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March 26, 2004

Precedents Made of Sand

In early February, Yale Professor Gabriel Rosenberg wrote in a comment to this post about same-sex marriage in Massachusetts:

I suspect that the court will find a rational basis for banning consanguineal and affinal marriages that has nothing to do with genetic offspring. For one thing, the affinal relations banned in Mass (but not in most other states) have no common bloodline so genetic concerns cannot be the sole basis.

He went on to write two posts differentiating SSM from polygamy and incest. As I suggested in my response, he made some valuable points — which advocates for traditional marriage may invoke a bit further down the slippery slope — but they were judgments with no compelling argument for why courts would care to agree with them.

In support of Prof. Rosenberg's point, one could note that the relevant statute in Massachusetts law includes stepparents and the like along with biological family members as barred from marriage. Furthermore, in the 2000 case Commonwealth v. Smith, the Supreme Judicial Court addressed the matter in the context of a father who had engaged in sodomitic sex with his daughter and whose lawyer argued that it had not been incest because there was no chance of conception. Although it found in his favor on semantic grounds, the court reasoned (internal citations removed):

Limiting "sexual intercourse" to penile-vaginal penetration would be appropriate if the sole purpose of the incest prohibition were the prevention of genetic or biological abnormalities in the offspring of incestuous unions. However, the plain language of the incest statute indicates that its drafters sought to advance purposes different from, and more compelling than, eugenics. For the statute does not define the crime of incest exclusively in terms of sexual intercourse between consanguineous relations, but also criminalizes the intermarriage of persons so related. Moreover, the "[p]ersons within the degrees of consanguinity" to whom the statute's prohibitions of intermarriage and sexual intercourse apply are not limited to blood relations, but include also certain affinal kin as well as stepparents. The Legislature's purpose in criminalizing incestuous conduct must thus extend beyond the prevention of genetic defects, as this goal would clearly not be advanced by criminalizing marriage itself, without more, between blood relations, and still less by prohibiting coitus between affinal kin who do not share a common bloodline. Indeed, the scope of the incest statute, as it relates to both conduct and persons, strongly suggests that its framers valued and sought to promote the sanctity and integrity of familial relationships, as well as to protect children within the family from sexual impositions by their elders.

So, the court didn't even go so far as to find it necessary to judge whether the legislature had a "rational basis" for its decree; it just determined that legislative intent was to include relationships other than by blood in the incest statute — but not to include a variety of behavior, as indicated by its narrow reading of "sexual intercourse." To leave no doubt that the second judgment of its intent was absolutely incorrect, the legislature subsequently expanded the incest statute to explicitly include the whole collection of sexual acts; it left the first judgment, about what relations were included, alone.

Well, on Monday — not quite four years after Smith — the SJC offered this chuckle-inspiring line, about the paragraph I've just quoted, in Commonwealth v. Dawud Rahim:

In rejecting this argument, we stated, without analysis or explanation, that the prohibitions in [the incest statute] extended to "affinal" relationships, thus indicating that the purpose of the incest prohibition is broader than simply eugenics.

Although it is currently immaterial, due to the intervening legislation, Rahim did have that penile-vaginal intercourse. This time around, however, it is not incest because it was with his stepdaughter. The court dismisses its earlier statements as dicta (or excess verbiage) that needn't be considered binding. Furthermore, the court argues that the legislature has used "consanguinity" and "affinity" as distinct terms, elsewhere, so the entire range of banned marital relationships is not covered by the relevant language in the incest statute, which reads as follows:

Persons within degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void...

Gone is the endeavor to understand the general intent of the statute — the values it seeks to preserve and the harms it seeks to prevent — replaced, now, with explication of specific linguistic intent. Whatever their justification, the thinking now goes, the legislature knew that it was not criminalizing affinal incest with this statute, and that's what counts. Of course, as the three (of seven) judges standing in dissent remind us:

Two years after the Smith decision, the Legislature rewrote the incest statute to broaden the sexual conduct prohibited to include unnatural sexual intercourse. The amendment was in direct response to the Smith decision. No change was made in the definition of incest contained in the statute. It is obvious from this that the Legislature accepted the definition stated in the Smith case, and expressed agreement with the language therein explaining the purpose of the statute.

That being merely a dissent, it is not necessarily a crime, for the time being, for a stepparent to have consensual sex with his or her spouse's sixteen-year-old child. Perhaps some enterprising prosecuter will charge such a parent under the still-extant adultery law, but one can only imagine that the SJC would make short work of that statute, too.

More disturbing is that it's impossible to know what the court will rule next, in a post Lawrence v. Texas world, about non-coital or sterile sex between even biological family members now that it has contradicted its own recent judgment that the crime of incest is not essentially a matter of the existence of a sexualized parent-child relationship.

Worse yet, contrary to assertions throughout Rahim that marriage is a distinct matter, the precedent that courts around the country are busy building is that the right to have sex with another person is the same as the right to marry that person. Lawrence (the U.S. Supreme Court case making sodomy a right) is mentioned frequently in Goodridge, which legalized same-sex marriage in Massachusetts, including as the first citation supporting this comment:

Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family--these are among the most basic of every individual's liberty and due process rights

Perhaps the Massachusetts legislature would do well to reintroduce its statutes prohibiting marriage to relatives as a constitutional amendment.

