In Wisconsin, a brother and sister who were somehow married received jail sentences for incest (they also had three kids together and the authorities discovered the incest when investigating their home on child abuse charges). The sib-spouses challenged the Wisco law forbidding incest as unconstitutional based on Lawrence's broad holding that
The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.
Franck runs a simple test to show how Lawrence could easily apply to incest by substituting incest for homosexuality in the Lawrence holding:
The present case does not involve minors [involved in a sexual relationship]. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that [incestuous] persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to [an incestuous] lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.
Franck criticizes Judge David Mannion for his reasoning in upholding the Wisconsin statute and denying that incest is a fundamental right, even though Franck approves the result. But Franck has the argument completely backward. His column should PRAISE Mannion for avoiding the plain consequence that inexorably follows from adhering to the Lawrence court's logic while further emphasizing that the Supreme Court's slipshod ruling (remember, the Court struck down the anti-sodomy statute because it failed to pass the lowest level of judicial scrutiny, the rational basis test) required Mannion to perform complex jurisprudential gymnastics in order to avoid constitutionalizing incest.
As Franck notes,
. . . it seems plain that Judge Manion would rather someone other than himself commit such moral horrors in the name of the Constitution. Let the Supreme Court clean up its own messes, or make them even worse. That’s why the justices get the big bucks — for they have arrogated the power to break our civilization, or to preserve it.
Ultimately, the conclusion Franck reaches is sound but, just as he criticized Judge Mannion, Franck takes a strange route to get to his destination.