Back in 2003 when the Supreme Court handed down the Lawrence v. Texas decision legalizing homosexual sodomy, Rick Santorum took a lot of heat for pointing out the obvious: once you remove the prohibitions for homosexual sodomy by saying it is "private, consensual sexual behavior," you open the door for legitimizing incest, polygamy, bestiality, adultery and other "private, consensual sexual behavior."
In his dissent to the ruling, Justice Scalia said,
"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . called into question by today's decision.
Jeff Jacoby addresses this issue in this column, which details attempts to overturn incest laws.
An article last month by Time reporter Michael Lindenberger titled Should Incest Be Legal? highlights the case of Paul Lowe, an Ohio man convicted of incest for having sex with his 22-year-old stepdaughter. Lowe has appealed his conviction to the Supreme Court, making Lawrence the basis of his argument. In Lawrence, the court had ruled that people "are entitled to respect for their private lives" and that under the 14th Amendment, "the state cannot demean their existence or control their destiny by making their private sexual conduct a crime." If that was true for the adult homosexual behavior in Lawrence, why not for the adult incestuous behavior in the Ohio case?
The BBC program focused on the case of Patrick and Susan Stubing, a German brother and sister who live as a couple and have had four children together. Incest is a criminal offense in Germany, and Patrick has already spent more than two years in prison for having sex with his sister. The two of them are asking Germany's highest court to abolish the law that makes incest illegal.
Don't say it can't happen. Lawrence could have simply been decided on an equal protection argument which would have abolished the Texas law. But Justice Kennedy--the same one being accused of making judicial decisions because of his Catholicism--took a much broader stand, stating that "private, consensual sexual behavior" cannot be punished. As Jacoby says,
Your reaction to the prospect of lawful incest may be "Ugh, gross." But personal repugnance is no replacement for moral standards. For more than 3,000 years, a code of conduct stretching back to Sinai has kept incest unconditionally beyond the pale. If sexual morality is jettisoned as a legitimate basis for legislation, personal opinion and cultural fashion are all that will remain. "Should Incest Be Legal?" Time asks. Expect more and more people to answer yes.
I discussed gay marriage here, here, and here.
Eugene Volokh discusses the strange incest ban exception for uncle-niece incest.