Lawrence Should Protect Epstein

Matthew J. Franck is bothered by David Epstein’s love life and the reaction of the public to the filing of criminal charges against Epstein. He especially considers William Saletan’s reaction. Franck appears to be not only against the right of consenting adults to consanguineous love and sex, but against gay sex and love. But even if he is antiequality, he makes some good points later in his essay.

Liberal writers have a startling inability to articulate what’s wrong with a prominent professor’s incestuous relationship with his daughter.

So do writers who aren’t “liberal,” because we don’t know the internal dymanics of the relationship in question well enough to be able to say something is wrong with it. We can look at a unrelated heterosexual couple who are the same age, and see that there’s something wrong with the relationship if one is abusing the other in front of our eyes. For all we know, David Epstein and his daughter have a very loving, happy relationship.

It is almost equally disturbing that a legal argument for a “right” to engage in adult, consensual incest stands on surprisingly firm footing, thanks to precedents the United States Supreme Court has already established in other cases on the “autonomy of the person” under our Constitution.

It is disturbing that someone should be able to make decisions about her own body and with whom she shares it?

So powerful is the contemporary opinion that “consenting adults” may engage, in private, in any acts that commit no “harm” (narrowly understood in almost purely physical terms) to the parties in question or to others, that some observers have merely shrugged indifferently at the Epstein case, while others have striven to find grounds for condemning such incestuous acts but finally confessed their failure to find them.

I can find so much material from men and women, simply by searching online, who were in heterosexual, supposedly monogamous relationships with someone who wasn’t a close a relative who claim they were, and seem to have been, deeply hurt as a result of those relationships. Some go through years of therapy as a result. But we don’t criminalize these relationships, and I doubt Franck would say all such relationships are morally wrong.

Franck cites C.S. Lewis’ book The Four Loves.

Lewis’s four forms of love are affection (the Greek storgē), friendship (philia), sexual or romantic love (eros), and charity or Christian love (agapē). Here we may stick to the first three—the “natural loves,” Lewis calls them—and observe that they are not so much variations of one thing as different species of love. Each has its own integrity, and is in an important way constitutive of human happiness. Some overlap among or progression through the various loves is possible, of course. Married couples, for instance, may begin as friends, become lovers, and finally find their relationship cemented in bonds of affection, that “humblest love” that as often as not involves a great deal of “taking for granted.”

But while such overlap is appropriate in some instances, in others it is inappropriate—indeed, it can be an outrage to mix loves or for one to intrude upon another.

Even if we pretend that Lewis’ book constitutes the basis for our laws, There is no reason why we should be certain overlap is not appropriate in the relationship between Epstein and his daughter, nor reason that it should be illegal.

Introduce the element of eros, however, and affection is not reinforced; it is destroyed, and replaced by something unnatural to the relationship in its proper sense.

There’s that “sex is destructive” idea again. Maybe these guys are doing it wrong.

He continues, bemoaning the Supreme Court’s actions in Lawrence v. Texas, rightly noting that the decision should invalidate laws against poly and consanguineous relationships in addition to protecting the right to same-sex relationships.

In its 2003 decision in Lawrence v. Texas, invalidating laws against homosexual sodomy, the Court referred to “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

He includes a quote from Justice Anthony Kennedy. Notice how this could be written of the Epstein case, if you replace “homosexual” with “consanguineous”…

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

So why is Epstein facing charges? Franck gets it right when he says…

As I had occasion to write several years ago in the context of another case of incest, if this is sound constitutional reasoning about the “liberty” protected by the due process clause, then it is as sound for the invalidation of incest laws as it is for the invalidation of sodomy laws.

He returns to Saletan…

What we must notice is that Saletan’s strictures against incest rest on moral arguments of a kind that the Supreme Court has already rejected in the Lawrence case.

And if Saletan or anyone else wants to live that way, they are free to do so, but demanding others do so is another matter. More and more people, when they think through it, realize that not only decriminalization, but full marriage equality makes sense.