Introduction
Angie Peang and Michael Lee were happily joined in matrimony in Colorado.1 But when they crossed the border into Utah, where they resided,2 their union transformed into one that was “incestuous and void”3—for the spouses were first cousins.4 While Colorado is one of nineteen jurisdictions that place no bar on marriage between first cousins, Utah is among the majority that prohibit or severely restrict such unions.5 Utah not only strips the Peang-Lee marriage of legal recognition, but should the couple engage in sexual intercourse in their home state, they may be charged with a third-degree felony, punishable by up to five years in prison and a $5,000 fine.6 Utah does offer an exception to its bar on marriage for first-cousin couples who reach a statutory age of sixty-five, or who are at least fifty-five and can prove one partner’s infertility to a district court’s satisfaction.7 However, for Peang and Lee, married many years before the age thresholds, these exceptions offered little comfort.8 Indeed, the couple launched a campaign petitioning the Utah legislature to legalize their love.9
The Peang-Lees are not alone in their effort.10 Since 1970, the unanimous recommendation of the National Conference of Commissioners on Uniform State Laws has been for states to strike restrictions on first-cousin marriage.11 The Model Penal Code incest statute excludes first cousins from the class of blood relatives between whom marriage, cohabitation, or sex ought to be criminalized.12 The National Society of Genetic Counselors advised in 2002 that first-cousin couples be treated no differently than other partners for purposes of reproductive genetic testing and counseling.13 Yet, none of this has sparked national change; instead, one state—Texas—codified a ban on first-cousin intercourse after these recommendations were made.14 Meanwhile, a national activist organization has emerged to destigmatize first-cousin marriage, provide couples with community, and lobby for statutory change.15
This Article will examine the constitutionality of these stubborn prohibitions on first-cousin marriage in light of the fundamental right to marry as articulated by the Supreme Court in a series of decisions over the last century.16 This Article will not rehash the discussion over the constitutionality of statutes governing intimacy between relatives writ large.17 Rather, it will focus on first cousins as a discrete subcategory in the regulation of marriage and sex between blood relatives that has until now been overlooked for independent analysis in legal scholarship, to the detriment of the equality and constitutional rights of cousin partners.18
Part I will introduce the history of first-cousin relationships and the national statutory landscape regarding first-cousin relations, to be referred to throughout as the “cousin bans.” Part II will outline the constitutional right to marry, how this right works in conjunction with the states’ significant role in regulating marriage, and the appropriate standard of judicial review applied to a right to marry challenge. Part III will analyze whether the leading policy justifications for the bans, namely the birth of biogenetically healthy children, protection of family harmony, and maintenance of social progress, overcome the constitutional test. Part IV will address two counterarguments: the first based on principles of federalism, the second rooted in the fear of the slippery slope. Finally, the Article will conclude the cousin bans are unconstitutional, discriminatory holdovers from a dark period in American history, and suggest first cousins’ right to marry be taken up as the next battle in the fight for family law equality.
I. Background
A. Historical Overview
1. Practice of First-Cousin Marriage
Though prohibitions against sexual relations and marriage between partners within some degree of consanguinity have always been part of developed societies,19 with a panoply of religious and legal traditions drawing differing boundary lines,20 first cousins are a unique class.21 Prohibitions on relations between those in the ascendant and descendant line—for instance, parents and children—have remained relatively stable since antiquity,22 yet first cousins have moved dynamically in and mostly out of the banned class of marriageable kin over the centuries.23 First-cousin marriage has been the most widely sanctioned and consistently practiced form of consanguineous marriage throughout history and into modernity, emphatically embraced across cultures, religions, and social strata.24
2. Global Consensus on First-Cousin Marriage
Across large swaths of the globe, first-cousin marriages remain permitted, prevalent, and preferential.25 These unions are legal without limitation in nearly every jurisdiction in the world.26 Western legislation of consanguineous intimacy relies heavily on the Old Testament’s Levitical decrees and tabulations by the Anglican Church, both of which sanction first-cousin marriage.27 In an illustration of the ancient sanction of first-cousin marriage, the Bible includes multiple divinely licensed examples of such relationships.28 First-cousin unions are favored by other traditions as well, and no major religion prohibits it absolutely.29
