Right Side of the Rainbow

In its decision in Lawrence v. Texas, 539 U.S. 558 (2003), did the U.S. Supreme Court announce a right to sexual privacy so broad as to include the consensual, incestuous conduct of an adult brother and sister?

Jeff Jacoby in the Boston Globe:

Allen and Pat were lovers, but a Wisconsin statute enacted in 1849 made their sexual relationship a felony. The law was sometimes used to nail predators who had molested children, but using it to prosecute consenting adults — Allen was 45; Pat, 30 — was virtually unheard of. That didn’t deter Milwaukee County Judge David Hansher. Nor did the fact that the couple didn’t understand why their relationship should be a crime. Allen and Pat didn’t ”have to be bright,” the judge growled, to know that having sex with each other was wrong.

He threw the book at them: eight years for Allen, five for Pat, served in separate maximum-security prisons, 25 miles apart.

[…]

They were convicted of incest. Although they didn’t meet until Patricia was 18 — she had been raised from infancy in foster care — they were brother and sister, children of the same biological parents. They were also strongly attracted to each other, emotionally and physically. And so, disregarding the taboo against incest, they became a couple and had four children.

When Wisconsin officials learned of the Muths’ relationship, they moved to strip them of their parental rights. The state’s position, upheld in court, was that their ”fundamentally disordered” lifestyle made them unfit for parenthood by definition. Allen and Patricia’s children were taken from them. Then they were prosecuted for incest and sent to prison.

Missing from Mr. Jacoby’s accounting is that Allen and Patricia Muth abandoned their middle child, who was disabled, at the home of a baby sitter; this is how the couple came to the attention of Wisconsin, which subsequently moved to terminate their parental rights and charge them with incest. Both were convicted of violating Wisconsin Statutes § 944.06.

Following the exhaustion of his state court remedies, Allen Muth filed a petition for a writ of habeas corpus in U.S. district court, asserting the unconstitutionality of Wisconsin’s anti-incest statute. The district court denied the petition, and in June the U.S. Court of Appeals for the 7th Circuit affirmed; you can read its opinion here.

The holding in Lawrence, said the appeals court, was limited to consensual homosexual conduct, and was not a general grant of sexual liberty. Perhaps. But as Mr. Jacoby notes:

There is simply no principled escape from the logic of Lawrence: If the Constitution forbids the states to criminalize private sexual conduct between consenting adults, lovers who happen to be siblings can no more be sent to prison than lovers who happen to be men. [Emphasis added.]

Indeed.

Assuming that Mr. Muth appeals and that the Supreme Court agrees to hear his case, there is no principled basis for limiting the holding in Lawrence to homosexual conduct. The only question now is whether the justices are prepared to follow Lawrence to its logical conclusions — and if so, to suffer still further erosion of the Court’s institutional legitimacy — or whether they will attempt to make a constitutional distinction between homosexual conduct and other forms of consensual, adult sexual behavior.