Absurd Reasoning Of A Federal Appellate Court In Not Protecting Adult Incest As A Constitutional Right, Like The Supreme Court Has Regarding Sodomy

In Lawrence v. Texas (2003) the Supreme Court invalidated Texas’s sodomy law as violating the United States Constitution. 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.” That Lawrence v. Texas serves only, regardless of the merits of its outcome, to utterly abuse the original meaning of the Constitution is beyond doubt.

But more importantly, Justice Antonin Scalia pointed out in his dissent that the logical extension of Lawrence v. Texas should be the elimination of laws against adultery, incest, polygamy, bestiality, and more once morality alone can no longer serve as the basis for legislation. “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are…sustainable only in light of…validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision,” Scalia warned.

Scalia's logic is quite sound, and federal courts have since had to face just such arguments. Now exactly these sorts of cases testing Scalia’s prediction have indeed appeared before the federal appellate courts with Lawrence v. Texas as the argument of the criminal defendant as to the unconstitutionality of their conviction. On December 8, 2011 the Sixth Circuited Court of Appeals decided the case of Lowe v. Stark County Sherriff. Paul Lowe was criminally convicted of incest in the State of Ohio for “engaging in sexual conduct by means of sexual intercourse with his 22-year old stepdaughter.” Lowe argued in part “that the Ohio Supreme Court unreasonably applied federal law as clearly established by the Supreme Court in Lawrence v. Texas” because that Court framed “the issue as `whether [Mr.] Lowe is guaranteed a fundamental right to engage in sexual intercourse with his consenting adult stepdaughter,’ rather than framing the issue more broadly as ‘the recognition of the right, as between consenting adults, to engage in private sexual conduct.’” In other words, just as the Supreme Court protected homosexual sodomy by clearly stating there is a broad right to sexual autonomy and privacy, the sex in this case should also be protected given that it is between consenting adults. The argument is impeccably logical (resulting directly from the Supreme Court decision being inherently absurd).

So how did the Sixth Circuit respond, not wanting to set a precedent that would be the first step in Constitutionalizing incest? As to the substance of Lowe’s claim, the Court responded, “assuming that Lawrence clearly established a fundamental right and/or a higher standard of [judicial] review, we hold that neither the right nor standard is implicated in the present case.” But how can that be? 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”?

The Court in Lowe then stated that “[i]n this regard, we agree with the Seventh Circuit's decision in Muth v. Frank [(2005)]… concluding that ‘[g]iven . . . the specific focus in Lawrence on homosexual sodomy, the absence from the Court's opinion of its own `established method' for resolving a claim that a particular practice implicates a fundamental liberty interest, and the absence of strict scrutiny review,’ there was no clearly established federal law ‘that supports [the defendant's] claim that he has a fundamental right to engage in incest free from government proscription.’” This is a shameful cop out by two federal appellate courts. 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.”

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.” 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.

Next, the Sixth Circuit declares that “the State of Ohio's interest in criminalizing incest is far greater and much different than the interest of the State of Texas in prosecuting homosexual sodomy” because “Ohio's paramount concern is protecting the family from the destructive influence of intra-family, extra-marital sexual contact.” Why does the government have the right to “protect the family” in the case of consenting adults in line with Lawrence? This cannot mean protect the stepdaughter, because she consented as did the two homosexual partners in Texas. And protected against what? I guess the family needs to be protected against a certain type of “[f]reedom [that] extends beyond spatial bounds” in all its "transcendent dimensions." The fact is that the Supreme Court was so broad in its ruling in Lawrence that the distinctions are bound to be based on this kind of nonsense.

In fact, the Sixth Circuit rules that “Ohio has an interest in protecting all families against destructive sexual contacts irrespective of the particular factual family dynamic.” So immediately after making a feeble argument that is large on unexplained categorical statements and little on actual reasoning or explanatory power, in reliance on a factual distinction, the Court then says that we can now ignore certain other facts in this case by making a categorical statement that they do not matter. This is the kind of judiciary the Supreme Court with its unconstitutional decisions has bequeathed us.

The fact is that the Supreme Court was so broad in its ruling in Lawrence in its flowery language surrounding sexual “autonomy of self” that the distinctions that the lower courts are forced to make are bound to be nonsensical. To avoid Scalia’s foreshadowed logical outcome to the Supreme Court’s sodomy ruling also resulting in constitutionalizing incest and every other form of private sex between consenting adults, the appellate courts have been coerced to engage in legal acrobatics to factually distinguish one form of sexual contact from another, without even very insightful reasoning. As if the job of a federal judge is in accord with the 14th Amendment to arbitrarily determine what type of sex is worthy of Constitutional protection (and search for reasons why one form of sex happens to be different than gay sex that the Supreme Court has arbitrarily held to be protected acts).

Let me be clear, I am not advocating that incest be constitutionally protected. I am pointing out the absurdity of the Supreme Court’s sodomy ruling forcing these distinctions be made regarding incest in the first place in order to somehow still maintain the supremacy of the Supreme Court. All I can therefore say is that these decisions seem to indicate a stepparent-stepdaughter relationship between the lower federal courts and the Supreme Court of the United States. They are certainly in the kind of relationship in which a judge might be coerced or where consent to absurd higher rulings cannot easily be refused, regardless of their devotion to common sense and original meaning, because of the inherent influence of the Supreme Court over the lower courts in forcing agreement with their illogical rulings.

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