Do incest laws apply to SSM?

[UDS]

@Great_Antibob

If I’m reading you right, you seem to be assuming these are situations to be universally avoided.

Aside from a squick factor, why should these situations necessarily be avoided? Granted, there’s would probably be some deep seated psychological issues involved in most such cases, but assuming there are no such issues and we have two mentally healthy adults, what reason is there to forbid such cases?

Its forseeable effect on the rest of the family? Marriage, especially on the legal side, is not simply about the relationship between the two spouses, but also about the relationship between the couple and the rest of the world. Hence, historically, we use legal and/or social mechanisms to discourage or prevent marriages which are destabilising to family relationships.

[Great_Antibob]

@UDS

Hence, historically, we use legal and/or social mechanisms to discourage or prevent marriages which are destabilising to family relationships.

Meh. The same argument has been used against mixed-race marriages and SSM.

I can see that it’s a valid argument, at least in part, but not one I find particularly compelling by itself.

[md2000]

@Mikeisskeptical

Could you elaborate? Like in the absence of a will, someone who was both sibling and partner of the deceased might be entitled to a greater share of the estate? Forgive me if that’s a stupid question, I know nothing about the law.

Yeah, I wondered once whether a clone would be entitled to a double-share of the “parent’s” estate, seeing as how the “parent” is a double parent of the clone, twice as much parent as of any natural child… plus, would the clone be entitled to a direct child’s share of the clone’s parent’s parents’ estates?

Ah, science.

Since incest laws apply to sterile and post-menopausal opposite sex siblings (or close relatives) too, presumably unless the law is explicit about gender of the forbidden union, presumably the same logic applies in SSM - if it ain’t allowed for Adam and Eve, it ain’t allowed for Adam and Steve.

[Senegoid]

@Claverhouse

Very dubious: most 19th century royalty seem remarkably tall and healthy and sane. They lived well, which in itself was a cause of ressentiment to the republican saddos.

The European royal families (which included the Tsars) had several people with hemophilia, which got into the blood lines and was hard to eradicate because it’s a recessive gene. (Recessive genes are hard to purge because it’s hard to know who is carrying them.)

[Bear_Nenno]

@Mikeisskeptical

Could you elaborate? Like in the absence of a will, someone who was both sibling and partner of the deceased might be entitled to a greater share of the estate? Forgive me if that’s a stupid question, I know nothing about the law.

I suppose I should have written that with a question mark, not a period. I was just throwing that out there as a reason why the law might care. Is there anything tricky about a bisexual man who has a son out of wedlock and then later marries that child 18 years later? What if the child-spouse was actually the second son born to this man. He later gets divorced and then dies with no will. Does the divorced child get a regular child’s share? Something more? I have no idea. Probate issues was just the first thing that came to mind, but I guess it might not be an issue at all.

[muldoonthief]

@Claverhouse

Under that logic with same-sex marriage a son may marry his father, and a daughter her grandmother.
That which is not forbidden is allowed is a fine principle, but not a universal guide.

As far as I know, that’s exactly how the US legal system works - if you can’t point to the specific law being violated, how can you prosecute someone for a crime?

[Isilder]

@muldoonthief

Massachusetts law appears to be A-OK with brothers marrying. It specifically calls out, in separate sections, which relatives a man or a woman may not marry, and in each case, they only list opposite sex relatives:

General Law - Part II, Title III, Chapter 207, Section 1

Section 1. No man shall marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandfather’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister or mother’s sister.
General Law - Part II, Title III, Chapter 207, Section 2

Section 2. No woman shall marry her father, grandfather, son, grandson, brother, stepfather, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother or mother’s brother.

Those clauses are obviously not updates with SSM in mind.

However, they do not then say “everything else IS allowed”

1. Incest laws are about sex, and do they bar penetration between relatives (irrelevant of gender.)… So who’s getting married into a non-sexual relationship ?

