Wednesday, September 05, 2012

Harm and Immorality

By Sherry Colb

In my Justia Verdict column this week, I offer a critical analysis of two hypothetical scenarios with which Professor Jonathan Haidt begins his 2012 book, The Righteous Mind:  Why Good People Are Divided by Politics and Religion.  He presents the scenarios, which involve a family eating a dog and a man having sex with a dead chicken, to trigger moral disgust, after which he suggests that what divides people over moral questions is frequently people's responses to their moral disgust rather than the presence or absence of that disgust in the first place.  I propose in my column -- through some disgusting hypothetical stories of my own -- that Haidt may be exhibiting a blind spot in suggesting that the scenarios he describes involve disgusting but harmless behavior.

In this post, I want to consider Haidt's point that disgusting but (actually) harmless behavior often triggers the same reactions in people who may otherwise occupy opposite poles of the political spectrum.  This is an important insight that many of his hypothetical examples demonstrate quite well, and I think he picks up on something very important and worthy of examination.

One of his examples involves consensual incest between adult siblings who use contraception, whose behavior will never be repeated, and about whose sexual relationship no one will learn.  I think this is a very effective example, because it demonstrates that truly harmless behavior can nonetheless arouse moral disgust in most of us, along with the inclination to pass negative judgments.  The law reflects this inclination (in the case of incest) in that almost every state in this country prohibits incest, even when it involves consenting adults (though the content of the category is defined with varying breadth in different places).

This inclination was also clear when the 1980's U.S. Supreme Court considered the constitutionality of laws prohibiting consensual same-sex relationships.  Opponents of criminalization at the time argued (and really had to argue) that striking down bans on homosexuality would not logically entail striking down bans on adult consensual incest as well.  And many opponents of abortion would nonetheless allow an exception for pregnancies resulting from rape or incest, presumably including consensual incest between adults.

Yet, despite the common gut feeling that incest is wrong, it can indeed be harmless, and laws against it would then seem plainly to violate the harm principle (which holds that it is inappropriate to condemn and prohibit harmless conduct).  I became increasingly sympathetic to this argument  regarding incest after reading a New York Times magazine article quite a few years ago, which profiled adult couples in love that could not get married because they were related to each other.  Before reading that article, I had given little thought to the issue of consensual adult incest, and I imagined that only emotionally disturbed adults would seek the right to this activity.  I also found the analogy between homosexuality and incest to be a faulty and dismissive "reductio ad absurdum" argument that simply invited its listeners to reject homosexuality.

After reading more about couples that were otherwise quite ordinary and simply sought the right to marry like other people could, I concluded that even though I and a majority of people find the idea of sibling incest disgusting, and perhaps in part because we do, it is very important to protect people who want to engage in such behavior from the consequences of our disgust, so long as the behavior harms no one.  That is, we have no more business prohibiting adult consensual incest than do the people who find the idea of homosexuality unappealing in prohibiting homosexuality.

Some have made arguments trying to distinguish incest from homosexuality by suggesting that adult incest truly is harmful, because genetic defects are more likely in children of incest than in children of non-incestuous unions.  (It is out of concern for this problem, I think, that Professor Haidt has his hypothetical incestuous couple using contraception).

But the notion of prohibiting couplings more likely to yield potentially "defective" children is not currently, in general, an acceptable basis for legal prohibitions.  Most of us do not, for example, consider it legitimate to sterilize people who carry genetic anomalies to avoid the birth of children with defects (though the U.S. Supreme Court's last holding on the subject, in Buck v. Bell, gave it the Constitution's stamp of approval).  Most of us also do not consider it legitimate to prohibit carriers of genetic mutations from marrying or from having sexual relations with other such carriers.  A pregnant woman in her forties, for example, has an elevated risk of giving birth to a child with Downs Syndrome, and we learned recently from an article in the New York Times that the sperm of older men have an elevated risk of producing children with autism or schizophrenia.  Yet no one would suggest that older men be prohibited from getting married, from having sex, or even from conceiving children through technology-assisted reproduction.

The fact that incest disgusts most of us may be genetically adaptive in helping us to avoid relatively higher-risk reproduction.  But the fact that our moral disgust may be adaptive does not turn the disgust into a moral imperative.  And conversely, the fact that a particular activity inspires no disgust at all should not prevent us from thinking carefully about whether the activity may in fact be harmful and therefore immoral.  Disgust is a useful emotion, in that it can sometimes alert us to conduct that might be worthy of our opposition.  Yet it is an extremely imprecise instrument, both over- and under-inclusive, and should therefore be taken with a large grain of salt.  The moral deliberation that follows a disgust response (or the lack thereof) is absolutely critical.  And to the extent that a majority of people on this planet tend to trust their moral disgust as a guiding principle, as Haidt's book suggests, I worry greatly for human safety, privacy, liberty, and equality.


Full Marriage Equality said...

Thank you for this very thoughtful take on this issue. I have interviewed many adults in such relationships (some of them same-gender, by the way) and the laws against their relationships are what cause the most harm. I have carefully considered the arguments used to justify such discrimination and have found the arguments lacking or inconsistently applied. Real people in lifelong, happy relationships are being harmed for no reason other than someone else's personal disgust.

Paul Scott said...

I found this blog post interesting in part because (apart from Bestiality that is often raised) I have always agreed with the "slippery slope" analysis put forth by those opposed to gay marriage - with the caveat that I think this is a good thing, not a reason to stall gay marriage.

It probably at least in part extends from the fact that I do not find sibling incest disgusting. But in any event, I do find the government's interference in the sex lives of all consenting individuals to be wrong headed.

This of course includes gay marriage, but also incest and polyamorous relationships too. Sexual hangups should not be driving policy.

Joe said...

Kenneth Karst wrote an interesting law article on the right to intimate association thirty or so years ago and at one point basically noted that on principle consensual adult sibling incest might be protected, but simply put, society oppose it just too much for it to be accepted by the courts as protected. Societal consensus often is misguided but there is at some point a check.

I think the discussion here is valuable and making such incest criminal is misguided. But, adult incest is different in some ways from general sexual relations.

There is at times a serious consent concern and interests of familial harmony.

I think genetics is a minor concern here but there is a stronger reason not to protect incestual MARRIAGE -- marriage involves the state protecting unions of people not already intimately connected by family connections. It is not merely "disgust."

But, yes, sexual freedom will result in the possibility of sibling incest and so forth. We can deal with most problem cases by showing a lack of consent. One court case involving siblings involved child protection issues, but not of the genetic kind.

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