Wednesday, September 23, 2015

Has Past Bigotry Allowed a Limited Loophole Around Current Bigotry?

I again remind readers that I am not a lawyer and not giving legal advice. If my understanding of certain laws is correct, then it appears that bigoted thinking about marriage from lawmakers in the past might have left a loophole, in some states, for same-gender consanguinamorous couples to marry.

Relevant discussions pop up everywhere, and this one popped up at, posted by someone going by the name Amateur Barbarian...

Do incest laws apply to SSM?

I thought this might have been asked recently but reasonable searches didn't turn it up. Inspired by thoughts reading the current polygamous marriage thread...

Do incest laws and other familial bars to marriage apply to same-sex partners? Could brothers or sisters marry in any US jurisdiction? World jurisdiction? What about the even odder notion of a parent marrying (post divorce or widowhood) a same-sex child?
They only place I'm aware of that will knowingly marry a brother and sister is Sweden, where half-siblings can marry under certain circumstances.

In a subsequent posting, the OP clarified...
I guess the extension of the question is that beyond issues of societal ick factor and psychological dominance/control, incest laws are entirely about preventing overly close genetic pairing. As in other situations, but perhaps even more so, since a biological child can't result from SSM partners, why would the law care? 
Mikeisskeptical added...
There's also a question about weird power dynamics with close relations I think. When people have grown up together, there's always the uncomfortable possibility that the relationship goes back further than people would want to imagine. It's definitely a moral grey area though.
These are forms of Discredited Arguments #1, 18, and 20.

muldoonthief has good news for same-gender consanguinamorous couples looking to marry...
Massachusetts law appears to be A-OK with brothers marrying. It specifically calls out, in separate sections, which relatives a man or a woman may not marry, and in each case, they only list opposite sex relatives:

Section 1. No man shall marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandfather’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister or mother’s sister.
Section 2. No woman shall marry her father, grandfather, son, grandson, brother, stepfather, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother or mother’s brother.
I know some other states prohibit marrying siblings, parents, children, etc. but all it takes is one state to have specified that a brother is banned from marrying a sister, rather than "sibling" or "brother or sister," and same-gender consanguinamorous couples may have the opening they need to marry. Again, consult lawyers in the appropriate state who specialize in family law and/or sex crimes. If a state doesn't require sexual interaction for a marriage to be valid (and no state should at this point, but for all I know some may) AND that state does not have a law that states it prohibits a brother from marrying a brother, a sister from marrying a sister, etc. then it should be possible to obtain a marriage license in that state and have it recognized as valid without incriminating yourself by admitting to what the law would define as criminally incestuous sex.

Unfortunately, the marriage laws of Rhode Island, New Jersey, and Ohio bar siblings, parents, children, etc. from marrying, not just brother and sister, etc. That's too bad, because the first two states do not criminalize sex between consenting adults and Ohio doesn't criminalize sex between consenting adult siblings.

Getting same-gender consanguinamorous couples legally married would be another step towards full marriage equality, and it would no doubt have to be that once they are marrying, mixed-gender consanguinamorous couples would have their clear opening under the equal protection clause of the Constitution.
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