So what do you think about incest?

By Michael J.W. Stickings

That's a serious question, and I ask it in all seriousness. Indeed, I think everyone who cares about liberal democracy needs to take it seriously. And why is that? Because it concerns individual liberty and the restrictions the state may legitimately place on individual liberty.

In 1967, when he was still justice minister, future Canadian Prime Minister Pierre Trudeau famously said that "there's no place for the state in the bedrooms of the nation". He was answering reporters' questions about legislative revisions to the Criminal Code, and he was specifically addressing homosexuality. It is his famous line that is remembered, and often misquoted, but he also said that the legislation was meant to bring Canadian laws up to the standards of "contemporary society". And his basic argument was that "what's done in private between adults... doesn't concern the Criminal Code". It is only when behaviour is public that it is "a different matter".

But what does this mean? Is there no place for the state in the bedroom of the nation? Surely not. The state -- the liberal state, one with a rule of law that protects individual liberty -- may intervene, for example, where sexual activity is not consensual. The state may enact laws against rape, for example. The problem with Trudeau's assertion is that it implies that all private sexual acts are consensual, that is, entered into freely by both, or all, parties. That is clearly not the case. Rape and other forms of sexual abuse (although I recognize that rape is usually more about power than about sex) are the clearest cases, but what about, say, sado-masochism, or domination and submission? Can we assume that everyone who enters into such activity -- and into such relationships -- have freely consented? Surely not.

So what does this have to do with incest? As Jeff Jacoby wrote in yesterday's Boston Globe -- and I recommend that you read the entire piece -- adult incest (that is, presumably, incest between consenting adults) may soon be legal in the United States as well as in other liberal democracies -- if, to an extent, it is not already.

Legal proscriptions against incest may go back thousands of years, but this particular debate begins with the Supreme Court's ruling in a prominent case regarding sexual activity, Lawrence v. Texas. In that 2003 ruling, the Court held that laws prohibiting sodomy were unconstitutional. It was a 6-3 ruling. Writing for the minority, Justice Scalia said this: "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are... called into question by today's decision." I rarely agree with Scalia, but he was right, in a way, about this: The Lawrence ruling was the thin end of the wedge. If sodomy is permissible -- that is, if the state has no right to prohibit it -- what else must be permissible?

Go through Scalia's list. What do you think?

I realize I'm venturing out onto thin ice here, but I want to stress that I am addressing this matter legally and philosophically, not personally. If I think that something should be legal, it does not necessarily follow that I do or approve of that something. So: I do think that sodomy should be permissible. (After all, sodomy was just a stand-in for homosexuality. (Legalizing it meant legalizing homosexuality, although, of course, the legality applies to heterosexual activity as well.) And "permissible" isn't even the right word for it. In my understanding of individual liberty, sodomy is a right, which is to say, people (and by that I mean, of course, consenting adults) have a right to perform sodomy. I am also a staunch advocate of same-sex marriage (not just "civil unions"). I can make a case for the legalization of prostitution. And I certainly do not see any good reason for the state to ban masturbation, adultery, and fornication. Obscenity is a more complicated matter because it is public as well as private. Indeed, there are good and justifiable reasons to prohibit obscene speech in public, for example, or the showing of obscene images on the public airwaves. It all depends, however, on the meaning of "obscene," and this is, needless to say, a source of contention. For me, the bigamy, adult incest, and bestiality are far more troubling. Bestiality ought to be prohibited because it is impossible for an animal to consent to a sexual act with a human being. But what about bigamy (or polygamy) and adult incest? What if those engaging in it have consented to it? Does the state have any right to intervene? And what does it mean to "consent"? Put another way, what does it mean to be "free"?

This issue is well beyond the scope of this post, of course, and is not about to be resolved easily. Again, what I recommend is that you read Jacoby's piece, which looks at how the issue of adult incest is playing out both in the U.S. and in Europe. There are currently legal challenges to prohibitions on incest in both the U.S. and Germany -- in the U.S. the basis for the challenge is Lawrence. I cannot confirm this, but Jacoby mentions that "incest is no longer a criminal offense in Belgium, Holland, and France" and that "Sweden already permits half-siblings to marry". Also, Eugene Volokh notes that incest is already legal in some instances in the U.S. -- for example, in Rhode Island marriages "of kindred" are allowed "among the Jewish people".

See also Ed Morrissey, who responds to Jacoby's piece with a thoughtful argument for "law [that] can validly reflect a moral consensus of the community without violating an emanation of a penumbra of the Constitution". I suspect that in this area (as in most others) I am much more liberal -- and by that I mean more tolerant of "alternative" behaviour and more willing to expand the realm of individual liberty -- than Ed, but I, too, acknowledge that the law -- even in a liberal democracy -- must address the moral requirements of the community. There is a certain historicism to this view -- that the law reflect the "moral consensus" of the time -- but even universal principles need to be applied to a particular context. In other words, we may agree that life, liberty and the pursuit of happiness (or property) are universal rights even as we disagree about what they mean in a particular place at a particular time.

At some point even a free society has to say no. As this debate shows, however, the line between what is permissible and what is not is fluid. Incest is one of the more prominent taboos in our society, and it seems not just tawdry but repugnant (and, yes, immoral) even to discuss its possible legalization. But what are the arguments against it? That it leads to genetically defective offspring? Yes, but what if no procreation is involved? That it involves coercion? Yes, but this is consensual adult incest, not incest with a minor. (And, besides, a lot of other activity, and not just sexual activity, involves coercion to some degree. Should the state prohibit any activity where there is no clear consent?) That it is socially unacceptable, that there is a moral consensus against it? Yes, but public opinion of what is acceptable and unacceptable changes over time. It wasn't so long ago, after all, that there were prohibitions against interracial marriage in the U.S. And the struggle to extend marriage rights to homosexuals, needless to say, goes on. Okay, those examples involve marriage, not sexual activity. Then go back a few years to Lawrence. It wasn't so long ago that homosexual activity was criminal.

Does this all mean that I support the legalization of adult incest. No. (Please, let me be clear about that.) This post is not about advocating for one side or the other of that particular debate but about addressing the much larger debate regarding individual liberty and the limits thereof in a liberal democratic society. Given that the realm of liberty seems to be expanding, despite high-profile efforts to constrain it, which is to say, given that we are increasingly free to do and say and see and hear more and more things, what are the appropriate limits that may be imposed -- or, rather, that we may impose -- on our freedom?