Posted by Justin Katz at March 26, 2004 12:12 AM
Marriage & Family

Just a few quick clarifications. Rahim is still being charged with several crimes, just not incest. Also, it may be of interest that three of the four judges who signed onto Goodridge, dissented in Rahim. Likewise all three of the Goodridge dissenters joined the majority holding in Rahim. Finally I think the court in Rahim got it right. As the law reads it says only "consanguinity". For the court to read into the statute something that wasn't there--and could have been there if the legislature had so intended--would rightfully be decried as an act of judicial overreach. If the legislature wants to ban relationships between parents and stepchildren (as I believe they should), they only need to add one word to the statute, "affinity".

Posted by: Gabriel Rosenberg at March 26, 2004 9:58 PM

Hello Prof. Rosenberg,

Yes, I'd given due consideration to the factors that you point out, and they're all valid and interesting, but not exactly in a way that ought to inspire confidence in the Massachusetts judicial system. For one thing, that Rahim is facing other charges isn't really material to the implications of incest rulings for the future of marriage and legal construction of relationships, which is my larger concern.

As for which judges sided with each side in each case, I can only suggest that it looks like Massachusetts has the worst of both worlds; the most striking consistency is the direction in which the rulings all err. In every case, in one way or another, public standards for private morality are eroded. Some think that's wonderful; I don't.

It can't be denied, however, that the broad picture is of a judiciary seeking not just to legislate, but to legislate morality. Whether the three majority-to-dissent switchers (from Goodridge to Rahim) did so as a matter of the law, as a matter of legal philosophy, or as a matter of political considerations, the outcome is the important factor, considering that the law is supposed to be able to operate no matter who wears the robes.

I'm actually inclined to agree with this part, as a legal philosophy, if it were consistently applied:

For the court to read into the statute something that wasn't there--and could have been there if the legislature had so intended--would rightfully be decried as an act of judicial overreach. If the legislature wants to ban relationships between parents and stepchildren (as I believe they should), they only need to add one word to the statute, "affinity".

The obvious response is that this reference to the ability of the legislature to define the terms of the law seems unduly selective. More importantly, the dissent in Rahim is persuasive in that when the legislature revisited the incest statute in 2002, to change it to prevent future Smiths, it modified the language directly in the context of that ruling. In other words, the court had given the legislature every reason to think that the word "affinity" was not necessary.

Posted by: Justin Katz at March 26, 2004 10:32 PM

Yes it seems that the SJC clearly messed up in Smith by implying the incest statutes covered affinity. (Although I didn't read Smith, so perhaps the point was just that it covered one affinal relationship--adopted children). I think the majority is correct in Rahim, though, that reference in Smith is dicta. And while I find the situation in Rahim morally reprehensible, it is not the job of the court to make something a crime it finds morally reprehensible. That would be legislating morality from the bench.

When it comes down to it, Rahim was a case of statuatory interpretation. And generally criminal statutes are required to be read narrowly. I don't think you believe the Goodridge court erred in statuatory interpretation. In that case it determine the legislature did not intend same-sex marriage. Where you think the court erred there was in its application of a rational basis test. You thought there was a rational basis for the gender classification in marriage. The court did not find one.

The court gives great leeway for the legislature to define the terms of law. The court just won't allow it to do so in a way that denies its citizens the equal protection of the law. I didn't catch any hint that the court thought there would be any constitutional problem in the legislature extending the incest statutes to include affinal relationships.

Posted by: Gabriel Rosenberg at March 26, 2004 11:07 PM

Well, to some degree, our difference is little more than the amount of slack we're willing to cut the SJC that gave the nation same-sex marriage.

But as a point of fact, it didn't imply that "the incest statutes covered affinity." It argued the point, and it did so in a way that gave the legislature no indication that the statute required the word's addition when that body revisited it in reaction to this specific case. And the court's argument in Smith was not just regarding adoptive parents:

Moreover, the "[p]ersons within the degrees of consanguinity" to whom the statute's prohibitions of intermarriage and sexual intercourse apply are not limited to blood relations, but include also certain affinal kin as well as stepparents.

Furthermore, its argument goes to the core of what it construes its proper method to be (citations removed):

In the absence of such an indication, a better interpretive approach would have implemented the following two canons of statutory interpretation: first, "a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated"; and second, "the statutory language itself is the principal source of insight into the legislative purpose."

Following that statement is the reasoning I blockquoted in the body of my post. The salient point, where your earlier writing is concerned, is that, in Smith, the court acknowledged the legislative importance of "the sanctity and integrity of familial relationships" — which seems close to your previous term, "role conflict." In Rahim, investigation of that intent is gone, replaced by linguistic intent.

Moreover, the language in Smith was not dicta inasmuch as it was critical to rejecting the father's argument that, as Rahim paraphrases:

... the incest prohibition was designed to prevent genetic abnormalities, and the prohibition did not therefore extend to types of sexual contact that could not lead to pregnancy.

This, one can only presume, is now a valid legal argument in Massachusetts. It is very easy to imagine a future case in which this very ruling is cited to refute assertions of "rational basis" in other forms of marriage.

Posted by: Justin Katz at March 27, 2004 9:02 AM