How many European nations does it take before the Supreme Court declares it an international trend and finds such conduct protected by the US Constitution?

Three European Union nations — France, Spain and Portugal — do not prosecute consenting adults for incest, and Romania is considering following suit.

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Laws exempting parents, grandparents, brothers and sisters from prosecution for incestuous acts if they are not forced upon adult family members are decades old in France, Spain and Portugal.

In Romania, decriminalizing incest among consenting adults is being considered as part of a wide range of reforms to the country’s criminal code. No date has been set yet for a parliament vote on the bill, and opposition to the proposal is fervent even among some lawmakers in the ruling coalition.

The reliance upon foreign courts and foreign law by the justices of the Supreme Court has become more common in recent years. And after Lawrence v. Texas and its expansive interpretation of the right to privacy to forbid consensual sexual relations between consenting adults, it would be quite easy to argue that there is a substantive basis for such a ban. After all, Justice Kennedy wrote the following in the majority opinion.

"When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."

The logic would be equally as compelling in the case of an adult couple engaged in an incestuous relationship – and given that mere societal disapproval has been held to be insufficient to allow for laws against homosexual sodomy to be upheld, how can similar laws regarding adult incest stand up to constitutional scrutiny? And lest some argue that there is the increased chance of genetic problems in the offspring of such relationships, given that the increase is relatively small is that really a sufficient basis for such a prohibition?

Now please realize that I am not making an argument for incest – I’m not. Rather, I am arguing that the current case law relating to adult sexual expression is such that I don’t see how a law against it can stand – and that this is but one potential unforeseen consequence of an expansive decision that invalidated on constitutional grounds a law that justices saw as unwise, and the tendency to use foreign law as a matrix for interpreting our own constitution.

H/T Secular Right