Our Coming Incest Debate

As the "traditional marriage" forces have been in retreat, both legally and rhetorically, there's an argument we haven't heard as much as we did a few years ago: that if you allow gay people to get married, then the same logic will demand that we also allow incest marriages and polygamous marriages. Today, Kent Greenfield grapples with it here at the Prospect; go read his piece, then come back and I'll tell you what I think about this.

My hunch is that the reason the incest argument has faded is that the anti-equality forces never gave it all that much thought in the first place. It was just something outside the prevailing definition of marriage that they thought would sound crazy to everyone, so they tossed it out there. The basic argument was that once you "change the definition of marriage," you'll be changing it to accommodate any preference anybody had. A man will marry his brother! A woman will marry her cat! A cat will marry a gerbil! (Bill O'Reilly is, for some reason, particularly troubled by the thought of interspecies marriage. Perhaps he doth protest too much?)

The reality is that we've changed the definition of marriage many times before when the definition was no longer in accord with our contemporary values (for instance, women who get married are now no longer their husband's property, and people of different races are allowed to get married), and one more change doesn't mean that there are no more limits whatsoever. As people became more comfortable with this particular change, the idea that it would necessitate other changes for which no one was advocating didn't have much persuasive power.

But more importantly, what the debate over marriage equality exposed is that the status quo definition of marriage never had much of a rationale behind it in the first place. It was just how we did things, and few people gave it much thought. When opponents of same-sex marriage were forced to define the rationale for the status quo, the best thing they could come up with was that marriage is only about procreation, a justification that falls apart on a moment's consideration (after all, we don't forbid postmenopausal women from marrying).

The debate also exposed that the anti-equality forces were completely unable to articulate a harm that could spring from gay people being allowed to marry. They offered some vague ideas about "devaluing" heterosexual marriages, but as the court in the Proposition 8 case found, there was nothing to them. In the end, since no one was able to show a demonstrable harm from gay marriages, no one was able to prove they had the legal standing to act as a party against such marriages, and that was where the case in favor of Prop. 8 fell apart.

That's where we come to incest and polygamy. As Greenfield describes, the case for the societal harm coming from incest and polygamy isn't all that strong. Even though many polygamous arrangements are terribly coercive, you can certainly conceive of ones that wouldn't be. If we wanted to, there might be a way to restructure the law to allow, say, three consenting adults who wanted to join in a union to do so, while still forbidding Warren Jeffs-style nightmares.

And yes, there's a nearly universal taboo against incest, and if forced to answer why that is, you'd probably respond that incestual relationships produce offspring with birth defects. How often would that actually happen? I doubt there's much data on the topic, since it's so rare. And what if a brother and sister in their 50s wanted to get married? It would be hard to say what harm would come from it. Yes, Joffrey Baratheon is a monster, but given the limitations of genetic analysis in Westeros, we don't know whether that's a result of his unusual parentage. And beyond the occasional tossing of a young boy out a window, who's really harmed by Jamie and Cersei's love?

To be clear, I'm not coming out in favor of incest and polygamy. But rolling these questions around, you begin to realize that it isn't something we've thought too much about. For the first time in our lifetimes, we're having an extended national debate on what marriage is for, as our own E.J. Graff put it. The answers can lead us to some uncomfortable places.

Comments

I found Greenfield's piece to be wanting. The better analogy is to anti-miscegenation laws - laws that prevent two single, legally competent adults from marrying each other. In polygamous relationships, depending on how the marriage is structured, at least one of the individuals in the proposed union is already married. They're not being treated differently from other married persons because of something about the person they hope to marry - they are being treated exactly the same as other married people. It would be in the "restructure the law to allow [a marriage of], say, three consenting adults" proposal that people would again be treated unequally.

Also, the concept of the polygamous marriage would create enormous complications for tax, property, divorce, insurance, pubic assistance, and estates laws, and likely in other less obvious areas of law as well. What do you do when a marriage has lasted 800 years - not because Methuselah has returned, but because new spouses keep coming into the marriage? What do you do when there are sixteen parents claiming custody and access rights to a child? Or to their collective 43 children? Yes, if we say "No more than three spouses" we could simplify that mess, but as previously suggested that would actually be more discriminatory and more arbitrary than the status quo.

