Reflections on Lawrence v. Texas

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I wrote the content of this post on 1 July 2003, right after the opinions for Lawrence v. Texas went online. I've been meaning to transfer it to my blog but lacked an immediate reason to do so until Tony's comment here. I haven't changed a word. I haven't even read it all to see if I agree with all of it still. This is simply my reflections after reading all the opinions on that case at the time.

On 26 June, 2003 the United States Supreme Court made a landmark decision against the state of Texas� law against sodomy. I want to make a few comments about the legal and political issues and give a few thoughts about how a Christian should think about this.

Due Process and Anti-Sodomy Laws

The majority ruling was based on the issue of due process. Here is the Due Process Clause from the Fourteenth Amendment: �nor shall any State deprive any person of life, liberty, or property, without due process of law�. Apparently the law, which makes it a crime for two people of the same sex to have sex with each other, violates that clause. It certainly does violate certain liberties -- namely the liberty to have sex with anyone you want. However, that�s not a liberty the constitution gives. In fact, almost no one thinks there�s a right to have sex with children, animals, or adult, consenting family members. Not too many people think there�s a fundamental constitutional right to have adulterous sex, even if some people don�t have as much of a problem with it as others. Certainly many people think it�s perfectly fine to restrict lawful marriage to only one-one partnerships, which in effect restricts sex to one partner during any period of time (and until death at that) for those who believe sex should be restricted to a marriage relationship. So there�s no necessary right to sex with just anyone.

But couldn�t the more liberal members of the Court be thinking that sex should only be restricted when it involves lack of consent? I take it that this is their main thesis. If that�s their view, then they can get a case against the Texas law. If homosexual sodomy is by consent and not interfering with anyone but the two consenting partners, then why should there be a law against it? This isn�t so bad an argument. In fact, Justice Scalia and, even more explicitly, Justice Thomas express that sort of thought in their minority opinions. However, that�s not the issue here. It�s not about what laws should be in effect. It�s about what laws are constitutionally prohibited. There�s no constitutional right to have sex with any consenting adult you happen to want to have sex with. I�d love to have someone show me such a clause in the Constitution. This view allows laws against sex with children (and maybe animals if you don�t think they can really consent, which is a complicated issue in itself, though much recent work in the area of consent has shown that it�s very hard to determine if someone has consented even if they say they consent, so it�s not likely animals can be shown to have consented). It doesn�t allow laws against adultery or incest in general (as long as it�s not with children). As consent is currently legally defined, it doesn�t allow prohibiting sex between a professor and a student or between a President and an intern (which are incredibly similar situations), though that is partly a result of bad definitions of consent. So there are lots of places that the Supreme Court�s decision will prevent existing laws that seem perfectly fine even apart from the issue of sodomy.

In the interest of fairness, I should say that Justice Kennedy�s majority opinion specifically states that it does not allow prostitution or public sexual conduct. That indicates that the issue here is not just consent but also privacy. When private, consensual activity occurs that does not harm anyone besides the consenting parties, there should be no law against it. This is supposed to be something in the Constitution, but it�s not there. In addition to the above problems, there�s also no constitutional right to privacy. Roe v. Wade and current thought about the Internet seem to assume such a right, but I�ve never seen such a right in the constitution. There�s a right against someone searching your body, home, or possessions without probable cause. There�s no right to privacy per se. In the case at hand, there was (arguably) probable cause � an anonymous tip that the police were investigating. However, that doesn�t mean there�s a right to privacy, and even if there was I�m not sure how privacy would guard against being held responsible for crimes you commit in private places. They�re still crimes. That�s the point of the �probable cause� exception.