First-cousin marriage has been popularly practiced throughout eras and regions.30 Ancient Mesopotamia, Greece, and Rome permitted first cousins to marry.31 In Victorian England, approximately one out of every fifty marriages was between first cousins, with the proportion growing as one climbed the socioeconomic ladder.32 Albert Einstein and Charles Darwin both married their first cousins.33 The Rothschild banking family was so keen on the practice that a whopping seventy-eight percent of its Victorian-era marriages were between first or second cousins.34 In areas of Asia and Africa, first-cousin marriage currently accounts for twenty to over fifty percent of all marriages.35
The American consensus was once in favor of the practice as well. First-cousin marriage in the United States was commonplace, legal, and socially acceptable from the colonial period through the nineteenth century.36 The Southern legal tradition explicitly ratified first-cousin marriage.37 Any state that today prohibits first-cousin relations wholly permitted them within the last century and a half.38
3. Empirical Evidence Regarding First-Cousin Marriage
Absent precise data indicating what percentage of all marriages in the United States today occur between first cousins,39 the lowest estimate puts them at less than one percent.40 Others posit the unions are more frequent but underreported.41 Researchers have certainly ascertained these relationships continue to occur,42 and the national decline correlates only with the sudden emergence of the cousin bans in the decades immediately after the Civil War.43
B. Regulatory Landscape
1. The Cousin Bans
First cousins are currently limited or barred outright from either marrying, cohabitating, or having intercourse in thirty states.44 Six states provide exceptions to blanket prohibitions.45 In five of these jurisdictions, first cousins are permitted to marry if the partners meet a statutory age threshold, ranging from fifty to sixty-five years old, or present affirmation to the court of their infertility or sterility.46 The age restriction has been paired with a proof of sterility requirement in most instances.47 Maine allows first cousins to marry, provided the couple first presents certification of having received special genetic counseling.48
2. Regulation of Other Consanguineous Relationships
While marriage law and incest criminalization are distinct regulatory schemes—the former governing who may marry, the latter establishing who may legally engage in sexual intercourse—legislation of consanguineous relationships often operates cohesively across both systems.49 States will frequently use the language of “incest” in their marriage regulations, defining who may marry by reference to who may have sex.50 Consequently, all fifty states prohibit marriage between members of the nuclear family,51 and all states with incest statutes criminalize intercourse between parents and children.52 All but one do the same for siblings, with Ohio the sole outlier.53
The cousin bans depart from the general pattern that if a category of prohibited partners appears in one type of statutory scheme, it appears in the other.54 Consequently, the vast majority of states banning or limiting marriage or cohabitation between first cousins exclude them from their incest prohibitions.55 Only nine states currently prohibit sex between first cousins.56
These incongruities lead to striking results. Arizona prohibits and voids marriage between first cousins and considers sex between them incestuous.57 Yet, the state will retract its prohibition on marriage provided both partners are over the age of sixty-five, or are younger but can prove infertility.58 Presumably, at that time, sex between first cousins in Arizona ceases to be statutory incest. Meanwhile, Texas will not conduct a marriage between first cousins but does not void those conducted legally elsewhere; yet, the State does criminalize sexual intercourse between first cousins.59 As a result, legally married first cousins who engage in sexual intercourse in Texas face a maximum of ten years in prison, a $10,000 fine, and registration as sex offenders.60
C. Constitutional Implications
Two principles enjoy near-universal recognition. First, the state plays a central role in regulating marriage.61 Second, the Supreme Court has recognized a constitutional right to marry embodied in the Fourteenth Amendment.62 This Section will articulate the contours of the right to marry. It will then consider how this constitutional right exists beside the state’s recognized role in regulating marriage. Finally, it will discuss what level of scrutiny applies to state infringements upon the fundamental right to marry.
1. The Right to Marry
For over one hundred years, the Supreme Court has articulated some notion of the right to marry as basic and integral to individual liberty.63 Since 1923, the Court has listed marriage as a fundamental, unenumerated right protected by the Constitution’s “liberty” promise.64 Marriage was understood as essential to personal freedom and, therefore, resistant to unbridled state intrusion.65
2. Due Process or Equal Protection?
The Court has, however, been coy about where the constitutional cover for the right to marry arises.66 It has emphasized the fundamental quality of the right, clearly grounding it in the Due Process Clause of the Fourteenth Amendment.67 But it has also repeatedly infused its opinions with explicit concern for the identities of the persons who have had their exercise of the right infringed upon—an appeal to the Equal Protection Clause.68 This Section will show that in relying on both doctrines, the Court has indicated that the right to marry protects the right specifically as it is vested in individuals, making the right all the more resistant to state intrusion.
