Happy Loving Day!

40 years ago today, the Supreme Court ruled that Virginia's anti-miscegenation statutes were unconstitutional.

Let me repeat that. 40 years ago, it was against the law in many states for a white person to marry a black one.

Let us hope that one day soon, laws against gay marriage go the same way. I have no doubt that our children and grandchildren will look at today's laws against gay marriage with the same horror and disbelief that most of us now feel about the anti-miscegenation laws.

[T]here is a striking similarity between the arguments used to justify anti-miscegenation laws and the arguments put forward today against gay marriage. Tradition, a respect for majority opinion, religion, science, sociology -- all were invoked with great somberness and much citation of experts and their research. The prejudice that propped up all the arguments -- and, for us, invalidates them -- was invisible or inevitable to their proponents.

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents, their sentencing judge decreed. The fact that he separated the races shows that he did not intend for the races to mix. --Fred Hiatt

You opponents of gay marriage, I beg of you to consider your position in light of the positions of people opposed to interracial marriage just a single generation ago. How was it possible that so many American citizens believed then what seems to be a gravely immoral position today? What questions have you asked yourself to ensure you aren't making a similar mistake today?

The Duke Rape Case

(For those living in a cave. Or in other countries, I guess.)

The prosecutor's behavior was outrageous. He and the accuser should be prosecuted. The people in the press and at Duke who jumped on the bandwagon against the boys were in the wrong.

But spare me your faux-outrage, conservatives.

Radley Balco (a libertarian blogger and FOXNews.com contributor) has a great response to this idiotic statement by Glenn Reynolds:

In the conventional imagination, it used to be -- see To Kill a Mockingbird or reports of the Scottsboro rape trial -- that it was the noble fairness-obsessed lefties who supported due process against the ignorant right-wing hicks who tried to lynch people out of a mixture of racism, political opportunism borne of racism, journalistic sensationalism, and sheer meanness. Now the hats have switched. That's worth noting.

Balco's response:

I'm not left-wing or right-wing (though I've been accused of both).

But the reason why the narrative for most of the last century has been that of noble, left-wing ACLU and NAACP lawyers coming to the aid of black people wrongly accused by racist white people is because for most of the last century, that's the way it has actually happened. Over and over and over. And I'm not just talking about the Jim Crow era. See Tulia. Or Hearne. Or the dozens of people freed by the liberal lawyers at the Innocence Project.

And let's not go overboard in heaping praise on the Duke players' more conservative defenders. Reynolds is an honest-to-goodness civil libertarian. So I don't include him in this. But to hear law-and-order right-wingers like Sean Hannity, Bill O'Reilly, Michael Savage, or the Powerline crew scream about prosecutoral excess, the rights of the accused, and political opportunism on the part of a prosecutor these past few months really strained all credulity. Yes. I'd love to think their interest in this case was motivated solely by their sense of justice. But come on. Does anyone not think the race and class of the accused, the race and class of the accuser, and the politics of feminism and anti-feminism had something to do with their sudden embrace of and familiarity with NACDL talking points?

Maybe I'm wrong. Maybe these conservatives have gotten religion. Maybe in the future, O'Reilly, Hannity, & Co. will actually make a cause celebre about cases where the accused aren't rich white kids with high-paid attorneys accused of raping a poor black woman. I'm skeptical.

What If Rabbis Were Supreme Court Justices?

From the Passover Haggadah:

Rabbi Elazar Ben Azaryah said: "I am like a man of 70 years, and yet I was never able to merit to prove that one is obligated to mention the Exodus at night, until Ben Zoma explained it thusly: It says in the Torah, 'In order that you shall remember the day when you came out of the land of Egypt, all the days of your life.' 'The days of your life' refers to the days; 'All the days of your life' refers to the nights." And the Sages [i.e all the other rabbis -JA] say: "'The days of your life' refers to this world; 'All the days of your life' indicates the time of the Messiah."

Many people, including many Orthodox Jews, ridicule the majority opinion in Roe v. Wade because of its reliance on a "penumbra" of rights in the Constitution that weren't spelled out. But how much more ridiculous are the bulk of Orthodox interpretations of the Torah?

