State criminal laws against incest can also effectively prohibit marriages between cousins. For this reason, it may be a good idea to seek advice from a local family law lawyer about whether it is legal to marry your cousin where you live. You may be surprised to learn that most Western European countries have no restrictions on marriages between first cousins. While marriages of first-degree cousins were once favored by the upper class in the United States, such alliances declined sharply from the mid to late 19th century, perhaps because advances in transportation and communications offered the bride and groom better access to more marriage prospects. Ohio first cousins can`t marry, but they can legally have sex and live together. First cousins who have been abducted once are also not allowed to marry. For more than a hundred years, the Supreme Court has articulated the idea that the right to marry is a fundamental and integral part of individual liberty.63 For a detailed discussion of Supreme Court jurisprudence on the right to marry, see Lynn D. Wardle, Loving v. Virginia and the Constitutional Right to Marry, 1790-1990, 41 How. L.J.
289 (1998). Since 1923, the Court has enshrined marriage as a fundamental, unenumerated right, protected by the Constitution`s „promise of liberty“.64 Meyer v. Nebraska, 262 U.S. 390, 399 (1923) („Undoubtedly, [freedom] means not only the freedom not to be subjected to physical slavery, but also the right of the individual. to marry, start a home and raise children. »); see also Metteer, op. cit. cit., note 18, p. 265.
Marriage was considered essential to personal freedom and thus resisted unbridled state interference.65 Davis, 424 U.S. 693, 713 (1976) („[M]atters relating to marriage, prozeuging, contraception, family relations, and child-rearing. [are] areas where it has been established that the power of States to regulate conduct in substance is limited. »); see also section I.C.5. Once a direct imposition of marriage has been established on the basis of an identity classification system, prohibitions on cousins must be subject to a heightened standard of review applied by the Supreme Court in its instinctive protection against interference with the right to marry.179 see also Wardle, op. cit. cit., note 63, p. 335 (the Supreme Court very rarely finds that it abrogates state marriage rules, but where it does, it has protected „the gross deprivation of matrimonial rights of members of extremely vulnerable, severely disadvantaged and politically powerless groups“). The burden on the State is particularly heavy because the interference with rights is direct and intentional.180See section I.C.5 above. Recall that the problem in Califano was the requirement that marriage be directly influenced enough to increase the level of control. See footnote 79 and accompanying text. Cousin prohibitions clearly meet this criterion.
The most persistent justification for banning cousins is that a close relationship between partners has adverse genetic consequences for their offspring.183See generally Bratt, op. cit. Cit. note 17, pp. 267-81 (discussion of genetic justification in relation to incest laws). This horrified reaction to cousins` marriage as genetically dangerous was noted by Gabriel Garcia Marquez: „They were cousins. When they expressed their wish to marry, their own parents tried to prevent it. They feared that these two healthy products of two breeds that had crossed over the centuries would suffer the shame of breeding iguanas. Gabriel Garcia Marquez, One Hundred Years of Solitude 20 (Gregory Rabassa trans., Editorial Sudamericanos 1967).
The cousin bans rely even more on biogenetic concern than on regulations on incest in general, since the bans only emerged when bioevolutionary scientists were seriously questioning whether inbreeding was related to children`s outcomes. Ottenheimer, op. cit. Cit. note 19, pp. 1-7, 46-55 (although the prohibitions are partly due to the emphasis on ideal reproduction and superiority through biology, suggesting that incest laws that emerged before genetic scientific progress cannot be justified by contemporary biogenetic understanding); cf. McDonnell, op. cit. O., note 17, p. 352 (argument of the „problems“ of genetic justification).
However, the Supreme Court has emphasized that a poorly validated medical concern cannot support a law that infringes on a fundamental right related to marriage.184See Skinner v. Oklahoma, 316 U.S. 535, 541–42 (1942) („Marriage and procreation are fundamental. To sterilize [state] power. can have subtle, profound and devastating effects. Every experiment conducted by the state causes irreparable damage. [A] is forever deprived of a fundamental freedom. »). But see Cornelia Dean, When Questions of Science Come to a Courtroom, Truth Has Many Faces, N.Y. Times (December 5, 2006), www.nytimes.com/ 2006/ 12/ 05/ science/ 05law.html [perma.cc/ KK9M-SQYH] (discussion of the merits and pitfalls of court use of science to decide cases).
In Skinner v. In Oklahoma, the court struck down a mandatory sterilization system for „habitual“ criminals because the state`s interest in preventing hereditary crimes was too pseudoscientific to support interference with reproductive rights,185 Skinner, 316 U.S.