# Incest laws are an example of "Big Government". **URL:** \ **Category:** Great Debates\ **Created:** [September 18, 2016, 2:35am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232 "2016-09-18T02:35:26Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [September 25, 2016, 2:20pm UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/101 "2016-09-25T14:20:38Z")
## BTW, to go back on something touched upon earlier: In regards to a particular borderline \*cultural \*appreciation of what is and isn’t incestuous, a handful of [the states that otherwise do not allow first-cousin marriage](https://en.wikipedia.org/wiki/Cousin_marriage_law_in_the_United_States_by_state)will make an exception based on actual or presumed infertility or, in one case, requires informed genetic counselling (Maine). Of course it all comes down to that however correlated, still, **there is a difference between civil/family law on marriage, and _criminal_ law on sexual conduct**. For instance it may be that it’s against the law in your state to have more than one wife at a time but nobody will lay a hand on you for cohabitating with five lovemates simultaneously, as long as they don’t try make claims to which only a legal spouse is entitled. In that Wikipedia link earlier you find a majority of the states that ban first cousin marriage do however allow first cousin sex or cohabitation(\*). Similarly after the Lawrence decision, homosexual acts – and sodomy in general, let’s not forget you COULD get in trouble in some states for hetero “unnatural” acts – among consenting adults could no longer be criminalized anywhere in the US, but _law about SSM still had to be litigated_ on its own merit. (\*AFAICT most criminal incest statutes cover the direct line of descent [be it by blood or adoption] plus as far as third degree lateral consanguinity [uncle/aunt+nephew/niece] ) ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [September 25, 2016, 5:35pm UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/102 "2016-09-25T17:35:18Z")
> [@UltraVires](#): > > The power imbalance you cite is likewise deficient. Again, private consensual sex is a fundamental right. Simply because some of these relationships contain a certain power imbalance does not rise to a level to outlaw them all. Many heterosexual relationships and marriages contain the same imbalance. How many married couples stay together simply because of financial reasons? > > I certainly don’t believe in legal incest, but I am unable to tell a couple who wishes to engage in incest how their conduct should be illegal in light of recent Supreme Court decisions. I don’t think it works that way, at least not in the US. Note the cites provided above of specific examples of cases in which sex between consenting adults was held illegal, where the relationship was such that, by its nature, it presumptively created a power imbalance: for example, between teacher and student. If sex between consenting adults was an absolute “fundamental right”, presumably such laws could not be enforced. Yet they are, even after the decision in _Lawrence_. Here’s a legal article on the issue (arguing that the courts should restrict sex between consenting adults less than they do!). The article is entitled “The Criminalization of Consensual Adult Sex after Lawrence”, warning, it’s a PDF: [http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0ahUKEwjWyd-Hg6vPAhUr1oMKHYlpCxwQFgguMAM&url=http%3A%2F%2Fscholarship.law.nd.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1721%26context%3Dndjlepp&usg=AFQjCNHGIIWcXWgaXImXjn6PvLRcp1ACdw](http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0ahUKEwjWyd-Hg6vPAhUr1oMKHYlpCxwQFgguMAM&url=http%3A%2F%2Fscholarship.law.nd.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1721%26context%3Dndjlepp&usg=AFQjCNHGIIWcXWgaXImXjn6PvLRcp1ACdw) Notice how argument based on Lawrence failed to throw out incest laws (or teacher laws, for that matter). > **[Muth v. Frank](https://en.wikipedia.org/wiki/Muth_v._Frank)** > > Muth v. Frank, 412 F.3d 808 (7th Cir. 2005), was a case in which the United States Court of Appeals for the Seventh Circuit ruled that the denial to an individual of a writ of habeas corpus for violation of Wisconsin's laws criminalizing incest was not unconstitutional. The petitioners relied heavily on the Supreme Court's ruling in Lawrence v. Texas invalidating anti-sodomy laws two years prior, which the Seventh Circuit rejected. > The case originated in the case of Allen Muth and his younger... [http://www.allcourtdata.com/law/case/state-v-mckenzie-adams/cw3IcneG](http://www.allcourtdata.com/law/case/state-v-mckenzie-adams/cw3IcneG) From the latter case: > [@](#): > > The defendant claims that Lawrence stands for the proposition that sexual privacy is a fundamental right entitled to strict scrutiny under the due process clause of the federal constitution. We need not determine whether Lawrence established a fundamental right of sexual privacy under the federal constitution because, even assuming arguendo that it did so, the defendant’s sexual conduct in the present case would not be protected by that right. The defendant engaged in sexual intercourse with two victims, N.R. and P.L., both of whom were students enrolled in the school system in which the defendant was employed as a teacher. **In light of the disparity of power inherent in the teacher-student relationship, we conclude that both victims were situated in an inherently coercive relationship with the defendant wherein consent might not easily be refused.