Journal of Applied Philosophy

doi: 10.1111/j.1468-5930.2009.00471.x

What Lies Beyond Same-Sex Marriage? Marriage,

Reproductive Freedom and Future Persons in
Liberal Public Justification

ANDREW F. MARCH

abstract In this article I consider whether the legalization of sex-same marriage implies a
right to incestuous marriage. I begin by suggesting that the liberal state get out of the marriage
business by leveling down to a universal civil union status. The question is then whether
incestuous unions should be both legal and eligible for this status. I argue that the arguments
compatible with public reason for prohibiting them outright, or even for excluding them from the
permissible types of legally registered partnerships, are quite weak.The objections to allowing such
relations are those from (1) child abuse; (2) unfair burdening of society; and (3) the creation of
bad lives. I argue that while rape and other forms of child abuse would be no more legal or
tolerated than they are now, the concern about any form of weakening a societys legal and
political resources to combat such abuses does indeed register on the justificatory scale, but does
not prove that such first-degree incestuous sexual relations are inherently bad enough to warrant
intervention in their own right. I then argue that the concern about unfairly burdening society
with unhealthy persons is not as dangerously totalitarian as we might initially fear, but nor is it
strong enough to justify an outright prohibition. Finally, I argue that a concern to dissuade
persons from creating certain kinds of lives (children with extreme birth defects) is also not as
dangerously totalitarian as we might initially fear, and in fact goes further towards explaining
why we might have a legitimate interest in intervening. Nonetheless, I argue that the criminal-
ization of such acts only make sense when they are indicators of other offenses, namely negligence
or abuse, and it thus seems that the act of consanguineous reproduction is itself insufficient.

Introduction: The Slippery Slope and the Slide from Same-Sex Marriage to
Civil Unions

If a state with liberal political and justificatory commitments extends recognition and
benefits of various kinds to persons forming families, what qualifications may such a
state place on the right to access to those benefits?
Proponents of same-sex marriage often go to great lengths to argue that it is not
susceptible to the slippery slope argument,1 which holds that allowing same-sex marriage
implies allowing bigamy, same-sex marriage, adult incest, prostitution, masturbation,
adultery, fornication, bestiality, and obscenity.2 I believe that they are right to take on
the slippery slope argument in public and especially in the context of the American legal
system, particularly the assumptions that allowing same-sex marriage can only be a
function of moral relativism or turpitude the unwillingness to make any moral
judgments, or the failure to make the right ones. However, must we resist any further
movement down the slippery slope? Why should we stop at same-sex marriage? Why

Society for Applied Philosophy, 2009, Blackwell Publishing, 9600 Garsington Road, Oxford, OX4 2DQ, UK and 350 Main
Street, Malden, MA 02148, USA.

Electronic copy available at: http://ssrn.com/abstract=1335831

2 Andrew F. March

cant we allow polygamy? Or marriage amongst blood relatives? Just why should the
liberal state be in the business of deciding which forms of domestic partnerships are
permissible? It seems to me, at least as far as polygamy is concerned, that the conser-
vatives are right, but this is in fact only to say that for many (not all) of the good reasons
why same-sex marriage should be legal, so should polygamy.3 But what about incestuous
relations or, what I regard as a separate issue, legal partnerships between persons with
close blood relationships? More importantly: what resources do persons with liberal
political and justificatory commitments have to answer these questions in public, and
what constraints do those commitments place on them?
I will make two assumptions for the purposes of this paper.The first is the political and
justificatory terrain of some form of political or otherwise non-perfectionist liberalism. The
assumption is that we are considering the resources and limitations of a community of
persons who accept moral pluralism (if not a specific doctrine like the burdens of
judgment), some priority for individual freedom, and the obligation to justify public
coercion and exclusion in terms accessible and fair to all members of morally and
culturally diverse society. The second is that it is justified for a liberal state to recognize
some forms of domestic partnerships or families in the first place. It is, of course,
possible to imagine the argument that the liberal state gets out of the marriage business
by getting out of it entirely by extending no recognition or positive rights to families
whatsoever beyond negative non-interference rights. However, I am interested in the
dilemma of a society broadly like existing liberal ones which is committed both to
recognizing (and/or subsidizing) families and also to justificatory neutrality (expressed in
American constitutional legal terms as the requirement of providing a rational basis for
unequal treatment).
Given these assumptions, I believe that the most justifiable policy on liberal grounds
is not the institution of marriage increasingly open to new constituent relationships but
rather a universal institution of civil union which fulfils the social and moral aims
behind subsidizing the family and structuring the distribution of certain rights and
responsibilities deriving from domestic and intimate life (such as medical decision
making, inheritance, life insurance, property rights, child welfare) but is entirely neutral
not only to the gender or even to the numbers of the partners, but also to the affective
content of domestic life and the purposes behind contracting domestic partnerships.
My argument will largely proceed on negative terms; that is, by considering acceptable
arguments for stopping the slide down the slippery slope beyond same-sex marriage.4
However, I will introduce one positive argument here. The argument for same-sex
marriage beyond mere civil unions is the argument from equality and recognition. The
state treats homosexuals unfairly when it denies them access to the same social goods
and benefits open to heterosexual couples and fails to treat them fully as equals when it
offers them a different public status, even one with the identical package of objective
goods and benefits. In fact, conferring a civil union status short of marriage publicly
marks the unwillingness to extend to homosexuals recognition of them as equal to
heterosexuals and is thus a form of stigmatization. Therefore, the only just policy is to
level up all the way to full marriage rights.
Well, another way of handling the problem of recognition and status is to level down.5
Why not treat marriage the way we treat religion: something protected and possibly
subsidized in moderate ways by the state but which the state is not the business of
defining, regulating, honouring or distributing other than for reasons of individual rights

Society for Applied Philosophy, 2009

Electronic copy available at: http://ssrn.com/abstract=1335831

 What Lies Beyond Same-Sex Marriage? 3

and legitimate public interests? Religion is left to persons and communities to define and
defend. Questions of fairness or recognition between religions or conceptions of religiosity
arise in this arrangement only rarely and at the margins. (Of course, questions of secular
versus religious authority arise all the time, but rarely is the question the states right to
recognize a minority religion as a religion6 but rather the states right to trump religion,
or disagreement on the status of secular or minority religious values.) Similarly, if all the
state offered to anyone was legal status as a civil union then there could be no complaint
of unfairness or disrespect by those offered a status less than marriage.
Furthermore, removing the symbolic good of the word marriage from the authority
of the state may also appeal to conservatives or the religious. At least part of what
troubles them about same-sex marriage (and certainly polygamy and incestuous mar-
riage as well) is precisely the collective, public bestowal of recognition on homosexual
relationships as the same thing as heterosexual ones. Levelling down, which is essentially
the privatization of the commodity of marriage as an emotionally and symbolically
invested concept, solves this problem. This symbolic commodity can now be the
monopoly of every group which wants it. The state doesnt baptize, why should it
marry? More accurately, the state doesnt say who can be baptized, why should it say
who can be married? Conservatives and the religious can keep the institution of
marriage and merely have to suffer the knowledge that homosexuals can confer social
and economic benefits on one another.7 And if neither are satisfied by this (i.e. gays still
want the public bestowal by the state of marriage as an act of recognition and conser-
vatives still want to monopolize decision making over to whom the state extends primary
social goods), then liberals can with a good conscience claim that they are both demand-
ing something to which they are not reasonably entitled.8

