Tuesday, September 20, 2005

Murh Deadline?

By the way, as I understand it today's the deadline for Allen Muth to file his appeal from the 7th Circuit decision upholding his incest conviction despite Lawrence v. Texas.

The case is of interest to me as an example of slippery slope logic: does legalizing homosexual intercourse lead to decriminalizing incestual intercourse, and legitimizing homosexual and/or polygamous marriage, etc.? (Human sacrifice, dogs and cats, living together... mass hysteria!)

Proponents of gay marriage try to draw logical distinctions between the polygamous and the monogamous by defining marriage not as a contract but a recognition of societal status. Muth's case is more difficult to distinguish, but can be written off as a minor aberration not justifying the tanking of Lawrence:
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?

To a point, this is correct. Lawrence does not legalize gay marriage, polygamy, or any other kind of marital state. All it said was that the government couldn't make a particular type of consensual sex illegal. However, the logical doorway does stand ajar. Listen to the interesting rational-basis language of Lawrence:
"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. . . . The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

Draw all the arbitrary lines you wish, but this analysis appears to make it logically inevitable that it is just as unconstitutional to criminalize "private sexual conduct" other cases, particuarly as Lawrence carefully refrained from creating a protected class of homosexuals.

I don't pretend expertise on slippery slopes, I'm just interested in the topic. For a really long, but very, very good article on the topic, read Eugene Volokh's article in the Harvard Law Review (a draft version kindly made available online here.) He tracks different types of slippery slopes, historical examples of the argument in action (remember when officials only wanted to limit kid's access to cigarette machines, and were quick to deny any attempt to make smoking in public illegal?), and so on.

If nothing else, it's an interesting logical experiment. On this particular slope, slippery or not, incest and gay marriage appear to jostle for the next logical step down. On the one hand, constitutional issues regarding criminalization of incestual sex seems fairly closely analagous to Lawrence, but the incest prohibitions do carry genetic consequences which may justify continued criminalization under a rational basis analysis, if the Court chooses to stick to that test. On the other hand, gay marriage requires altering the definition of marriage from a monogamous heterosexual union (albiet within certain consanguinity boundaries) to a "monogamous hetero- or homosexual union." That's a bigger leap, in that it affects far more than consensual adult bedroom gymnastics. So which will come first, or both, or neither?

(Side Question: if you tried legalizing gay marriage without incest, would the same consanguinity rules apply to homosexual marriages? Given no genetic offspring are possible, why or why not?)

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