Exploring the boundaries of Obergefell.

• Author: Pecoraro, Andrew J.

Table of Contents Introduction I. The Incest Taboo A. The History of Incest B. Empirical Evidence of Incest C. Incest Laws in the United States II. Defining the Right to Marry A. The Court's History B. The Obergefell Decision 1. Equal Protection or Due Process? 2. The Role of Tradition 3. A Focus on Dignity C. The Fundamental Right Today III. Applying the Right to Marry to Consenting Adults in an Incestuous Relationship A. A Tradition of Incest? B. The State's Interest C. Narrow Tailoring D. A Recommendation for States IV. Counterarguments A. Incest Is Conduct B. No One Wants to Legalize Incest Conclusion INTRODUCTION

Nino Esposito and Drew Bosee have been in a committed samesex relationship for forty-five years and "married in almost every sense of the word." (1) Along with millions around the United States, they celebrated when the Supreme Court announced its ruling in Obergefell v. Hodges-that same-sex couples have a constitutional right to marry. (2) In a 5-4 decision, the Court held that "the right to marry is a fundamental right inherent in the liberty of the person," and that individual states cannot discriminate against a couple on the basis of sexual orientation. (3) Focusing on "the transcendent importance of marriage," the Court identified marriage as a stabilizing force in our social order. (4) The Court concluded that although homosexuality had been considered taboo in the past, changing dynamics in our society, an evolution of our cultural mores, and a robust debate about same-sex marriage reinforced the concept of marriage as a fundamental right that may not be denied to same-sex couples. (5) However, Nino and Drew still cannot marry. (6) In 2012, in order to gain legal recognition of their relationship, Drew allowed Nino to adopt him. (7) And as adoptive "father and son," Nino and Drew are now prohibited from marrying under their home state of Pennsylvania's incest statute, which prohibits marriage between a parent and child, including the "relationship of parent and child by adoption." (8) Although sympathetic to their situation, a Pennsylvania judge believed that under the current law, including Obergefell, he was unable to annul the adoption to allow the couple to legally marry. (9)

Incest remains one of the most entrenched taboos in American society. (10) Opponents of same-sex marriage have regularly seized on incest when arguing that the legalization of same-sex marriage will lead to a new "parade of horribles." (11) Perhaps more importantly, dissenters from the Supreme Court's recent substantive due process cases have also noted that the doctrinal standards developed in the area of "substantive" due process are nowhere to be found in the majority decision. (12) Theirs is a concern for judicial restraint that counsels against courts "creating" new fundamental rights whenever political correctness may call for it. (13) Yet, because incest implicates questions of sexual autonomy, privacy, reproductive rights, and marriage-all contentious areas of due process disputes-it raises substantial questions about our current prohibitions against incest and other similarly condemned relationships in light of the Obergefell decision.

This Note posits that the Court's historical treatment of a "right to marry" combined with the majority's rationale in Obergefell may make broad restrictions on who may marry whom unconstitutional, and that such treatment opens the door to the recognition of other relationship constructs, including incestuous relationships between consenting adults. Some scholars have argued that the criminalization of incest, as in the sexual act itself, may no longer enjoy any constitutional validity, (14) but very few have considered how the Court's changing jurisprudence may affect civil bans on marriage between close relatives. (15) The intent of this Note is not to advocate for the recognition of incestuous marriage, or for a change in any current laws. Rather, this Note analyzes how the majority's rationale for finding that the right to marry extends to same-sex couples raises significant questions regarding the historical justification for blanket bans on other relationship constructs." (16) In doing so, this Note uses incest as a template for examining the rationale of such prohibitions.