Then there�s the most fundamental question raised by Justice Scalia. There�s really no basis for this kind of argument in the Due Process Clause. Read it over again: �nor shall any State deprive any person of life, liberty, or property, without due process of law�. Let me paraphrase. No state has the right to kill someone, take away any freedoms they might have, or take what they own without going through proper legal channels. The state can�t execute someone unless there�s a law that makes it legal to do so. States with capital punishment statutes then can kill someone. No state can take someone�s property unless the law allows it. So when the interstate system needs to go through my house, and a law allows the state to remove it from me and compensate me for my property, they have the right. What about liberty, then? If a law prohibits my freedom, that seems ok as far as the Due Process Clause is concerned. What counts as due process? Due process is when an elected body institutes a law by the constitutionally provided methods. A democratically elected body writes the laws, and enforcing those laws is perfectly fine even if it robs someone of their freedoms. Where is the problem, then, with an anti-sodomy law? If it�s created by the democratic process, then due process is at work. If it�s removed by a political appointee (e.g. someone in the executive branch or the judicial branch), then it violates due process. Well, isn�t that what the Supreme Court just did? They made a decision that they said was based on due process, but in effect they violated due process. Incidentally, Justice O�Connor, who agreed with the final judgment of the majority that the law is unconstitutional, disagreed with their basis. She said that due process could not provide a basis for this decision.

What about Equal Protection?

Justice O�Connor thinks there�s a different reason to prohibit a law such as the one in Texas. It violates the Equal Protection Clause (which is really a phrase, not a clause) of the Fourteenth Amendment. For a more complete context, here is the larger section including both the Due Process Clause and the Equal Protection Clause: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Why is there an equal protection issue? The Equal Protection Clause guarantees that everyone under the jurisdiction of a law (in this case anyone in the state of Texas) be held to the same standards. As Supreme Court decisions have interpreted this, it means that no distinction between groups of people should be justify different treatment by a state unless there�s a rational basis for that different treatment (judged in terms of a state�s legitimate interests). So if a state wants to hire someone to do a job, and there�s a clear difference in terms of who is better qualified or who will best help serve the state�s interests in that job, then such a difference is ok. It doesn�t violate equal protection. Making a decision based simply on one�s dislike for the ethnic background of one of the candidates does violate equal protection of the laws. That�s the paradigm case of an equal protection violation.

Why is this case supposed to be a violation of equal protection? Usually cases violating equal protection involve some sort of discrimination by the state, having laws against one group of people doing something (or laws requiring them to do something) when there aren�t similar laws for other groups, with no legitimate state interest at stake. Thus requiring homes for the mentally ill to have permits (because the people living there aren�t related to each other) when there�s no such law for fraternity houses is a violation of equal protection. A law that prevents single people from acquiring contraceptives when people who are married can was also judged to violate equal protection. The Supreme Court has ruled in the past that laws can�t allow people who are homosexual to be treated differently from people who are heterosexual simply on that basis without a legitimate state interest at stake. So two issues are at stake here. Justice O�Connor�s opinion requires that there is different treatment on the basis of sexual orientation, and it requires that there�s no legitimate state interest at stake. If she is wrong on either point, then her case is dead.

Legitimate State Interest

First, is there a legitimate state interest? Justice O�Connor admits that there�s a legitimate state interest to preserve the institution of marriage as traditionally conceived. Justice Scalia wonders why the state of Texas can�t say something similar about this issue. For instance, there is the institution of traditional sexual morality. Why isn�t that an institution that the state of Texas could rationally determine to be worth preserving, when the institution of traditional marriage is a rational state interest worth preserving? Both seem to be the traditions of society. Both seem to be getting less entrenched in the public consciousness. Both seem to be in the interests of the state in terms of protecting against real problems that would happen less frequently and less disastrously if people held to them (e.g. STDs, unwanted pregnancy and therefore abortion, divorce and its effect on children, psychological and social consequences of multiple relational breakups in marriage or outside marriage, etc.) I�m not sure she has much of a case on this if she admits that marriage is worth preserving. It would be harder to argue against someone who doesn�t admit that, and many won�t admit it, but that�s not the case with the one Supreme Court justice who thinks equal protection is at stake here (all eight other justices refused to attach their names to her opinion).

