August 28, 2005
Jeff Jacoby points us to a case that pointedly raises the issue regarding incest laws.
''I BELIEVE severe punishment is required in this case," the judge said at Allen and Pat's sentencing in November 1997. ''I think they have to be separated. It's the only way to prevent them from having intercourse in the future."Allen and Pat were lovers, but a Wisconsin statute enacted in 1849 made their sexual relationship a felony. The law was sometimes used to nail predators who had molested children, but using it to prosecute consenting adults -- Allen was 45; Pat, 30 -- was virtually unheard of. That didn't deter Milwaukee County Judge David Hansher. Nor did the fact that the couple didn't understand why their relationship should be a crime. Allen and Pat didn't ''have to be bright," the judge growled, to know that having sex with each other was wrong.
He threw the book at them: eight years for Allen, five for Pat, served in separate maximum-security prisons, 25 miles apart.
If this had happened to a gay couple, the case would have become a cause celebre. Hard time as punishment for a private, consensual, adult relationship? Activists would have been outraged. Editorial pages would have thundered.
But Allen and Patricia Muth are not gay. They were convicted of incest. Although they didn't meet until Patricia was 18 -- she had been raised from infancy in foster care -- they were brother and sister, children of the same biological parents. They were also strongly attracted to each other, emotionally and physically. And so, disregarding the taboo against incest, they became a couple and had four children.
When Wisconsin officials learned of the Muths' relationship, they moved to strip them of their parental rights. The state's position, upheld in court, was that their ''fundamentally disordered" lifestyle made them unfit for parenthood by definition. Allen and Patricia's children were taken from them. Then they were prosecuted for incest and sent to prison.
Now tell me -- where does the logic of this law, this prosecution, differ from that in Lawrence v. Texas? After all, we had a pair of consenting adults engaging in a loving and consensual relationship. The state declared their relationship to be disordered and criminalized it. And do not tell me that hte reason is the potential for birth defects -- the courts have long-ago restricted the right of the state to engage in prohibitions of sex or reproduction for eugenic purposes. So what are you left with, other than public disgust and public morals, both of which are ruled out as a basis for legislation under Lawrence and related homosexual rights cases.
And consider what Lawrence actually says. It says that the state cannot regulate ''the most private human conduct, sexual behavior" whenit occurs between consenting adults.
''The petitioners are entitled to respect for their private lives," Justice Anthony Kennedy wrote in striking down the Texas law under which John Lawrence and Tyron Garner had been convicted of homosexual sodomy. ''The state cannot by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."
Does a prosecution for incest between consenting adults respect their private lives, as required by Lawrence?
No, it does not.
Does the prosecution demena their existance?
Arguably it does, in violation of Lawrence.
Does the criminalization of their sexual conduct have the effect of demeaning their existence or controlling their destiny?
It most certainly does.
The Seventh Circuit Court of Appeals has declined to overturn the convictions -- but only on procedural grounds, not on the actual merits of the argument that the Lawrence precedent nullifies all consensual sexual activity between adults. But that is really at the heart of the issue here, and will have to be confronted either by the Supreme COurt itself or by lower courts around the country.
Unless, of course, Lawrence established only one constitutionally protected class of sexual conduct -- and, in the process, special rights for homosexuals only.
Regardless, the Supreme Court must clean up the mess that it made by clarifying the scope of Lawrence v. Texas. Are all laws regarding consensual adult sex constitutionally infirm? Is homosexual conduct the only form of sexuality considered deviant by the majority of citizens and their legislators that gets constitutional protection? Or was Lawrence wrongly decided by a court more concerned with political correctness than constitutional correctness?
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