Is It Arbitrary to Distinguish Incest From Homosexuality?

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.