The fusion of due process and equal protection doctrines for marriage purposes began in Loving v. Virginia, the first case in which the Court struck down a state law as an infringement on a fundamental right to marry.69 Calling marriage a “vital personal right[],” and among “the ‘basic civil rights of man,’ fundamental to our very existence and survival,” the Court invalidated racial classification systems as an unconstitutional means of prohibiting marriage.70 Marriage was not merely a permitted activity a state could encroach upon with little justification, but a right expressly protected by the Constitution from a measure of state intrusion.71
Loving explicitly established that the Due Process Clause of the Fourteenth Amendment protects the right to marry and that, in the future, states would stand in direct opposition to the Constitution by enacting statutes that infringe upon marriage.72 In Boddie v. Connecticut, the Court held a law barring indigents’ access to divorce courts based only on their inability to pay to be a denial of due process.73 The fundamental nature of the marriage relationship itself74 was key to the Court’s reasoning.75 The payment requirement was an impediment, impassable for some, to a key right protected by due process and the state could not justify it.76 Yet, due process does not serve as an absolute bar to government regulation.77 In Califano v. Jobst,78 the Court held due process had not been violated because the challenged regulation had only a tenuous tie to marriage, with spousal choice implicated as a mere downstream effect of other regulatory objectives.79
Importantly, the classification scheme in Loving proscribing marriage based on the partners’ race triggered the Equal Protection Clause as well.80 While the racial discrimination itself would have independently called for heightened scrutiny under equal protection separate from the marriage issue,81 Loving did not recognize a highly specialized fundamental right to interracial marriage.82 Rather, it found suspect a classification scheme in the context of the right to marry and suggested that interracial marriage could not be constitutionally constrained because of the right to freely choose whom to marry.83
The Court would continue over decades to turn a particularly sharp eye to marriage regulations that isolated a particular group for uniquely impaired exercise of the right. In Zablocki v. Redhail, the Court invalidated a regulation forbidding marriage without prior court approval to noncustodial parents who were delinquent in their child support payments.84 State court approval would not be granted without showing the support obligation had been met and that the children were not then nor likely to become public charges.85 The Court applied an equal protection analysis even though “noncustodial parents” are not a canonically protected identity because an identity-based classification had been used to attack a fundamental right.86 Like in Loving, the Court did not find a unique, constitutionally-protected right to marry that was exclusive to this certain group, but insisted that the persecuted class, like all individuals, enjoys a right to marry.87 Repeatedly, the Court would act in defense of a class against state impairment of class members’ ability to exercise their marriage right, independent of whether the distinguishing personal characteristic used to define the class was itself traditionally protected.88
Justice Potter Stewart’s Zablocki concurrence criticized the majority exactly for this unusual approach to equal protection doctrine.89 Justice Stewart emphasized that the due process “liberty” promise normatively and sufficiently accomplished protection of fundamental rights, including the right to marry.90 Yet, by avoiding being wedded to a standard due process fundamental rights analysis, the Zablocki majority indicated the right to marry is ingrained in the individual and that personal identities could not easily serve as the basis for losing that right.91
This elision of due process and equal protection doctrines for right to marry purposes was taken to its furthest bounds in Obergefell v. Hodges.92 There, the majority resisted stating altogether in what way specifically it deployed either clause in finding same-sex couples had a constitutional right to marry.93 Instead, the Court wrote that the two doctrines are “connected in a profound way,” working dynamically together to identify and define fundamental rights as expressed by every individual’s unique character or identity.94 The Court coined the term “equal dignity” to describe this fusion of equal protection and due process in the marriage context.95
Kenji Yoshino96 credits the Obergefell Court with introducing an artistic approach to due process and equal protection, infusing the former with a concern that liberties be granted to subordinated groups, a matter historically relegated to the latter clause.97 Laurence Tribe98 emphasizes that, by intertwining the clauses, the Court expressly protected the identity of the individual exercising the right to marry.99 In this way, Obergefell continued the Court’s long project of establishing that any regulation utilizing an identity-based classification model in the marriage context tangles with both the Due Process and Equal Protection Clauses.100 Beginning in Loving, continuing in Zablocki, and pushing forward in Obergefell, the Court expressed that the right to marry inherently includes the freedom to follow one’s personal path in exercising it.101
3. Defining Marriage