I'd love to see what the Sages would have done with the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Justice Ben Azaryah said: "I am like a man of 70 years, and yet I was never able to merit to prove that one has the right to a public trial in civil cases until Justice Ben Zoma explained it thusly: "It says in the Constitution, 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.' 'Criminal prosecutions' refers to criminal prosecutions. 'All criminal prosecutions' refers to civil suits." And the legal scholars say: "'Criminal prosecutions' refers to criminal prosecutions. 'All criminal prosecutions' refers to military tribunals."

Should Incest Be Legal?

I'm aware that the anti-gay crowd is fond of using the slippery slope argument to claim that if we let gays marry (or have sex, before that argument was rendered moot by the courts) then there's nothing stopping us from legalizing bestiality, incest, and polygamy.* Part of me therefore wants to keep quiet about my feelings on incest and polygamy for fear of giving ammunition to the opposition's (false) argument. The part of me that's in control, though, prefers to speak his mind.

In Germany, there are brother and sister who are fighting for the right to continue having sex with each other. The story goes that the brother was given up for adoption and didn't meet his sister until he was 18. They soon fell in love. (Strangely, this is pretty common for siblings who meet for the first time.)

After the couple met and began a sexual relationship, they had four kids, with tragic results:

All but one of them have been placed in care and two are mentally damaged as a result of inbreeding. In 2002, Mr Stübing was given a one-year suspended sentence after being found guilty on 16 counts of "illegal coitus" with his sister.

My personal morality stems from the idea of "your right to extend your fist ends at the tip of my nose," or, if you're not hurting anybody, what you do is your own business. So masturbating while thinking of a child sodomizing a sheep might reveal that you have some mental problems, but I wouldn't consider it immoral. Stealing, murdering, abusing, etc. are immoral because they cause harm to others.**

It's clear to me that having kids through incest should be illegal because of the grievous and unnecessary harm to the children. Although this belief has some troubling implications, not least the very slippery slope towards criminalizing having children with people with low IQs, minor genetic disorders, etc., I think that in instances where the harm is grievous and predictable, like brother-sister incest that leads to children, we can safely make that ruling.

What of siblings who have no chance of having children?

Mr Stübing, an unemployed mechanic, was released from jail last year and is still living with his sister. Although he has had himself sterilised to avoid fathering more children, he could be sent back to jail at any time for persistently reoffending.

By what justification may the government prevent them from having sex today? That most people find sibling sex repulsive? Repulsion is no basis for law -- we allow neo-Nazis to speak, after all. (Actually, Germany doesn't, but even though I disagree with that stance, there's at least conceivable grievous harm that stems from allowing hate speech.) If religion is a suitable basis for secular law, then the case is clear, but as you might imagine, I don't think religion is a good basis for law. The only other arguments I can imagine are similar to those used against gay couples -- that they set a bad example, or otherwise pose some threat to "traditional" families or children. I do not find such arguments convincing.

I therefore believe that consensual, adult incest should be legal and is not immoral, provided there is no chance for children to result from the union. Where to draw the line on infertility is another troubling and complex question, of course. Simply using condoms or the pill is not sufficient to rule out the possibility of children, but having the government mandate surgical sterilization is distasteful, to say the least. While I'd encourage siblings who get pregnant to have abortions, government-mandated abortions would be deeply disturbing as well.

I think the only coherent policy is that brother-sister incest that may result in children is disallowed as reckless endangerment. The government should not mandate sterilization, but simply recognize that the problem is the reckless endangerment of offspring rather than the act itself.


* For the record, I believe adult, consensual polygamy should be legal, although not necessarily institutionalized by the state as marriage, and am unsure about bestiality because of the question of the animal's consent. Bestiality should be treated as a subcategory of animal cruelty .

** Things get complicated when all choices are harmful and you must pick the least harmful one, like killing in self-defense or putting violent criminals in jail. There are also some gray areas in which people can reasonable agree like whether a aborting a fetus is a significant harm or whether it's okay to harm non-human animals or other organisms. (I eat meat, but even most vegans are happy to eat plants, fungi, and bacteria.)