"HOW SHALL WE THEN LIVE?" Francis Schaeffer

Thursday, August 04, 2005

Morphing Laws

CAN WE REALLY OUTLAW INCEST? Read the Whole Thing Here!

Allen Muth challenged the constitutionality of the state�s prohibition of consensual incest.

His argument is straightforward. Why shouldn�t he claim (in Judge Manion�s words) a fundamental right, protected by the Constitution, for adults to engage in all manner of consensual sexual conduct? In Lawrence, Justice Kennedy held for the Court that a state may not prohibit consensual homosexual sodomy, and did so on extremely broad grounds, holding that those who engage in such activity are free as adults to engage in [such] private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. Recognizing that laws forbidding certain sorts of sexual conduct are grounded in profound and deep convictions accepted as ethical and moral principles by many people, Justice Kennedy refused to accept the notion that the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. And he concluded with a critical passage that can be altered, just slightly, to cover the case of Allen and Patricia Muth (replacing references to homosexuality with ones to incest):

The present case does not involve minors [involved in a sexual relationship]. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that [incestuous] persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to [an incestuous] lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

So why, with Supreme Court arguments like this at his disposal, did Allen Muth lose his case in the Seventh Circuit? According to Judge Manion�s opinion, there were two reasons. First, Lawrence did not address the constitutionality of incest statutes. This is true but trivial.

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