A Stitch in Haste

Several anti-gay conservatives are making quite a big deal over a sad case in Wisconsin recently decided by the Seventh Circuit Court of Appeals:

Allen Muth and his younger sister Patricia married and had three children. After they abandoned the middle child, who was disabled, the State of Wisconsin petitioned to terminate their parental rights because of their incestuous parenthood. After the courts approved the termination, both Allen and Patricia were convicted of incest and sentenced to years in prison.

Apparently tired of losing the polygamy non-argument, some commentators are now picking a new anti-gay perch on the slippery slope.

National Review:

But the court's reasoning was extremely bad ... in dealing with the precedent relied upon by the petitioner in the case. That precedent was Lawrence v. Texas, the Supreme Court's 2003 ruling declaring the unconstitutionality of laws against homosexual sodomy.

Jeff Jacoby:

Lawrence was clear: "The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law." If the Supreme Court meant what it said, Muth argued, his and his sister's convictions for incest were every bit as unconstitutional as the Texas men's convictions for sodomy.

This is, of course, utter nonsense.

There is no contradiction whatsoever between the holdings of Lawrence v. Texas, 539 U.S. 558 (2003) and the Wisconsin case, for one very simple reason: Lawrence expressly declined to declare a fundamental right to private consensual sexual conduct among competent adults. All the Lawrence court found was that criminalizing homosexual intercourse served no legitimate state interest.

There are, of course, extremely legitimate state interests in proscribing sibling intercourse, as anyone with a knowledge of basic genetics understands. The right to sexual privacy does not include the right to conceive children with the genetic problems that sibling intercourse can and often do yield, as this very case demonstrated.

The rest of the facts in the Wisconsin case distinguish it from Lawrence even more. The siblings entered into a fraudulent marriage; Lawrence expressly declined to discuss the gay marriage question. The siblings had children; Lawrence did not address questions of conception, adoption or parenting by gay couples. Finally, the appeal in the Wisconsin turned on some rather arcane legal principles -- habeas corpus review, the difference between procedural and substantive rights, and retroactivity of cases -- that hardly reach to the core societal questions of gay marriage and how it compares to incest.

The Circuit Court did not so much declare that Lawrence does not apply to incest as it declared that Lawrence did not apply to this case. And its reasoning is wholly logical and in no way inconsistent with "the big questions" of legislating sexual morality.

Incidentally, doesn't this mean that the Circuit Court was declining to engage in the "judicial activism" that conservatives claim to abhor? Go figure.

The quest by some to portray Lawrence as an apocalyptic harbinger of doom rather than a modest step toward basic legal dignity for gays will no doubt continue for some time, despite the fact that Lawrence has nothing, absolutely nothing, to do with gay marriage, "Don't Ask - Don't Tell," gay parenting or any of the other various challenges gays still face, let alone questions of polygamy, incest, or other "slippery slope" bogeymen that bigots seem to be eager to find around every corner.

And even if one accepts that there might be inevitable non-gay consequences that will flow from Lawrence, is it really necessary or proper to continue arguing against the basic legal dignities of millions of gays out of fear of what a minute handful of individuals might do as a result of their own dysfunctionality or for mere shock value?

Is it really about protecting the rights of incestuous siblings? Is it really about exposing supposed inconsistencies in applying precedent?

Or is it about naked bigotry?

The Wisconsin case is Muth v. Frank, No. 03-3985 (7th Cir.) (2005) (PDF - 19 pages)