andrewducker | Homosexuality, incest and bigamy

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.

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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).

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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.

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(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).

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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.