Discrimination With Intent to Harm a Particular Class?

Justice O'Connor thinks that in one kind of case it doesn�t matter anyway whether there�s a legitimate state interest. So even if Justice Scalia is right in the previous paragraph, she thinks there�s a way to find an equal protection violation here. If a law stems from a desire to harm a specific class of people, particular an unpopular class, then the above-mentioned rational basis review is not enough. The law should simply be struck down even if there is a rational basis. For instance, someone might have argued that preventing the uneducated from voting will serve state�s interests, since those who are better informed will be voting. However, such an argument is likely to have been made with a hidden desire to undermine the interests of those who turn out to be uneducated � which has often included disproportionate numbers of minorities and certainly disproportionate numbers of economically disadvantaged people. It�s impossible to prove that such a law is intended to harm such people, but it�s likely that anyone introducing such a law would have had such a desire, particularly when the Fourteenth Amendment was constructed to prevent just this sort of use of law.

So here is Justice O'Connor�s challenge. The Texas law violates people�s equal protection rights if they happen to be homosexual, since there�s no similar law against heterosexual sodomy. So one�s merely being homosexual prevents one from engaging in acts that are legal for a heterosexual in Texas. Therefore, Texas has violated the equal protection rights of homosexual people. There�s one problem with this argument, and O�Connor realizes it. The law doesn�t distinguish between people who are homosexual and people who are heterosexual. The act that's illegal is having sex with someone of the same sex. It would be just as illegal if a heterosexual man had sex with a man or if a heterosexual woman had sex with a woman. Now it�s true that people who are heterosexual don�t normally do such things, but that�s a result of their preference, not something mandated by any law, of a state or of nature. Someone who is homosexual is similarly not required or compelled by nature to have sex with people of the same sex. This law is about consenting acts by adults, not by forced or coerced acts. Therefore, they by definition involve acts of choice. So if it�s discrimination against any class of people, that class is those who choose to have sex with people of the same sex, which isn�t the same class as the class of people who are homosexual, since that class is defined in terms of sexual preference without regard to actions.

Justice O'Connor argues, however, that the classes overlap so significantly that it raises suspicions about the purpose of the law. Why would someone want to enforce behavior that is so common among people who are homosexual but so uncommon among people who are heterosexual? Well, the obvious answer is that it�s a way to treat homosexuals as a class on a lower level than heterosexuals. If the way homosexual people choose to express love is made illegal, then it does have that effect. If that�s the intent of the law, then Justice O'Connor says it should be struck down even if it serves a rational state interest.

The problem with this argument is that any law does this. Laws against going in public unclothed target nudists. You could be a nudist without expressing your view by going nude in public, and you could be a non-nudist who happens to be out in public unclothed on a given occasion. However, the law does target nudists, since there's such a strong correlation between nudists as a class and public nudity as behavior. What Justice Scalia argues is that rational basis is still enough to justify the law, since that�s all that does it with laws against public nudity. It doesn�t matter if the law targets a particular class of people. There�s a rational basis for such targeting, and therefore the law should be upheld. Justice Scalia argues that many of our laws simply reflect views about behavior that many in our society find objectionable because it is immoral and destructive. Perhaps this attitude will change. Justice Scalia allows for that. However, at this point Texas� elected officials do not see that. Is it irrational to have laws against actions that so many find immoral and destructive? If there is a war within our culture between those who see homosexuality as immoral and destructive and those who do not, it is the Supreme Court�s job to allow states to settle those issues by democratically-elected and legally constituted legislation, unless there is a constitutionally protected right at stake, and it seems as if there is none here. If society�s views change on this, then the state can change its laws. The Supreme Court, by stepping in and preventing the state from recognizing its right to prohibit behavior that democratically-elected officials see as immoral and destructive, has violated the democratic process of letting a state decide such issues.

