Taking the Plunge

In 1997, Wisconsin officials, acting on reports of an abandoned child, got more than they bargained for: not only did the child show signs of extreme neglect, she turned out to be the product of an incestuous marriage between siblings. In addition to terminating Allen and Patricia Muth’s parental rights, Wisconsin tried and convicted them of criminal incest. Since the Muths didn’t challenge the facts of the case, you would think that settled the matter. But it didn’t. Both at trial and on appeal, the Muth’s challenged the constitutionality of the Wisconsin law. That’s right: they argued that there’s a constitutional right to incest. While this may sound shocking, it shouldn’t be surprising, not if you take the Supreme Court at its word. Two years ago, in Lawrence v. Texas, which overturned Texas’ law against sodomy, Justice Kennedy didn’t say that there was a fundamental right to homosexual sodomy. He did something even worse: he wrote that people are “free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause of the 14th Amendment to the Constitution.” Kennedy said that these adults “are entitled to respect for their private lives” and that “the State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Justice Scalia warned, in a blistering dissent, that the case language would encompass any consensual sexual practice, including incest or polygamy. And that’s exactly what the Muth’s lawyers argued —- first before the Wisconsin Supreme Court and then before the Seventh Circuit Court of Appeals. Earlier this summer, the Seventh Circuit rejected Muth’s argument, thankfully, but only because Judge Daniel Manion said that Lawrence didn’t apply only because this case “did not [specifically] address the constitutionality of incest statutes.” Legal scholar Matthew Franck wrote that this is “true but trivial.” The issue is whether Lawrence’s reasoning should be applied to cases not involving homosexuality. Given Kennedy’s sweeping rhetoric about “private lives” and demeaning someone’s existence, the answer would appear to be “yes.” Substitute “incestuous” for “homosexual” in Kennedy’s opinion and its meaning remains exactly the same. And, as Kennedy wrote, “profound and deep convictions” about the immorality of a practice isn’t a constitutionally-sufficient reason to criminalize that practice. Some believe that Judge Manion knew this and ruled against the Muths on other grounds because Manion “would rather someone other than himself,” preferably, the Supreme Court, commit such a travesty. No one is sure what the Supreme Court will actually do with the Muth’s case. If it follows Kennedy’s logic in Lawrence, however, it will declare incest constitutional —- so we may be only one case away from this moral horror. This is why the upcoming confirmation process is so important. Today, all that stands between us and the logical inevitability of the protection of incest is one more vote in the High Court.

08/17/05