You allude to Westeros, a fictional context in which incestuous love is forbidden, but we know as a matter of historic fact that many royal lineages have engaged in incest of varying degrees. That's how we ended up with poor, miserable Charles II of Spain. Yes, somewhere in the background of, "Ick, siblings", is the fact that such unions are much more likely to result in babies born with birth defects. The exception for royals highlights both the cultural component of incest, and a compelling state reason to forbid it that has nothing to do with the "ick" factor or consent, even if Greenfield wants to believe that people would deem that an action of the "nanny state". The argument that the math isn't compelling - that the additional risk of birth defects isn't a sufficient basis to forbid incestuous relationships - is interesting, but you have examples like the high rate of fumarase deficiency (resulting in severe developmental disability) in children born to polygamists in certain FLDS communities as a real-world example of what happens when the numbers go the other way.

If Greenfield were to argue that some of the motivations for anti-incest and anti-polygamy laws are archaic or arise from incorrect assumptions and exaggerated fears, that case can be made. But the suggestion that there is a slippery slope from gay marriage to polygamy and incestuous marriage is an example of the fallacious use of the slippery slope.

As for the consent thing, there are plenty of contexts in which we presume coercion or incompetence, most often based on age. Would it be possible to administer individual testing and assessments to determine that a person were competent at an earlier age than the law provides, whether to drive, smoke, drink, or consent to sex with an adult? Sure. Is it permissible for state legislatures to impose an irrebuttable presumption that certain circumstances are unduly coercive even if individuals, given the opportunity, could prove that their case is exceptional? Absolutely. Prison inmates can't sleep with guards, in many states teachers can't sleep with adult high school students, etc. - and a prohibition on incest between consenting adults is sufficiently similar that I have a very difficult time believing that the courts would hold a similar presumption of coercion to be inappropriate.

"In polygamous relationships, depending on how the marriage is structured, at least one of the individuals in the proposed union is already married. They're not being treated differently from other married persons because of something about the person they hope to marry - they are being treated exactly the same as other married people."

First of all, I would like to remind you that a single woman, who wants to marry a man, who is already married, is indeed being treated differently from other persons because of something about the person they hope to marry.

Second, as per your logic, gay people are not being treated differently since they too are free to marry someone of the opposite-sex

"Also, the concept of the polygamous marriage would create enormous complications for tax, property, divorce, insurance, pubic assistance, and estates laws, and likely in other less obvious areas of law as well."

Legalizing polygamous marriage would not create anymore complications than legalizing gay marriage would.

"What do you do when there are sixteen parents claiming custody and access rights to a child? Or to their collective 43 children?"

Why would there be 16 parents claiming custody to children they did not create?

"Yes, somewhere in the background of, "Ick, siblings", is the fact that such unions are much more likely to result in babies born with birth defects"

Ahh but as per the arguments of gay marriage advocates, procreation has nothing to do with marriage anymore so your argument is invalid.

"If Greenfield were to argue that some of the motivations for anti-incest and anti-polygamy laws are archaic or arise from incorrect assumptions and exaggerated fears, that case can be made. But the suggestion that there is a slippery slope from gay marriage to polygamy and incestuous marriage is an example of the fallacious use of the slippery slope."

How can you argue that the right to gay marriage is different from the right to polygamous marriage? Why shouldn't heterosexuals have marriage equality? Why should heterosexuals settle for second=class citizenship?

Arguing that the right to polygamous marriage flows from the right to gay marriage is not a slippery slope theory - it's basic logic!

"Second, as per your logic, gay people are not being treated differently since they too are free to marry someone of the opposite-sex."

hat argument is exactly the same that the State of Virginia used to maintain its anti-miscegenation laws. Virginia felt sure that equal-protection arguments wouldn't hold up, because whites and non-whites were being treated equally: each of them was permitted to marry someone of the same race, and only prohibited from marrying persons of the other race. Fortunately, the Supremes rejected this argument in 1967.

The opinion decided the case not only on equal protection grounds (barring interracial marriages is racial discrimination per se) but also on substantive due process grounds. "To deny this fundamental freedom [to marry] on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law." (emphasis added)

There is no good reason to deny that we must keep evolving until an adult, regardless of gender, sexual orientation, monogamy or polyamory, race, or religion is free to marry any and all consenting adults, regardless of consanguinity. The limited same-gender freedom to marry is a great and historic step, but is NOT full marriage equality, because equality "just for some" is not equality. All the objections raised against polygamous or polyamorous and consanguineous marriages only apply to specific cases, not in general, and aren't applied consistently to other relationships. Plenty of people have horror stories about supposedly monogamous, heterosexual, nonconsanguineos marriages (and plenty of children born to such marriages have had genetic problems) but we don't ban them, do we?