** Cf. Loomis v. United States, 68 Fed. Cl. 503, 519 (2005) (“the nature of the relationship [between lieutenant colonel and private first class] while not directly within a chain of command, is such that consent might not easily be refused and thus it is outside of the liberty interest protected by Lawrence”), appeal dismissed, 2006 WL 2572464, 2006 U.S.App. Lexis 23206 (August 31, 2006); Talbert v. State, CR 05-1279 (Ark. September 21, 2006) (defendant did not have fundamental right under Lawrence to use position of trust and authority as clergyman to engage in sexual conduct); Commonwealth v. Mayfield, 574 Pa. 460, 472, 832 A.2d 418 (2003) (“[s]exual contact between correctional staff and inmates is obviously rife with the possibility of coercion, both subtle and overt, given the extensive power guards exercise over inmates” and, accordingly, Lawrence is inapplicable). Accordingly, the right of sexual privacy purportedly delineated in Lawrence would not apply to the circumstances of the present case. [Emphasis added] In short, unless there has been some more recent appellate judgments I’m not aware of, the courts appear to be making exactly the distinction you say they should not. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [September 25, 2016, 8:19pm UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/103 "2016-09-25T20:19:54Z")
The “natural argument” shouldn’t be generalized too broadly, but, specifically for gays, I think it is telling. (Also for blacks, women, the handicapped, and other groups defined by birth-conditions.) The “natural argument” is a big part of transsexual rights issues. Some have tried to apply it to pedophilia, but that just shows that a valid argument can come to grief when it is extended too far. That’s the rebuttal to any “slippery slope” charge: the descent of the slope can be brought to a halt when necessary. There is no evidence for anyone being incestuous by nature, so that is a difference between gay rights and incest rights. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 25, 2016, 9:01pm UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/104 "2016-09-25T21:01:27Z")
> [@Trinopus](#): > > There is no evidence for anyone being incestuous by nature, so that is a difference between gay rights and incest rights. Firstly, what difference does it make if it’s “not natural”? Secondly, the argument isn’t that some people can only love their close relatives, it’s that some people can love their close relatives. Do you understand the difference? And you can substitute “want to have sex with” for “love” in the above since we are talking about 2 different things: 1. Should it be illegal to have sex with a close blood relative? 2. Should it be illegal to marry a close blood relative? If you don’t think #1 should be illegal (and I don’t see how you could), then there is no reason to think #2 should be illegal. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [September 26, 2016, 12:34am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/105 "2016-09-26T00:34:23Z")
> [@John\_Mace](#): > > Firstly, what difference does it make if it’s “not natural”? That it is not “the same” as an attraction that is natural. i.e., a straight-up one-to-one equating of gay sex and incest is fallacious. > [@](#): > > Secondly, the argument isn’t that some people can only love their close relatives, it’s that some people can love their close relatives. Do you understand the difference? That isn’t the point that was being presented to us. That’s a different argument, and you’re entirely free to make it, just don’t look at me as if I was rebutting it. I was only rebutting the claim that the Supreme Court decision protecting gay marriage also protected incest: it doesn’t. You’re arguing across me, and not with me. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 26, 2016, 12:50am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/106 "2016-09-26T00:50:40Z")