The Supreme Court has never articulated the exact parameters of the right to marry, but its marriage jurisprudence offers guideposts for what the right includes.102 For many decades, the Court understood the importance of marriage as a functional vehicle for reproduction and the propagation of the traditional nuclear family.103 Pragmatically, marriage was the sole means for producing legitimate children and ensuring that engaging in intimate relations would not bar one from entry into heaven.104 Skinner v. Oklahoma directly linked the right to marry with a fundamental right to reproduce.105 In striking down mandated sterilization of individuals with allegedly heritable criminal traits, the Court described reproduction and marriage as co-dependent, both being fundamental to one’s existence.106
In Griswold v. Connecticut, the Court expanded the activities protected by their association with the right to marry to include marital intimacy, holding a state could not ban or abet the use of contraceptives by married couples.107 While still facially limited to marriage’s childbearing and child-rearing purposes,108 Griswold hinted at something more.109 The Court described marriage as a near-sacrosanct union of individuals.110 The value of marriage was expressly understood not in light of its promotion of any political, commercial, or social cause, project, or system; rather, marriage itself was cherished and protected because it carries a “noble . . . purpose” and offers those involved “a harmony in living.”111
The Court eventually explicitly expanded the right to marry as containing more than a concern for human perpetuation and the intimate association reproduction requires.112 In Turner v. Safley, the Court invalidated a state regulatory scheme prohibiting inmates from marrying without express prior permission from the prison warden, expressly extending constitutional protection to the non-reproductive characteristics of marriage.113 The Court found that the right to marry includes within it an appreciation for marriage as a public manifestation of support and commitment, as an expression of spiritual and personal significance, and as a necessary precondition for many desirable government benefits.114 Notwithstanding the impossibility of procreation in a marriage, these aspects remained present in and were sufficient to sustain the fundamental right.115
Obergefell further detached the right to marry from procreation.116 Neither the ability nor the desire to procreate is requisite to having or exercising the right to marry.117 In Obergefell, marriage’s contours included an exercise of individual autonomy, an intimate expression of commitment between partners, and service as a bulwark to social order.118 These aspects of marriage applied to same-sex couples no less than they applied to heterosexual couples, and as such the former could not be barred from exercising their fundamental right.119
4. State Role in Marriage
All states impose limitations or restrictions on marriage to some extent,120 and the Supreme Court has recognized states’ particularly wide sphere of power in the marital scheme.121 Simultaneously, though, state power cannot be unlimited if marriage exists as a protected right.122 As early as 1877, in Meister v. Moore, the Court recognized this clash.123 In Meister, the Court held the state’s power would not be presumed to curtail traditional forms and methods of marriage because of the great importance of the right to the individual.124 Only clear, explicit, and precise statutory language indicating an intention to and method for circumscribing marriage might potentially overcome the right.125
The Obergefell majority went even further.126 The Court indicated the established state role may and should be leap-frogged entirely when the state’s legislative power has been abused to suffocate individuals’ access to this fundamental right.127 The Court construed its role as saving the right to marry from being subjected to the typical legislative process if that process itself had been used to illegitimately constrain the right.128 The Obergefell decision emphasized that the principal aim of the American political structure was to ensure no arm of government could deprive individuals of the rights the system was created to protect.129
5. Standard of Review
Typically, fundamental rights automatically trigger strict scrutiny.130 However, in marriage cases the Court has applied everything from rational basis review to more searching scrutiny.131 The Obergefell development of the equal dignity doctrine untethered the stricter scrutiny available in standard equal protection cases from a particular protected class and bound it to the right to marry itself.132 The right to marry itself imposes the heavier burden.133
Prior opinions had flirted with increasing the scrutiny stakes in marriage cases. In Turner, the Court engaged in a reasonableness discussion but hinted it was looking for something more than rational basis review.134 The Court insisted on a multi-prong test, requiring the state to present a “valid” connection between the interest and the regulation, that no alternative means be available for accomplishing that end, and that the regulation not be an “exaggerated response” to the state interest.135 The Court rejected the state’s position that prisoners’ right to marry could be impinged because of the valid penological interest in security where there were “obvious, easy alternatives” to obtain security without banning marriage.136 A harsher standard of review than typical rational basis review was imposed in light of the marriage right implicated.137 Similarly, Zablocki v. Redhail applied “critical examination” to the challenged law and demanded a legitimate, substantial state purpose be produced to support a law that “significantly discouraged” marriage, a fortiori one that placed an absolute bar on the right.138
