Incest and the Charter Revisited
November 2, 2005 · By Tom Cerber
My response to a comment on my previous blog on the case of an incestuous “marriage” demands an extended response.
Here’s the comment:
Give me a break, Tom. Do you really believe that the new definition of marriage opens the door to incest? If it did, then why, pray tell, were these two charged and convicted? If marriage is such an important issues, then shouldn’t the people who dole out marriage licences check to see if people are actually legally able to marry? The problem isn’t with the definition, but with the administration of the institution.
Here’s my response:
You’re overlooking a simple fact of the judicial system. The reason nearly any case comes before the SC is because it’s on appeal from a lower court. That’s why the SC is an appeals court, not a trial court. Thus, the lower court may very well convict these two.
Should their lawyers get funding from well-heeled groups like LEAF, perhaps they would try a Charter challenge and argue, on the basis of previous cases that have given us a definition of marriage as a voluntary contract between consenting adults - and thus they’re free to determine the contents of that contract anyway they want - the SC may rule the prohibition against incestuous “marriage” unconstitutional.
However, I doubt that they will. Not on constitutional grounds, but on sociological grounds. Gay marriage went through because of the frequency of support for gay marriage in the legal, political, and media corridors of power of this country.
The couple in this story lack such high-powered supporters. Partly because most people consider incest icky, and partly because it’s in the interest of the beneficiaries of the newly-minted definition of marriage to exclude others from receiving those benefits (they don’t want their “recognition” watered down).
But consider the “icky” argument. Isn’t that how opponents of gay marriage responded? Why would supporters of gay marriage use the “icky” argument against another group? That’s blatant discrimination.
The second argument is also blatant discrimination, except it’s done for the purpose of defending one’s own territory. Again, they don’t want their benefits watered down.
That leaves the constitutional argument. As I see it, there’s no constitutional argument against incestuous marriage after gay marriage has been recognized because gay marriage turns marriage into a contract that states loudly that marriage is not about generation. It’s about “love,” “romance,” “cherishing,” and having that love recognized by society. Well then, why not recognize incestuous and other unions? If the taboo against incest is that it produces adrenal gland atrophy, then I’m sure there are genetic scientists working on finding a gene therapy to treat it and perhaps to cure it.
If you’re still not convinced about the constitutional argument, read my extended explanation of it here.
Just as technological society recognizes gay “marriage,” so too can it recognize incestuous “marriage.”
Tom,
I think you are drawing an equivalency here that doesn’t make a lot of sense.
There is a key differentiating factor between SGM and Incestuous marriage - namely the biological hazards of consanguity - which are well known, and understood.
Where the evidence of ‘harm’ in a SGM situation remains highly debatable (in part because it is primarily sociological/psychological in nature, and ill-quantified to date), the impact of interbreeding within a family is well known, and well documented - making a substantive and clear case that significant harm to other parties (potential offspring) could well be perpetrated as a result.
Further, I will point out that the recent changes to the marriage legislation did not alter the consanguity constraints.
I’m not saying that there won’t be a move made to change the legal status of such relationships, but I believe there are clear factors that come into play that make drawing an equivalence with SGM a very weak argument in the long run.
Your argument about the biological hazards of consanguity hold only until genetic science cures them, or at least minimizes them to the extent that they’re low risk. Consider this analogue: the law currently allows individuals with the cystic fibrosis gene to marry and, indeed, does not interfere with their right to procreate. Incestuous relations should be permitted if the biological hazards can be similarly managed.
LEAF? I even tried praying to the church of google, and couldn’t find out who they are.
LEAF = Legal Education Action Fund. They have a fancy website. For more details, read McGill prof Christopher Manfredi’s book on them.
Thanks, I will take a look and see if it is worthy of adding to my policy working group’s book club.
Tom,
Laws written today cannot presuppose the technology and society of tomorrow.
Genetic “engineering” may or may not achieve the lofty heights you foresee. Certainly, at the moment it cannot achieve the so-called “designer baby” that would be required. (I won’t even open the moral and ethical issues that raises - that’s a whole other can of worms)
If the state of technology should change to the degree you foresee, then the issues that currently justify the legal prohibitions may need to be re-examined. Which would be quite legitimate - at that time.
Until then, since law tends to be bound in the present, the argument around harm deriving from consanguity continues to be valid.
What will happen in ten, twenty or fifty years? Who knows? I doubt that the authors of current copyright and patent law had even the slightest inkling of the changes that computing would bring to those concepts.
OTOH: While designer babies aren’t here yet (or ever), we need not even go that far. Right now, in the present, we have sperm banks, adoption, etc. for incestuous unions who want to avoid genetic troubles. And right now constitutional law tells us we can’t identify marriage with procreation, so a court cannot prohibit an incestuous union on the basis that future babies might have genetic defects.
This ain’t science fiction. It’s the present. It’s Jerry Springer.
OTOH: SGM? do you mean SSM?
OTOH: Another way of explaining Cerber’s point:
Once SSM has been included within the definition of marriage, the definition of marriage can no longer be used to discriminate on the grounds of consanguity. Marriage is no longer about generation since SSM couples cannot have children anyway (of their own), so to use consanguity as grounds to refuse incestuous marriage is to rely on the traditional definition of marriage. AND if you are relying on the traditional definition of marriage to discriminate against incestuous couples, you are necessarily saying SSM is not the same thing as traditional marriage (you are back to discriminating against SSM); which it obviously isn’t, but that runs counter to the second reality that SSM equality advocates want to live in.
Also, SGM and SSM are not the same thing! It is possible for a heterosexual couple to be in a SGM, that is if both act like men or both act like women. SSM is an impossibility for heterosexual couples since it is addressed by the physiological fact of sex, which by definition means it is not the same type of human relationship as traditional marriage.
Excellent post, Tom.
Peasants typically during the Middle Ages co-habited. The Catholic Church made marriage a sacrament to enlarge its income and control. Marriage was mainly then an institution for the rich, and it had very little to do with love or companionship.”http://www.thepolitic.com/archives/2005/11/02/incest-and-the-charter-revisited/ http://www.thepolitic.com/arch.....ge-regime/ http://www.thepolitic.com/arch.....gal-route/