Part I introduces the taboo against incest and the present state of incest laws in the United States. Part II briefly traces the development of the fundamental right to marriage and focuses on how the Obergefell majority's rationale alters previous "substantive" due process jurisprudence. Part III argues that the legal justification for complete bans on incestuous marriage between consenting adults fails to meet an exacting scrutiny and that, as a result, such laws are unconstitutional. This Note also proposes that, if incest laws are unconstitutional, then states may still be able to regulate such marriages under the "undue burden" analysis announced by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey. (17) Finally, Part IV examines some counterarguments to this proposed theory and ultimately concludes that, although the jurisprudential landscape may require states to allow incestuous marriages between consenting adults, the lack of large-scale public support and entrenched attitudes on the Court make it unlikely that any such change will occur in the near future.

1. THE INCEST TABOO

   Before beginning any discussion of the legal implications regarding incestuous marriage, an initial understanding of the taboo is in order. This Part reviews the history of incest, the empirical evidence and statistics related to the incidence of incest, and the current state of incest laws in the United States.

   The word incest does not have a single meaning; the word itself can bring different images to mind for different people. (18) It is essential to understand what courts and legislatures mean when they speak of incest in the law. Incest is generally defined as "[s]exual relations between family members or close relatives, including children related by adoption." (19) Individual legislatures determine what degree of familial relationship is prohibited. This degree is referred to as consanguinity; the closer the relationship between people, the greater the consanguinity. (20) As one scholar put it, in the legal forum "'[i]ncest' describes a relationship the government has chosen to proscribe, drawing the line somewhere on the skin of the consanguineous onion." (21) A state may also choose to define incest not only by blood but by marriage as well; this is called affinity. (22)

   Under these definitions, there are two primary forms of incest that may occur. The first occurs when an adult parent, relative, or older sibling of a minor takes advantage of that child. (23) This type of incest is not the subject of this Note; it is properly criminalized through rape, sexual assault, and abuse statutes. (24) The second type of incest is when a consensual relationship occurs between competent, consanguineous adults. (25) This Note focuses on this type of incestuous relationship.

   1. The History of Incest

      The concept of incest knows nearly no geographical or cultural bounds. It has been argued that the incest taboo is so widespread that it "is generally regarded ... [as] the evolutionary Rubicon of human social life." (26)

      Literature and mythology of many cultures are rife with references to incestuous relationships. In Greek mythology, Zeus and Hera were brother and sister as well as husband and wife and the parents of a number of other gods. (27) In the folklore of Mesopotamia, Enil created life by committing incest with his mother, Ki. (28) Perhaps closer to Western culture, the Old Testament of the Christian Bible is replete with examples of consensual incest. (29) One could argue that the first occurrence of sexual relations in history, Adam copulating with Eve, was incestuous. (30)

      The occurrence of incest was not only limited to stories. Egyptian law permitted marriage between brothers and sisters, although it was mostly limited to the royal families. (31) To this day, in certain areas of India and southeastern Asia, it is a widely practiced custom for men to marry their biological nieces. (32) In Western culture, notables such as Albert Einstein and Charles Darwin both married their first cousins. (33) Darwin and his wife even had ten children together. (34) Frequent consanguineous unions occurred within the wellrespected and well-known Rothschild family, and in numerous royal families, most notably the Hapsburgs and the royal families of Hawaii. (35)

      None of this should downplay the seriousness of the taboo against incest. While it may appear that primitive cultures would be more likely to allow incest, an early study of almost 250 different societies found that all of them had banned relationships between immediate family members. (36) The study emphasized that the "incest taboos and exogamous restrictions ... are characterized by a peculiar intensity and emotional quality." (37) Both normative and directive forces within society work to generate proscriptions against incestuous behavior. (38) Although incest was not criminalized at English common law, it was contrary to church law. (39) Bishops had wide discretion in assigning punishment for such an offense. (40) Even within literature, incest was not always considered an acceptable act. One of the most famous depictions of incest, the story of the Greek king Oedipus and his incestuous relationship with his mother, ends in tragedy and death. (41)

   2. Empirical Evidence of Incest

      Available statistics show that the incidence of consanguineous incest is higher than anecdotal evidence would suggest. For example, in areas of northern Africa, central and western Asia, and some parts of southern Asia, studies have shown that consanguineous relationships account for nearly 20 percent of all unions, and in some areas may even exceed...