The Issue of Consistency with Previous Decisions

Those in the majority in Planned Parenthood v. Casey were roughly the same justices in the majority in this case (and were certainly of similar persuasion on general legal issues). A key issue in that case was that the Supreme Court shouldn't overturn recent (counting 20 years ago as recent) Supreme Court decisions simply to resolve a current divisive controversy. To do so would be to undermine the Supreme Court's authority. So they chose not to overturn Roe v. Wade, though they admitted that the reasoning of Roe v. Wade was faulty. What's interesting is that this Texas case does the same thing they said you shouldn't do. The idea here is that when it favors your view not to overturn a case, you give some reason not to, such as not wanting to undermine the Supreme Court's authority. When it doesn't favor your view, though, you ignore such reasoning. That's an inconsistency in reasoning. This doesn't show that the reasoning in this case is bad (though I�ve tried to do that above), but it does show that if this is ok to do, then they shouldn't have rejected overturning Roe v. Wade on the grounds they used (unless there's some important difference between the two cases that I haven't yet seen).

How a Christian Should Respond

In how we respond to legal matters, I see two principles in tension � the American tenet that we are part of the government and the biblical mandate that governments derive their authority from God. In our daily lives, I see some compelling principles to go against the conservative majority within evangelicalism but not at all for reasons the liberal minority would give. I�ll take each issue in turn

We are part of the government. That�s something given to us by the Constitution. If Christians are to respect the government as the divinely-ordained instrument of justice (cf. Romans 13), then that involves respecting the government�s contention that each citizen has a voice in the government. Certain privileges are given to each person residing in the United States, including freedom of speech and a right to dissent, and citizens are given the right to vote to affect who will be in decision-making positions. Those are therefore derivatively rights given by God, therefore, since the rights are given by a God-ordained agent of carrying out justice. Since we can affect how that justice will be carried out, it�s our responsibility to participate in whatever way seems best to influence this country in the direction of just, righteous, and truth. Sometimes that involves speaking out against decisions that we might disagree with, even giving reasons against them. That�s one reason I felt motivated to write this. It involves voting for someone you think will improve things. It might involve petitioning an already-elected official to vote certain ways. It might involve persuasive arguments toward elected officials or their political appointees. It might involve presenting legal arguments in court cases such as this one. There are lots of ways Christians can and should be involved at the political level, not that every Christian should be involved in every way, since it may be best to have the best-qualified doing the tasks that require more careful argumentation and persuasion.

On the other hand, we are to recognize the current authorities as being placed there by God. This includes people you like (with most evangelical Christians, that would be the more conservative candidates, though a minority of evangelicals will side with the more liberal candidates, and it�s important for politically conservative evangelicals to understand which Christian principles are involved in that support for liberal causes). It also includes people you don�t like. It even includes people like Adolf Hitler, Saddam Hussein, or Joseph Stalin. My biblical support for this is that it includes biblical tyrants and oppressors like the Pharaoh in Exodus, the king of Assyria in Isaiah 10, and Nebuchadnezzar in Daniel. In the same breath almost, the biblical writers have no problem asserting that these evil rulers are responsible for the evil that they commit, yet God has placed them in their positions to serve his own purposes, which don�t line up with their own oppressive or self-congratulatory purposes. With this in mind, President Clinton and President Bush alike have divinely-sanctioned authority (while in the position of President of the United States), regardless of which one has better policies. Therefore, the Christian attitude toward them is respect, and Christians on both sides of the political spectrum have shown disrespect to a divinely appointed agent of justice in the form of these two men. In this piece I hope to have shown respect to the Supreme Court justices with whom I disagree, and I have argued against their positions without trying to discredit their authority. I must submit to their authority, and since they have decided against what I would have decided, it is now law that I must treat as law. If the Supreme Court prevents a state from exercising its freedom to make homosexual sodomy illegal, that threatens none of my responsibilities as a Christian. It interferes with nothing of what God asks of me. Therefore, I as a Christian need to submit to that law and not cry out that Christians are being persecuted or some such thing, simply because the Christian view that homosexual sex is immoral is not represented by the law.

