Conservative opponents of same-sex marriage have been warning that, once the latter is made legal, the floodgates will be opened for every other innovative sexual arrangement—polygamy, polyandry, group marriage, and even more extravagant constructions of the erotic imagination. This is not quite what happened. There has been an uptick of interest in polygamy, probably triggered by some spectacular incidents involving dissident Mormons, perhaps also by the sympathetic treatment of polygamy in the television series “Big Love”. [The mainline Mormon denomination, the Church of Jesus Christ of Latter-Day Saints, long ago jettisoned its doctrine of “plural marriage”—otherwise Utah could not have become a state of the Union. In the meantime the LDS Church has become an ardent advocate of heterosexual monogamy. I wonder what Brigham Young thinks about this turnaround, looking down from the New Zion in the sky.] But now a new front in the battle for sexual diversity has opened up, not in the US but in Germany—in the matter of incest between adult siblings. Given the American propensity to litigate, the federal courts may soon be inundated by siblings insisting on their constitutional right to marry.In its issue of September 24, 2014, the newsmagazine Der Spiegel carried an article about a statement, released a few days earlier, in which the German Ethics Council (Ethikrat) recommended that sexual relations between consenting adult siblings be decriminalized—it is a crime now under article 173 of the German criminal code. The vote was 14 to 9. The lengthy German text is available on the Internet. It deals only with incest between siblings, not between parents and children, which (the Council felt) raises other more complicated questions.The Council was established in 2007, with a budget of about 1.7 million euros provided by the German government. Its members include natural and social scientists, medical and legal experts, politicians and philosophers, and (last not least) Protestant and Catholic theologians. The Council has taken up a variety of ethical matters involving public policy—such as cloning, stem cell research, end of life practices. Its attention was drawn to the matter of sibling incest by a widely reported case from Saxony, in which a man identified only as Patrick S. was prosecuted for a marriage with his sister, which has produced four children, two of them with handicaps. (I don’t know why only the man was prosecuted.) Patrick S. was convicted, spent time in prison, while the appeal process dragged on. The case finally arrived at the Constitutional Court, which ruled against the plaintiff. There was public debate both inside the Council and outside. The vote for the recommendation was very much short of a landslide; the minority report by Council members who refused to sign the statement was published along with the majority’s statement. (I saw no information on how the theologians voted.) There were also sharp disagreements in the wider public. A leading politician of the Christian Democratic Party (the CDU, to which Chancellor Angela Merkel belongs) called the Council’s recommendation “obscene” and “immoral”.The statement of the Ethics Council is an impressive document—a product of German craftsmanship at its best. [Ladies and Gentlemen: The people who gave you the BMW and the Audi, now give you sibling incest!] The statement explains why attention is given here to a problem that affects very few people: It has created great suffering to those affected, and it is useful in inducing serious reflection about the meaning of marriage. There follows a competent summary of what is known about incest: The greater risk of birth defects and disease discovered by genetics for the offspring of sibling couples. And the near universality of the incest taboo, with few exceptions (a famous one being the royal family in ancient Egypt—Cleopatra became famous for this in Roman times). Beyond these well-known facts there is a library of explanations and theories. One cannot be a social scientist without having read some of these, beginning with Sigmund Freud’s famous (and thoroughly implausible) notion of the Oedipus Complex. The Council statement touches on this huge literature; I cannot even do that here. The statement also surveys the legal situation, in Germany and elsewhere (several EU countries don’t have criminal statutes in this matter, including France and Spain).There follows a careful analysis of the arguments in favor of the legal status quo: Reducing risks to the health of children. Protecting the integrity of the family, a key social institution, which requires a diversity of roles within it. Avoiding offence to deeply held cultural norms. These arguments are conceded to have some merit, but then are rejected one by one: Not all risks can be avoided, and possible risks that may not be realized in each case should not justify restricting personal rights. Yes, the family should be protected, but siblings taking responsible care of their children also constitute a family that merits protection. And the law cannot avoid offending some people, and this is not its principal purpose. The Council’s recommendation is based on one central value of a free society—the autonomy (Selbstbestimmung) of every individual that is essential to the latter’s dignity. The statement here derives directly from the lapidary sentence in the constitution of the Federal Republic, as sentence that was written in awareness of the terrible violations of human dignity in the Third Reich: “The dignity of man is inviolate” (“Die Wuerde des Menschen ist unantastbar”). The question of incest has not been a major concern of mine, and is unlikely to become that now. (I was an only child. If sibling love has an erotic allure, I have been deprived of the experience.) Occasionally I have stumbled on the matter being discussed by social scientists, as with Melford Spiro’s study of children in the Israeli kibbutz. When I was teaching at Rutgers a colleague told me that he was undertaking research on “incest clubs” in New Jersey—he did not show me his findings, and I was mainly bemused by the unlikeliness of the “Garden State” as a locale of transgressive sexual behavior.But there is something else that struck me about the German debate: On both sides of the issue the arguments move within a rigorously secular discourse. There is no reference to Biblical commandments, Christian doctrine, or even natural law. If such references were made in the deliberations of the Council, they are not mentioned in the document. Germany does not have a strict separation of church and state as exists (in different versions) in the United States and France. The voices of the churches are officially heard in public places. It would not surprise me if the two major churches now set up their own commissions or study groups to discuss their own theological and ethical perspective on the issue of sibling sexuality and marriage. But if the churches were to define their own positions in this matter, these positions would have to be translated into the secular discourse if they were to have traction in the public debate. I think it is important to understand that the state and its legislation will have to be religiously neutral, at least in a society that is both pluralistic and democratic. This means that different faith communities will have different rationales for agreeing or disagreeing on this or that issue. The religious rationales then become contributions to the secular discourse that dominates in the public sphere. This semantic concession need not undermine the passionate faith commitments of the various contributors.A Christian worldview has been highly influential in establishing the core ethical principle articulated in the constitution of the Federal Republic. Non-Christian or non-religious citizens should be able to acknowledge this fact. But the Republic cannot sing from a Christian hymnal.
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In mid-September, the German Ethics Council recommended that sexual relations between consenting adult siblings be decriminalized. It is worth noting how all arguments presented in the Council’s carefully worded document are of a completely secular nature.