Obergefell avoided announcing reliance on any one level of scrutiny, appearing instead to apply a malleable balancing test.139 Though the Obergefell standard of review is undeniably murky,140 the approach recalls that of Justice Stewart’s concurrence in Zablocki.141 There, Justice Stewart had asserted that where a state interest was based on an uncertain policy prediction of harms, it was insufficient to defeat a constitutionally-protected right.142 Obergefell appeared to utilize a similar calculus,143 but with the addition of putting a leaden finger on the scale in favor of the individual to intensify the pressure on the states.144
II. Analysis
The cousin bans violate the basic right to marry, which over a century of Supreme Court jurisprudence has been grounded in both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.145 This Section will demonstrate that by placing direct prohibitions or severe limitations on the liberty of a particular identity group to exercise this fundamental right, the bans trigger a heightened, stringent form of scrutiny.146 It will show that the states must prove the bans are closely tailored means toward accomplishing substantial or compelling interests.147 It will then review the leading justifications for the bans and demonstrate that none can vault this constitutional threshold.148
A. Triggering the Right to Marry
The cousin bans are classification schemes that intentionally circumscribe the individual’s freedom to choose who to marry based on a discrete characteristic,149 namely, the nature and degree of partners’ consanguinity.150 Identity-based regulatory mechanisms raise the Supreme Court’s suspicion of an unjustified impairment of marriage, and not only when the laws attack a canonically protected identity group, like race.151
Laws targeting particular groups for restricted exercise of the marriage right based on that group identity, regardless of the identity at issue, have been repeatedly invalidated.152 Consequently, indigence,153 incarceration,154 and noncustodial single parenthood155 are all identities for which the Court has intervened in the face of regulations that significantly restricted access to marriage based on those characteristics.156 Similarly, sexual orientation was not clearly categorized as a protected class in Obergefell;157 rather, a gender-based classification was struck down based on an “equal dignity” doctrine that all persons enjoy the constitutionally-protected autonomy to pursue a personally satisfying marriage.158
First cousinhood defines a specific, limited class of persons,159 a particular identity the states have weaponized160 for the sole purpose of invading the marriage right of those in the class.161 One might argue the cousin bans are not a true marriage-infringing classification scheme as they merely limit the right of cousins to marry each other, the states declaring off-limits only a narrow slice of the general population.162 However, the Supreme Court rejected this rationale in Loving and Obergefell: the state may not announce that one can marry everyone in the world except for the individual one wishes to wed.163 The class of first cousins may itself be limited, but the right to marry means very little if it excludes the partner of one’s choosing.164
The cousin bans directly and significantly interfere with the right to marry by either absolutely prohibiting or heavily restricting marriage between first cousins.165 Those that prohibit first-cousin marriage without exception—the majority approach166—are directly analogous to the Loving or Obergefell statutes: the state places an identity, be it race,167 gender,168 or cousinhood,169 as the insurmountable obstacle between persons seeking to marry.170
Meanwhile, the six jurisdictions that contrive exceptions to general bans based on age and infertility171 are reminiscent of the prior permission provisions the Court invalidated in Zablocki172 and Turner.173 In those cases, the circumscribed identities—persons delinquent in child support payments and inmates, respectively—were not by the statutes’ terms absolutely barred from marriage, but the statutes tied the classified identities’ access to marriage on obtaining dispensations from designated state officials.174 Yet, the Court held such requirements were far too invasive.175 Similarly, the cousin bans with age and infertility exceptions may peacock as permissive, but practically they function as coercive prohibitions, with only inflexible time or self-inflicted infertility releasing the partners from state invasion.176
The cousin bans with so-called exceptions may intrude even more substantially than the prior permission cases. The Zablocki and Turner statutes theoretically kept marriage within grasp of the couple, with the right immediately exercisable after obtaining state permission.177 The cousin bans offer no such quick-release valve: the exceptions merely subordinate the right to further characteristics of the partners—age, infertility—inalterable by a simple court order.178
Having found a direct imposition on marriage based on an identity-classification scheme, the cousin bans must be subjected to a heightened standard of review, which the Supreme Court applies in its reflexive protection against encroachments upon the right to marry.179 The state’s burden is particularly heavy given that the intrusion on the right is direct and intentional.180
B. Evaluating the State Interests
The questions emerge, then, whether the states can claim a sufficient interest in placing a direct bar on first cousins’ right to marry, and whether the bans are closely tailored to effectuate only those interests.181 This Section will discuss the three leading justifications182 presented for the cousin bans: (1) first cousins produce diseased, defective offspring; (2) in-marrying generates family chaos; and (3) endogamous marriage impedes the progress of an ordered civilization. Applying the necessary heightened scrutiny, the Section will weigh whether any of these interests succeed in raising a compelling interest to support the cousin bans, and find them all wanting.