2. The common law may well have it that marriage is about sex, so that marriage would have to be in line with incest laws TOO. Common law is all sorts of things, such as ten commandments " shall not lay together as husband and wife"…

3. Is it common law ? or constructed law… deduced law… Where the law says “marriage is an exemption from age of consent issues, a person can consent to their spouse.” , if it would have said “marriage is an exemption from anti-incest laws” if that was meant to be, and since it doesn’t say that, you can deduce that incest laws would still apply, and then leap back to the 2.
   Quoting from one part of the law is dangerous… it may be a clause in any law that already covers the issue… eg the laws that allow change of gender may have clause touching on the wider scope of marriage … (technically, it may be argued that SSM is already legal because someone could change their gender, get married, and then change their gender back… )

[Really_Not_All_That_Bright]

@muldoonthief

As far as I know, that’s exactly how the US legal system works - if you can’t point to the specific law being violated, how can you prosecute someone for a crime?

We’re not necessarily talking about prosecution here, but the validity of a marriage. It is absolutely true to say that there is no crime absent a specific prohibition, but a marriage may still be invalid even if entering into it is not a crime.

That list, while exhaustive, is not necessarily the only limitation on who a man can marry.

[Slash1972]

@muldoonthief

Massachusetts law appears to be A-OK with brothers marrying. It specifically calls out, in separate sections, which relatives a man or a woman may not marry, and in each case, they only list opposite sex relatives:

General Law - Part II, Title III, Chapter 207, Section 1

Section 1. No man shall marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandfather’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister or mother’s sister.
General Law - Part II, Title III, Chapter 207, Section 2

Section 2. No woman shall marry her father, grandfather, son, grandson, brother, stepfather, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother or mother’s brother.

Am I reading this wrong? How can a man marry his wife’s anything without getting divorced first, at which point it wouldn’t be his wife anymore to have this law prevent him from marrying his ex-wife’s mother?

[Elendil_s_Heir]

Fascinating discussion. Looks like Mass. might want to update its marriage and incest laws to be gender-neutral.

@Claverhouse

…That which is not forbidden is allowed is a fine principle, but not a universal guide…

In a democracy, that which is not forbidden is allowed. In a dictatorship, that which is not forbidden is compulsory.

@Slash1972

Am I reading this wrong? How can a man marry his wife’s anything without getting divorced first, at which point it wouldn’t be his wife anymore to have this law prevent him from marrying his ex-wife’s mother?

After divorce, or after his wife’s death. And that’s just too icky for some people: Deceased Wife's Sister's Marriage Act 1907 - Wikipedia.

[Tim_T-Bonham.net]

@Elendil_s_Heir

Fascinating discussion. Looks like Mass. might want to update its marriage and incest laws to be gender-neutral.

They certainly should, and for a reason even more important to the state than incest – estate taxes.

In most states, spouses can inherit the estate of their deceased spouse without paying any estate tax. (Or, sometimes, a reduced estate tax.) Presumably, the legislators assumed that eventually both parents would die, and the estate would go to their children, and the state would get its’ tax share then.

But given same-sex marriage, and the state not having gender-neutral incest laws, leaves a loophole there.
For example, take the richest family in Massachusetts, the billionaire Johnson family that owns Fidelity financial companies, Pembroke real estate (Boston harbor & much of downtown office space). Suppose Edward Johnson III dies, and his widow Lillie inherits (without paying estate taxes). Then, after a suitable period of mourning, she could marry their daughter, Abagail*. In the fullness of time, Lillie, too, passes on. Her same-sex spouse (and daughter) Abagail inherits (also without paying estate taxes). Later, Abagail marries a daughter of hers, so that when Abagail eventually dies, her estate will again pass to her same-sex spouse without paying estate taxes.

They could keep this up for generations, without the state of Massachusetts ever getting any estate taxes from that multi-billion estate. The legislature would have a real incentive to fix this!

• Ignoring complications such as existing current marriages & children, and the actual sexual orientation of the people involved, etc. Also, people at this level probably have already used trusts, foundations, or other loopholes in the tax laws to avoid paying taxes anyway.