The Presumption of Permissibility: Starting from the Bottom of the Slope

I begin simply by asserting that in a politically liberal society there must be a presump-
tion of permissibility and that the burden of justification is on those who would proscribe
or who would establish exclusionary grounds for access to a particular good. Once we
accept the commitments of justificatory liberalism the emphasis shifts to the reasons
which would count as legitimate ones for excluding some persons from access to a good
otherwise extended to all citizens.9 Thus, all of the same commitments which condemn
prohibitions on same-sex marriage are presumed applicable to all other cases until
shown otherwise. In addition to concerns about arguments from existing cultural prac-
tices or religious morality, justification cannot be a rationalization of brute disgust. The
less refined feeling that something is just wrong but which is based on no deeper
reflection than the brute disgust at something alien ought to raise flags for political or
justificatory liberals.10 Sometimes moral beliefs really go no deeper than the disgust or
revulsion at the alien.The fact that many moral judgments at heart rest on nothing more
than a feeling that something miscegenation or homosexuality, say disgust us
should put us on guard; perhaps even liberals oppose practices (polygamy, incest) for
which they believe they have reasons or rational distinctions whereas in fact they are
expressing the same disgust at the unfamiliar which rests at the heart of much opposition
to same-sex marriage.11
Thus, in the liberal state the question must be Does this practice intrinsically involve
the violation of the rights of someone else or unfair burdens on the wider society? In

Society for Applied Philosophy, 2009

4 Andrew F. March

other words, the argument for the permissibility incestuous marriages can only proceed
by way of an evaluation of the strength of arguments against them.

Incest

With the case of incest we not only have a more troubling practice than homosexuality
and polygamy, but we have two separate issues to consider. In those latter cases, it is not
really an open question amongst liberals whether the practices of being involved emo-
tionally, domestically or sexually with persons of the same sex or with multiple partners
per se ought to remain legalized. The question is only whether such relationships have a
claim to legal recognition as registered domestic partnerships.12 With incest, however, we
have to consider both whether the private practice of sex between blood relations ought
to be illegal and criminalized and, separately, whether there could be a form of legal
recognition of registered domestic partnerships between close relatives. I believe these
are two separate questions and treating them as such both helps respond to some of the
objections to incest and reveals which attitudes towards marriage are appropriate for a
liberal state.
More than with polygamy, there is a danger of closing off even theoretical moral
inquiry because of a reaction of brute disgust when thinking about incest. Such brute
disgust may in fact reveal defensible moral intuitions (after all, our intuitions about
slavery, rape and torture begin with reactions of brute disgust), but we need to translate
them first into arguments. The main objections to incestuous relations which are com-
patible with, or at the boundaries of compatibility with, the form of public reason I am
assuming in this paper are the arguments from (1) child abuse, (2) the unfair burdening
of society, and (3) the creation of bad lives.
In all of these instances the objection to marriage between blood relations is an
objection to sexual relations between them. But who said that marriage has anything to do
with sex and romance?

Taking Civil Unions Seriously

The first step in sorting out our intuitions and our justificatory arguments on the
question of incest is to disentangle the reasons why the state recognizes domestic
partnerships and the reasons why the persons involved enter into them. This is in
keeping with the principle of justificatory neutrality and the loose analogy between
marriage and religion adopted in this paper. The reasons the state has for recognizing
religious organizations, accommodating their free practice and granting them some
subsidy (say in the form of tax exemptions) are not the same reasons that persons have
for joining those associations. Why can the same attitude not be adopted towards the
formation of families and domestic arrangements? The pursuit of happiness is gener-
ally supposed to be something which individuals and communities are responsible for
themselves. This includes the pursuit of love, companionship, sex, offspring, comfort,
intimacy, convenience, and material wealth. When else do we say how these
goods can be pursued, in which order, with which other persons and in which
combinations?

Society for Applied Philosophy, 2009

 What Lies Beyond Same-Sex Marriage? 5

What of a same sex couple who for some (possibly religious) reason believe that they
ought to remain celibate? What of elderly couples far past the age of sexual procreation,
or even recreation? What of a couple who forms a lifelong partnership based on the
shared pursuit of shared intellectual interests or political power but pursue sexual
satisfaction elsewhere? What of a couple who forms a lifelong partnership based solely on
the desire for children, but pursue everything else (including romance and romantically-
infused sex) elsewhere?13 In none of these cases does it occur to us that they should not
be allowed to marry and that the state has the slightest interest in why they wish to do
so or what they wish to do afterwards.
Now let us imagine a different case. Perhaps there is a single parent (of either gender)
who is struggling to balance childcare and work. Perhaps this single parent has a
grandparent, recently widow(er)ed in need of (say) health insurance. The grandparent
moves in to help with childcare and receives health insurance by marrying the well-
employed grandchild. Of course, this scenario depends entirely on a context where
specific social benefits are accessed through marriage. Perhaps this is a scenario unique
to the United States and is itself presumptively unjust or morally deficient. Obviously,
it is possible to assume that a just, well-ordered society would be one in which (a) all
citizens have full social welfare and insurance and (b) the state takes no interest in
citizens domestic arrangements at all. But the example suffices for our purposes: the
case of the grandchild marrying his/her grandparent by forming a legal domestic
partnership is no more irrational or perplexing from the states perspective than the
examples I gave above.
Thus, in a society which extends to domestic partnerships both legal recognition and
some kind of material subsidy, this policy is not in all cases based on the justifying
rationale of subsidizing, promoting or celebrating sex and romance between eligible and
fertile individuals. Therefore, it bears repeating that if what we mean by incest is
marriage between family members, there is no general reason to assume that what is
under discussion is a romantic and sexually active relationship. Once the state moves to
civil unions the law is entirely neutral towards reasons and motivations for forming them,
and the meanings and expectations attached to them.
So then the question is solely whether the liberal state has justifying reasons for pre-
venting consanguineous sexual relations. Notice that marriage is no longer really the
question. For if preventing consanguineous sexual relations is a strong enough justi-
ficatory reason for preventing legal marriage, then it is probably also a strong enough
justificatory reason for preventing it outside of legal marriage. There could be grounds
for prohibiting access to formal recognition or legal registration which are not grounds
for prohibition. But it is hard to see how there could be grounds for restricting specific
forms of a general kind of act (here: incest) if the general act (here: sex and marriage)
is given formal recognition or legal registration. The specific form of the general act
would have to be excluded because of something inherently bad about it, and if it is
bad enough to warrant exclusion there is a good chance it is bad enough to warrant
control, regulation or prohibition, and there is also a good chance that the withholding
of legal recognition would present a very small deterrent effect on the practice outside
of the legal status. Thus, what we are forced to consider are in fact the three main
arguments against permitting close consanguineous sexual relations in a liberal society:
the arguments from (1) child abuse, (2) the unfair burdening of society, and (3) the
creation of bad lives.