1. Biogenetic Research Empirically Weighs Against the Cousin Bans
The most persistently produced justification for the cousin bans insists that close kinship between partners portends deleterious genetic consequences for their offspring.183 However, the Supreme Court has suggested that a weakly validated medical concern cannot support a statute impairing a fundamental marriage-related right.184 In Skinner v. Oklahoma, the Court invalidated a mandatory sterilization scheme for “habitual” criminals, as the state’s interest in avoiding inheritable criminality was too pseudo-scientific to support the intrusion into the right to reproduction,185 which is bound up with the right to marry.186 The state must produce sufficient grounds for believing the “definite and observable characteristics” of a disease are transmissible and likely to manifest in future generations to justify such a shocking infringement of a constitutionally-protected right.187 The Court found insufficient empirical evidence to support the regulation and chastised the state for playing with eugenics.188
The cousin bans do not clear this threshold, as they impair a fundamental marriage right despite empirical evidence not weighing conclusively against a widespread high risk of negative genetics-based results for the progeny of first cousins.189 Bio-evolutionary scientists have long established that consanguinity does not cause diathetic190 tendencies in offspring;191 rather, the inheritance of two identical mutations of the same gene causes disease, abnormality, or defect in offspring.192 The presence of the same heritable characteristic and recessive gene mutation in both parents causes heritable or genetic disease in children, not the degree of kinship between the parents.193
It has been argued the genetic children of consanguineous couples are more liable to receive the “double dose” of the mutated gene necessary for the defect to express itself,194 as partners of the same ancestral line are more likely to inherit an identical recessive genetic mutation from a common ancestor.195 However, a definitive 2002 report by the National Society of Genetic Counselors (NSGC) reviewing and consolidating the research of many consanguinity studies196 debunked the theory that first cousins as a class pose an appreciably greater risk of passing on the genetic defect to their offspring.197 The risk for congenital defects in the offspring of first cousins was approximately three percent above the population background risk.198 The stigma associated with cousin marriage in the United States was rejected as having “little biological basis.”199 Routine genetic counseling and testing for family planning purposes was recommended,200 with the solitary supplemental testing suggested being one neonatal screening for inherited metabolic disorders, which are relatively common among newborns.201 Data compiled in 2012 concurred with the NSGC study, showing a small minority of first-cousin offspring have a low, single-digit greater risk of certain defects than their non-consanguineous peers.202
The courts have adopted the view that the alleged health risks associated with reproduction between first cousins are insufficiently proven to support the bans.203 The Supreme Court of Kansas, in Estate of Loughmiller, recognized a first-cousin marriage legally solemnized in a foreign jurisdiction despite the state’s cousin ban.204 The court rejected the genetic science as simply too uncertain to justify a theory of detrimental inbreeding,205 and it refused to abrogate the normative comity rule of recognizing marriages conducted legally out of state.206 Similarly, the Court of Appeals of Louisiana in Ghassemi v. Ghassemi found the bans pursued no legitimate state concern for the creation of diseased children.207
2. Cousin Bans Do Not Forestall Family Chaos
A second justification for the cousin bans is avoidance of family chaos.208 Permitting marriage between close relatives would undermine a precious safety found only in the camaraderie of asexual family ties.209 Relations between near kin likely involve coercion, abuse,210 psychological trauma, and social stigmatization, for those in the relationship and their families.211
While this justification may have some weight for marriage between a parent and their child or between siblings, it is inapplicable to first cousins.212 The Loughmiller and Ghassemi courts vociferously dismissed the notion that sociological consequences of oversexualizing the family were relevant to first-cousin unions.213 Both courts cited their respective state legislatures’ glaring omissions of sexual intercourse between first cousins from their definitions of “incest” as particularly persuasive evidence that family harmony could not be the basis for the cousin ban.214 In State v. Couvillion, the Supreme Court of Louisiana relied on the fact that first cousins share a “remote relationship,” unlike nuclear relatives, in upholding a marriage despite a cousin ban.215 The Indiana Court of Appeals in Mason v. Mason similarly found no public policy had been articulated in support of that state’s cousin ban.216 The conclusions of the Kansas, Louisiana, and Indiana courts are supported by the research into the reasons why incest is harmful.217
The family harmony justification recalls the pre-Obergefell argument that the state may ban same-sex marriage based on its belief that the nuclear family unit is best served by heterosexual marriage.218 In Goodridge v. Department of Public Health, the Supreme Judicial Court of Massachusetts found even rational basis review unsatisfied by this argument.219 The Supreme Court in Obergefell took a dim view of the rationale, as well.220 Family stability is similarly unthreatened, and actually possibly promoted, by cousin marriage, as demonstrated in studies of communities where cousin marriage has been widely practiced.221
3. The Fabric of Society Is Not Threatened
The third justification proposes first-cousin marriage visits harm upon society at large.222 The theory claims that marriage between non-kin, or exogamy, promotes social cohesion by forcing intergroup alliances, increasing humanity’s ability to survive, while in-marriage, or endogamy, reinforces humans’ natural tribalism.223 A civilization’s success in refraining from indiscriminate intimacy with relatives purportedly signifies progressive human evolution beyond barbarism and savagery.224
