EDGE New York City

A lawyer for a Columbia University professor accused of incestuous sexual relationships with his adult daughter has pointed to same-sex relationships in attempting to argue that sex between closely-related consenting adults should not be criminalized.

The "gay marriage" defense of Columbia University’s David Epstein, who allegedly had sex with his grown, 24-year-old daughter over a three-year period, seems tailor-made to fulfill the predictions of anti-gay conservatives who assert that allowing same-sex couples marriage rights would unleash a flurry of challenges to laws and mores regarding sexuality, encouraging practitioners and legitimizing defenders of everything from pedophilia and bestiality to incest.

"It’s OK for homosexuals to do whatever they want in their own home," argued Epstein’s lawyer, Matthew Galluzzo, in a remark made to ABC News, the Huffington Post reported on Dec. 15. "How is this so different? We have to figure out why some behavior is tolerated and some is not."

Galluzzo added, in a comment made to the Huffington Post, "What goes on between consenting adults in private should not be legislated. That is not the proper domain of our law." Galluzzo referred to Lawrence v. Texas, the 2003 Supreme Court case that decriminalized gay sex, in making his argument, the Huffington Post article said.

That report prompted a buzz on both sides of the gay family parity issue.

"I wonder where and how societal norms are created and enforced when there is no ’true north’ by which to navigate?" a Dec. 15 posting at Beliefnet read. "I am also interested in Galluzzo’s distinction between being ’academically morally opposed’ to incest and noting that ’an argument can be made’ for it? Does this mean that legal arguments do/should always trump morality?"

A Dec. 16 posting at Above The Law read, "I’m not going to totally slam Galluzzo. When your client is accused of being a dirty pervert, you’ve got to go with whatever argument you think has legs. I think he could have made the argument without making a stupid reference to homosexuality. But whatever, playing on people’s not-so-hidden homophobia is just another way to make his client look reasonable.

"Of course, incest is not reasonable," the posting added. "The fact that so many people want to make it into something that sounds reasonable says a lot more about the sick fantasies of these guys and their subtle hatred of gays than it does about the legal justifications for incest.

"Incest is EASILY distinguishable from gay sex under Lawrence. It’s right in the holding if you actually read the freaking case," the posting went on, before posting the quote: "This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle."

The posting went on to say that incest automatically involved some degree of coercion, presumably on the part of the parent and directed at the child.

A Dec. 14 posting at Slate.com made the same observations. In a thoroughly reasoned article, author William Saletan reported on why incest is illegal (because of the risk of reinforcing genetic flaws and producing mentally or physically impaired offspring), and addressed the conservative view of family, which tends to view "all sexual deviance-homosexuality, polyamory, adultery, bestiality, incest-" as a violation of "the natural order." Explained Saletan, "Kids need clear roles and relationships. Without this, they get disoriented. Mess with the family, and you mess up the kids."

Saletan also addressed the liberal view of such matters, writing that liberals "fear that a movement to preserve the ’family unit’ would roll back equal rights for homosexuals. But that doesn’t follow. Morally, the family-structure argument captures our central intuition about incest: It confuses relationships. Constitutionally, this argument provides a rational basis for laws against incest. But it doesn’t provide a rational basis for laws against homosexuality. In fact, it supports the case for same-sex marriage."

Saletan noted that because homosexuality is innate, denying gay men the opportunity to create legally acknowledged families for themselves would not actually encourage gays "to form a happy, faithful heterosexual family. The best way to help them form a stable family is to encourage them to marry each other." On the other hand, "Incest spectacularly flunks this test," Saletan argued, saying that incest occurs within a family that has already been established.

"Homosexuality is an orientation," added Saletan. "Incest isn’t. If the law bans gay sex, a lesbian can’t have a sex life. But if you’re hot for your sister, and the law says you can’t sleep with her, you have billions of other options."

A Dec. 16 posting at the Village Voice put the same observation into different words. "We all have issues about sex, of course, especially we Americans," wrote Jen Doll. "But why are we so viscerally anti-incest? Aside from getting over the initial yuck (and it’s a big yuck to get over), sociologists say it relates to the internal power relationships in families--it’s the same reason a professor shouldn’t have an affair with a student, except a million times amplified."

Doll went on to write, "A link between incest and homosexuality is tenuous, but Galluzzo is grasping at the straw of sexual privacy to connect them."

For the anti-gay right, a putative connection between incest and marriage equality is not at all tenuous, but virtually an article of faith. Foes of same-sex marriage, who view sexual orientation as a matter of choice and conduct, have long insisted that to grant gays family equality would be to open floodgates for an array of sexual behaviors.

"The problem really comes into, if you start changing the definition of one thing, you can’t just open that door just a little bit," conservative host Glenn Beck told a caller to his show on May 12, 2009. "Let’s say you’re for gay marriage--okay, great, put it in there. Now you’re just defining it that wide. You’ve opened the door. It doesn’t make any sense to not open the door all the way for anybody that wants to define it between any consenting adult."

Last spring, in an interview with a student publication at the The College of New Jersey in Ewing, NJ, Mike Huckabee compared same-sex marriage to incest, as well as to polyamory and drug use, the Associated Press reported on April 14. Huckabee opined that some groups should be denied legal permission to live as they saw fit, telling the interviewer, "That would be like saying, well there’s there are a lot of people who like to use drugs so let’s go ahead and accommodate those who want to use drugs. There are some people who believe in incest, so we should accommodate them. There are people who believe in polygamy, should we accommodate them?"

Added Huckabee, "I don’t have to prove that marriage is a man and a woman in a relationship for life," he said. "They have to prove that two men can have an equally definable relationship called marriage, and somehow that that can mean the same thing."

Galluzzo himself weighed in at the readers’ comments section of the Huffington Post article in order to "clarify" his argument. "I did not say that homosexual­ity was the moral equivalent of incest, nor would I," wrote the attorney. "I also did not say that I condone incestuous conduct, nor would I. I do question, however, whether the government has the right to interfere with the private sexual conduct of consenting adults in light of Texas v. Lawrence.

"Many of you may not realize this, but until recently, homosexual­ity was technicall­y illegal in Texas," Galluzzo noted. "It was not until 2003 that the Supreme Court declared Texas’ anti-sodom­y law to be unconstitu­tional. The Court reasoned, essentiall­y, that there was a right to privacy in the Constituti­on that permitted consensual homosexual conduct between adults.

"In his dissent, Justice Scalia openly questioned whether the government would still have the power to outlaw consensual adult incest as a result of this decision," the lawyer observed. "Many people still strongly disapprove of homosexual conduct, but that is (properly) no longer a basis for denying them this right.

"Whether or not an incestuous relationsh­ip can ever be consensual is a valid debate," Galluzzo went on. "But like I said, if we assume for a moment that an incestuous relationship is in fact consensual, should there be an arrest, and why?"