Society for Applied Philosophy, 2009

6 Andrew F. March

1. Child Abuse
The most obvious rationale for not allowing consanguineous sexual relations is concern
about child abuse. But there is no implication in allowing something between adults of
allowing it for (or towards) children. Of course abusive acts on the part of adults towards
children would remain every bit as loathsome and illegal as before. We do not even have
to deny that the rape of family members (including step-children) would constitute a
particular or special crime. All of our reasons for protecting children have, actually, very
little to do with the abstract concerns about consanguinity and everything to do with our
concerns about the physical and emotional integrity of vulnerable persons (as the
inclusion of step-children or nieces/nephews-by-marriage within the crime of incest
proves).14 Of course, family members are a particularly damaging source of abuse, and
sexual violation is a particularly wicked form of abuse. The combined element of being
abused by family and being abused in that way make for one of the most abhorrent
imaginable crimes, and we are right to treat it as such legally.
But perhaps this response misses the point of the child abuse objection. The objection
is not merely that there will be rape of minors, but rather that a society which legalizes
adult, consensual consanguineous sexual relations will be a society where more persons
(especially girls) are raised to think this may be their justified lot in life and where the
absolute taboo and stigma on the most predatory form of sexual behaviour is diluted.
This objection is deep and troubling, and perhaps victorious. I think it is much
stronger than its equivalent in the case of polygamy15 for two reasons.The first is that the
extreme-case evil is much more evil than in the case of polygamy. The second is more
controversial and may reveal the limits of public reason (or of my willingness to limit
myself to it). When dealing with polygamy the fact is that the act in question plural
romantic, sexual or domestic relationships is simply not that bad. We dont have such
good reasons for telling a group of adults why they shouldnt do what they please with
their time, property and bodies. Furthermore, the appetites underlying the motivation
toward polygamy seem to be universal ones that many humans may have at some level
(consensual sex or domestic companionship with other people). But incest strikes us as
a very particular, if not always expensive, taste. It is not like homosexuality where it is
manifestly unfair (possibly cruel) to say You have the same right to opposite sex liaisons
as I do; you just choose not to avail yourself of it. And it is not like polygamy where it is
less unfair but also not very compelling to say You are simply being greedy demand-
ing recognition for an expensive taste and taking more than your fair share. It seems
initially to be more like saying You have a general right to such relationships but not with
this specific person. Perhaps the specific person is incarcerated; could a lover on the
outside sue the state on grounds of equal protection or denial of consortium? In banning
incest, the essential harm to the persons, their autonomy and their dignity is much less
than in the cases of homosexuality and polygamy, and doing so is a preventative-
precautionary measure against seriously grave evils.
But what follows from this? We have said that some of the most common forms of
incest are very, very evil, and that restricting all instances of it may not be such a grave
violation of freedom and moral personality to those few innocents who wish to practice
it. But we have not thereby proved that all instances are in fact wrong, and that to the extent
that would justify prohibition. The fact is that we can imagine situations where none of
the concerns about violence, coercion, abuse and false consciousness arise, such as two

Society for Applied Philosophy, 2009

 What Lies Beyond Same-Sex Marriage? 7

siblings reared far apart meeting as adults, or even two siblings acting out libertine
fantasies as in the 2003 Bernardo Bertolucci film The Dreamers. We can imagine cases
where it is simply the state telling two autonomous persons You cant do that. And they
will demand a reason.What do we say? Because it disgusts us? Because it is simply wrong
or sick? Because allowing you to do this sets a precedence for less innocent people? Even
if the latter works for us for public policy purposes, we still might want to press on and
ask whether public reason has the resources to condemn adult, consensual consanguin-
eous sexual relations per se and absolutely, without referring to the risks of opening up the
practice to other evils.
The concern is that banning incest might not be so much like preventing two people
from uniting when one of them is in jail, and more like banning miscegenation. Here, the
motivation is to prevent certain kinds of lives from coming into existence.16 Lets say that this
is a major rationale behind the taboo and prohibition on consanguineous sexual rela-
tions. Does this work as a justifying argument within public reason?
In order to consider this, we must make two assumptions. The first is a robust
assumption of consent and lack of manipulation. We know how our views about that
inform our views about incest. The second assumption is close consanguinity. I do not
want to make the question trivial by saying that perhaps some consanguineous relations
are not as genetically dangerous as popular taboo holds (say in the case of first cousins).
Let us assume that there are grave genetic risks, but also that this is our only concern.
So the scenario is something like this: two siblings were separated at birth and raised
in two healthy, normal families. They meet as adults, fall in love and want to have
children.17 On what grounds can a liberal state deny them this reproductive freedom?
There can only be two: that the high risk of serious genetic deformities means that such
a union will create socially unviable children who will require a disproportionate amount
of resources which, in a social democracy, will be demanded from the state; and that the
kinds of disabilities likely to emerge from such close consanguinity may be so severe that
in many cases it will be impossible to live a life free of pain and with any of what makes
life good to the person whose life it is. The first argument is that it is unfair to burden
society with disabled children and the second is that it is cruel to the persons who are created
to condemn them to miserable lives.

2. Unfair Burdening of Society

Normally, liberal theorists are only willing to hold persons accountable in the distribu-
tion of resources for their own voluntary choices.Thus, in normal circumstances, a child
born with severe disabilities is not punished for this. Her interests still matter to the state
equally, whether the state is one which seeks to equalize welfare, resources, capabilities,
opportunity, access to advantage, or minimal standards of living.
But the question here is different: Is the state entitled to make any interventions at all
in the procreative activities of free citizens with the purpose of increasing the chances
that their offspring will more efficient consumers and producers of social resources? Of
course, the source of our resistance to such a practice is obvious. If we accept this in
principle, where do we stop? Is the state permitted to prevent persons with extremely low
IQs from reproducing on the grounds of public interest? Would the state be justified in
gradually raising the minimal IQ level at which the prohibition obtains? What about
genetic screening for illnesses? How would this not result in full coercive negative

Society for Applied Philosophy, 2009

8 Andrew F. March

eugenics or discrimination against people with higher risks of serious diseases? (Talk
about slippery slopes!) So there is a totalitarian menace presumption against prohibi-
tions on reproduction derived from the critique of coercive negative eugenics.18
Let us assume for the moment that this Pandoras Box presumption against eugenics
for the purposes of social welfare holds within the realm of public justification.19 But
even if it does, there is at least one argument against applying this presumption to the case
of first-degree incest. When there is a general ban on reproduction between siblings or
parents with children, no one is genetically screened and no one is singled out for being
particularly genetically dangerous. The message is not We dont want your traits passed
on or Three generations of imbeciles is enough,20 but rather Anyone reproducing in
these circumstances is taking serious risks. Thus, one (say, a judge confronting a
constitutional or human rights challenge to a ban on incest) could argue that prohibiting
first-degree consanguinity remains on the safe side of the totalitarian slippery slope
because it is not part of a general political project of eugenics. It could be analogized
loosely to prohibiting people of reproductive age from living too close to radiation or
other toxins. It is the practice which is dangerous, not the persons. (Although the analogy
is limited. Presumably most people dont want to live near radioactive sites whilst
reproducing and such a law is thus less paternalistic than coordinative or advocatory.
Here, though, we are talking about people who want to reproduce with siblings.)
So let us accept that laws prohibiting incest do not need to rest on a general public
commitment to coercive negative eugenics. In principle, incest could be treated as an
exceptional case which does not commit a citizen to taking sides on coercive negative
eugenics in other cases. How strong could such arguments be? Could a court could offer
a convincing rationally based defence of a legal prohibition against first-degree
incest that draws on the negative impact on society arising from procreation in such
conditions.
Egalitarians have agreed in principle that persons can be held responsible for their
decisions; the purpose of equality is to minimize the impact on persons life chances
arising from unchosen circumstances. This is the source of the complexity of the
first-degree incest case: it involves both responsibility and unchosen circumstances,
namely responsibility on the part of the parents and unchosen circumstances on the
part of the offspring. Clearly, to argue against supporting children with handicaps or
birth defects once they are born because they are a drain on social resources or inef-
ficient converters of resources into welfare is a view only sensible within a utilitarian-
welfarist conception of justice.21 But the case at hand is somewhat different. Can we
ask people to take precautionary measures against future disabilities, illnesses or
handicaps on the part of their children and is at least part of the reason for doing this
the interests of society?
Clearly, there are many things we do already in this precautionary mode. Some of
them are coercive: we require children to be vaccinated; we have laws establishing the
level of neglect which warrant state intervention in families. Some are less than coer-
cive: we offer pregnant women genetic screening for certain kinds of birth defects; we
facilitate the intake of important vitamins and nutrients; we encourage people to stop
smoking and offer assistance in this. We do not limit this to health-related matters
either. We mandate schooling up to a certain age, for example. If all of this is pater-
nalistic, we regard it justified by the childs broader interest in capability and
autonomy.

