Incest & Homosexual Sodomy: The Law Protects Both.

Let’s talk about incest. I have written my fair share of controversial things on this blog, but I cannot recall a time where I have pontificated on society’s ultimate taboo. Nonetheless, there’s a first for everything so the faint of heart can tune out and the politically correct, “loving members” of society can prepare their hazmat suits for a rage crisis.

I was browsing the news this afternoon, and the following story caught my eye: “Massachusetts mom, 64, and her 42-year-old son face up to 20 years in prison for incest after his wife ‘caught them having sex.‘”

The facts are simple. Wife walks in on her mother-in-law and husband having sex on the family couch. She calls the police. The police respond and, in the process of their fact-gathering, both husband and mother-in-law admit separately that they had just engaged in consensual flagrante delicto. The police arrest and charge both of them with incest, which is a felony carrying a maximum of 20 years in prison.

I am no lecher so ordinarily I wouldn’t even have read this story, but I am also a constitutional scholar who has studied and written sexual privacy in conjunction with the First Amendment. I am also a future criminal defense attorney who like to speculate on how he would defend these cases.

Long story short, the defendants in this case have no traditional defenses except a possibility of temporary insanity. Their only defense is a constitutional challenge to the statute criminalizing incest.

Logic would dictate that they should win such a challenge.

In 2003, the United States Supreme Court recognized some sort of right to sexual privacy in a case called Lawrence v. Texas. Lawrence concerned two men who Texas cops caught sodomizing each other. Even though Sergeant Hartman famously quipped that “Only steers and queers come from Texas,” steers were the only thing that Texas itself recognized at the time. The Texas police slapped the two men with Class C misdemeanors under Texas’s anti-sodomy laws.

According to accounts that I have read, the trial judge was going to let them off with just a warning, but Lambda Legal talked the two men into pleading guilty, taking a fine, and preserving their appeal rights. So they pled guilty and took their case to the United States Supreme Court.

In a 5-4 decision written by the now-retired Justice Anthony Kennedy, the Court held that “[t]he petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause [of the Fourteenth Amendment] gives them the full right to engage in their conduct without intervention of the government.” The Court described the social disapprobation attached to homosexual sexual behavior as condemnation “shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family.”

If you accept Lawrence‘s categories as controlling, incest is criminalized for the same reasons: religious beliefs and conceptions of right and acceptable behavior. Those are impermissible motives to criminalize behavior that does not even pose a risk of harm to third-parties. Consequently, Massachusetts’ incest statute and every other incest across the country should be struck down as unconstitutional under Lawrence.

Obviously, it would not be that simple in practice. A court could draw any number of distinctions between pro-creative copulation and non-creative copulation. It could even find a legitimate and compelling public health interest that would justify government regulation. It could even seize on the late Justice Scalia’s dissent to demonstrate that Lawrence did not establish a fundamental right, but rather some sort of specially protected liberty/privacy interest – a view that I personally agree with as a constitutional matter.

As defense counsel however, I would not be too worried about brushing those objections aside if the Supreme Court’s composition was the same as it was at the time that it decided Lawrence. I would predict a much tougher task if I was making the argument to the Court today. Furthermore, given how poorly Texas argued and briefed Lawrence, I would even go so far as to say that I could get a different result on Lawrence‘s facts if I was representing a state today.

The reality, however, is that incest laws shouldn’t survive constitutional scrutiny under the current state of the law, and the mother-in-law and the husband should have the charges dismissed as unconstitutional on their face.

Yes, both as a Christian and as a half-way decent human being, I find their behavior to be a revolting and repugnant sin, but law and logic demand the dismissal of these charges and the judicial striking down of Massachusetts’ incest law. If I was representing them, I would be pushing the argument to the hilt and, if I could find enough lecherous incestors to fund a trip to the United States Supreme Court, I would take their case there if necessary.

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