In our daily lives, how should we live when it comes to the homosexual issue? The Bible clearly condemns homosexual sex. It does not condemn the fact that someone is homosexual as immoral, though it does indicate that something has gone wrong when someone does have homosexual preferences or tendencies. This issue has nothing to do with what makes someone homosexual. It may well be genetic. It may well be determined by social factors (such as absence of a good male role model). More likely, it�s a combination of the two. Whatever is the case, it seems that many people find themselves as homosexual without any desire to be so, even with some resistance to see oneself that way. The Bible is silent on how it happens, except that it�s a result of the fallen world. Genetic tendencies toward other bad things won�t prevent blame for doing immoral things, just as social factors leading to someone�s doing something wrong won�t prevent us from assigning blame. The issue is whether the act is wrong, not about how someone self-identifies, though that is a bad result of the world�s being in a fallen state. This isn�t something I can argue philosophically. I don�t think any philosophically coherent notion of naturalness will show that homosexuality is unnatural in a way that leads to moral blame for engaging in homosexual sex. However, those who believe the Bible have to go through all sorts of exegetical loops (that just plain don�t make sense of the text) to try to argue against the clear biblical statements that homosexual sex is immoral and that homosexual preferences are a bad effect of the fall. So biblical Christians should believe this.

How should that affect our attitudes toward people who are homosexual? I�m not sure it should. The Bible makes one all-important distinction when it comes to the Christian gospel � there are those who have received the Christian message as good news and responded in trust that God will forgive us from rebelling against him and will transform us into the perfect image that he intended us to have in the beginning, and then there are those who haven�t done so. Whether someone is homosexual or heterosexual does not affect how respond to someone who has not received that message as good news and responded to it in trust of the one person whose relationship to us is most important. Other relationships have little significance in comparison, though once we are at peace with God in a restored community of love and faith it�s pretty clear that other relationships have the utmost significance. Seeking the be ambassadors for this unseen political entity ruled by God that�s working its way into people�s hearts is our primary task. Defending Christian morality is secondary. Once we�ve seen that, how we relate to people who are homosexual should be utterly transformed from how the religious right often thinks about this issue. The gospel is primary, and our relationships should be geared toward caring for people for who they are, seeking to interpret the gospel to them in ways that it will speak to their lives, making it clear that God does have expectations but also demonstrating (with love) that God�s standards in terms of our attitude toward him (rebellion or submission) is the primary matter, and every single person on this earth has failed that test and doesn�t deserve to be in this restored community of believers.

Anyone who sees all this should have no sense of heterosexual superiority. Some prominent Christian leaders blamed the September 11 bombings on the sins of America (explicitly mentioning only a few that those leaders didn�t struggle with, which included homosexuality, while ignoring the ones they most likely did struggle with, such as pride or independence, both sins represented by the American way and the American dream). They eventually revoked the statements, saying they were insensitive given how recent the tragic events were. That�s totally the wrong reason. Any prophetic voice speaking God's truth should connect that truth as closely to the events as possible. If God did oversee that event as a judgment on the American spirit of rebellion against God, something I think it likely, then it was perfectly appropriate to mention it shortly after it happened. That point needed to be made. The problem wasn�t that they said it or that they said it then. The problem was that they were targeting their favorite sins to accuse America of, ones they didn�t commit, and that goes against the biblical humility that comes from being saved by God�s grace, not as a result of anything we�ve done. If I�m going to criticize the United States (either the actions of the government or actions stemming from the values of the American public), I need to engage in self-criticism while I do it. If there are ways that I contribute toward oppressive policies or community practices, ways that I participate in the American values of greed or self-centeredness, ways that my actions or statements encourage a life that ignores God, etc., then I need to acknowledge such things and repent. If I as a Christian am going to criticize the United States or Americans for allowing or tolerating behavior that Christianity insists is wrong, then I need to be consistent in being as vocal against behavior and attitudes I participate in that Christianity insists is wrong, and I need to repent as I speak out against it (which doesn�t just mean saying I disagree with it but actually changing the direction of my life on those matters).