Consensual incest is legal in Rhode Island and New Jersey. Data does not indicate a problem (well, other than "Jersey Shore"). Why should marriage rights be denied? I personally know triads and close relatives (some of them didn't meet until they were adults) who would legally marry the day it became legal. They have beautiful, healthy, lasting relationships and should not be denied, no matter who finds any given relationship disgusting. Look up consanguinamory.

This is ridiculous, disgraceful, and totally irresponsible. A piece completely harmful to the hard work of human rights and women's rights activists.

First off, no chooses to be LGBT - and remember LGBT people include LGBT children too.

Things like polygamy and incest on the other hand ARE chosen.

While marriage equality will bring equality to society, things like polygamy and incest will bring societal problems.

And remember, marriage equality exists in CIVILIZED and DEVELOPED democracies, and is a MODERN and PROGRESSIVE idea.

Where does polygamy exist? In BACKWARD societies! It is a tool of PATRIARCHAL societies.

Lastly, LGBT rights are human rights (as confirmed by the UN Human Rights Council).

Where does polygamy stand in relation to human rights? As something which human rights organizations have called to be ABOLISHED throughout the world! Indeed polygamy is a VIOLATION of human rights, AND TWO globally binding human rights conventions (the ICCPR and the CEDAW).

As the world moves forward backward things will be abolished, and modern equality will prevail!

EQUALITY FOR ALL means the right of every person to marry ONE OTHER PERSON with the usual reasonable requirements.

"EQUALITY FOR ALL means the right of every person to marry ONE OTHER PERSON with the usual reasonable requirements." That's true, but not being the same sex is a reasonable requirement. Marriage should always approve and allow the conception of offspring of the marriage, and couples that are prohibited from procreating together, like siblings, like people married to someone else, are never allowed to marry. That's what we are saying when we prohibit a relationship type from marriage - that it is unethical for that kind of relationship to reproduce offspring together. Well it is unethical for a same-sex couple to reproduce offspring together, even more than it is for siblings or adulterous couples. Attempting to reproduce with someone of the same sex should be prohibited like incest and adultery and bigamy are.

People married to someone else are, of course, not prohibited from procreating. It's common: 10-25% of us have mistaken beliefs about who our fathers are. And attempting to reproduce with someone of the same sex needs a legal prohibition about as much as breathing water or flying by flapping our arms does. What is more, in many marriages, conception is impossible.

Look, I'm totally neutral on the polygamy issue, but it seems to me there is a very simple point to be made here. The strong argument about same-sex marriage is and always has been an equality argument, as in: equal protection of the laws. The Massachusetts SJC, for example, noted specifically that there simply were no aspects of the law governing marriage that depended upon the spouses' being of opposite sexes. So no laws had to be changed or updated or anything when same-sex marriage became legal in Massachusetts. Only the wording on certain forms had to be changed. And it is the same everywhere else. Why? Because if there were gender biases in marriage law, that would clearly be objectionable, since it would amount to sex discrimination.
This argument simply does not apply to the case of polygamy. So there is no parallel, and there never was one. Maybe there is a case to be made the polygamous marriage should be legally permitted. But that case will not be an equal protection case.

Well why you are all debating this out courtrooms are charging 12 year old boys with aggravated incest for touching their half sister once and making them registered sex offenders

I think that previous comments have made the case why polygamous and, to a lesser degree, incestuous marriages are not on the same-sex-marriage slippery slope.

But I want to note that same-sex marriage has not, by any means, removed consideration of procreation or children from marriage. Marriage is not (has basically never been) strictly about procreation or children, but, still, marriage has the standing that it has largely because it forms a critical structure for having and raising children.

The essential facet of marriage is that it supports a stable relationship between two people, and that support very cleanly flows to children in a marriage relationship.

Of course, many same-sex couples, like many heterosexual couples, marry just for themselves, not for a nuclear family. But many same-sex couples do have (or want) children - whether from previous relationships, adoption, or otherwise. Marriage is a key element of equality, for individuals, for couples, and for same-sex-parent families.

