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The state does have the right to interfere in the bedroom

The European Court has confirmed once again that everything does not go

By on Friday, 13 April 2012

You might have missed this little snippet of news which concerns the European Court of Human Rights. 

The Court has upheld the German law that makes incest illegal. The plaintiff, one Patrick Stuebing, had claimed that the law against incest infringed his rights to a family life. He had been living with his sister, by whom he had had four children, and in fact been imprisoned for incest.

The case is a sad one, in that Patrick and his sister had only met and became close as adults, not having been brought up together. In places were family break-up is common, or where siblings and half-siblings may not be brought up together as children, this is a danger: near relatives may meet as adults and fall in love.

Most people perhaps would rather not think about incest, something that has been condemned by most (but not all) societies. But this case ought to give everyone pause. There is no right to incest, it seems. Does this mean that rights, at least some rights, have limits? Does it mean that courts can make moral judgements? Does it mean that there are some actions that are wrong in all circumstances? Does it mean that the state has the right to interfere in the bedroom?

The answer to all these questions is “yes” as far as I can see. I know that it is commonly claimed that hard cases make bad law (and this is certainly a hard case), but the case of incest does bring us up sharp against the sure and certain knowledge that in matters of sexuality, not everything goes. Even a libertarian would have to admit that, surely? Or am I wrong about this?

We do not allow incest in this country, and that I think is right, both morally and legally. This fact points us to a bigger fact: in matters of sexual expression we are not free to do as we please. And, by the way, my objection to incest is moral, not biological; it is based on the intrinsic nature of the act, rather than on its consequences. Incest is wrong in itself, as it poses a threat to the family bond, and violates the nature of that bond. It is biologically bad news too – but that in itself is not a sufficient moral argument.

  • Andi

    Hmm not sure you have thought this through.

    Adam and Eve – definitely incest and next generation down at least. Abel’s wife must have been his sister. Homo sapiens would not be here otherwise. (Though evolution theory means Adam would be Eve’s offspring)

    Non-coerced incest between adults, no different than for any pair of adults, but bad news for biological offspring. However, is this eugenics speaking?

    Coerced incest, we have rape and other laws for that.

    State inferring in sexual practice…forced sterilization, abortion, chemical contraception. The law has such a fab track record.

    You’re usually really great to read and I agree with most you say but from both a biological and religious viewpoint this jarred.

  • LIBIntOrg

    Thanks for the article. A growing number of jurisdictions recognize a growing latitude of adult incest, including Sweden, Italy, parts of the US and Brazil, Japan, and the Vatican. This is a trend away from old Catholic law that at one point considered even 5th degree cousin marriage incestuous (i.e. effectively made all marriages criminally so) as an apparent means of social control. Such laws are increasingly understood by many as remnant of religious hatred and bigotry and, as the author says, limitations of right. That the issue went this far only suggests it will be revisited as people organize.

    For info on people using voluntary Libertarian tools on similar and other issues, please see the non-partisan Libertarian International Organization @

  • diarmuidlee

    The bedroom surely is not so sacrosanct as some would have us believe. 
    What goes on in the bedroom inevitably spill out into the public domain, in social problems, disease etc.The taxpayer ultimately pays the price.The guiding rule is prudence and temperance.

  • JByrne24

    Well it seems the state has this right, and, of course, the Church too believes it has this right.
    Let us hope that they never thread on each others’ toes.

  • Joel Pinheiro da Fonseca

    There is a long distance between thinking that in sexual matters there exist objective moral standards and asserting that the government has any business enforcing those standards.

  • Alexander Lucie-Smith


  • TheBlueWarrior

    Unfortunately, once you socialize (and legalize) the notion that marriage should exist between any two consenting adults, it’s only a matter of time before “doe-eyed” siblings making front page news get the right to “express their committment just like every other couple that chooses marriage”.  The script is written, just pick the “marginalized” group of the moment and fill in the blanks.

  • LocutusOP

    I agree with you, and given moral arguments, or indeed any biological arguments, one cannot approve of incest.

    But the courts and politicians keep telling us they don’t do morality, and given the way they phrase the arguments for sexual freedon there’s no logical reason to discriminate against those who are attracted sexually to members of their own family…Especially if we can create one of those “I was born that way” movements behind it.

    What’s perplexing is that people who advocate free sex will cringe at the thought of incest between a brother and a sister. But give the political rulers enough time and space and you’ll have most of the population saying it’s not right to illegalise it because one shouldn’t stand in the way of ‘love’.

  • Veuster

    > Incest is wrong in itself, as it poses a threat to the family bond, and violates the nature of that bond.

    I strongly agree with this, on moral grounds, sociological grounds and also because I find it hard to imagine anything less appealing than marrying my sister-in-law!

  • paulsays

    Incest is illegal because children from incestuous relationships very often do not develop properly, and have health and mental problems.

    If not for that whether the state would have the right to step in and decide would be much more contested.

    Finding a moral concrete reason against incest, if it were not for the genetic problems – might be difficult in fact. Especially in the case above, were they were not brought up together.

