How About Some Consistency From the Courts?

In response to a court ruling I sadly noted in a previous entry, this writer published “Absurd Reasoning Of A Federal Appellate Court In Not Protecting Adult Incest As A Constitutional Right, Like The Supreme Court Has Regarding Sodomy.”

He’s no friend of sexual or relationship rights for consenting adults, but he does agree that Lawrence v. Texas should protect the right to sex between consenting adults who are related through blood or marriage. As he notes of Lawrence…

The case involved “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.” Justice Anthony Kennedy wrote for a majority of the Court that “there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.” The Supreme Court therefore ruled that “[t]heir right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

On to the case out of Ohio…

Are these not “two adults who, with full and mutual consent from each other, engaged in sexual practices” in accord with freedom beyond "spatial bounds" and liberty’s “spatial and more transcended dimensions"? What happened to the Supreme Court’s hallowed and sanctified “autonomy of self”?

On the court ruling…

To simply state that the Supreme Court case is limited to its facts is to pretend that no overarching constitutional principle was in fact announced by the Supreme Court. Supreme Court cases are “precedent” because the legal principles therein must be applied to new facts in new cases that will arise in the lower courts. The facts must otherwise be logically distinguished, or else any case could be decided by a mere announcement saying “these facts are not identical to the one the Supreme Court decided.”

People do try that. It is Discredited Argument #8.

After this blanket and nonsensical quote from a sister appellate court, the Sixth Circuit then attempts to engage in distinguishing this case on its facts. It argues that the “stepparent-stepchild relationship is the kind of relationship in which a person might be injured or coerced or where consent might not easily be refused, regardless of age, because of the inherent influence of the stepparent over the stepchild.”

That is Discredited Argument #20.

But in the case of consenting adults in Lowe, by the very fact that they are “consenting” and legally able to do so as adults, on what basis can the government interfere with sexual “autonomy of self”? What about, in the words of Supreme Court Justice Anthony Kennedy, the supposed “respect the Constitution demands for the autonomy of the person in making these choices”? In fact, the charge in this case was not rape! Rape by definition is the crime involving sexual “coercion” or lack of consent. Incest by definition is the crime involving sexual contact between relatives (as defined by State statute). Incest has nothing to do with coercion or lack of consent as a matter of application in law. If there was evidence that the stepfather had coerced the aged 22 stepdaughter into having sex, or that the 22 year old lacked the ability to consent, a rape charge would be more than sufficient to confront that in the same way it does in other cases of rape.

He’s right. Even people who are anti-equality or against relationship rights for consenting adults can see that rulings such as Lawrence (as well as other rulings) should protect those rights and promote equality. An adult should be free to share love, sex, residence, and marriage with any consenting adults.