> [@Trinopus](#): > > That it is not “the same” as an attraction that is natural. i.e., a straight-up one-to-one equating of gay sex and incest is fallacious. > > That isn’t the point that was being presented to us. That’s a different argument, and you’re entirely free to make it, just don’t look at me as if I was rebutting it. I was only rebutting the claim that the Supreme Court decision protecting gay marriage also protected incest: it doesn’t. > > You’re arguing across me, and not with me. From the wikipedia article on the SCOTUS decision: > [@](#): > > The Court listed four distinct reasons why the fundamental right to marry applies to same-sex couples. First, “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”[113] Second, “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals”, a principle applying equally to same-sex couples.[114] Third, the fundamental right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education”; as same-sex couples have children and families, they are deserving of this safeguard—though the right to marry in the United States has never been conditioned on procreation.[115] Fourth, and lastly, “marriage is a keystone of our social order”, and “[t]here is no difference between same- and opposite-sex couples with respect to this principle”; consequently, preventing same-sex couples from marrying puts them at odds with society, denies them countless benefits of marriage, and introduces instability into their relationships for no justifiable reason. Which of those does not apply to close blood relatives and why? ---
**Author:** ![ekedolphin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ekedolphin/32/10003_2.png) [@ekedolphin](https://boards.straightdope.com/u/ekedolphin)\ **Post date:** [September 26, 2016, 1:06am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/107 "2016-09-26T01:06:36Z")
> [@Bosda\_Di\_Chi\_of\_Tricor](#): > > Could the o-Poster’s motives have something to do with his Username. > An attempt to smear some mud around? > Will this create a Google association between his Username, and the word “incest”? Yes. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [September 26, 2016, 1:19am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/108 "2016-09-26T01:19:12Z")
> [@John\_Mace](#): > > . . . Which of those does not apply to close blood relatives and why? Can you point to any constitutional jurist who says that the Supreme Court has, by its decision regarding same sex marriage, also legalized incest? I’m not sure what you’re trying to do here, but you aren’t making one gram of sense. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [September 26, 2016, 1:22am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/109 "2016-09-26T01:22:38Z")
> [@John\_Mace](#): > > . . . Which of those does not apply to close blood relatives and why? But, because it’s easy to answer: “Fourth, and lastly, 'marriage is a keystone of our social order”, and '[t]here is no difference between same- and opposite-sex couples with respect to this principle . . . '" Those statements are not true regarding incestuous marriage. Seriously, I think you’re being weird here. Can you, just perhaps, explain your actual views? Do you think Obergefell legalized incest? Does anyone think that Obergefell legalized incest? ---
**Author:** ![eschereal](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschereal/32/18939_2.png) [@eschereal](https://boards.straightdope.com/u/eschereal)\ **Post date:** [September 26, 2016, 1:44am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/110 "2016-09-26T01:44:12Z")
I think that is the point, though: inside the second order (first cousins and closer), there is an existing legally defined relationship between persons. I have 15 first cousins of the opposite sex, regarding whom it seems to me marriage would be a sort of legal redundancy. When one moves beyond the second order, the legal definition of a standing relationship does or starts to break down. Essentially, I am not aware of who my second cousins are, which I think is fairly common. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 26, 2016, 2:15am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/111 "2016-09-26T02:15:31Z")
> [@Trinopus](#): > > But, because it’s easy to answer: “Fourth, and lastly, 'marriage is a keystone of our social order”, and '[t]here is no difference between same- and opposite-sex couples with respect to this principle . . . '" > > Those statements are not true regarding incestuous marriage. Why are they not true? You can’t just say they’re not true without explaining why. > [@](#): > > Seriously, I think you’re being weird here. Can you, just perhaps, explain your actual views? Do you think Obergefell legalized incest? Does anyone think that Obergefell legalized incest? I don’t care who fucks whom, as long as they are consenting adults. Is that clear enough? ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [September 26, 2016, 3:07am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/112 "2016-09-26T03:07:14Z")