  • paulsays

     I love the way that how much you do or do not like paying taxes seems to determine your moral standards. Nice work there.

  • paulsays

    Was trying to put this into words myself. Really couldn’t have put it better.

  • paulsays

     On sociological grounds? In what respect?

  • paulsays

     I can’t get your link to work unfortunately. Shame. I do have some sympathies with some libertarian strains of thought – but I think that sometimes (some) famous libertarians see things only through the rigid prism of their philosophy.

    Black and White – rather than admitting fault in their philosophy. Its my opinion that every philosophy for government is flawed in some respect, and some libertarians just don’t seem to see that.

    People like Ayn Rand and Ron Paul make me sick with their lack of humanity – and blinkered attitude to any reasoning against their rigid rules.

  • paulsays

     No. It relies on popular support actually.

    In the US things are different, having a Supreme Court and a constitution – which are really ‘outside of democracy’ I would argue.

    However in the UK laws on the ‘minority groups’ you talk about would have to go through an elected Parliament to pass.

    For example civil partnerships were put in place my a government elected by the people, and have widespread support. (over 65% support)

    Whereas there is no support for these other supposed ‘minority groups’ you talk about -  hence the fact there is no more to legalize any kind of marriage the majority of the public disagrees with.

  • Veuster

    That it undermines the family and introduces uncertainty and instability into family life even if one considers it from a purely secular and utilitarian point of view.

  • Veuster

    > If not for that whether the state would have the right to step in and decide would be much more contested.

    Even without the genetic problems, it would be disastrous for society in general, and for children in particular, if there ceased to be clearly established and uncrossable lines between family relationships and sexual relationships.

  • Parasum

    “Adam and Eve – definitely incest and next generation down at least.”

    ## Inapplicable. The narratives in Genesis 2 to 11 are not about real people: Adam is no more an historical character than Snow White or Cinderella. The talking snake should be a clue to this. In stories of this kind, snakes, horses, jennies, lions, birds, mirrors, swords & and other untalking things, can & do talk. The snake is a figure from story & myth, like the birds that warned Sigurd the Volsung of Regin’s intention to kill him, or the horse of Achilles that foretold his death.

    The use of the A & E story in Wisdom, 4 Esdras, & Romans is no argument that Adam was a real person – the reasoning of the authors does not require him to be historical. The first man could hardly have a Hebrew name in any case, since Hebrew is derived from Canaanite, & which is itself younger than Sumerian, Akkadian (the Semitic language of Babylonia & Assyria), & Egyptian. The chronology in Genesis is hopelessly unhistorical- no-one would even try to pretend it was accurate, if they did not confuse the truth of Genesis with accepting its statements as historically valid. Adam is given 930 years in Genesis 5 – this is very likely symbolic, like the 365 years of Enoch his descendant.

    That these stories are fiction in no way makes them untrue – it means only that their truth is not that of history. If we require them to be historically true, we will miss the richness of meaning that there is in them; & get into needless controversies like that over human origins. The value of these stories no more requires them to be histories, than the Parables of Jesus require the characters in them to be historical individuals.  

  • Parasum

    This may work – it did when I tested it:

  • Get Real

     One could say much the same for gays given the high incidence of drug and alcohol abuse, higher rates of smoking, mental disease, STDs, high rates of HIV/AIDS/ lowered life expectancy, and higher rates of suicide. But to use relativistic gay logic, if they love each other and its consensual then who are you to force your truncated morals on them? Besides there is always birth control.

  • Get Real

     So the majority determines morality? If that is the case, than the majority of Californians determined twice that they didn’t want gay marriage, but that hasn’t stopped this tiny minority that claims this is a “civil rights’ issue. A majority of states in the US have Defense Of Marriage Acts, voted in by the state legislatures that represent the majority–so why doesn’t the gay movement back down, after all the majority has spoken? If there are no moral absolutes as you maintain, then all endogamists have to do is follow the playbook of gay movement and protest, use judicial activism, and publicize there cause until the gullible masses succumb and given enough time and bullying of those who disagree, the endogamists will finally win the day as will the polygamists, polyamorists, and intergenerationalists, and minor attracted persons and all the rest.

  • Get Real

     Further–using your logic then: what happens if the majority reconsiders and chooses to revoke civil partnerships? Will you accept their verdict?

  • paulsays

     Democracy always does things that individuals may disagree with. I would not agree with the change, but realize that living under a democracy means that changes I do not agree with sometimes occur.

  • paulsays

     ‘If there are no moral absolutes as you maintain’
    … and where did I say that?? Don’t infer things because they fit your stereotype of a liberal.

    I did not say either that the ‘majority determines morality’, no morality does not change with people’s views. For example it is my opinion that civil partnerships have always been moral – not simply moral since 2004 when they were introduced in the UK. They have been morally correct from the beginning of human civilization.

    Gay Rights groups do not back down, because they wish to change public opinion and they are using there first amendment rights. It is there right to do so. In the same way that groups against gun control, and groups for securing the borders do not back down.

