New York court redefines marriage to include incest

by Mary Reichard
Posted 11/04/14, 10:18 am

It’s breathtaking how quickly the meaning of marriage has come undone since the U.S. Supreme Court struck down the Defense of Marriage Act last year. Last week in New York, the state’s highest court legalized a degree of incest in a case involving a woman married to her mother’s half-brother.

Judge Robert Smith wrote a unanimous opinion setting aside clear law in the matter of a Vietnamese woman who became a conditional permanent resident of the United States by marrying her half-uncle. The couple wanted to get her permanent resident’s status a few years later, but the government said her marriage was invalid because it violated state incest laws. Then an immigration judge issued an order of removal to the Department of Homeland Security to deport her. 

The law, in effect since 1893, defines incest as between an ancestor and a descendant, a brother and sister of whole- or half-blood, an uncle and niece, or an aunt and nephew.

Their lawyer argued genetics: The level of blood relation between a half-uncle and a niece is the same as first cousins, one-eighth of the same DNA. New York allows first cousins to marry, so the risk of genetic defect isn’t any greater than in that kind of union. Besides that, the law didn’t say half-uncle. It said uncle.

Smith didn’t think people find as abhorrent uncles and nieces getting together as fathers and daughters or brothers and sisters.

Another judge on the court, Victoria Graffeo, tried to parse this particular couple’s issue from other situations. She thought there might be cultural implications in changing the rules, worrying that the whole point is to protect the young from sexual exploitation by older people in their families. That worry wasn’t present in this particular situation, but removing barriers to incest can be used in the next case, setting up a domino effect, as has happened with the gay-marriage issue.

Mary Reichard

Mary is co-host, legal affairs correspondent, and dialogue editor for WORLD Radio. She is also co-host of the Legal Docket podcast. Mary is a graduate of World Journalism Institute and St. Louis University School of Law. She resides with her husband near Springfield, Mo.

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