My Christianity certainly means that I need to temper the hateful language I may be prone to use against a group of people whose behavior I find distasteful, and I would argue that it means going out of my way to initiate friendships with people who are homosexual, reflecting the Christian love expressed so well by God�s love for those who had no right for him to love us � those who were God�s enemies and are now at peace with him � every single genuine Christian in history. It involves being willing to spend time with someone who is homosexual, seeing to rejoice with them as they rejoice and weep with them as they weep, keeping in mind that you don�t endorse the homosexual sexual acts. What if we were to minimize the homosexual issue without necessarily leaving it unsaid but without emphasizing it as something affecting our relationship with homosexual people? What if we were to affirm them for who God created them to be, which involves at least some of the things that they associate with their homosexual identity even if it doesn�t involve seeing homosexual sex as morally right or seeing the full conception of homosexual identity as a good thing? If we did that, then relations between the homosexual community and Christianity would be so different that the response of homosexual people to the gospel would be far less inhibited by the perceptions of Christianity as an oppressive and backward religion. People who have tried this have seen significant progress, so this isn�t a statement out of nowhere. Whole congregations have seen huge walls break down in terms of people�s reception to the gospel simply by acting in ways similar to what I�ve been suggesting. God has honored people�s attempts to show Christian love toward the homosexual community by reaching out in ways that require incredible initiative, supreme sensitivity, much listening, and less speaking (and that more later on, after much bridge-building). That is what I see Christians called to when it comes to how to relate to homosexual people, and perhaps if we spend less time arguing about what the law should be (on sodomy and on same-sex marriage) we will be able to focus on the really important issues � how people stand with their God.

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Two more posts recently on Lawrence have caught my eye, although that may not be because they haven't being posted with regularity, it's just that I read (and wrote on) the decision recently so it catches my attention. Jeremy Pierce... Read More


you wrote: "There�s no constitutional right to have sex with any consenting adult you happen to want to have sex with. I�d love to have someone show me such a clause in the Constitution."

You want the ninth amendment: "The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people."

The point is that rights don't come from the constitution; we have them already, and the constitution, and government otherwise, is just there to protect them.

Craig is correct.

Two things I would add to the first part of your post:

Firstly, consent is not the same as willingness in legal thought. Consent is a legal concept and presupposes legal capacity to exercise rights and duties. Minors and mentally ill people in theory are not consenting participants in any event. The age of consent is often statutory. It may be argued that actual physcial and mental conditions should have a priority or be also taken into consideration.

Secondly, although statutes cannot be immoral, not everything that is immoral is or can be made illegal. Something that is completely immoral can be perfectly legal.

The final part of your post is correct. But the passages that say that God has placed certain guys in key places none can buy nowadays. It is just too medieval to be considered as an argument. It is more reasonable to say that the Biblical passages in question point to what nowadays is called rule of law and legality. Give Caesar what pertains to Caesar.

Ah, but if it's a moral right I'd need to see an argument that it's a moral right. I don't think I have a right to have sex with just anyone I want. Even if I had a right to have sex with someone other than my wife, which I don't, I wouldn't have a right to have sex with my sister (I don't have any as it happens, but I mean if I did), and this would be so even in a state that had no laws against sex with one's sister.

not everything that is immoral is or can be made illegal

I disagree. I don't think it would be a good idea to make some immoral things illegal, but any immoral thing that's an overt action (I'm not talking about immoral beliefs, thoughts, or motives) can be made illegal. It's not literally impossible to make any immoral action illegal. It might be hard to enforce some of them, as Justice Thomas argues when he says sodomy laws are stupid, but it's not in principle impossible to make such actions illegal.

