David Epstein, a Columbia poli sci professor, was just arrested for have a consensual sexual relationship with his 24 year old daughter.  His lawyer wasted no time making a Lawrence v. Texas style defense of his client's alleged act, according to this ABC news video report, which raises a new public question: do we all have a right to commit consensual adult incest?

The interesting thing is the response by progressive pro-gay marriage family law professors.  How do we explain why we criminalize incest?  "The ick factor" is the best Prof. Joanna Grossman can come up with (inherently coercive might do for fathers, but surely  not for sisters, say).

Over at Discover magazine, they rely on a more sophisticated-sounding form of the Ick Factor.  Natural sociobiological aversion.  But of course if the aversion is natural why does the law need to be involved?  Incidentally adult consensual incest has, according to ABC News been legalized in a variety of developed countries.  And the sky has not fallen.  It never does.

I always avoided all these slipperly slope arguments because to me the rightness of our marriage tradition does not depend on the idea that changing the law's meaning and purpose will lead to a possible right to  polygamy or a public debate about a right to  incest.  But it does seem to be happening, rather more quickly than anyone imagined.

I wish Grossman and company well in coming up with a more coherent explanation for why the Constitutional right to have sex and intimate relationships and indeed marriage with anyone you want, or the one person you fall in love with, can be cabinned in principle by anything other than irrational moral disgust aka "the ick factor."

NOM's founding Chairman Prof. Robby George and his colleagues Sherif Girgis and Ryan Adnerson have written an amazing essay "What is Marriage?" for the Harvard Journal of Law and Public Policy. We'll post excerpts in a bit. Meanwhile, read it in full here.

Have you seen the video of Chuck Cooper at the press conference after the oral arguments last week? No of course not. Not a single TV newscast televised his dramatic and graceful calling out of so-called superlaywers Olson and Boise for the way they have consistently demeaned those with whom they disagree.

Here's the clip of Cooper's dramatic statement.

Transcript (as closely as I can type it) is below:

Mr. Charles Cooper:

"Good afternoon ladies and gentlemen. We are very pleased to be in this courthouse today to present our argument on appeals in defense of the constitutionality of prop 8, in defense of the judgment made by the majority of voters in the state of Calif. I want to pay our respects to our opponents in this case, who have presented their case with skill and with sincerity and we respect that. I regret in all candor that our opponents do not return that respect to the arguments and the positions that those of us defending the constitutionality of Prop 8 have advanced but rather have seen fit to demean and to ridicule those arguments.

We believe even more troubling is the essential point made with respect to well over 7 million people in this state who supported traditional marriage and the enactment of Prop 8. We believe that people of good will can disagree in good faith on this question, and that there are good and decent people on both sides of this debate; people from all walks of life, from all political persuasions, from all races and creeds, simply acting according to what they believe is best for their community, their state and themselves.

Our opponents don’t agree with that. They believe that everybody on the other side of them in this debate is behaving irrationally, that no defense, no good-faith belief, can be entertained in defense of the institution of marriage which has existed as we pointed out in the court earlier today in every  place and in every time in recorded history.

The place for this question to be decided is the place where it was decided: by the electorate through the democratic process.  Now in the court hearing just now there was obviously time for the court and the advocates to touch on only a fraction of the issues that have been raised, as I’m sure you know there are several hundred pages of briefing in this case, and  it’s not the appropriate forum here to attempt to re-argue that case but I do commend you to the full briefing for a complete discussion of all the merits of the case by all the parties

For the plaintiffs to prevail in this case they have to show not only that all the state and federal appellate courts that have addressed this issue, all of whom by the way that have upheld traditional marriage and rejected the arguments advanced today, that all of those  judges rendering those decision were irrational, that the Congress that enacted the DOMA that all of those people were irrational, that a large majority of the population of this country is irrational and behaving not in good faith, and that Pres. Obama, for that matter, must presumably be irrational.

That position we believe, with all due respect to our opponents,   is not sustainable and is not valid.

In conclusion if marriage is to be redefined in this state, it is the people who should make that decision."