Equal Protection Under the Law

Matthew Galluzzo, lawyer for Columbia University professor David Epstein, who'd been criminally prosecuted over consensual adult incest, wrote to Yes But However and made the legal case [link may no longer be working] for striking down laws against consensual consanguineous sex, while still trying to hint at a personal disapproval of such sex.

Second, I am a criminal defense attorney and not a religious leader or political activist, and accordingly, my argument is a legal one, not a moral or political one. I have never argued that homosexuality is the moral equivalent of incest, nor would I. I have never argued that the two are somehow similar biologically, psychologically, or ethically…

The comparison between the two is purely a legal one, and the legal argument that I am making is not a novel one – in fact, no less a legal scholar than Justice Scalia has already made it. I suggest that you read his dissent in Lawrence v. Texas, but I will summarize the case for you:

This is very, very important.

Perhaps you didn’t realize it, but up until 2003, homosexual sodomy was still illegal in Texas and a few other states. Mr. Lawrence was arrested in Texas after being caught in the act by police officers in his own home, and was convicted of a crime as a result! He challenged the constitutionality of the state ban on sodomy, and initially lost because the Supreme Court had previously upheld the constitutionality of a similar state-level ban on sodomy in Bowers v. Hardwick in 1986.

However, in 2003, the Supreme Court overturned its own recent decision in Bowers v. Hardwick and declared that Mr. Lawrence had a constitutional right to engage in sodomy in the privacy of his own home, and that public opinion about the morality of such conduct was no longer a valid basis to deny him that liberty.

This same reasoning can be applied to poly and consanguineous sex.

In the dissenting opinion, Scalia countered that as a result of this logic, there is a very valid argument to be made that there is now a constitutional right to engage in acts of consensual adult incest. That is the argument that I am now making on behalf of my client, and i explained that to both ABC News and the Huffington Post.

I hope his argument works.

If your counter-argument is that incest ought to be illegal because it is always coercive (and thus, the ban on it is necessary to advance a compelling state interest), then I ask you the following questions:

1) Should it be illegal for a 33 year old sister and a 34 year old brother to have sex with each other? Is that relationship really coercive?

Very good question, because of course it shouldn’t be illegal. Also, for people who claim that all parent-adult child sex is coercive, I want to know at what point the coercion shifts to the child, given that some aging parents exhibit increasing dependence on their child?

2) Should all coercive sex result in an arrest? If so, the police would need to start arresting bosses for having sex with their secretaries, rich older men for having sex with younger less-wealthy people, and so on, and so on. Fortunately for them, there is nothing in the New York penal law that makes “coercive” sex illegal in the absence of force.

John Romano indicates that he is his not on board with solidarity, but doesn’t refute Galluzzo’s points.