Nebuchadnezzar's divinely-given authority to destroy God's people, their city, and their temple is not about the rule of law or what belongs to Caesar. It's about God's sovereignty over the nations, including their leaders. It's about placing Nebuchadnezzar's ability to devastate God's people alongside their rebellion against God and God's statements through his prophets that they will be exiled. I'm not sure what that has to do with medieval times, given that it was around for thousands of years as one of the fundamental assumptions of most of the prophets, who were all long dead by medieval times.

As I was trying to access your blog, some young female friends of mine were laughing because one patrol device displayed a warning box that the site contained forbidden and/or inappropriate contents. Mind you. I deactivated the device.

Anway, morality is not legality. The assumption that just anything can be made illegal because legislators want so is too archaic and uncivilised, and incompatible with minimal principles of democracy and rule of law, especially human rights. In many State Constitutions it is written that absolute power over the lives, property, etc. of the People shall not exist, not even in the vastest majority. Although this principle is not written in all Constitutional texts, it is a basic principle of both common and international law. Scalia and all jurists know that Constitutional and legal provisions are uninterpretable, i.e., they do not make sense, except if interpreted in accordance with these universal principles of legal thought.

The capacity of the State to legislate is restricted to the public arena. Personal matters belonging to the intimate lives of the persons are out of that scope.

So I'm assuming you're biting the bullet on incest. That should be improper to legislate against, according to your argument. I consider that a reductio ad absurdum of your argument.

Incest like jaywalking is by definition illegal in any society. If it is not illegal, then it is not incest.

Thence, the matter is to define incest. For instance, among some Indians of Brazil, who are a multi-lingual society, incest is when two native speakers of the same language have sex. Abraham married to Sarah, who was his sister, but that was not incest in the place where they lived at that time. In matrilenial societies incest can only be defined among siblings who have the same mother, but not between those who have the same father and different mothers. Until the XIXth century most Countries of Europe allowed uncles to marry to their nieces. Queen Mary the IInd of Portugal was married to her paternal uncle Michael. Even in Germany and Austria during the first half of the XXth this sort of relation was ok (Hitler's first public girlfriend was his niece too and that was not scandalous).

So the question is to define incest. When it is defined it is by definition illegal.

I think you can distinguish between a legal and a moreal sense for 'incest' (as these cases demonstrate, but I can restate my question without using that word, as I originally had done when I first raised it:

I'm assuming you're biting the bullet on sex between a brother and sister. That should be improper to legislate against, according to your argument. I consider that a reductio ad absurdum of your argument.

That is something that, according to the more traditional views, involves more than just the two. The traditional view was that marriage is for procreation, and thus is the society's instrument to perpetuate itself. Men and women are not required to get married (in many societies), but once they do they commit themselves to procreate.

Until recent times, laws on family and marriage were based on this idea and concerned with passage of property from one generation to another. As such, they were designed to ensure to the male that he would pass his wealth to his biological descendant and not the issue of other men.

So, inasmuch as a couple could produce an offspring, it did not matter what husbands did besides his marital duties. Gay marriage would not exist under this view, because it does not lead to procreation, although homosexual affairs would be of no consequence, inasmuch as a husband fulfilled his duties with his wife.
What wives did, however, was seen differently, since an adulterous wife could have other men's children and pretend they were her husband's.

Relations between brother and sister have been prohibited after empirical observations had shown that the offspring was not healthy. So the union between siblings did not serve the procreation purposes for this reason.

Accordingly to this view, the matters have some consequence for the public interest, and brother and sister could in theory be legally prohibited to have sex and not only to get married. But what should be the sanction if they had sex? If no issue comes from the intercourse, what is the harm? On the other hand, if they have a baby, should they be punished for any problems he/she has?
Who would feel injured and press charges against them?

It's possible for a brother and sister to have sex without the possibility of offspring. All they have to do is remove their reproductive capabilities surgically. I don't think this would make it morally ok for them to do it, and I don't think we should allow it legally in those cases but not in ones where offspring are possible. I also think most people I know outside the philosophy department would agree with me on this. Why does someone need to be injured for it to be a crime? Why would the fact that there's no harm to offspring mean there's no harm? Couldn't there be harm to them for engaging in this activity? Isn't each harming the other, not to mention both harming themselves? This is the sort of assumption I see people making regularly that I'm just not willing to grant unless I see a strong argument, but there never is one.

