When the story broke last week of an Oklahoman mother and daughter who have been arrested and charged with incest for marrying each other, I happened to be on my way to meet a retired lawyer friend at the Philadelphia Cricket Club for a glass of wine. As I sipped my cabernet, I commented to him that, were I a lawyer (which, praise God, I am not), I was confident that I would be able to mount a compelling case for the defense. “I bet you could,” my friend replied. “So talk me through it.” I put my glass down and laid out my case.
“This is how I would do it. The Supreme Court’s recognition of gay marriage in Obergefell v. Hodges rests upon some key philosophical assumptions. First, it extends the logic of the redefinition of marriage which the earlier legislation on no-fault divorce required: Marriage is no longer a lifelong, monogamous bond between two people of the opposite sex intended for the raising of children and the provision of a stable family environment; rather, it is a relationship of mutual convenience, to be dissolved as and when it becomes inconvenient to the contracted parties to maintain it. This couple’s relationship seems consistent with this definition.
“Second, Obergefell v. Hodges demolishes the need for marriage to be between one man and one woman. A man can marry a man. A woman can marry a woman. Such is now the law of the land. That this marriage involves two women is therefore not a legal problem.
“Third, Obergefell v. Hodges assumes the importance of consent. Here we are dealing with two adults, neither of whom has been judged to be mentally incompetent. They are therefore considered competent under the law to give or to withhold consent on the matter of entering a contract of marriage.
“Now we come to the tricky part of the case, the matter of incest. Setting aside my personal—and legally irrelevant—disgust at the idea (the ‘yuck factor,’ as one evangelical leader infamously dubbed it, is really no sound basis for building our sexual ethics), it seems that the typical objection to such relationships is that they might lead to congenital problems in any offspring that result from the union. But that does not apply here. It is not clear from the news report whether the relationship is actually sexual or not. But even if it were so, the chances of two women having sex with each other and producing a child are (if memories of my English all-boys grammar school biology classes are accurate) pretty much nil. Thus, there is no risk to any future generation or any potential biological children.
“So why are these two women under arrest? Well, they are breaking Oklahoman state law. But to adapt the famous saying of Mr. Bumble, ‘If the Oklahoman law says that, sir, the Oklahoman law is an ass!’ Has the state of Oklahoma not heard that marriage is now a voluntary bond between two consenting adults, regardless of gender? Why exclude same-sex parent-child marriages, as long as both parties are adults and give their consent? Legislation based on degrees of consanguinity seems like a reactionary remnant of the bigoted bourgeois morality of a bygone age. To prevent a mother and daughter who are in love from marrying each other merely because they share significant D.N.A. is therefore akin to opposing a mixed-race marriage. And so rests the case for the defense.”
My friend declared with a laugh that he thought my legal case would be most arguable and we finished our drinks. But as I drove home, I myself became less convinced, not of the immediate soundness of my argument, but of the long-term philosophical adequacy and stability of the legal framework within which I had made it. One might summarize my concern in four words: the problem of consent.
I have flagged up the problem of consent as the foundation of sexual ethics before, but it seems that legal thinking on marriage has thus far proceeded without having to acknowledge the manifold difficulties inherent in the concept. To put it bluntly, the notion of consent is arguably meaningless by itself as the arbiter of legitimate sexual and marital relationships because of the potential for manipulation, coercion, and abuse in a situation where there are deep-rooted and unequal social power relations (e.g., the President of the United States [not] having sexual relations with a besotted young intern or, as here, a parent and an adult child contracting a marriage). According to the article, one of the child’s siblings has already raised this obvious question and accused the mother of selfish manipulation of the daughter. That is a more powerful and generally applicable argument than she knows.
Incestuous marriages could well be where the use of consent as virtually the sole basis for sexual morality will founder. These marriages will be coming to the courts over the next few years. They might even make it to the Supreme Court. And they will—or at least should—thereby bring to the fore the philosophical and legal complexities of the issue of consent. As it stands, there is no compelling reason within the philosophical framework of our current sexual-morality and marriage laws why such incestuous unions should not be contracted. To arrest and imprison this mother and daughter may honor the letter of the law but arguably does not respect its underlying spirit. But does anyone really think that consent in such a situation can ever be straightforward?
Do not misunderstand me. I abominate the very idea of incest and contemplate with horror a society that might sanction it by granting such unions the status of marriage. But I did not make our current laws nor the logic of their underlying principles. I’m simply thinking them through consistently as new challenges emerge and wanting to see them applied fairly to all. Please don’t shoot the messenger. But please do ponder the message.
Carl R. Trueman is Paul Woolley Professor of Church History at Westminster Theological Seminary. This post appeared on FIRST THINGS; September 16, 2016.