Some Incest is Harmless Incest: Determining the Fundamental Right to Marry of Adults Related by Affinity without Resorting to State Incest Statutes
![handle is hein.journals/kjpp10 and id is 274 raw text is: Some Incest Is Harmless Incest: Determining the
Fundamental Right to Marry of Adults Related by
Affinity Without Resorting to State Incest Statutes
Christine McNiece Metteer
I. INTRODUCTION
Some incest is harmless incest' which a state has no important interest' in
regulating. The title of this piece and the repetition of the sentiment in the thesis
sentence are sure to cause a visceral reaction in many if not most readers, who equate
incest with inter-familial sexual abuse.3 Yet certain marriages are prohibited as
incestuous under civil law in Tennessee and criminal law in Kansas, but are not
considered so nor prevented under the laws of California and Arizona.' Tennessee, along
with eleven other states have domestic relations statutes prohibiting marriages between
some persons related by affinity.' Kansas, along with nine other states punish such
attempted marriages criminally.6 Connecticut and Mississippi have both civil and
criminal laws.7
This comparison of state civil and criminal incest statutes shows a striking lack
of consensus8 regarding relations of affinity barred from marrying. This alone would
seem to refute the idea that marriages between persons related by affinity are per se
harmful and require state regulation.9 The lack of consensus about who may exercise the
fundamental right' of marriage has led one Domestic Relations scholar to argue that
[i]t would be desirable, in view of the difficult conflicts questions raised by existing law,
if the states could enact uniform legislation on incestuous marriages .... However,
since that writing in 1988, it has not occurred.'2
Not much has changed at the millenium. Although the Uniform Marriage and
Divorce Act has followed what it calls the national trend, and eliminated all
relationships by affinity.3 Only four states have adopted its provisions.4 In fact, in the
last twenty-five years only six states have
repealed marriage prohibitions against
persons related by affinity. Meanwhile,
Montana and Missouri added step- Christine McNiece Metteer, Professor of
Legal Writing, Southwestern University
parents/children to their criminal marriage School of Law, Los Angeles, California.
prohibitions in 1983 and 1984, The author wishes to thank Saundra
respectively.6 Wootton for her significant contribution in
This conflict among the states over the statutory research for this article.
whether and which persons related by
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