But this sort of incestuous relation, i.e., intercourse between siblings, in Brazil and in many countries is not itself a crime. This degree of family relation is a reason for a marriage not to happen.

As far as I understand, most Civil Law countries work like this: If two siblings get married and knew they are related, they are subject to legal penalties. (In the same manner as other cases where people get married knowing there is an impediment) But if they ignored the fact the only thing that may happen is that their marriage is declared null and void.

Wait a minute... the state has a legitimate interest in preserving "traditional sexual morality"? I'm pretty sure that's false. Certainly, I'll agree that there are aspects of traditional sexual morality that the state has a legitimate interest in preserving, and perhaps monogamy is one of them. But as a package deal, the traditional take on sex contains a lot of ridiculous and undesirable baggage. For instance, there's an excellent case to be made for the claim that according to traditional morality, husbands are always entitled to have sex with their wives. Marital rape didn't become a concept until the 1970s, and was not illegal everywhere in the U.S. until I believe 1993. Also, I don't think the state has any legitimate interest in prohibiting contraception, though many traditions (e.g., the Catholic one I grew up in) claim that contraception is morally wrong.

So if you're going to argue that the state has a legitimate interest in banning homosexual sodomy, it looks like you have to push the prohibition on homosexual sodomy by itself, and not as part of a larger package deal.

Just to be clear, all I've said with respect to state interest is report Scalia's argument against O'Connor based on her own view. I don't know what I think about whether the state has legitimate interests. It's just that O'Connor can't make the argument she made without further arguing against this potential view that Scalia says she hasn't ruled out.

Now you're offering such an argument. I think it might work if you have to think of traditional sexual morality as a package deal. Do you have to in order to make Scalia's claim? It might be possible to consider just the aspects of it that are in a state's legitimate interests, as you're suggesting, and still consider the prohibition against homosexual sodomy as one of those, especially given the negative consequences of homosexual sodomy (and there are a number of health issues besides the higher risk of STDs). Maybe that's all you're saying needs to be done, but I think that may have been what Scalia meant. Rather than referring to traditional sexual morality in general, he may have been restricting the focus contextually to traditional sexual morality with respect to homosexual sodomy. Anyway, this is to say that you may be right, but that doesn't necessarily stop Scalia's argument.

On marital rape, I wonder if you've got the traditional view wrong. The traditional view may hold that withholding sex is immoral. This can be supported directly from the Bible, but it also makes some sense given the traditional vow "to have and to hold" that almost every married couple makes to each other. Refusing sex in some absolute manner (as opposed to requesting "not now" or trying to reason with one's spouse who doesn't understand why one might not want it now) would thus be breaking a promise. If that's the traditional view, then it doesn't follow that it treats marital rape as ok. It might be wrong to refuse sex, but it might be much more wrong to force it on a spouse who has refused it.

In the end, I think it's pretty clear that there really isn't one traditional sexual morality. There are some general themes, and I think a view can be pretty traditional without holding to all the major elements that are associated with traditional sexual morality as a set of views. I'm not sure what Scalia's claim would come to given this, if he truly intends the package deal sense, but as I said above I'm not sure he meant that.

Also, even if it's not in the state's legitimate interest to promote a law like this it doesn't harm the overall argument if the other branch of my disjunctive claim is still true, i.e. if it's not different treatment based on sexual orientation. The law treats people who are having sex with people of the same sex as a class, not people whose sexual orientation is toward the same sex. This group doesn't include celibate gay people and does include non-gay people who have sex with people of the same sex (including in prisons, where it's widely acknowledged that homosexual sex can happen without the participants being gay). Therefore it's not technically discrimination against gay people.

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