Posted by: Chris | July 7, 2011

Gay Marriage and Gay Incest

I know other Lurers have noted the NY gay marriage victory already and I hope to make a more substantive contribution on the subject (or at least some of the law’s aftermath).  However, I thought it quasi-timely to float another potential argument in favor of gay marriage.

A common argument against same-sex marriage is that, since the unions are not inherently procreative, they should be legally distinct from naturally procreative ones (i.e. one man and one woman), with the later being considered marriage and the former something else.  A number of people, including here on the Lure, have quite rightly and ably argued that this logic would also excluded infertile or other sorts of heterosexual couples incapable of procreation.  Further attempts by marriage equality opponents to refine their definition has not mitigated this objection in the slightest.

However, I sense another potential problem with this logic.  Incest laws are largely predicated on the potentially harmful effects of these unions on any offspring produced (in addition to the biologically innate “ick” factor).  Non-procreative couples have been covered by these laws, despite their inability to produce children biologically, because they are still governed by the same fundamental regime as procreative couples.  This avoids judicial hairsplitting during criminal trials and more fully reinforces the taboo against incestuous relationships, not unlike still charging someone with a DUI even if they are immaculate drunk drivers. 

The problems arise, though, if a legislative body or court declares same-sex unions distinct from their heterosexual counterparts (and thus governed by a separate legal framework) specifically because these unions are fundamentally non-procreative.  It seems quite apparent to me that this system would be open up laws prohibiting same-sex incest to a robust legal challenge.  The sorts of arguments necessary to defeat gay incest are exactly the same as those that buttress non-procreative incest: preserve the social sanction and avoid unnecessary wrangling during trials.  But they only hold their validity because no legal distinction is made between straight and gay couples based on procreation.  Indeed, this line of arguments is analogous to that proffered above in favor of SSM: if we allow gays to commit incest, why shouldn’t we allow sterile couples or even those religious about birth control to do the same.   The primary safeguard is a common legal framework governing all consenting relationships, or at least one that does not discern groups based on fertility.  If judges or lawmakers officially disregard these objections and adjure against SSM on procreative grounds, they will set a dangerous precedent that will likely be far more permissive of gay incest. 

Slippery slopes don’t necessarily have the m-values their proponents expect.



  1. Actually, this raises for me a question I suspect captainfalcon would be best able to answer. When and to what extent (if ever) does the reason a law was passed become relevant to judging it’s legality?

    (E.g., suppose you could somehow, with science, show conclusively that a law passed only because everybody in the town hates gays, or because somebody spiked the Congressional water supply with liberal Kool-Aid before the vote, or for some other presumably undesirable reason)

    • The only example I’m familiar with where the motivations of the legislature have a bearing on a law’s constitutionality [or “legality” more generally] is in the case of laws that have a disparate impact on a protected racial class. For example, if a law is not facially discriminatory, but affects blacks differently from whites, the courts ask whether the law was passed “because of, not merely in spite of, its adverse effects upon an identifiable group.” See McClesky v. Kemp, 481 U.S. 279 (1987). Under this precedent, if Science proves that a law with a disparate racial impact would not have been passed absent invidious racial motivations then the law is unconstitutional.

      In Lawrence v. Texas, the Supreme Court has also looked to whether the only possible basis for a law that discriminates against homosexuals is “animus” in deciding whether to strike it down, but this was not so much an investigation of the actual motives of the legislature as it was a moral evaluation of the plain meaning of the law.

      Finally, I am almost certain no court has ever looked to the sociological explanation for laws criminalizing incest in determining their purpose. The usual array of sources that courts consult in constructing a penal statute are (i) plain meaning and purposes announced in the statute itself, (ii) recorded legislative history, and (iii) the pre-codification common law version of the crime.

      For example, American Jurisprudence (a well-regarded reference that seeks to report the law as practicing lawyers want to know it) says that the two purposes underlying the criminalization of incest are (a) preserving family integrity and (b) preventing genetic abnormalities. (It does not say that one of these purposes is more important than the other.) It supports this assessment by reference to statutes and case law, not sociological surveys or opinion polls.

  2. Interestingly, Delaware explicitly forbids incest between a “brother and a brother” and a “sister and a sister.” Most other states I looked at reach the same result by using sex-neutral language in their incest statutes. The exception is Florida, which does not seem to have criminalized same-sex incest:

    Whoever knowingly marries or has sexual intercourse with a person to whom he or she is related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece, commits incest, which constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. “Sexual intercourse” is the penetration of the female sex organ by the male sex organ, however slight; emission of semen is not required.

    The statute also has the amusing side-effect that, given marriage is one route to the crime of incest, same-sex incest would become criminalized in Florida were the state to recognize same-sex marriage.

    As for whether, contrary to the statute’s terms, homosexual incest is a crime in Florida, I have been unable to find any Florida case law concerning same-sex sexual relationships between relatives. In a different context, Hawker v. State describes homosexuals engaging in “sexual intercourse” but this is pretty weak evidence of the definition’s going beyond the plain terms of the statute. That said, Florida courts seem happy to fiddle with its language in order to respect its purpose. For example, in Carnes v. State the Appellate Court observed, in holding the statute extended to sex with a half-sister, that “the obvious purpose of the incest statute is to address the evil of sexual intercourse between persons who are related to each other within specific degrees . . . an interpretation of section 826.04 which would permit sexual intercourse with a person’s half-sister but which would prohibit sexual intercourse with that person’s niece or aunt would be an absurd interpretation and contrary to the legislature’s intent.” Carnes v. State, 725 So. 2d 417 (Fla. App. 1999).

    Also, it is not clear to me that just because you decide it is worth the administrative and social costs to distinguish between procreative and non-procreative couples in the marriage context you must also decide those costs are worth distinguishing between procreative and non-procreative couples in the incest context. For example, couldn’t the state decide that it is more important to ensure that only procreative couples marry than to ensure that non-procreative couples may commit incest – e.g. if it decided that its interest in preserving the “integrity of marriage” [the bedrock of our society etc. etc.] was stronger than its interest in allowing barren siblings to have sex? If so, then the increased administrative and social costs involved in distinguishing procreative from non-procreative couples could be justified in the context of marriage, and not in the context of incest.

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