potential partners from whom one might want to choose a person to marry. A SSM prohibition effectively prohibits gay men and lesbians from marrying any member of the entire population of potentially desirable partners. The same likely cannot be said of a man who would, absent the incest laws, be inclined to fall in love with his first cousin.
Incest and SSM Redux
If we have a law that rests on a very weak foundation, in terms of governmental interests furthered, and imposes great harm on its targets, it is plain that such a law cannot be justified. We can say this clearly of SSM bans, as the rationales that people have put forward (such as “insurance against accidental procreation” or “we need more procreation”) are silly and weak, while the impact of the ban is to make marriage a celebrated societal benefit that is completely off-limits to everyone with an exclusively same-sex sexual orientation. My hope is that at least five Justices on the U.S. Supreme Court are able to appreciate this reality and find SSM bans unconstitutional under the Equal Protection Clause.
With respect to incest bans, I have suggested here that they are not as harmful as SSM bans because they still leave people who would have liked to marry a relative with plenty of alternative partners. In other words, if it is necessary to distinguish the destructiveness of SSM bans from the destructiveness of (adult consensual) incest bans, one can easily draw that distinction based on the differential burden that the two bans respectively impose on their targets. To the extent that the U.S. Supreme Court is not yet ready to strike down incest laws, this differentiation may prove helpful.
Nonetheless, I do not wish to be read in this column to be suggesting that incestuous marriage bans are necessarily legitimate. Indeed, I think they have serious problems in that they prohibit consensual activity on the basis of a rationale (eugenics) that is both troubling and—because it is so troubling—unenforced in virtually any other area of law. It is also true that some people who did not know in advance that they were close relatives (perhaps because they were each adopted and grew up in different families) have fallen in love only to learn later that the law prohibits the celebration of their union (and whatever children they might have already brought into the world) in marriage. For such couples, the incest prohibition could be devastating. The fact that one could in theory fall in love with someone else does little to relieve the hurt involved in finding out after the fact that the actual individual whom one has chosen as one’s partner turns out to be forbidden.
For this reason, I would leave open the possibility that one day, the U.S. Supreme Court will see fit to hold that as a matter of fundamental liberty, any competent adult should be free to marry any other competent adult, if the two wish to marry. Rationales for stopping them have tended to be weak, and the prohibitions themselves are quite costly for the few people who find themselves in relationships generally frowned upon but innocent of any harm to unwilling others.
I will leave arguments about this for another day. For now, the argument before our society and the courts is about bans on SSM, and the balance between the tremendous harm of such bans and the triviality and foolishness of their putative justifications makes clear that whatever one thinks of incestuous marriage bans, it is time for SSM bans to go.
this is a fascinating and well-developed argument against broad-brush bans related to human relationships. one question it raises for me is why such laws are cast in stone [meaning they are all-or-none in wording] rather than being open to modification as new knowledge develops. for example, with respect to the incest ban, why not have it written so that the ban could be automatically modified once it is realized that what is technically an incestuous relationship was not discovered in a timely way because of the adoption of the parties in infancy? as it currently stands, the parties are guilty of a crime they had no way of knowing they were committing.
Interesting thought exercise, but I’m more interested in the effect of increased acceptance of SSM on the argument against polygamy. If the gender of the members of a marriage is no longer relevant then why is the quantity of members relevant?
That’s a good point. It’s not like polygyny, polyandry, and polygynandry haven’t been practiced for thousands of years. If heterosexual, they even qualify under the “procreation” standard set by opponents of SSM.
Do we take the age of consent seriously or not? I have yet to see a good reason to keep bans on consanguineous marriage, and less so keeping laws that criminalize consanguineous sex. You cite the eugenics argument, which is indeed bogus. We do not prevent people will obvious, serious genetic diseases from having sex or marrying, while most children born to consanguineous parents are healthy. And clearly sex, marriage, and childbearing are three different things anyway.
I always found arguments based on the exclusivity of homosexual attraction to be inherently monosexist. After all, it implies that bisexuals only gain their rights on the coattails of homosexuals, that if the world contained only heterosexuals and bisexuals, people shouldn’t care that much about same-sex marriage. I view same-sex relationships and marriage as universal human rights. Regardless of whether or not I choose to be a Jahova’s Witness, my right to be one is constitutionally protected. Similarly, regardless of whether I ever want to at any given time, my right to be in a sexual relationship with another man and to marry him should be protected. I have the same views for consanguineous relationships.
You picked out a very narrow subset of people involved with relatives for you sympathetic example. I think you’d be surprised at how common it actually is. Transsexual people are increasingly visible and gaining their rights, yet I wouldn’t be surprised if there are as many people in consensual sexual relationships with a family member or relative, as there are people experiencing dysphoria. The fact is, if no-one wanted to do it, there’d be no point in banning it. (Anthropologists have made exactly this point about the taboos.)
In the scheme of things, though, marriage is a less serious issue than basic sexual and relationship rights. The sever penalties for violating prohibitions against sex and reproduction are far more salient than marriage. After all, it’s silly to have the right to marry someone you can’t legally have sex with. The marital prohibitions against consanguineous couples are just the last layer of a system of laws and social prohibitions which serve to keep likely hundreds of thousands of people in the US alone under a state of fear. Sodomy laws were inconsistently enforced when they existed, but their mere presence gave police license to harass, and made people afraid of coming out publicly. The state doesn’t really enforce laws through force – it would be almost physically impossible – but through the threat of force. The use of coercion in the cases of imprisonment, execution, and expropriation exist to reinforce the credibility of the threat of force. It’s the threat of force which is expected to regulate behavior. I’m not a utilitarian, but it’s an argument that utilitarians do make all the time justifying state coercion. If we factor in all the other countries that have laws against consensual consanguineous sex, we’re talking about millions of people across the planet being literally oppressed.
The laws come from our taboos, and our taboos are as nebulous as our concept of family. When you have two opposite-sex parents who have their own genetic children and raise them, that’s easy to understand. But what about in-laws? What about step-family? What about adoptive family? If it’s illegal to have sex with a genetic relative you didn’t grow up with, then the standard must be genetic relationship, and so legal family would be allowed. Except, many people would consider all of these to be “incestuous”, and actually under some legal schemes, they are. In some states, courts have deemed that even legal familial status counts as a prohibited degree of relationship under law, and people have actually been sent to jail for sleeping with a step-relative. The laws of some countries also explicitly mention step-relatives and adoptive relatives in their “incest” laws.
This is all just the modern, tail end of a historical system of taboos and punishments, frequently enforced by state authority, which brutally punish people for their sexual “deviancy”. There are cultures now where if a man is suspected of sleeping with his sister, men will sneak into his house at night, murder him, and then place his body by a tree to make it look like he jumped to his death. Things like that have been going on for thousands and thousands of years.
PS: I agree with your conclusion whole-heartedly. We call it “full marriage equality”.
Another argument for the incest ban is the difficulty of being sure that consent is entirely free and informed for both parties, especially in cases like parent and child, siblings, and cousins raised in close proximity. Immediate families contain very complex power imbalances. For example, even into retirement age it is common for a person in the United States to find it difficult to deny/reject a parent or an older sibling who helped care for the person as a child. Consent is often ignored even though it is a rock-bottom requirement for marriage rights; so we hear some people genuinely worried that allowing same-sex marriage must of necessity permit adult-child and human-animal marriages, in neither of which there can be competent consent. I think that every discussion of marriage rights must include a close look at the consent issues.