The Chancery Court of New York in Wightman v. Wightman—decided in 1820, decades before cousin bans were introduced anywhere in the country—challenged the wisdom of this theory of consanguineous marriage.225 Relying on common law, natural law, and ecclesiastic law, the court concluded that while marriage within the nuclear family may be per se repugnant, marriage between further relatives, like cousins, could not be called de facto detrimental to society and could reasonably be left to personal determinations.226
Following the introduction of the cousin bans, courts have continued to recognize cousin marriage as innocuous.227 In Etheridge v. Shaddock, the Supreme Court of Arkansas, when validating a marriage despite the state’s cousin ban, announced it was adopting the majority view in finding cousin marriage to be an innocent form of consanguineous unions.228 Similarly, in Schofield v. Schofield, the Superior Court of Pennsylvania validated a cousin marriage legally celebrated elsewhere because it found no basis to consider such a marriage harmful and necessary to be voided.229 The long history of cousin marriage as practiced successfully across cultures and the socioeconomic gamut demonstrates the accuracy of the judiciary’s view that first-cousin marriage does not endanger social progress; in fact, it boasts stabilizing effects.230
This entire theory of cousin marriages as anathema to social progress carries a distinctly discriminatory mien.231 In Loving v. Virginia, the Supreme Court rejected anti-miscegenation regulation because of its basis in the white supremacist project.232 The cousin bans share that torrid history, arising in the same era as the anti-miscegenation regulations and in response to similar anti-minority sentiment.233 For instance, the alleged affinity Native Americans had for cousin marriage was cited by cousin ban agitators to advance their cause.234 Like the anti-miscegenation laws, the cousin bans persist under the guise of maintaining social progress, but function as a pretext for a machine of discrimination.235 The cousin bans restrict marriage based on an irrelevant characteristic, for reasons motivated by at best ignorance and at worst bigotry.236
C. The Bans Are Not Closely Tailored
The justifications undergirding the cousin bans are extremely weak on their merits,237 but even assuming they represent some legitimately valuable state interests, the cousin bans fail when scrutinized for whether they are closely tailored to meet only those purposes.238 The Supreme Court requires the state to justify the nature and scope of the means employed to regulate marriage, and demands tempered, logical responses to valid objectives with no alternative means.239
1. The Bans Go Too Far and Not Far Enough to Serve the Biogenetic Interest
Assuming, then, that the state may legitimately be intolerant of any increased risk of disease to potential offspring—even less than three percent240—the bans must prove to be measured, finely-honed tools toward eliminating that risk. They are not.241
First, the bans are overinclusive, as they cover the roughly ninety-three percent of cousin couples who will have children without any risk of defect.242 Second, they are underinclusive on two fronts: (1) they prohibit marriage, which may deter but surely does not prevent children from being born to first cousins,243 and (2) they tolerate unrestricted marriage, sex, cohabitation, and reproduction between persons who pose much higher risks to offspring than first cousins.244 To that latter point,245 no state prohibits marriage or criminalizes intercourse with women over thirty-five,246 between individuals with autosomal dominant disorders,247 and among members of certain ethnicities248—yet all those groups present risks of genetic disease in offspring substantially higher than first cousins.249 The bans function as clumsily as the statute invalidated in Turner, barring marriage by a class in an attempt to protect a legitimate social welfare interest, but empirically missing its mark by failing to target the issue that statistically poses the greatest risk.250
The Maine statute may be the narrowest in scope251 of the bans, demanding proof of attending mandatory genetic counseling as the prerequisite to marriage.252 Yet, this fails close tailoring, as well. First, to logically and effectively accomplish a genetics-focused goal, Maine must require that all marriage license applicants seek genetic counseling, not only first cousins.253 Second, Maine has impermissibly erected what amounts to an economic toll on the right to marry by forcing couples to pay for genetic counseling as a gateway to marriage,254 a mechanism the Supreme Court found in Zablocki v. Redhail and Boddie v. Connecticut to be an illegitimate barrier to accessing the right.255
Finally, the biogenetic justification wrongly suggests the right to marry is confined to its procreative function, a view the Supreme Court has expressly rejected.256 The right to marry includes matters of personal significance and fulfillment, independent of a desire or ability to procreate.257 Those elements of marriage—support, commitment, government benefits258—are desirable and achievable by first cousins as much as any other couple.259
2. Better Alternatives Already Exist for Protecting the Family
The interest in intra-family harmony cannot survive close tailoring, either. First, the state tolerates many activities which arguably pose a danger to family harmony, making the bans underinclusive.260 Second, the bans do not systematically protect against coercive relationships or child abuse, which are extensively regulated by setting statutory ages of consent for marriage and sex, and criminalizing child abuse and rape.261 These are extant mechanisms directly intended to ensure no one, blood relative or otherwise, leverages an intimate relationship for traumatic ends.262
3. Society Is Neither Served nor Controlled by the Bans
The bans do not truly advance the theory that effectuating social progress requires exogamy. Actual adherence to that rule would demand a bar on all intra-ethnic marriage, i.e., no partners of any shared cultural or racial backgrounds should be permitted to marry in the interest of preventing tribalism.263
