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?
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?