Saw This One Coming

Posted: Mar 23, 2007 12:01 AM
Saw This One Coming

Sometimes I know how Ian Malcolm, the mathematician in Jurassic Park, felt. His warnings about the folly of the park’s creators were vindicated by the sight of a T-Rex eating an SUV. Then, all Malcolm could say was "I hate being right all the time."

Well, I’m not right all of the time. I do know what it’s like, however, to hate being right.

The BBC recently ran a story about a German couple named Patrick and Susan. The couple has been living together unmarried for the past six years and has four children. In a continent full of unmarried couples with children, this particular pair stands out—because they are brother and sister.

As a young child, Patrick was given up for adoption. He finally met his mother and the rest of his biological family, including Susan, seven years ago. After their mother died, the two became, in the BBC’s words, "lovers."

When German authorities learned about the "relationship," they placed three of their children—two of whom have disabilities—in foster care and charged Patrick with incest. Patrick has already served two years and faces more jail time.

While this story is certainly sordid, unfortunately, it’s not unique. What makes it noteworthy is that the couple is challenging German laws against incest in Germany’s Federal Constitutional Court.

As the couple’s lawyer, Endrik Wilhelm, told the BBC, "this law is out of date, and it breaches the couple’s civil rights." According to the lawyer, the "couple [is] not harming anyone," and the ban "is discrimination."

To those like Juergen Kunze, a geneticist at Berlin’s Charite Hospital, who cite the genetic risks to the offspring of incest, Wilhelm replies: "Why are disabled parents" or "people with hereditary diseases [and] women over 40" allowed to have children?

Anyone who claims to be surprised by this case has not been paying attention to American law. In Lawrence v. Texas, the Supreme Court found that "consenting" adults had a right to privacy when it comes to sexual relations—any kind of sexual relations. As Justice Scalia pointed out in his stinging dissent, the logic employed by the majority of the court could be applied to laws against "bigamy, same-sex marriage [and] adult incest."

If you deny that there’s a "substantial government interest in protecting order and morality," as courts increasingly are doing, where do you draw the line? Certainly not at same-sex "marriage," as we have seen. The fact is that, as Dr. Kunze puts it, laws like these "based on long traditions in Western societies" have not been stopping courts lately.

The ugly truth is that, absent a "substantial government interest in protecting order and morality," the incestuous couple has the better argument. In a culture where personal autonomy trumps long-established moral traditions, our revulsion does look like the kind of prejudice that Lawrence rejected as the basis for laws.

Like I said, none of this should come as a surprise. Instead, it ought to serve as a warning of where the law is headed. Let’s pray that this time we don’t need a rampaging T-Rex to confirm our worst fears.

Today’s BreakPoint offer:"Marriage in America: BreakPoint Goes to the Heart of the Marriage Debate" (CD).

For further reading and information:

Roberto Rivera, "The Ballad of Patrick and Susan," The Point, 8 March 2007.

Tristana Moore, "Couple Stand by Forbidden Love," BBC News, 7 March 2007.

BreakPoint Commentary No. 050817, "Taking the Plunge: A Case of Incest."

BreakPoint Commentary No. 060106, "Further Down the Slope: Massachusetts Senate Bill 938."

Robert George, "Rick Santorum is Right," National Review Online, 27 May 2003.