Society for Applied Philosophy, 2009

 What Lies Beyond Same-Sex Marriage? 9

In most of these cases it is much easier (on the liberal conscience) to point to the
interests of person in question. However, in some cases, it is the interests of others which
rise to fill in some of the justificatory gaps. Some parents do not want to vaccinate their
children. We begin with the argument that they have an obligation to see to the best
interests of their childrens health, but the nail in the coffin is that failing to vaccinate is
a form of free-riding and puts other children at risk.22 Some people refuse to educate
their children, or refuse to allow them to be taught certain liberal, secular values which
they reject. We begin with the argument that they have no right to deny their children
access to skills which will determine to a large extent their life prospects, but have no
problem pointing to the general social interest in future citizens being taught the values of
religious tolerance, racial equality and democratic solidarity.23 A more instructive
example is the area of health. Given the sharing of health care costs, some kinds of
preventative measures may be appropriate, such as imposing a tax on cigarettes and junk
food (not because they are vices but because we want the market to sell them at their
real social cost), subsidizing healthy foods for poorer people, mandating more extensive
physical exercise in schools, and perhaps adjusting health insurance premiums on
life-style grounds (although latter faces serious objections on the grounds of unfairness
to people with lower-incomes).
Does this help us at all in our consideration of first-degree incest? Does incest have a
real social cost which justifies imposing restrictions or cost-recouping measures on
those who would engage in it? As consanguinity itself does not cause birth defects but
only increases the likelihood of bad genes being transmitted, there is some disagree-
ment on how dangerous first-degree incest is generally, since it depends on estimates of
the average occurrence of certain bad genes amongst a certain population and, indeed,
what constitutes an adverse genetic outcome in the first place.
The probability of an adverse outcome in the offspring of a consanguineous
union is not an absolute number. Rather, the estimated risk must be based upon
background population risk, degree of consanguinity, and relevant family
history. The chance of a significant medical problem in the offspring of a
consanguineous couple can be thought of as two additive risks the back-
ground population risk, plus the additional risk because of consanguinity. . . .
Compiling an absolute risk for the offspring of consanguineous unions is
impossible because the populations from which these risk estimates have been
generated vary in their sociodemographic characteristics, the methods of
subject ascertainment, and the definition of an adverse health outcome.24
This basic fact of uncertainty and indeterminacy is itself an import element in the public
justification of laws on incest. Given the controversial nature of negative coercive
eugenics, we would presumably demand a very high level of factual certainty even if we
were willing to consider some negative eugenic policies in principle.The absence of such
certainty certainly counts against blanket prohibitions in public justification. Even first-
degree incest is thus not so similar even in kind to my earlier example of protecting
women from nuclear radiation and various toxins.
A further problem is the paucity of cases of first-degree incest and, thus, the paucity
of studies. Bennett et al. cite four studies of offspring from such unions conducted in the
United Kingdom, Canada, the United States and Czechoslovakia with a combined n of
213 participants. Nonetheless, the figures from these studies show that 46% of the

Society for Applied Philosophy, 2009

10 Andrew F. March

offspring had no abnormalities, 11.7% had known autosomal recessive disorders, 16%
had congenital malformations or died as infants, 11.7% had nonspecific intellectual
impairment and 14.6% had mild intellectual impairment.25 Thus, 39.4% of the progeny
of incestuous unions died as infants or were impaired.26
Let us take this high estimate of roughly 40% (despite more sanguine takes on the
dangers of consanguinity)27 as the kind of science which would likely be invoked as the
rational basis for incest bans. Let us then grant the basic argument: The figure of 40%
is a huge jump over other degrees of relations which is based both on scientific fact
and would seem to be impervious to vagueness dilemmas. In cases of first-degree
incest, the risks are known with a certain level of exactness and, unlike with
smoking or other life-style issues, can be removed with single-moment acts of
avoidance.
It is perfectly acceptable to assert that there is no specific right to consanguineous
sexual relations in the same sense that there is no specific right to smoke, no specific right
to all of ones pre-tax income and no specific right to dump toxic waste into rivers. All
of these are consistent with the general rights to marry and procreate, to adopt patterns
of consumption, to work and pursue wealth, and to accumulate and invest capital. Given
our general willingness to impose measures which decrease the likelihood of avoidable
health care costs down the road, we could imagine a comparable set of measures in the
case of first-degree incest: counselling for persons about the genetic risks involved (as is
now a requirement in some states for first cousins who wish to marry, and which would
dissolve the problem of the indeterminacy of genetic risks from consanguinity), strong
encouragement to avoid conception and perhaps even increased insurance premiums on
people who have been fully advised of the scientific facts. While the latter raises the
spectre of slippery slopes (who else will be taxed or have their insurance premiums raised
for being costly?), it is consistent with the idea of people being responsible for their
expensive tastes and also avoids the awkward dilemma of having to criminalize and
possibly punish for consensual sexual relations.With such policies we make clear that we
are not acting out of brute disgust but rather out of rational concerns about what it is
reasonable to demand of other people.
The preceding discussion assumes that persons were not claiming a right to first-
degree incest on the basis of a coherent conception of the good. We assuage our own
consciences by assuming that principled justifications for engaging in first-degree are
absent or very weak.We are thus not really harming people by asking them to cover their
own costs because their motivations are weak or ill-considered in the first place, like
smokers, tax-evaders and corporate polluters. But what about people who want to
procreate with siblings (or parents/children) as part of a conception of the good? Perhaps
there are exceedingly insular religious communities who only trust in-group members to
preserve communal norms. Or perhaps there are neo-Zoroastrian or neo-Pharaonic
communities who believe that first-degree incest is a sacred form of reproduction which
imitates the gods.
The presence of a rational justification based on a conception of truth or of the good
both simplifies and complicates matters. On the one hand it makes it much easier for us
to say You want this collectively as part of your conception of the good, so you can
collectively bear the costs. However, when practices about which we have doubts or
anxieties in the first place are actually justified in the language of communal norms, all
of our concerns about abuse return.With incest (as well as polygamy) we considered the

Society for Applied Philosophy, 2009

 What Lies Beyond Same-Sex Marriage? 11

objection that legalizing possibly innocuous practices could facilitate their more likely
invidious manifestations. Legalizing polygamy and adult consensual incest both run the
risk of giving cover to communities which seek to raise children in abusive, hostile and
exploitative circumstances.The argument against resting with that objection was that we
will always have the right to intervene in such circumstances and that we dont know in
the abstract how large a sub-set of the wider possible set such invidious practices
constitute. But when a community declares polygamy and incest as part of its conception
of the good, far from this giving rise to free practice or cultural sovereignty arguments
for immunity, it raises the specter of domination, abuse and cultivation of false
consciousness.
Does this possibility give rise to a further rational basis for limiting or even prohibiting
incest? In a society where incest only occurs within such cultural communities and there
is no other community clamouring for these freedoms, I believe that blanket prohibitions
could be justified as inexact ways of facilitating the prosecution of what is, in fact, rape
and child abuse but what is also in fact very hard to prove or gather evidence about.
Certainly polygamy laws proved useful in prosecuting Warren Jeffs and his followers in
the YFZ Ranch near Eldorado, Texas. But this is more like (to my mind) extraordinary
laws establishing curfews or banning innocuous practices known to be associated with
more serious crimes given how difficult it is to prevent violent crime and meet the
evidentiary standards for serious felonies. Nonetheless, the fact remains that no inde-
pendent arguments were proffered for banning polygamy and adult consensual interest
in their own terms.

