Homosexuality, Incest, and Rational Basis Review

Why is incest illegal?  That is the question being raised in larger degree both on our continent and abroad, partly because of the recent arrest of Columbia University professor David Epstein who was involved in a consensual sexual relationship with his adult 24 year old daughter.  Switzerland no longer considers incest to be a “relevant” law and is drafting a law to repeal the criminalization of sexual acts among family members.  The discussion of incest naturally raises questions among a host of other sexually related relationships, such as polygamy and of course homosexuality.  As many, both in the religious and secular world, have predicted, the normalization of homosexuality will eventually lead to a revised outlook on other sexual issues, many of which are “icky” to even the most adamant homosexuality supporter.  But “icky” doesn’t get the job done, as up to fairly recently homosexuality was viewed as “icky.”  What is the standard that draws a line between the legalization of homosexuality, and more importantly homosexual marriage, and incest?  That standard, apart from a God-centered worldview with intuitive moral values, is difficult if not impossible to locate.  And some in the legal profession are arguing for exactly that; that the icky factor may no longer be good enough to keep incest in the law books.

Others are making arguments.  The issue of consent is a non-issue as we all will agree that sex with minors is wrong (although those without a biblical worldview will have a hard time telling you why, other than “society has decided it is wrong”, which doesn’t work because a vast majority of society still views homosexuality as wrong).  The recent Columbia University case demonstrates that adult, consensual incestuous relationships are a reality.  Others lean on the genetic issue of increasing the probability of deformed and burdened children.  This fails because there are no laws that criminalize sex by carriers of genes that are at high risk for birth defect, much higher than incest would provide.  Others, and most, are relying on the “destructive to the family unit” argument and are suggesting that an open and acceptable incestuous relationship will cause increased potential damage to the immediate and future family.  The great irony of this argument, as being presented in contrast with the legitimacy of homosexuality, is not only the seemingly contradictory nature of those in favor of homosexuality who brazenly dismiss the family arguments from those who feel homosexuality damages the “family unit”, but is also found when one considers the impact on the “future family” from a homosexual relationship; there simply is no future family, which is as disastrous as it can get for the health of the institution of the family. 

In order to better understand the differences between the legality of homosexuality and incest, I revisited the U.S. Supreme Court ruling from 2003, Lawrence v. Texas, in which the sodomy laws in Texas were struck down, eventually leading to the invalidation of similar laws throughout the United States.  I read the majority opinion written by Justice Anthony Kennedy (by the way, any time I read Majority opinions and subsequent dissents, which I do from time to time, I am taken aback by how smart these people are.  It is always a slow read for me).  Kennedy’s argument, as best as I can tell, essentially comes down to the government’s need to respect the intimate nature of a sexual relationship between two consenting adults based on the Fourteenth Amendment’s due process protections.  Does this mean that sexual activity is a fundamental right?  Or are governmental restrictions on sexual conduct still permissible based on a rational review?  It really seems that Kennedy’s opinion wants to take a bite off both apples, but appears to be strangely silent on the proper test for when the government can legally interfere with sexual behavior.  If Lawrence is simply a decision based on rational review, then we can summarize the problem by saying that laws against homosexuality are irrational but laws against incest are rational.  But that doesn’t seem to follow Kennedy’s opinion of intimate conduct between two consenting adults.  Adding to the interest (and perhaps confusion) is when we consider Justice Sandra Day O’Connor’s concurring opinion which agreed with the overturning of the sexual laws in Texas, but disagreed with Kennedy’s assertion that intimate sexuality was protected due to its nature.  Rather, she argued along the lines of equal protection for a group rather than a sexual act.  After reading through the opinions and dissent, I then consulted some commentaries, most of which had various interpretations as to how the Lawrence case was decided.  It really seems like no one is certain as to the legitimate test of government interference with sexual conduct.

These questions and issues demonstrate just how crucially important the justice system really is in our country and why the ability of a President of the United States to appoint Supreme Court Justices should be a substantial point of reflection for who gets our vote.  We should not be surprised that more and more challenges to a biblical worldview are being unveiled before our very eyes.  Christian parents have an urgent duty to teach and raise their children to embrace a fear of God and His word.  It may take more time, but I suspect additional questions of sexual conduct will come our way sooner than later.  And satisfying answers may be difficult to come by.          

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