(Tim: this post is by Church of the Good Shepherd's David Talcott; it's interesting to note that, so far as I've been able to tell, the New York Times doesn't consider this news "fit to print.")
This past Friday, December 10th, Professor David Epstein of Columbia University (formerly of Harvard and Standord; also a blogger for Huffington Post) was arrested on charges of incest. Though every man is legally innocent until proven guilty, it is hard to imagine that the Boys in Blue would arrest a tenured, full professor at Columbia without having good evidence. Based on initial news reports Epstein is accused of having sex with his adult daughter (now age 24)...
Scripture contains no pointless commands--the law was given to instruct people to avoid something they were actually doing or were in real danger of doing. 1Corinthians 5 gives us a New Testament case. Verse one of chapter five reads “it is actually reported that there is immorality among you, and immorality of such a kind as does not exist even among the Gentiles, that someone has his father's wife.” This incestuous relationship was beyond the pale even among the pagans at the time, but it happened in the Church.
So sexual sin is nothing new. It has been committed throughout history, in greater or lesser degrees depending upon the particular nature and perversions of different peoples. What is new is the way that the church and civil government in the United States have normalized and destigmatized it. This normalization has happened in various ways in various countries, but the short history of our own country has been one where sexual sin is not afforded civil protection. The last several decades have changed that. Fornication is no longer a crime. Sodomy is no longer a crime. Adultery is no longer a crime. Divorce without cause is no longer a crime. For the moment, incest is still a crime, but how long will that moment last?
Under what legal theory can incest with an adult child/parent/relative continue to be a crime in the United States? In the 2003 case Lawrence vs. Texas the Supreme Court of the United States decided that sodomy was an inherent right protected by the U.S. Constitution. States could no longer ban it.
But on what grounds? Various grounds are given in the decision, including: “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." An earlier decision to uphold Roe vs. Wade (Casey vs. Planned Parenthood) “again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” So, adult persons (say, an adult father and daughter) have “substantial protection” in deciding how to conduct their private lives in matter pertaining to sex. They have “constitutional protection” in “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” States cannot interfere with private decisions about who to have sex with and when.
Finally, the Lawrence decision quotes this infamous passages from the Casey decision “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Apparently, for David Epstein and his daughter, the meaning of human existence and the mystery of human life included having sex with one another.
In light of Lawrence, it is hard to see how there is any logical way incest laws can be upheld. If there is no “rational basis” for the prohibition of sodomy, how can there be a rational basis for a prohibition of adult incest? In his Lawrence dissent, Justice Scalia pointed out precisely this: he wrote that if criminal laws against sodomy are unconstitutional, then likewise “criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity” would also be unconstitutional. Of course, all of this misses the fact that there are good and rational bases for making laws against sodomy and incest. The traditional justifications are perfectly rational: this kind of behavior is corrupt, evil, and harmful to society; this behavior is contrary to God’s Law which is higher than all earthly laws; God's Law that no civil government may lawfully contradict.
In Leviticus 18, these are the sins addressed and the order in which they are addressed: incest, sex during menstruation, adultery, abortion/infanticide, homosexuality, and bestiality. Is it an accident that the word of God presents these together? My pastor recently remarked how the abomination of sodomy and the abomination of bestiality are placed side-by-side in God’s word. In that same place is incest--declared evil by God, but perhaps soon to be declared good by the highest court of our land.