Incest

This is the first of three chapters to consider offenses that involve putatively consensual sex. The general question is whether it is possible to reconceptualize offenses that once were justified on a legal moralist rationale under the contemporary liberal harm and wrong principles. The particular focus is incest, both between adults and juveniles and involving only adults. The former is already criminalized as statutory rape. The fact that it involves a family member may justify aggravated penalties but under the principle of fair labeling does not justify its status as a freestanding offense. Putatively consensual incest involving adults presents more difficult issues, implicating the right of persons to choose their own (willing) sexual partners. One possible rationale for criminalizing incest is that it causes higher risks of birth defects. But this raises the “paradox of future individuals,” based on the fact that the act potentially causing harm to the child is the very one that brings the child into existence in the first place. Even if that paradox could be solved, problems would remain. In the modern liberal state, government intervention into reproductive choices is highly problematic. This is also true of intervention into familial relationships. If there is a liberal rationale for prohibiting adult incest, it is based on concerns that such relationships, though putatively consensual, will be found, upon further inspection, to be coercive or exploitative.

LEGAL MORALISM AND THE U.S. SUPREME COURT

My aim in this paper is to examine the role of legal moralism in the reasoning that underlies some high profile cases decided by the Supreme Court. In so doing, I provide a sketch of a version of legal moralism that arguably addresses the most serious concerns of some of its critics. My thesis is roughly that the decisions in Bowers and Barnes are ultimately indefensible and the decisions in Loving and Lawrence are indeed correct. But despite appearances to the contrary, legal moralism is not the culprit in Bowers and Barnes, because what might appear to be instances of legal-moralist arguments in the prevailing opinions in those cases are either variants of other types of argument or applications of untenable versions of legal moralism. Further, the arguments employed by the Court in the prevailing opinions in Loving and Lawrence are at least consistent with the most plausible version of legal moralism and would have entailed that Bowers and Barnes be decided differently. Indeed, Justice Stevens's dissent in Bowers contains important parallels with the most plausible versions of legal moralism, and Justice Scalia's dissent in Lawrence relies on an implausible version of legal moralism.