BreakPoint

BreakPoint: Scalia was Right

A 2003 Supreme Court ruling on homosexual behavior has come back to haunt us. And it’s no surprise. In its 2003 Lawrence decision, the Supreme Court overturned Texas’s ban on sodomy. Critics, I among them, warned that this precedent would open the floodgates to gay marriage, polygamy, incest, and a whole host of horribles.  Justice Antonin Scalia issued a blistering dissent, charging that Lawrence “effectively decrees the end of all morals legislation.” Defenders of the opinion scoffed at the warning and accused critics of hysteria and homophobia. Then Senator Rick Santorum, a critic of the ruling, was subjected to continuing and merciless vilification. Well, sadly, eight years later, all I can say is “we told you so.” The occasion for revisiting Lawrence is the revolting case of Columbia University Professor David Epstein. Epstein is charged with third-degree incest for having a sexual relationship with his daughter.  What made this case stand out, apart from Epstein’s Ivy League credentials, was that his daughter was 24-yers-old and, by all accounts, a consensual partner to this repugnant union. This fact prompted William Saletan of Slate to ask a question many people desperately wanted to avoid: “If homosexuality is okay, why is incest wrong?” Saletan isn’t trying to justify incest–he’s merely trying to get people to articulate a reason why, in light of Lawrence and similar arguments, society should distinguish between the two. What Justice Kennedy wrote about the relationship in Lawrence – it involved “two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle” – would be just as true here if you substituted “incestuous” for “homosexual.” Epstein’s lawyer, Matthew Galluzzo, said an much in a television interview: “It’s OK for homosexuals to do whatever they want in their own home . . . How is this so different? We have to figure out why some behavior is tolerated and some is not.” While defenders of Lawrence purport to be appalled by such arguments, this is exactly what Justice Scalia predicted in his dissent. According to Justice Kennedy in Lawrence, the fact that the majority “has traditionally viewed a particular practice as immoral” isn’t sufficient justification for outlawing the practice. This kind of disapproval doesn’t justify an “intrusion into the personal and private life of the individual." Of course, it logically follows that this reasoning could just as well be applied to “bigamy” or “adult incest” or “polygamy” or “polyamory.” If all that matters is age and “mutual consent” the Lawrence decision is limited only by the perversity of the human imagination. Unfortunately, under Lawrence, what ethicist Leon Kass calls the “wisdom of repugnance” is an insufficient basis to outlaw something. If Epstein raises the Lawrence decision in pre-trial motions or on appeal, judges will be caught in a dilemma: apply Lawrence and sanction perversity or tie themselves into knots trying to distinguish what, under Lawrence, is indistinguishable. It’s a dilemma of the Supreme Court’s making: It usurped the prerogative of the people and their elected representatives and created a hole so big that any kind of perversity could drive through.

Further Reading and Information

Lawyer for Alleged Columbia Perv Makes Pro-Incest Argument Elie Mystal | Above the Law | December 16, 2010 Incest is Cancer William Saletan | Slate | December 14, 2010 Consensual Adult Incest and the 'Ick' Factor Stephen Brainbridge | ProfessorBrainBridge.com | December 13, 2010 Incest and the Degradation of Our Vocabulary Matthew J. Franck | Witherspoon Institue | January 05, 2011

02/18/11