Change My View: Bans on incestuous sex and on incestuous marriage are unconstitutional. (generations, illegal)
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Basically, my own argument here is this--bans on incestuous sex and on incestuous marriage are a form of symmetric discrimination and are thus unconstitutional based on the 14th Amendment.
Indeed, based on incestuous bans are *symmetric* in the sense that they affect everyone equally; after all, no one is allowed to marry his or her close relatives (up to a certain degree of relation, that is). However, they are also *discriminatory* because (for instance) they allow me to marry my friend's sister but not my own sister while allowing my friend to marry my own sister but not his own sister.
When the U.S. Supreme Court first examined the issue of symmetric discrimination (in this case, based on race) in 1883 (in Pace v. Alabama), it unfortunately (and *contrary* to the original intent of the 14th Amendment; indeed, please see here: http://conlaw.jotwell.com/originalis...cial-marriage/ ) upheld it and said that symmetric discrimination *wasn't* unconstitutional. However, the 1883 Pace v. Alabama ruling was overturned in 1964 and again in 1967 with McLaughlin v. Florida and with Loving v. Virginia. Indeed, Justice Potter Stewart's concurring opinions in both McLaughlin and Loving are especially notable here; indeed, here is what exactly Justice Stewart said in the 1964 McLaughlin case:
"We deal here with a criminal law which imposes criminal punishment. And I think it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor. Discrimination of that kind is invidious per se."
Similarly, some same-sex marriage supporters (such as Ilya Somin) have argued that, since same-sex marriage bans are a form of symmetric discrimination based on sex, same-sex marriage bans are likewise unconstitutional.
Anyway, I am going to extend this logic (which I certainly think has *a lot* of value even though the 1883 Pace ruling *could have been* overturned *without* a total rejection of race-based symmetric discrimination) to incest here:
Just like Justice Stewart said that whether or not a particular act is a crime *shouldn't* be based on the race of the person who performs this crime, I can say that whether or not a particular act is a crime *shouldn't* be based on the familial relationship of this person. For instance, a law that *only* makes it illegal for close relatives of criminals (and for *no one* else) to smoke marijuana would obviously get struck down as being unconstitutional (presumably based on the 14th Amendment). Similarly, laws which ban incestuous sex and incestuous marriage *only* make a particular act--such as having consensual sex with a particular adult--illegal for close relatives of this adult.
Anyway, one might say that the state has an important interest in ensuring that people don't get abused in incestuous relationships and that banning both incestuous sex and incestuous marriage would accomplish this goal by scaring people and thus encouraging people *not* to engage in such acts. (Of course, for the record, considering that standards of scrutiny appear to be a 1930s judicial creation/invention while the 14th Amendment dates back from the 1860s, I certainly *don't* want to follow strict rules in regards to standards of scrutiny in regards to this issue.) However, the problem that I see with this argument is that one can also legitimately argue that criminalizing incestuous sex and incestuous marriage will cause people who nevertheless want to engage in such behavior to do so in secrecy (which in turn might very well make their behavior less likely to be detected by the government and by law enforcement authorities); indeed, one can argue that it is better for incestuous couples to feel sufficiently safe to come out (by *not* categorically banning *all* incestuous sex and *all* incestuous marriage)--after all, that would certainly allow the government and law enforcement authorities to easily investigate any cases of incestuous relationships which they deem to be suspicious (as in, abusive or whatever).
Basically, my own argument here is this--bans on incestuous sex and on incestuous marriage are a form of symmetric discrimination and are thus unconstitutional based on the 14th Amendment.
Indeed, based on incestuous bans are *symmetric* in the sense that they affect everyone equally; after all, no one is allowed to marry his or her close relatives (up to a certain degree of relation, that is). However, they are also *discriminatory* because (for instance) they allow me to marry my friend's sister but not my own sister while allowing my friend to marry my own sister but not his own sister.
When the U.S. Supreme Court first examined the issue of symmetric discrimination (in this case, based on race) in 1883 (in Pace v. Alabama), it unfortunately (and *contrary* to the original intent of the 14th Amendment; indeed, please see here: http://conlaw.jotwell.com/originalis...cial-marriage/ ) upheld it and said that symmetric discrimination *wasn't* unconstitutional. However, the 1883 Pace v. Alabama ruling was overturned in 1964 and again in 1967 with McLaughlin v. Florida and with Loving v. Virginia. Indeed, Justice Potter Stewart's concurring opinions in both McLaughlin and Loving are especially notable here; indeed, here is what exactly Justice Stewart said in the 1964 McLaughlin case:
"We deal here with a criminal law which imposes criminal punishment. And I think it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor. Discrimination of that kind is invidious per se."
Similarly, some same-sex marriage supporters (such as Ilya Somin) have argued that, since same-sex marriage bans are a form of symmetric discrimination based on sex, same-sex marriage bans are likewise unconstitutional.
Anyway, I am going to extend this logic (which I certainly think has *a lot* of value even though the 1883 Pace ruling *could have been* overturned *without* a total rejection of race-based symmetric discrimination) to incest here:
Just like Justice Stewart said that whether or not a particular act is a crime *shouldn't* be based on the race of the person who performs this crime, I can say that whether or not a particular act is a crime *shouldn't* be based on the familial relationship of this person. For instance, a law that *only* makes it illegal for close relatives of criminals (and for *no one* else) to smoke marijuana would obviously get struck down as being unconstitutional (presumably based on the 14th Amendment). Similarly, laws which ban incestuous sex and incestuous marriage *only* make a particular act--such as having consensual sex with a particular adult--illegal for close relatives of this adult.
