I read the op-ed and felt some sympathy for the two biological siblings who were living as a couple until I saw that they had had four children together. The "good case" against the incest prohibition usually premises that there will be no offspring, which makes the Muths a poor test of the incest law.

"It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused." At the time Lawrence was decided, I wrote a post on the rational basis/ state interest in prohibiting incest.

Conservatives like to point to Lawrence as the end of all democratic decision making, and deem any of the restrictions that Kennedy's opinion put on the holding (such as those you quote above) to be mere dicta and utterly ignorable. However, I think Kennedy wrote Lawrence quite carefully to reserve many matters to the state, including regulation of marriage and thus the continuation of adultery prohibition.

Armen, your point is not self-evident to me. What is the legitimate state interest in the Boston case? PG's comment above suggests that it has to do with the production of offspring, but there's no evidence that there's anything wrong with their children, and in any event, the law does not imprison other genetically deficient parents, such as sickle-cell or Tay-Sachs carriers, or over-40 mothers. PG's linked post goes to coercion and family structure, neither of which are at issue in the Boston case, where two adults came together outside of any existing family.

Moreover, check out the Massachusetts statute. What is the legitimate state interest in criminalizing mutual masturbation and oral or anal intercourse between consanguineous siblings, absent evidence of coercion?

Tom T.,

I would say there is a general state interest in an incest prohibition due to a) the increased chance of birth defect; and b) the concern about coercion and family structure. Laws are made to cover the most common situations and most significant concerns, not for exceptions. There are 14 year olds who are fully capable of consenting to sexual intercourse, but the state's presumption is that all people under a certain age are incapable of sexual consent and therefore having sex with them is statutory rape.

Thus even if you do not detect birth defects or coercion in this situation, the state is obliged to apply its law to everyone. Moreover, I admit to finding the situation a little odd inasmuch as the brother and sister did not just happen to meet and fall in love and later discover their biological relationship. The woman's interest in finding her biological family, as well as the large age gap (at the time they met, she was 18 and her brother was 33), both worry me.

Tom, my point is not self-evident because the merits of legitimate state interest in any area (up to and including masturbating on a subway in broad daylight in full view of yours truly) is not my concern. My point is that different minds (you and I, and/or the courts) can have different opinions. A single, universal conclusion that anything sexual in the home is ok is not preordained by Lawrence. You can think there is no state interest all you want, but my point (and this is all that I claim) is that a state MAY have interests in some sexual conduct in someone's home even under the broadest reading of Lawrence.

Armen, thanks for clarifying; I think I had misunderstood you slightly. All that Justice Kennedy says in your quote, however, is that Lawrence involves Fact X and not Facts Y or Z; he does not say that there is (or is not) any legally significant distinction that would compel a different result in cases involving Facts Y or Z. To put it another way, saying that the law in Lawrence furthers no legitimate state interest justifying interference in private sexual conduct does not necessarily imply that there are other cases where the Court will find such an interest. Subsequent cases may indeed find that the rights articulated in Lawrence extend to prostitution, adult sibling incest, etc. Until further case law bounds the scope of Lawrence, reasonable minds will differ, and Jacoby's reading of the case seems to me to be a defensible point of view.

PG, I agree with your analysis, and I expect that most courts would too (although the coercion argument doesn't explain why both parties went to jail). Still, in some states, a majority of people would say that anal sex is a serious problem and a perversion indicative of mental defect or worse. Notably, your points about public health and reproductive unfitness have echoes in the arguments made in favor of anti-sodomy laws. The point of Lawrence is that the majority sometimes doesn't get to decide, and that the constitutional rights of the people (even if only expressed by a minority) can trump the generally-applicable laws of the state.

I suppose the best arguments on appeal for the incestuous couple would go to overbreadth. The state could presumably draft an incest statute more narrowly, prohibiting incest involving minors, parent-child relationships, and evidence of coercion. A broader statute would be unconstitutional as applied, infringing whatever rights may exist under Lawrence for this narrowly excepted class of consenting sibling incestuous adults.

Creepy topic, isn't it? Whew.

Jacoby's position is not defensible because he's not claiming that reasonable minds will differ but he's (albeit sarcastically) calling hypocritical any court's deviation from (his perceived) holding of Lawrence.