    Gay marriage or partnerships are in a number of states, and have similarly to DOMA laws been passed ‘by the state legislatures that represent the majority’. If you agree with state democracy enacting DOMA laws then you have to accept the fact that laws that support gay issues will also be passed in other states.

    Your assertion that somehow other ‘groups’ (which don’t even exist as groups at all in any organized or powerful sense) will gain public support is ludicrous. How exactly? With no public support they will somehow influence legislatures!

    Taking something to its logical extreme is no indication of it actually occurring. It is like saying:

    ‘because people watch Fox News – Nazism will spread as a movement in the United states’

    You need true evidence of its likelihood in order to make such an argument. And in this, and in your ‘case’ on marriage there is just no evidence.

  • paulsays

     thanks i’ll take a look

  • paulsays

    Are those uncrossable lines really removed though? If the government made incest legal, then would we all suddenly not be disgusted at the idea of being attracted to our siblings?

    I know I wouldn’t.

    I am playing devils advocate to some degree, but it is interesting getting down to the nuts and bolts to see if there is anything more than our collective gut-reaction of disgust – in terms of reasoning against.

  • paulsays

     ‘relativistic gay logic’ – You cannot simply claim to know the collective morals hundreds of millions of people without backing it up.

    You can’t use your assumptions as facts.

  • Realist

    So Jesus was lying then; no sinners swept away by a global flood?

  • JabbaPapa

     Certainly not, Sister Muriel !!!

  • Parasum

    It depends in part on what one defines as incest. The Levitical prescriptions on who could not marry whom were (at least in part) carried over into Canon Law; which is perhaps why they are appear in the Book of Common Prayer, in the “Table of Kindred and Affinity” showing the “forbidden degrees” of affinity with which marriage was forbidden. Some of them are commonsensical enough – the remoter ones are less obviously wrong.

    Henry VIII was able to marry his deceased brother’s bride only because the levirate law  (Lat. *levir* = brother in law) in Deuteronomy & Ruth, which conflicted with a marriage law in Leviticus, had been annulled by Alexander VI in 1502. The law that Henry VIII relied on many years later – or used – to argue that his marriage to Catherine was canonically invalid, was the law in Leviticus, which forbids marriage of a deceased brother’s widow.

    The Levitical law is a good example of a Biblical law that cannot simply be followed in all later societies – that something was feasible, even necessary, in the society of the OT, does not mean that the same social arrangements exist later on, nor that they must exist later on. OT law is not made definitive for all times and cultures on the mere ground of being in the Bible. The principles at work have to be examined and re-considered, if the biblical message is to be relevant and feasible & effective. Otherwise one has the outward appearace of adhesion to the message of the Bible, without  its animating spirit. The result is a deadening legalism, not a living faith.

    Is it morally wrong to marry (say) a first cousin ? Sibling marriage, and marriage with a parent or child, seem immoral – OTOH, sibling marriage did not bother the Pharaohs. It did result in ill-health, apparently – but that is a modern insight.

  • Alan F.

    The government has the right and duty to enforce true moral standards, for the good of society and the salvation of souls. This is the traditional teaching of the Church.

    That is why incest is - and why buggery and adultery used to be, and should be - illegal.

  • TheBlueWarrior

     Oh come on.  There is not current widespread support for homosexual marriage in the UK, yet it is being rammed through Parliament–”it’s not a question of ‘if’ but a question of how” thus says the government.  And further, I contend that if there was any danger of the government being defeated on this motion, MPs wouldn’t be given a a free vote, but the whip would be invoked (which doesn’t seem very democratic either)

    Once you allow same-sex marriage, the social applecart is already overturned; there is very little compelling reason not to extend “the right” to mother/daughter, father/son, brother/sister.  Especially since children are considered optional accessories.  Anyone that stands up to say “this is wrong” can be shouted down by the cadre of website advocates projecting their larger-than life presence with cries of “bigot, unfair, small-minded, etc”.  Not only is the playbook is written and the blueprint in place, the history of the last fifteen years testifies to how the game is played.

    Don’t forget that In 2001, the Home Secretary Jack Straw assured the electorate that he could see no compelling reason for same-sex marriage when civil partnerships were on the table.

    Based on the vector we are on, one can almost predict where we’re heading in 2017. 

  • Realist

    Incest was not condemned in the Bible until after the Deluge; a consequence of which was a severe dilution of the gene pool as humanity passed through a bottleneck with a population reduced to 8 people. Genetic defects were beginning to appear as the Fall became more pronounced with a fall in longevity, etc. If you can access a copy of Dr J C Sanfords’s book, ‘Genetic Entropy & The Mystery of the Genome’ you will find convincing evidence of the fast deterioration of the human body. 

  • WSquared

     I don’t think it’s a matter of paying taxes or not, as it is that a certain lapse in moral standards stretches tax moneys thin.  We could be spending this money on other more pressing things instead of having to clean up the aftermath of an “anything goes” attitude to sexuality.  Why should the government pay for its regulation when we can be exercising some restraint for free?