Homosexuality, incest and bigamy

[andrewducker]

Fantastic discussion here on Senator Santorum's remarks that:

And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery.

Taking a different tack to a lot of outraged people, he argues that the senator is completely correct and those other things should be legal too. I'd say he has a point.

Santorum's point is that if the Constitution is interpreted to secure a constitutional right to consensual gay sex, then it would be likely to be interpreted to secure a constitutional right to (presumably consensual on all sides) bigamy, polygamy, incest, and adultery. This is actually quite a plausible prediction; if two gay men are constitutionally entitled to have sex (as I think they should be), then adult siblings would similarly be constitutionally entitled to have sex (as I think they should be); one could draw a legally viable distinction, but there's a good chance that the courts wouldn't be persuaded by such a distinction, and conclude that the two should be treated equally.

...

I find adult brother-adult sister incest to be icky (and I don't even have a sister!), but that's no reason to throw people in jail for it, precisely because of the freedom of sex. Such behavior may lead to medical problems (such as a higher risk of birth defects), but that's not reason enough to prohibit even incestuous relationships were the parties take reliable steps to prevent the birth of children (just as the possibility that anal sex may be more likely to spread sexually transmitted diseases than other sex isn't by itself reason enough to criminalize it).

...

But one of my moral values is "it's immoral for the government to throw people in jail for things that really don't hurt other people, simply because I think that these things are outrageous or disgusting or contrary to some religion." I realize that this leaves open considerable room for debate about what qualifies as "hurt[ing] other people"; I'm not suggesting that this moral value is clear or definite enough to itself be turned into a constitutional rule (a matter on which there's considerable debate). But as a general moral value, I think that it's a pretty sound one.

...
(Responding to the question "Should it be against the law for siblings to have children?")

I think the case for a constitutional right to broad discretion in rearing your children is a very tough one (though ultimately it's defensible), and the same goes for a constitutional right to do what you please while you're pregnant, and for a constitutional right to have children in the first place. Having children is chock full of externalities, and if there's a significant chance that your children will have very serious birth defects, then that's a huge externality right there (though of course if the concern is with harm to the child, we get to the metaphysical question of whether it harms a child to be born with very serious defects, if the alternative is not to be born at all).

...

The question in the incest/parenting context is: Should having children who are at a high enough risk for birth defects be treated as one such form of severe child abuse?
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Thinking things through this way reminds us that we do not generally ban people from having children because of the risk of birth defects, even if they're carriers of a gene that makes such defects fairly likely.

Nicely argued stuff, and he concludes that this isn't a simple question with simple answers. I recommend taking a read through.

Comments

[heron61.livejournal.com]

I completely agree, as long as everyone is over the age of consent and no one is forced to do anything against their will, then it seems obvious to me that homosexuality, BDSM, all forms of poly relationships, and even adultery, and incest should all be completely legal for the simple reason that the government has no business making them illegal.

Then again, I also tend to cheer when further evidence of the decay of the mainstream "nuclear family" comes out, because I see almost all of the older customs surrounding sexuality and relationships as being rooted in sexism and archaic ways of life. I'm also far from certain that marriage should be given any form of legal sanction.

[andrewducker]

I'm happy to have a catch-all term whereby you sign something and basically state "I hereby say that this person gets my money if I die, can sign papers if I'm in a coma, is always allowed to visit me in hospital, etc." Butthat ought to be one of a range of options for people.

[heron61.livejournal.com]

Agreed, and also more equitable laws regarding property division for share property that doesn't depend on people's exact relationship status, but beyond that I don't think anything else is really necessary.

[cangetmad.livejournal.com]

Of course, technically I believe that property is theft and inheritance is robbery, but there's a worse circle for inheritance by privileged heterosexual coupling. Why should relationships, legally, be contrained by the one ridiculous and unhelpful model that we have, when there are a million ways to live your life?

The answer, presumably, is that we'd like to make the statement that one is better than the other 999,999. And, given consent all round, I'm not sure that's a statement I want my society to be making.

[andrewducker]

Property is theft. And property is liberty. And property is impossible. I think there's a fourth one too, but I'm damned if I can remember what it is.

I agree that there ought to be lots of ways of dividing things up, definitely.

[heron61.livejournal.com]

I agree completely about inheritance. OTOH, private property is a perfectly sensible institution. Of course, I also happen to believe that it should be limited to those goods that one uses frequently and keeps nearby. Clothes, computers, and kitchen gadgets are all reasonable examples of private property. However, I don't believe land should be able to be owned and that private ownership of factories, apartment buildings, or similar spaces used by others is most definitely theft.

[andrewducker]

See, part of me likes that idea, and part of me thinks that if that were the case, nobody would build factories of blocks of flats in the first place...

[heron61.livejournal.com]

Quite possibly, which is why I'm hoping the visions of nanotechnology materialize and we can build a post-scarcity society ala Iain M. Banks' Culture.

[dapperscavenger.livejournal.com]

Isn't it nice when a person takes a commonly held train of thought and articulates it in such a way that people actually listen? :)

[andrewducker]

Yeah. I wish I was better at it.