3. The Creation of Bad Lives

It was noted above that when we force parents to act in certain ways related to the health,
safety or education of their children we prefer to give arguments about the direct
interests of the children. This is truer to our obligation to treat all persons as valuable in
their own right, and not only insofar as they affect the net welfare of society. But in the
case of incest, does this involve asserting that it is better for the children themselves that
they never be born than that they be created with the disadvantages they will have to
endure, that procreation through incest is a form of wrongful life? On what grounds do
we prevent the creation of certain kinds of lives? There is, of course, a history in Western
societies of eugenics and forced sterilization, a history which has rightly given us a strong
aversion to anything which smacks of those practices.We know that when such things are
on the table for humans the risks are raised of horrific abuses of the practices at the
expense of minorities and unpopular groups. But more than the possibility of abuse, we
recoil at the very idea of suggesting that the state has a vital interest in preventing certain
kinds of lives from coming into existence, of judging that the lives of the mentally
retarded or severely handicapped are less valuable than normal lives.
Of course, this question invokes Derek Parfits Non-Identity Problem, and more
specifically his answer to it. The only plausible justification for a law which prevents the
creation of lives based on the interests of those lives should they come into existence is
something like Parfits Same Number Quality Claim (Q): If in either of two possible
outcomes the same number of people would ever live, it would be worse if those who live
are worse off, or have a lower quality of life, than those who would have lived.28 Let us
accept (Q). What this paper is considering, however, is the best answer to the incest

Society for Applied Philosophy, 2009

12 Andrew F. March

question given from within public justification. In public justification where we accept the
constraints outlined at the beginning of this paper, answers such as Parfits even if true
do not necessarily settle the political question.
We need merely to consider Parfits example of the 14-Year-Old-Girl. Is a girl who has
a child at this age making a decision which is worse for the child, if we accept that any
child she has later in life will have a better life all things considered? Parfit claims that if
we accept (Q) then we are forced to accept the conclusion that it would have been better
if the child who existed [later in life] had not been her actual child (i.e. not been the one
she brought into existence as a 14-year-old) and that he himself would be willing to
accept this conclusion if he were that child. Let us accept this conclusion (and, following
Parfits text, call it (3)). What follows from this for our purposes? Do we now have an
answer to the question whether there is a right to incest? Only if we think that accepting
(3) means that we have publicly justified a law forbidding 14-year-old girls from having
sex. Note: this is not saying that we have an answer if we think that laws forbidding
14-year-old girls from having sex are justified. Rather, it is saying that we only have an
answer if those laws are fully (victoriously) justified publicly by (3) alone. But I would
submit that (3) alone does not justify such laws for public purposes. Otherwise, if all
instances in which a conclusion like (3) would be valid (there are countless scenarios in
which postponing having children will create better lives later) could result in a prohibi-
tive law then we have a very poor, even absurd, guide to policy.
However, it will not do to dismiss consideration of the morality of procreation29
because of the absurd consequences for public justification of every instance in which
(Q) applies. For we engage in practices all the time designed to increase the quality of
lives which people lead, practices which assume that it is possible for a community to act
on the judgment that some lives are better than others for the persons whose lives they are.
We give pregnant women folic acid and keep them away from nuclear radiation.We warn
women above a certain age of the risks of conception. We screen foetuses for serious
genetic abnormalities and allow for late-term abortions in some cases. (Even where the
abortions would be legal anyway, it is openly discussed and tolerated that otherwise
hopeful parents may simply prefer not to give birth to such lives.) We vaccinate. We
prosecute doctors for malpractice which leads to abnormalities.We prosecute parents for
behaviours (including negligence) which lead to grave injuries or brain damage. And,
importantly for this paper, we think that deaf parents are wrong to try to guarantee that
their children will be deaf.30 All of these (and many other) practices involve the assump-
tion that it is better for the person whose life it is not to be afflicted with all sorts of
harms, illnesses or defects and that no totalitarian judgments of the superior value of
some human lives over others is involved.
I believe that our instinctive revulsion at the idea that the state could prevent two
people from procreating on the grounds that the offspring could be abnormal is derived
from three related but distinct concerns. The first is the fear of being able to ever get such
a practice right. We know how it has been used in the past to target racial groups or the
morally degenerate and we do not trust ourselves as humans to keep our baser
prejudices at bay.We encounter this Pandoras Box concern in all discussions of genetic
engineering and whether new weapons should be developed as deterrents.The second is
that we fear oppressing people. When people below a certain IQ are prevented from
marrying and procreating, we are only partially concerned by the judgments involved
about the value of the likely offspring. Rather, we are concerned about the harm done to

Society for Applied Philosophy, 2009

 What Lies Beyond Same-Sex Marriage? 13

the persons prevented from marrying and having children.31 Third, we are concerned
about stigmatizing existing persons who are born with unforeseen or unforeseeable abnor-
malities. Of course, these sometimes come together in the form of a challenge to
dominant conceptions of normalcy or the tyranny of sameness. In many cases
where we can show how eugenics is invoked as a way of eliminating homosexuality or
shortness or baldness, or removing all contingency and randomness from that most
natural act of procreation then we are right to identify normalcy as a concept which
might be doing more harm than good. But without some conception of the harms and
defects which persons are better off without, how can we justify all the normal practices
in the previous paragraph, including preventing such harms to existing persons?
So where do we stand at the moment? We have exposed both our fear of excessive state
interference in procreation and our assumption that parents (and doctors) have extensive
duties towards their offspring. We have also noted that our concern about the risks of
first-degree incest is not like prohibiting the mentally retarded from marrying because
the people in question are still allowed to procreate, just not together. The question can
be restated, therefore, as whether potential parents have duties to show reasonable concern
for their potential offsprings genetic prospects and, then, whether these duties are strong
enough that the state may enforce them on behalf of the affected parties.
The first thing to note is that we are speaking about the interests not only of the
unborn, but also of the unconceived. It is not absurd to speak of unborn, even uncon-
ceived, persons as having rights, as do many theories of environmental ethics. But those
do not include the right to be conceived, or even, for a society which grants abortion rights
to women, the right to be born once conceived.We can thus dismiss at once our fear that
when we take precautions not to conceive children within certain genetic endowments
we are somehow damaging the interests or rights of non-existent persons. If so, every
instance of non-procreative ejaculation could be so described. Or even why not?
every instance of restraint from conception-possible sex.
I believe that this is the most reasonable response from within public justification to
the counterintuitive conclusion to which some are pushed by the Non-Identity Problem
in philosophical ethics.That conclusion is that preventing genetic harm to future persons
cannot be justified on the basis of the rights or interests of those future persons because
their only alternative is to not be created in the first place, and we can assume that
however bad their quality of life is they prefer it to non-existence.32 Solving this paradox
is often seen as a pre-requisite for arguing consistently that parents do wrong when they
create children with severe disabilities. However, I do not believe that this paradox
actually bedevils public justification because unlike rights to certain goods upon coming
into existence, public justification cannot possibly concern itself with paradoxes about
the literally countless persons who do not come into existence because of random and
arbitrary events.
So any rights of the unconceived must be construed along the lines of theories of the
rights of future generations. If you expect there to be future generations or if you plan on
bringing one into existence, they will have compelling basic interests upon coming into
existence that can only be protected by certain of your actions now. Thus, the obligation
not to destroy the environment, and the obligation not to smoke crack or wander through
radiation fields whilst pregnant.
Is copulating with your parent, child or sibling more like smoking crack than like
procreating if you are below a certain IQ, or height, or some other standard of achieve-