Anyway, one might say that the state has an important interest in ensuring that people don't get abused in incestuous relationships and that banning both incestuous sex and incestuous marriage would accomplish this goal by scaring people and thus encouraging people *not* to engage in such acts. (Of course, for the record, considering that standards of scrutiny appear to be a 1930s judicial creation/invention while the 14th Amendment dates back from the 1860s, I certainly *don't* want to follow strict rules in regards to standards of scrutiny in regards to this issue.) However, the problem that I see with this argument is that one can also legitimately argue that criminalizing incestuous sex and incestuous marriage will cause people who nevertheless want to engage in such behavior to do so in secrecy (which in turn might very well make their behavior less likely to be detected by the government and by law enforcement authorities); indeed, one can argue that it is better for incestuous couples to feel sufficiently safe to come out (by *not* categorically banning *all* incestuous sex and *all* incestuous marriage)--after all, that would certainly allow the government and law enforcement authorities to easily investigate any cases of incestuous relationships which they deem to be suspicious (as in, abusive or whatever).
Anyway, any thoughts on what I wrote here?
Yes, my first thought was, "How can any man even THINK carnal thoughts of their daughters, or sisters?"
My second thought was, as an alien I'd better check out this 14th. Amendment.
After that, I returned to my first thought, and feeling decidedly queasy, I logged off.
The reason to prohibit incest is to reduce the chances of genetic defects. Children produced by first-cousins have about double the chance of genetic defect as the average non-incestuous birth. Children of siblings, or parent-child, or aunt-nephew parings have defects at higher rates. If this practice continues for multiple generations the rates go up even more.
The courts have long taken protection of the human species into account when judging the constitutionality of various laws.
For example, government mandates requiring vaccinations before a child is exposed (or exposes him/herself) to a class full of other children is arguably unconstitutional, but it is still done and legal.
The reason to prohibit incest is to reduce the chances of genetic defects. Children produced by first-cousins have about double the chance of genetic defect as the average non-incestuous birth. Children of siblings, or parent-child, or aunt-nephew parings have defects at higher rates. If this practice continues for multiple generations the rates go up even more.
The courts have long taken protection of the human species into account when judging the constitutionality of various laws.
For example, government mandates requiring vaccinations before a child is exposed (or exposes him/herself) to a class full of other children is arguably unconstitutional, but it is still done and legal.
There is obviously a fine line here because, as we all know, the government "allows" people of limited intelligence and genetic defects of all sorts to procreate.
So if "higher rates" alone was the reason it would be hard to see how it hold up. Courts have even ruled in favor of allowing many women and couples with major shortcomings (inability to plan, work, etc.) to have children.
How about the recent tendencies toward older moms and dads? This probably creates higher chances of defects than marrying 2nd cousins, right?
Most of this stuff is probably tradition and we just take it for granted....even if it's not exactly correct. As far as I am concerned, we have a lot of strange policies about children....for example, paying people more and more to have more and more (deductions, welfare, etc.) as well as a general lack of education about family planning and parenthood.
I enjoy being part of a civilized society and don't mind paying for others - but there is a limit to my charity.
In recent years I have witnessed a growing number of people pushing to normalize primitive behaviors - from daily social interactions to serious transgressions such as rape, incest, pedophilia, etc. Primitive behavior is not conducive to the progression of humankind. I don't know if the push is from ignorance or mental illness. Perhaps some of both.
I read somewhere that the United States (some of them) is the only country in the West that forbids marriage of cousins. Some states restrict it, but do not forbid it.
In the world of today, anything between consenting adults is likely to be allowed sooner or later!
I read somewhere that the United States (some of them) is the only country in the West that forbids marriage of cousins. Some states restrict it, but do not forbid it.
In the world of today, anything between consenting adults is likely to be allowed sooner or later!
Taking that a step further, why do we limit unions to two people? Why not three, four, five, or several hundred?
And what's with the universal scorn for polygamy?
Then think about all the folks whose Facebook photo is a dog or cat...
Here are some facts the founding population of Homo Sapiens is estimated at most a few thousand individuals.
10% of current marriages world wide are between 2nd cousins or closer.
Robin Fox an anthropologist at Rutgers University has estimate 80% of all mating in our species have been between 2nd cousins or closer.
There was a study released in the Journal of genetic counseling which showed that the offspring of 1st cousins had an increased risk of having birth defects but not as much as one might think it was an increase of 1-2% over the base of 3% for non-related parents.
This issue is way overblown being that it is a cultural taboo in the US, there is evidence to show that the risks with second cousins are minimal and at the third cousins level there is nil increased risk in birth defects. You do however seen a sharp increase in birth defects when there are repeated first cousin marriages generation after generation.
These incestuous marriage laws are stupid I don't picture first cousins lining up at the courthouse around the block to get married if these laws are overturned only a small number of people would be affected. Not my thing but if that's what they want who gives a damn let them.
Taking that a step further, why do we limit unions to two people? Why not three, four, five, or several hundred?
And what's with the universal scorn for polygamy?
Then think about all the folks whose Facebook photo is a dog or cat...
Exactly. Where do you draw the line? These practices have been going on for thousands of years. That's the left's argument isn't it? What's the difference between homosexuality and polygamy with regards to the law? Are we not all consenting adults? Animals? Relatives? Been going on for thousands of years....
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