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      Get Smart on the Web   09/16/2016

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Does/Could Recent SCOTUS Ruling In US Have Affect On Cousin Marriage Laws?

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I haven't had the time to look into the actual details of the recent Supreme Court Of The United States ruling that made same-sex marriage legal in all 50 states, but the main taglines are "Marriage Equality", and that "everyone" is now "free to marry whom they want". Well, if that were truly the case, then it would also make it so all 50 states allow cousin marriages, not just half of them (or allow the stipulations in the ones that have those).

Does anyone have more knowledge of the recent ruling and perhaps the ability to speculate if it does / could have an affect on cousin marriage in states that currently (previously?) don't allow it? My instincts tell me that it has no affect whatsoever, but could be used as a precedent in court if anyone were to ever be willing to take-up the fight  =|

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I wrote a post on this forum the day of the ruling's release explaining my take on it. Essentially, you're right. It changes nothing where cousin marriage is concerned. In the event that a couple ends up in court defending their marriage (or a fight over inheritance), it may provide a stronger support for the marriage in that case but I don't expect to see it tested at the SCOTUS level.

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Hawk    29

The only thing I see changing is a possible increased reluctance on the part of a prosecutor to try first cousins on criminal incest charges. Seeing as how nearly half (and at times OVER, and once upon a time, I suppose ALL) of the States recognize/d the legitimacy of first cousin relationships, up to and including marriage, I do think this puts cousin couples in a better "sister States/reciprocity" position. Prosecutors like notches on their belts, not losses. If one were to try to prosecute first cousins on incest charges, in the not even handful of States where it is a criminal offense, and he sees the defendants are dead set serious on taking it to SCOTUS if need be, rather than have the law thrown out, I think they would drop charges. I know Illinois, and at least a couple other States have quietly stopped charging consenting adults of whatever relation with incest.

While this ruling DID seem to preclude close kin (not mentioning first cousins specifically, or even closer kin per say I don't think. I haven't read the dryness and blather I'm assuming it is...) with the "third party" language, I do think the reciprocity, historic precedent, and current scientific data arguments would be quiet a hurdle to overcome, given the right advocate... Of course, with this ruling, one could pretty much assume historic precedent would have absolutely NO weight whatsoever.

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In my view, the reluctance will come only if the couple, being first cousins, were legally married in another state, e.g., California, Colorado,  New Mexico, or New York.  A prosecutor would have a hard time convicting a "legally married" couple, even if their new home state's laws render such marriage "void from the beginning", as many do (e.g., Kansas, Nebraska, and South Dakota).  That would be especially true in a state like Texas where the marriage is not considered "void" if licensed and solemnized in another state but consummating that marriage remains a felony.  But even a Wisconsin prosecutor would be hard pressed to prosecute the couple.

However, if the couple is not married but stands accused of "criminal incest" in a state like Wisconsin, which both prohibits their marriage and makes a sexual relationship a felony offense, they'll fry because no one with deep enough pockets will be willing to see the case through.  A sibling couple in the Pacific-Northwest tried to unsuccessfully to use Lawrence v. Texas as a defense of their relationship.  As long as public opinion is strongly opposed to the relationship, courts will rule with the laws as written. Siblings are strongly opposed and, IMHO, ought to be, but cousin relationships generally find a cross between opposition and ambivalence... rarely anything one might call "support".  Once made aware of a case of cousins in a "prohibited" relationship, some prosecutors will take a more deliberate and measured approach; some will be like rabid hounds.

As for the history of state laws, most states had laws in place governing marriage very early on, though cousin marriage was generally not prohibited until after the Eugenics movement picked up steam. For example, the Territory of Nebraska published marriage laws in its revised statutes in 1866, which prohibited marriage between siblings, parents/children, grandparents/grandchildren, uncles/nieces, etc., but not between first cousins.  Nebraska became a state in 1867 and retained those laws, which it reiterated in its compiled statues published in 1891.  At some point between 1891 and 1909, the legislature inserted *first cousins when of the whole blood*.  Kansas, which entered the union in 1861, had no prior territorial statutes but was relatively quick to prohibit cousin marriage when it published its first General Statutes in 1868 (General Statutes of 1868, Chapter 61), probably from legislative action in 1867. California, which achieved statehood in 1850, has (so far as I know) never prohibited cousin marriage.

The states and their various counties have long maintained books of marriage licenses, frequently referenced by genealogists in their research.  The purpose of requiring marriage licenses was to ensure that couples who cohabited were "properly married in the eyes of God" and all children of the couple were "legitimate" under the law.  This greatly affected property inheritance and societal standing of the children, so the state claimed a compelling interest in marriage laws. It also served to prohibit (or provide evidence of) bigamy, another crime in which the state maintained a compelling interest.

Midwestern History lesson for the day complete  :grin:

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