Society for Applied Philosophy, 2009

14 Andrew F. March

ment? This is a question which may (alas) depend a lot on the facts, specifically the facts
of ones own genetic endowment. But I think there is an intuitive case to be made that
if first-degree incest entails a 40% risk of even moderate birth defects then there is a
moral duty on potential parents to avoid these risks, along the lines of Parfits (Q).
The key to not widening this duty to totalitarian-dystopian proportions lies in the
concept of reasonable concern for ones potential offsprings genetic prospects. This
cannot be interpreted as a duty to mate with only the best-endowed members of ones
community in terms of looks, strength, fitness and intelligence.33 Nor can it be inter-
preted as a duty to refrain from mating at all if you are below a certain IQ (but still able
to parent a child) or if you have some recessive genetic misfortune. But could it be
interpreted as a moral duty to undergo genetic screening and seek to mate only with
people who lack the same recessive genes? Even if it were the case that given the knowledge
or easy access to knowledge of your own genetic risks you had some obligation to consider
the risks arising from mating with a particular person, it is clear why institutionalizing
this duty raises dystopian concerns of a different order than banning first-degree incest.
Everyone has a unique complicated genetic endowment and a policy of examining this
endowment would give rise to imaginable and unimaginable possibilities for discrimi-
nation, exclusion and oppression, not to mention new sources of anxiety, stigmatization
and social stratification.
But even if there is a moral duty on the part of parents not to conceive through
first-degree incest, it is still the case that not all moral duties give rise to rights, and not
all rights give rise to enforcement license on the part of the state. If we assume (a) that
potential parents have duties to take a reasonable concern for the genetic endowment
and over-all prospects for health and welfare for their unconceived children,34 (b) that
in some cases, like direct harm or gross negligence, we recognize that the state or
state-like actors may intervene to prevent or punish after the fact for violation of these
duties, and (c) that the duties established in (a) include the moral duty not to conceive
through first-degree incest, then does violation of (c) count as one of the instances of
(b)?
It clearly does not follow analytically. The claim is that in some cases state intervention
is the right mode of prevention and that in some cases punishment may be the just
response to acts of harm or negligence. In each case the state intervention has to be
justified as that response allowed or required by justice. So what is the case for the
prohibition of incest on the grounds of dereliction of ones parental duty to take
reasonable concern for ones childrens genetic endowment?
Lets start with the punishment dimension of prohibition.We punish parents for harm
to their children for two main reasons. The first is if the harm is inflicted with intent and
is itself of such magnitude that it is a crime in own right. Raping a stranger is a crime;
raping ones offspring is one. The second is when we think that the harm itself reveals a
long-term unwillingness or incapacity to care for a childs best interests so we punish or
intervene as part of a preventative strategy. Of course, many instances are a combination
of the two. People who violate the rights of their children by raping or assaulting them
are likely to do so again. People who have demonstrated a lack of parental competence
through smoking crack have also done irreparable harm in the same magnitude as
intentional crimes. But there are hard cases. Does the otherwise competent parent who
leaves his child in a parked car one day in the summer to the point that the child gets
brain damage merit incarceration? Does a parent who gets into an accident while driving

Society for Applied Philosophy, 2009

 What Lies Beyond Same-Sex Marriage? 15

at a moderate level of intoxication get her child taken away without further evidence that
this is a pattern?
The latter examples are only designed to isolate the question of whether it would be
coherent to punish parents who conceived a child through first-degree incest. Are we
punishing them for the very act of procreating in those circumstances, i.e. for violating
their duty to show reasonable concern for their offsprings genetic endowment? Or must
we assume that the parents will be unfit and incompetent from the day the child is born?
Perhaps that is a reasonable working assumption in most cases of first-degree incest
that doing such a thing in the first place must be a symptom of deeper problems likely to
manifest themselves repeatedly in their parenting. But what if it isnt? Would punishment
for violating their duty to show reasonable concern for their offsprings genetic endow-
ment make any sense in this case, absent other concerns about the environment the child
will grow up in? I am doubtful. I concede that this kind of risk-taking is in fact a form
of negligence, and discouraging it is morally less costly than in other cases of procreation
or private behaviour, given how easy it is to procreate with a non-relative. But in the case
of the parent-child relationship, negligence as grounds for punishment is tricky business.
It is not like single acts of rape or assault. Negligence must be demonstrated over some
uncertain period of time to make the case that the child is genuinely better off being
taken away from her family. And even in those cases where criminalizing negligence can
be justified on deterrent grounds, it is not clear that incest fits. It makes perfect sense to
have a law against locking your child in the car on a summer day, even accidentally. It is
not irrational to follow through with such threats and there is a wide range of discretion
available to have the punishment fit not only the crime but also the broader pattern of
parenting. Does it make any sense whatsoever to follow through with a threat of
punishment designed to deter siblings (or Parfits 14-year-old girls) from procreating?
I believe that this is an important point. For there are strong arguments that repro-
ductive genetic biotechnologies like embryo selection, cellular surgery, and genetic
engineering, which aim to enhance general purpose traits in offspring are less like
childrearing practices a liberal government leaves to the discretion of parents than like
practices the state makes compulsory, like education.35 Let us assume that the argu-
ments for such eugenic practices succeed. What is immediately apparent is that they all
apply to existing embryos. Bracketing the question of whether the genetic enhancement
of embryos is morally like mandatory vaccination and schooling, what is obvious is that
such enhancement is pragmatically similar to vaccination and schooling. It is something
that the state can in practice realistically intervene to accomplish, at least in a wide range
of cases. Furthermore, defiance of such hypothetical laws is something which like
avoiding vaccinations or schooling would have to be maintained over a period of time.
During that entire period of time whatever the window is for various genetic enhance-
ments or successful vaccination the parents could be said to be in violation of their
offsprings rights to basic natural primary goods and state coercive action could be an
effective response. None of this applies to the act of procreation. Even if we accept that
there is a moral duty to show concern (whether reasonable or maximal) for ones
offsprings genetic endowment, once the act of conception has occurred it is hard to see
how punitive laws are appropriate.
Aside from criminalization, what kinds of preventative measures does the danger of
first-degree incest give the state a rational basis for? These have already been discussed
in the previous section on the unfair burdening of society objection to allowing incest

Society for Applied Philosophy, 2009

16 Andrew F. March

and include counselling for persons about the genetic risks involved (as is now a
requirement in some states for first cousins who wish to marry), strong encouragement
to avoid conception and perhaps even a tax of some kind or increased insurance
premiums on people who have been fully advised of the scientific facts.
However, a central argument of this paper is that withholding access to the legal status
of a recognized civil union is not a deterrent or preventative measure which a liberal state
should adopt. For under a universal scheme of civil unions the state does not create and
enforce a legal status of persons given special approval by the state to procreate since it
seeks to remain neutral between the moral and affective motivations for forming families
and domestic arrangements. Furthermore, since denying access to civil union status for
first-degree relatives is only a symbolic or aspirational deterrent to actual reproduction,
it might serve as merely an unnecessary and ineffective punitive withholding of access to
social goods and the distribution of certain rights and responsibilities related to private
life once persons have been created who benefit from those goods.

