Should Republicans go ahead and add Supreme Court Justices to head off Democrats

Avoiding the consequences of Lawrence v Texas

Jeff Jacoby:

"I believe severe punishment is required in this case," the judge said at Allen and Pat's sentencing in November 1997. "I think they have to be separated. It's the only way to prevent them from having intercourse in the future."

Allen and Pat were lovers, but a Wisconsin statute enacted in 1849 made their sexual relationship a felony. The law was sometimes used to nail predators who had molested children, but using it to prosecute consenting adults -- Allen was 45; Pat, 30 -- was virtually unheard of. That didn't deter Milwaukee County Judge David Hansher, however. Nor did the fact that the couple was genuinely in love and didn't understand why their relationship should be a crime. Allen and Pat didn't "have to be bright," the judge growled from the bench, to know that having sex with each other was wrong.

He threw the book at them: eight years for Allen, five for Pat, to be served in separate maximum-security prisons, 25 miles apart.

If this had happened to a gay couple, the case would have become a cause celebre. Hard time as punishment for a private, consensual, adult relationship? Activists would have been outraged. Editorial pages would have thundered. Politicians would have called for the prosecutor's and judge's heads.

But Allen and Patricia Muth are not gay. They were convicted of incest. Although they didn't meet until Patricia was 18 -- she had been raised from infancy in foster care -- they were brother and sister, children of the same biological parents. They were also strongly attracted to each other, emotionally and physically. And so, disregarding the taboo against incest, they became a couple and had four children.

The case is on appeal arguing that the Lawrence decision should apply.