Further, if the concern is to weaken intrafamily bonds in favor of interfamily mixing, first-cousin cohabitation must also be prohibited, yet it is largely permitted.264 That discrepancy—prohibiting marriage but allowing cohabitation—motivated the Board of Immigration Appeals in Matter of Hirabayashi to conclude the jurisdiction in question could not claim any powerful social good was being advanced by its marriage prohibition.265 In Ghassemi v. Ghassemi, the Louisiana court discussed at length what appeared to it as the complete ineffectiveness of the cousin bans at advancing any legitimate societal interest, given that cousins remained permitted to live together, have sex, and bear children.266
Finally, if social cohesion is the intended effect of the bans, the state has failed abysmally.267 The bans subject first-cousin couples to stigmatization for behavior that courts and most of the globe believe unworthy of opprobrium, harming rather than furthering societal unity.268
D. Counterargument
1. Federalism and Line-Drawing
The bans may yet be defended by relying on principles of federalism, which suggest marriage regulation normatively fluctuates between states.269 Just as we trust the states to legislate a permissible age for marriage, so too the acceptable level of kinship between partners.270
The Supreme Court in United States v. Windsor appeared to lend credence to this view by noting that states tolerate varying degrees of consanguinity, specifically remarking that a “handful” of states prohibit first-cousin marriage.271 However, Windsor likely referenced the cousin bans innocuously, merely as an example of regulatory realities, rather than to settle the constitutionality of the cousin bans.272 Even more critically, the Windsor holding indicated that federalism cannot be the controlling factor in deciding a marriage case.273 The Court’s focus is on whether the state has significantly impaired the right to marry, not on providing as much breathing room as possible for the state to act.274 Regulations are all the more suspect when they isolate a specific class for detrimental treatment.275
Importantly, state courts that have directly confronted the legal implications of the cousin bans have largely settled in favor of the couple, meaning that this particular legislative action is found wanting.276 When faced with conflict of laws issues arising from competing marriage regulations,277 courts usually validate first-cousin marriages solemnized in jurisdictions where such unions are legal.278 The courts have found greater value in showing interstate comity by recognizing marriages licensed abroad than in enforcing the cousin bans,279 given their weak justifications.280 Accordingly, in Leefeld v. Leefeld, the Supreme Court of Oregon remarked with exasperation that the only contribution of the state’s cousin ban was to make criminal an activity that is in essence harmless.281 Rather than demonstrating contempt for states’ traditional regulatory hand in marriage,282 dismantling the bans would pragmatically settle cross-border mayhem arising from the unnecessarily inconsistent approach to first cousins.283
2. The Slippery Slope
The fear of the slippery slope emerges as a reflexive rejoinder to challenges of a marriage-related statutory scheme.284 It insists that the moral imperative to avoid marching down a “parade of horribles” requires we arm the barricades much earlier285—for instance, at first cousins. Yet, the majority decisions in Lawrence286 and Obergefell287 suggest that changeable social mores are not viable justifications for discriminatory behavior in the context of a fundamental right.288 After all, if moral norms were a sufficient basis upon which to infringe on marriage, anti-miscegenation laws might still be part of statutory schemes.289 A slippery slope constructed of bare social disgust cannot support the abrogation of a fundamental right.290
Additionally, first-cousin marriage cannot seriously be said to wait at the bottom of the slippery slope of cascading immorality when the practice already enjoys near-universal legality and acceptance.291 Though international custom by no means binds our jurisprudence, the Supreme Court has indicated global consensus is a relevant factor in evaluating the constitutionality of marriage regulation.292 National accord with the international consensus in the not-too-distant past further strongly indicates first-cousin marriage does not wait at the bottom of the slippery slope.293
Conclusion
States enjoy broad authority in regulating marriage.294 However, that power runs concurrently with a fundamental right to marry based in the Fourteenth Amendment, which imposes on states a heavy burden in justifying infringements upon the freedom to marry the partner of one’s choice.295 The cousin bans create a classification scheme targeting a particular group for special impairment to their exercise of this essential right because of an identity characteristic.296 Such proscriptions raise the utmost suspicion of the Court, and the states must show the characteristic itself presents a strong reason for the discriminatory treatment.297
The interests the state can claim for banning cousin marriage prove to be insufficient for the task.298 The biogenetic concern wrongly confines the marriage right solely to its procreative function,299 while empirical research demands first cousins ought to be treated like any other couple for family planning purposes.300 The nuclear family’s asexual safety net remains intact,301 and society as a whole does not regress as a result of first-cousin marriage.302
Under the microscope of the high degree of scrutiny applied in marriage cases, the bans emerge as unjustifiable denials to an arbitrary class from exercising first cousins’ right to marry. Overturning the cousin bans is constitutionally required and would have positive consequences for this nation’s first-cousin couples and their families.303 It is time the nation returns to its roots, corrects a lingering discriminatory misstep of the post-Civil War era,304 and strikes down these perverse prohibitions.