Conclusion: Public Reason and the Case of Incest

So is there a right to incest? There is not a specific right to it and thus there is no a priori
reason why some restrictions or even prohibitions on it might not be justified, but the
same is true for every specific act where a general right to the freedom exists. I have
argued in this paper, however, that the arguments compatible with public reason for
prohibiting it outright, or even for excluding such unions from the permissible types of
legally registered partnerships, are quite weak.
My argument begins with a proposal for a liberal state to replace the legal category of
marriage with one of civil unions. Such a change would increase the states neutrality
on the question of the moral, spiritual, emotional and rational purposes which free
persons have for forming relationships, partnerships and families. This proposal has the
virtue of consistency both with general liberal principles and with our attempts to
accommodate demands for expanding access to marriage on the part of new types of
relationships. It also has the virtue of removing the contentious concept of marriage
from the terrain of avoidable political conflict. Conservatives and non-conservatives
would no longer have to fight over whether this or that type of relationship is a real
marriage or reflects the true purpose of the institution of marriage. Marriage as the
name for an institution with specific and long-standing affective, symbolic, linguistic,
cultural and religious content would be privatized, much like religion.
Should our new institution be open to relationships consisting of people with close
genetic ties? These are two separate questions. The first is whether the new institution of
civil unions should be open to them. The answer to that, given the states lack of interest
in citizens reasons for forming partnerships and in what they do whilst being registered
in one, is clearly yes. The second is whether, entirely separate from the issue of legal
recognition of domestic partnerships, the state has a legitimate rational interest in
deterring, preventing or punishing consanguineous sexual relations between close blood
relations (first-degree incest). Here, the objections to allowing such relations are those
from (1) child abuse, (2) the unfair burdening of society and (3) the creation of bad lives.
I argue that while rape and other forms of child abuse would be no more legal or
tolerated than they are now, the concern about any form of weakening a societys legal

Society for Applied Philosophy, 2009

 What Lies Beyond Same-Sex Marriage? 17

and political resources to combat such abuses does indeed register on the justificatory
scale, but does not prove that such first-degree incestuous sexual relations are inherently
bad enough to warrant proscription. I then argue that the concern about unfairly
burdening society with unhealthy persons is not as dangerously totalitarian as we might
initially fear, but nor is it strong enough to justify an outright prohibition. Finally, I argue
that a concern to dissuade persons from creating certain kinds of lives (children with
extreme birth defects) is also not as dangerously totalitarian as we might initially fear,
and in fact goes further towards explaining why we might have a legitimate interest in
intervening. Nonetheless, I argue that the criminalization of such acts only make sense
when they are indicators of other offences, namely negligence or abuse, and it thus seems
that the act of consanguineous reproduction is itself insufficient.
Does this case say anything about our resources and constraints when arguing from
public reason? I think at least three points are noteworthy. The first is that arguments
from the free practice of religion or cultural sovereignty not only do not give us special
reasons for allowing practices, but may in fact give us reasons for (continuing to) ban
them. One of the hooks which allowed me to consider a presumption of permissibility in
the cases of both polygamy and incest was that the nature of the practices in themselves
is not identical to some of their associated abuses and horrors. We cannot assume that
polygamy, if widely legal, would be the same as the patriarchal abuse of women from an
early age or that incest, if widely legal, would be the same as child rape. But if we have
reason to believe that these practices would not just be one of many choices for
autonomous persons but rather part of a coherent and elaborate conception of the good
(especially a religious one) then we may indeed have much more reason to fear that
certain communities would engage in the shaping of their members consciousnesses
from an early age to expect and tolerate violations of their autonomy and dignity. It is
only when we dont think that polygamy and incest are part of a long-standing and
elaborate conception of the good that they appear safe.
Second, it seems that the rich philosophical debate over the Non-Identity Problem has
limited bearing on public justification, at least in the case of negative eugenics. Even if
Parfits (Q) is correct, it proves too much: it would be impossible to enshrine legal
obligations wherever (Q) applies. Similarly, even if the counter-intuitive paradox emerg-
ing from the Non-Identity Problem is true (that we cannot protect the rights of future
persons at the expense of their very existence), there is no way for public justification to
make sense of this paradox and protect the rights of hypothetical-yet-specific persons to
be created. At least in the case of the ethics of conception (not the ethics of embryonic
enhancement), the most public justification can make sense of is the idea of reasonable
concern for offsprings genetic endowment, which is not exactly a recipe for extensive
coercive policies.
Third, out of a particular historical and political context public reason has a hard
time dealing with arguments from conjecture or contingency of the kind this may be
fine in theory, but not if it were widespread or we need such laws as useful devices
to protect people from crimes which are hard to prove. I assumed in this paper that
public reason has an assumption of scepticism towards such arguments. They are
easily abused, hard to prove and do not tell us anything about the inherent justness of
a given act or practice. However, in real life it may be perfectly clear to reasonable
people what effects a practice or institution has and why a society acts justly when it
proscribes it.36 Of course, this is not so much a critique of public reason as a defence

Society for Applied Philosophy, 2009

18 Andrew F. March

of it. It ought to be flexible enough to accommodate real-world political agents acting

in the full light of their own history and present, and at the same time it ought to be
a resource for those actors for discovering what is rational and what is arbitrary in
their own inherited institutions.

Andrew F. March,Yale University, Department of Political Science, P.O. Box 208235, New
Haven, CT 06520, USA. Email: andrew.march@yale.edu

Acknowledgements

I would like to thank Guy Kahane, Jonathan Quong and the anonymous reviewers of the
Journal of Applied Philosophy for crucial critical feedback on previous drafts of this paper.

NOTES

1 See, e.g., Maura I. Strassberg, Distinctions of form or substance: Monogamy, polygamy and same-sex
marriage, North Carolina Law Review 75 (1997): 15011624; James M. Donovan, Rock-salting the slippery
slope:Why same-sex marriage is not a commitment to polygamous marriage, Northern Kentucky Law Review
29,3 (2002): 521590 and Ruth K. Khalsa, Polygamy as a red herring in the same-sex marriage debate,
Duke Law Journal 54 (20042005): 16651693.
2 Lawrence v. Texas (02-102) 539 U.S. 558 (2003), Antonin Scalia dissenting, June 26, 2003.
3 See Andrew F. March, Is there a right to polygamy? Marriage, equality and subsidizing families in liberal
public justification, Journal of Moral Philosophy (forthcoming, 2010).
4 That is, I accept the distinction advanced by Dworkin between goal-based and rights-based defences of
rights and freedoms and am obviously concerned about the answer to my question from within the latter
strategy. (Ronald Dworkin, Is there a right to pornography? Oxford Journal of Legal Studies 1,2 (1981):
177212.)
5 The dilemma of recognition is, of course, one of the areas (another being competitions) identified by Parfit,
Scanlon and others as when it is appropriate to level down as part of our commitment to equality, as opposed
to priority or welfare. For example, given the choice between giving one of two siblings a gift or privilege and
giving it to neither of them, we are strongly inclined to choose the latter so as to avoid favouritism. See Derek
Parfit, Equality and priority, Ratio 10 (1997): 202221 and T. M. Scanlon, The diversity of objections to
inequality, in The Difficulty of Tolerance (Cambridge: Cambridge University Press, 2003), pp. 202
218.
6 Although this is not unheard of. Scientologys claim to religious status has been questioned in various
European countries, including in an on-going fraud trial in France. (See Angelique Chrisafis, Church of
Scientology faces fraud trial in France, The Guardian, 9 September 2008.) There was also a controversy in
Amsterdam in 1988 when a Church of Satan was deemed to be an ordinary brothel and forced to pay taxes
on its earnings. Genuine Satanists, on the other hand, were recognized by the Royal Navy for the first time
in 2004, thus earning the privileges of performing Satanic rituals aboard and to have a non-Christian Church
of Satan funeral should they be killed in action (http://news.bbc.co.uk/2/hi/uk_news/3948329.stm).
7 For a discussion of the same-sex marriage controversy in America which takes seriously the costs of altering
the public meaning of the concept (such as marriage), see Andrew Stivers and Andrew Valls, Same-sex
marriage and the regulation of language, Politics Philosophy Economics 6,2 (2007): 237253. My proposal
also takes seriously the dilemma discussed by Stivers and Valls, but differs from theirs by proposing to
remove the linguistic controversy from the hands of the state entirely.
8 A similar proposal for disestablishing marriage can be found in Tamara Metz, The liberal case for
disestablishing marriage, Contemporary Political Theory 6 (2007): 196217. Metzs concern, however, is with
the liberal concerns for fairness and equality in the private sphere and with our positive reasons for valuing
marriage (she thus calls for replacing marriage with an intimate caregiving union status). Metz agrees that
polygamy would be legal under her scheme (although she does not consider at length any specific arguments
related to it), but does not mention incest.

