Tuesday, March 15, 2011

Heavy Reading

A kind person commenting anonymously on this blog listed four documents that discuss incest laws from the perspective of the technicalities of law and the realities of how courts operate. I have read through the documents and I do believe that every argument discussed in the linked documents against the repeal of laws banning cosanguineous sex or consanguineous marriage have been addressed here on this blog, especially here.

I suggest expanding this blog's coverage to include the critically important area of law review articles. Some can be found online, and others might require a visit to your local law library. Free public law libraries can typically be found downtown in major cities and in the library systems of colleges and universities.

Is Incest Next? Brett McDonnell University of Minnesota Law School Cardozo Women's Law Journal, Vol. 10, No. 2, February 2004

BOSTON UNIVERSITY LAW REVIEW, 2008 PUNISHING FAMILY STATUS - when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? (This also deals with other issues, including polygamy.)



We need to make sure our laws protect, not hinder, the rights of an adult to love, sex, and marriage with any consenting adults. There is no good reason to break up relationships just because they happen to be close family members.
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  1. In order to "make sure our laws protect, not hinder, the rights of an adult to love, sex, and marriage with any consenting adults" there must be a legal attack upon such laws. This begins with well-written law review articles which discuss the discredited, invalid arguments being made in some of the above-cited law review articles. Federal judges routinely read and are influenced by law review articles, but at this point the law review articles they are receiving are not sending an entirely positive message. The analysis done here at this blog needs to be communicated to legal scholars who can in turn communicate that analysis to federal judges via law review articles. That would pave the way for constitutional challenges similar to the Perry v. Schwartzenegger case currently underway in California.

  2. How would I go about communicating with legal scholars? I'm sure I can figure it out, but do you have any tips or leads? Thanks.

  3. Well, obviously the #1 way would be to get a law degree, use this as your own topic of legal research, and get your legal research on this topic published in a law journal. This would also empower you to file your own (non-frivolous) lawsuits in this area. One of the historically central reasons to become an attorney is precisely this purpose - the pursuit of legal activism on behalf of a social cause. See, for example, the stellar career of Thurgood Marshall.

    Should this not be possible, then basically you need to make contact with as many present and future legal professionals as possible, especially those specializing in family law and constitutional law. For example, the topic of incest was discussed on December 12, 2010 over at the Supreme Court-oriented blog "The Volokh Conspiracy" (see, with 299 comments, and yet there was not a single mention of the FME blog. hasn't discussed the topic much, but one day it will certainly happen, and FME needs to enter that discussion. Family Law Prof Blog (at often covers interesting exam questions for law students, and this topic would certainly make an interesting constitutional law exam question. And there are lots of state-specific family law blogs - when a legal case arises in state court on this topic, a reference to FME blog should find its way into the family law blog covering the state in which the noteworthy legal case is active.

    Look at the history of same-sex marriage. Its progress has arisen partly as a result of political activism (local anti-discrimination ordinances and the like), but the big, important steps have been entirely driven by legal activism. Recall, for example, the recent demise of DADT - Defense Secretary Gates feared (with very good reason) that a federal court was about to order an immediate end to DADT, and he implored Congress to pre-emptively end DADT on a less instantaneous schedule (which did in fact happen) before the courts could deliver the fatal blow. Congress acted, but only at what amounts to legal gunpoint. Look at how SSM became legal in Massachusetts - legislators refused to act, and finally the state Supreme Court issued its order that the state's Constitution required that SSM be legally valid. Going back to other great social struggles, we see the same thing - Brown v. Board of Education, etc. - progress comes not upward from below (political activism), but rather downward from legal victories in Federal court. The sooner a social movement figures this out, the faster its "dream" gets realized.

  4. Suggest applying to have FME listed on the American Bar Association's lists of Family Law blogs & Constitutional Law Blogs:

    View the ABA's entire list of law blog links here:

  5. Thanks for the suggestions and tips.


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