Incest has an "ick" factor for me, but as long as it is between CONSENTING ADULTS (which means NOT between Daddy and his underage "princess"), and the people involved are AWARE of the genetic risks (which can be foreseen more clearly now than formerly), I can think of no societal harm that would result. Likewise, despite the challenges of polygamy (such as Mark Twain pointed out, from the Bible, that "no man can serve two masters"), if the spouses are all CONSENTING ADULTS. It may be necessary to encourage these would-be families to work out pre-nuptial agreements by establishing default inheritance and property division rules that are distasteful to the less wealthy partners. That, however, can be handled (the idea of a mega-joint tax return may be a challenge).

That being said, the only societies that actually PRACTICE polygamy and incest are the "messiah organized" religious cults in our society, and traditional cultures in other countries. And only the (male) messiah and his inner circle of (male) leaders are allowed to have multiple wives (and of course, no women are allowed to have multiple husbands; they are not even allowed to CHOOSE their husbands). And their status as "religious" leaders allows them to choose their own underage daughters as "wives" with no right to decline the "honor" of marrying the "messiah" or "prophet." Also, since boys and girls are born in about equal numbers, "excess" boys either get evicted from the cult as teenagers (with no education to earn a living outside) or somehow "disappear."

Therefore, I feel that incest and/or polygamy should not be legalized unless that legal status ALSO includes even TOUGHER penalties for child molestation and "sex slavery" than we already have, when the victims are part of the offender's "family."

I've personally been a witness of two brothers now deceased who married two sisters who were their first cousins. The resulting offspring are mostly disabled from blindness, severe arthritis mental problems and have burdened the social and medical system not to mention SSI benefits that will become astronomical. This is the main reason that we lawfully prevent incest, to prevent concentrating same genes in offspring. I've also witnessed cattle ranchers keeping the same bull for breeding three generations of cows. All of the cows looked alike(how cute) except each generation was smaller than the preceding one. Only idiots can be created by incest unless they are sterile or sterilized. I've even been around mongoloid people that impregnated each other only they were wards of the state and few needed abortions because of BC pills were administered daily.

Well, the bottom line is that any person can tell whether it is right or wrong for homosexuals to claim they are married, and the entire motivation behind it is to destroy the institution of marriage, making a state in which amorality is the norm and all children have claim on the state for their support. Of course, the state will support all children in return for all children being slaves of the state. Maybe the state could borrow a couple of trillion dollars every year to pay for the support of all children.
So what is it really all about?
If all children are supported by the state, the state gets to say how many children there will be. Welcome to China.

How will more people getting married "destroy the institution of marriage?" Or will it merely destroy your concept of what marriage ought to be?

If anything has destroyed the institution of marriage, it's the 60% divorce rate among all those heterosexuals you're charging with maintaining the institution.

You have no idea how it pains me to say Rush Limbaugh might have been right about something, but he predicted pedophilia will eventually be "normalized."

Nobody dares defend pedophilia outright, but it's possible to nibble around the edges of sexual norms. Questioning incest is one avenue, especially if the parties aren't blood relatives (as in a recent WV case). Decriminalizing teen sexting and consensual sex between minors is another. Then maybe lowering the age of consent. Meanwhile there will be assertions that the psychological harm of pedophilia is due to the way society reacts to it.

the problem with lowering the age of consent is that most teenagers don't have the experience or the brains (their brains are not yet fully formed) to make good decisions. I think in many cases the age should be higher. Research supports that girls brains reach maturity earlier then boys. This is why I don't' support this very bad trend of trying children as adults in court. They are not adults because their brains aren't finished forming.

I have no problem with any type of marriage as long as all parties are of legal age and are entering into the marriage because they want to. You can't control how people feel and as long as there isn't an issue of infringing on someones rights who are we to decide that any type of love is wrong? Pedophilia however does infringe on the rights of the child who can not give legal consent and shouldn't be allowed to until they are of legal age. If our laws were based on the idea that people can do as they wish as long as they do NOT INFRINGE on the rights of other citizens, how much better would things be. I think addicts should be allowed to do the drugs they want as long as they do not have children. You can't force an addict to be clean so why not give them safe drugs and if they die...they die. It's their choice. I'm sick of trying to save everyone. It wold be much cheaper to get rid of the war on drugs and use that money to provide health care and other things. Did we learn nothing from prohibition?

Forgot this: Joffrey Baratheon is a bad person because he was spoiled (bad parenting) not because he's the offspring of a brother and sister. His parents are also the result of bad parenting (a father who puts HIS quest for power above all).

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