Society for Applied Philosophy, 2009

 What Lies Beyond Same-Sex Marriage? 19

9 Gerald Gaus refers to this as the core liberal principle (L): Imposition on others requires justification;
unjustified impositions are unjust. . . . The basic idea is that freedom to live ones own life as one chooses
is the benchmark or presumption; departures from that condition where you demand that another live her
life according to your judgments require additional justification. And if these demands cannot be justified,
then we are committed to tolerating these other ways of living. (Gerald F. Gaus, Justificatory Liberalism:
An Essay on Epistemology and Political Theory (Oxford: Oxford University Press, 1996), p. 165.)
10 For the lengthiest treatment of this problem, see Martha C. Nussbaum, Hiding from Humanity: Disgust,
Shame, and the Law (Princeton, NJ: Princeton University Press, 2004) and the symposium on this book in
Journal of Applied Philosophy, 25,4, with contributions by William Charlton, John Haldane, David Archard,
Thom Brooks and a reply by Nussbaum.
11 There is, of course, much psychological research on disgust and the rationalization of moral judgment. See,
in particular, Jonathan Haidt, Paul Rozin, Clark McCauley & Sumio Imada, Body, psyche, and culture:The
relationship of disgust to morality, Psychology and Developing Societies 9,1 (1997): 107131.
12 Or, in the US context, whether it is permissible to prohibit persons from privately pronouncing the
marriage of persons already married to others even without seeking state recognition. I am grateful to Noah
Feldman for clarifying this aspect of the legal status of polygamy in America.
13 For a similar use of these examples to point to the inconsistency of conservative and natural law opponents
of homosexuality, see Stephen Macedo, Homosexuality and the conservative mind, Georgetown Law Journal
84,2 (1995): 261300, at pp. 2789.
14 For US state civil and criminal laws on forbidden affinity relationships which include the step-parent/step-
child relationship, see Carolyn S. Bratt, Incest statues and the fundamental right of marriage: Is Oedipus
free to marry? Family Law Quarterly 18 (19845): 257309, at pp. 2989.
15 That legalizing polygamy would give political and legal cover to communities which raise girls to accept
patriarchal authority unquestioningly.
16 To be sure, concern for the attributes of the offspring is but one of the motivations on the part of those
horrified by mixed-race unions.
17 This invokes the recent case in Germany of Patrick Stuebing and Susan Karolewski.
18 For a statement of this view, see the important historical study by Daniel J. Kevles, In the Name of Eugenics:
Genetics and the Uses of Human Heredity (Berkeley: University of California Press, 1985).
19 For a critique of the fear of any form of eugenics, see Allen Buchanan, Institutions, beliefs and ethics:
Eugenics as a case study, Journal of Political Philosophy 15,1 (2007): 2245.
20 This is the infamous phrase of Justice Oliver Wendell Holmes, Jr. in the 1927 Buck v. Bell case which allowed
the forced sterilization of a supposedly mentally retarded woman.
21 Cynthia Stark argues that even contractarian theories, which seek to justify obligations on the basis of social
cooperation, can be modified to take into account the needs of severely disabled. (See Cynthia A. Stark,
How to include the severely disabled in a contractarian theory of justice, Journal of Political Philosophy, 15,2
(2007): 127145.)
22 See Dan W. Brock, Shaping future children: Parental rights and societal interests, Journal of Political
Philosophy, 13,4 (2005): 377398, at pp. 386391.
23 See, e.g., Stephen Macedo, Transformative constitutionalism and the case of religion: Defending the
moderate hegemony of liberalism, Political Theory, 26,1 (1998): 5680 and Liberal civic education and
religious fundamentalism: The case of God v. John Rawls? Ethics 105,3 (1995): 468496.
24 Robin L. Bennett, Kathryn S. French, Robert G. Resta & Debra L. Doyle, Genetic counseling and screening
of consanguineous couples and their offspring: Recommendations of the National Society of Genetic
Counselors, Journal of Genetic Counseling 11,2 (2002): 97119, at p. 104.
25 Ibid., p. 107.
26 See also Robert M. May, When to be incestuous, Nature 279 (17 May 1979): 192194. May writes: We
estimate that about 42% of the offspring of sister-brother or parent-offspring matings die before reproductive
age. The corresponding cost for uncle-niece matings in 24%, and is 13% for first cousin unions (p. 194).
May cites the same study of 161 children born to parent-offspring or sibling-sibling unions in Czechoslo-
vakia: Of these children, 15 were stillborn or died within the first year of life, and 40% of the survivors
suffered from severe physical or mental disorders.
27 See Bratt op cit., pp. 267276, for a sceptical view of the dangers.
28 Derek Parfit, Reasons and Persons (Oxford: Oxford University Press, 1984), p. 360.
29 In addition to Parfit, see Gregory S. Kavka, The paradox of future individuals, Philosophy & Public Affairs
11,2 (1982): 93112; James Woodward, The non-identity problem, Ethics 96 (1986): 804831; Jeff

Society for Applied Philosophy, 2009

20 Andrew F. March

McMahan, Wrongful life: Paradoxes in the morality of causing people to exist, in J. L. Coleman & C. W.
Morris (eds) Rational Commitment and Social Justice (Cambridge: Cambridge University Press, 1988);
Matthew Hanser, Harming future people, Philosophy & Public Affairs 19,1 (1990): 4770; Dan Brock, The
non-identity problem and genetic harms:The case of wrongful handicaps, Bioethics 9 (1995): 26975; Seana
Valentine Shiffrin, Wrongful life, procreative responsibility, and the significance of harm, Legal Theory 5,2
(1999): 11748; Elisabeth Harman, Can we harm and benefit in creating? Philosophical Perspectives, 18
(2004): 89113.
30 See Brock, Shaping Future Children op. cit., p. 386; Robert Sparrow, Defending deaf culture: The case of
cochlear implants, Journal of Political Philosophy 13,2 (2005): 135152; and Guy Kahane, Non-identity,
self-defeat, and attitudes to future children, Philosophical Studies 145,2 (2009): 193214.
31 See, in particular, Robert L. Hayman, Jr., Presumptions of justice: Law, politics and the mentally retarded
parent, Harvard Law Review 103,6 (1990): 12011271.
32 Actions whose harmful effects would constitute seriously wrongful child abuse if done to an existing child
are no harm, and so not wrong, if their harmful effects on a child are inextricable from the act of bringing
that child into existence with a worthwhile life (Allen Buchanan, Dan W. Brock, Norman Daniels & Daniel
Wikler, From Chance to Choice: Genetics and Justice (Cambridge: Cambridge University Press, 2000), p. 246.
33 For example, Julian Savulescu, Procreative beneficence: Why we should select the best children, Bioethics
15,5/6 (2001): 413426.
34 In addition to Savulescu, see Dov Fox, The illiberality of liberal eugenics, Ratio 20,1 (2007): 125, which
argues for seeing ones genetic endowment through the lens of natural primary goods and thus as
something which the liberal state may have as much of an interest in interfering to promote as it does social
primary goods.
35 Fox op. cit., p. 1.
36 Affirmative action is a good example of this phenomenon as well. Race-blind, merit-based admissions may
be rationally defensible but that rational defence cannot act as a veto against historically-justifiable policies.

Society for Applied Philosophy, 2009