> [@John\_Mace](#): > > Why are they not true? You can’t just say they’re not true without explaining why. . . . Why not? That’s the way you’ve been conducting yourself so far. You’ve said “Nope” several times, without explaining why. You attacked my use of the “it’s natural” concept, without saying why you thought it was wrong. Either you’re willing to engage in a conversation, or you’re not, and, so far, you’ve shown bunny-all zip indication of it. As for “why” the statement is not true, no one believes that incest is “a keystone of our social order.” Can you point to anyone who claims it is? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 26, 2016, 5:13am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/113 "2016-09-26T05:13:35Z")
> [@Trinopus](#): > > Why not? That’s the way you’ve been conducting yourself so far. You’ve said “Nope” several times, without explaining why. You attacked my use of the “it’s natural” concept, without saying why you thought it was wrong. > > Either you’re willing to engage in a conversation, or you’re not, and, so far, you’ve shown bunny-all zip indication of it. > > As for “why” the statement is not true, no one believes that incest is “a keystone of our social order.” Can you point to anyone who claims it is? Oh, for crying out loud. Who believes that homosexuality is “a keystone of our social order”? You have not been able to articulate a reason to outlaw incest other than you personally don’t like it. Well, that’s the same argument conservatives made about SSM. When you have some other reason, let me know, and I’ll be happy to continue. Until then, I think we’re done. There is no reasoning with “I don’t like it”. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [September 26, 2016, 9:05pm UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/114 "2016-09-26T21:05:01Z")
> [@John\_Mace](#): > > Oh, for crying out loud. Who believes that homosexuality is “a keystone of our social order”? . . . Funny, because I didn’t say that. I can’t see any conceivable value in continuing discussions with you. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [September 27, 2016, 12:30am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/115 "2016-09-27T00:30:11Z")
The sexual tension in here is thicker than at an Arkansas family reunion… ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [September 27, 2016, 1:17am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/116 "2016-09-27T01:17:41Z")
But Bryan, how can you not know? It’s you I truly love, and yet you never let me show it. Oh, you never know how many nights I’ve wept alone, waiting for just one kind word, one small caress… (Well, serious-like, I admire you and your posts very much here. When you’re quipping, you’re one of the funniest members of the SDMB, and when you’re on-message, I think you’re one of the most valuable participants here.) So it goes: one more episode in the ongoing romance series, “As the Word Burns.” ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [September 27, 2016, 1:28am UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/117 "2016-09-27T01:28:55Z")
Thank you, that’s very kind. ---
**Author:** ![Allison27](https://avatars.discourse-cdn.com/v4/letter/a/8dc957/32.png) [@Allison27](https://boards.straightdope.com/u/Allison27)\ **Post date:** [September 27, 2016, 3:15pm UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/118 "2016-09-27T15:15:23Z")
How about its just disgusting. My god, is there ever a limit to what is acceptable anymore? You have to draw the line somewhere. ---
**Author:** ![Revenant\_Threshold](https://avatars.discourse-cdn.com/v4/letter/r/f1d935/32.png) [@Revenant\_Threshold](https://boards.straightdope.com/u/Revenant_Threshold)\ **Post date:** [September 27, 2016, 3:38pm UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/119 "2016-09-27T15:38:44Z")
> [@Allison27](#): > > How about its just disgusting. My god, is there ever a limit to what is acceptable anymore? You have to draw the line somewhere. The problem with a basis of “its just disgusting” is that disgust, like beauty, is in the eye of the beholder. ---
**Author:** ![Chimera](https://avatars.discourse-cdn.com/v4/letter/c/8e8cbc/32.png) [@Chimera](https://boards.straightdope.com/u/Chimera)\ **Post date:** [September 27, 2016, 3:52pm UTC](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232/120 "2016-09-27T15:52:23Z")
So since this taboo existed in bronze age cultures with little more than local chieftains, was that “Big Government” then too? Because this just comes perilously close to a certain Monty Python sketch. [Previous page](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232.md?page=5) [Next page](https://boards.straightdope.com/t/incest-laws-are-an-example-of-big-government/766232.md?page=7)