Pandora's box: Supreme ruling supports incest, polygamy

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Pandora's box: Supreme ruling supports incest, polygamy

Court ruling does support incest, polygamy
Time admits critics of 'gay' rights decision were right

When the U.S. Supreme Court struck down a Texas prohibition on homosexual sodomy, leaders including then-Sen. Rick Santorum, R-Pa., warned the decision would be used in support of incest, adultery and polygamy. While Santorum got "holy hell" for his prediction, a media leader of no less influence than Time magazine now admits that he was right.

"It turns out the critics were right," the magazine said in a recent article addressing the use of the precedent in a series of other cases. "Plaintiffs have made the decision the centerpiece of attempts to defeat state bans on the sale of sex toys in Alabama, polygamy in Utah and adoptions by gay couples in Florida."

Also, in Ohio, a man's conviction of incest for having sex with his 22-year-old stepdaughter also is being challenged based on the Lawrence vs. Texas decision, the magazine said.

Boston Globe columnist Jeff Jacoby noted that just one of the warnings about the Texas ruling, which essentially struck down all state laws in the nation banning homosexual sodomy, came from Santorum.

"If the Supreme Court says you have the right to consensual sex within your home," Santorum said at the time, "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. You have the right to anything."

As Jacoby noted, Santorum was given "holy hell" and handed "nail-spitting" by some critics.

"When the justices, voting 6-3, did in fact declare it unconstitutional for any state to punish consensual gay sex, the dissenters echoed Santorum's point. 'State laws against bigamy, same-sex marriage, adult incest, prostitution, gotcha21, adultery, fornication, bestiality, and obscenity are … called into question by today's decision,' Justice Antonin Scalia wrote for the minority," Jacoby wrote.

Writing for the majority, Justice Anthony M. Kennedy said the Texas law "demeans" the lives of homosexuals. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime," Kennedy wrote.

At the time of the 2003 decision, Time, in its "A Yea for Gays," said, "Lawrence v. Texas turns an issue that states have historically decided for themselves into a basic constitutional tenet."

"The decision was not, strictly speaking, a 'liberal' one," the magazine said then, noting, "Thus the activists' notion that gay marriage is an inevitable outcome of the ruling may be little more than wishful thinking."

The magazine also at that time questioned whether there even was a "culture war" that would involve moral issues. "It is clear … that the court has taken sides in the culture war,' Justice Antonin Scalia wrote last week in his abrasive dissent from the Supreme Court's decision to decriminalize homosexuality. Excuse me, but what culture War?" the magazine wrote.

"Most Americans aren't extremists, and they are not at war. The lovely paradox of 21st century America is that we seem to be increasingly united by the celebration of our differences. That is what the Supreme Court acknowledged in its decisions on homosexuality and affirmative action last week," the magazine wrote then.

But with same-sex marriage now on the books in Massachusetts, and pending in several other states, the magazine's position has changed.

"Now, Time magazine acknowledges: 'It turns out the critics were right.' Time's attention, like the BBC's, has been caught by the legal battles underway to decriminalize incest between consenting adults," Jacoby wrote.

"In Lawrence, the court had ruled that people 'are entitled to respect for their private lives' and that under the 14th Amendment, 'the state cannot demean their existence or control their destiny by making their private sexual conduct a crime.' If that was true for the adult homosexual behavior in Lawrence, why not for the adult incestuous behavior in the [new] case?" Jacoby wrote.

Time, in its article, "Should Incest Be Legal," noted that so far most of the challenges have been unsuccessful. "But plaintiffs are still trying, even using Lawrence to challenge laws against incest." Jacoby noted he'd reported several years ago on an incest case, in which the brother and sister involved were prosecuted.

"But the next [case] to come along, or the one after that, may not lose. In Lawrence, it is worth remembering, the Supreme Court didn't just invalidate all state laws making homosexual sodomy a crime. It also overruled its own decision just 17 years earlier (Bowers v. Hardwick, 1986) upholding such laws," Jacoby wrote. "If the court meant what it said in Lawrence – that states are barred from 'making … private sexual conduct a crime' – it will not take that long for laws criminalizing incest to go by the board as well."

In an analysis after the Lawrence decision was announced, Santorum said what he feared had happened.

"What I feared the Court would do in Lawrence in striking down the Texas sodomy statute is finally and completely eliminate marriage as a privileged institution in our laws and simply expand the zone of privacy in sexual conduct to all consenting adults. That is exactly what they did: Marriage has now completely lost its special place in the law. The Court said in effect that marriage has not only outlived its legal usefulness, it said it is discriminatory to treat people differently based on such an outdated social construct. Therefore, over the past generation, it has decided to change the zone of sexual 'privacy' from one man and one woman in marriage to consenting adults, period. … If consent is now the only standard to have your sexual behavior protected by the Constitution, then how can the Court prohibit any consensual sexual behavior among two, three, or more people? The answer is logically, judicially, that you cannot – for other than arbitrary reasons," he wrote.