Part I of my ConLaw exam involved a married couple, who realize they were fraternal twins separated at birth, decide to stay married, and livestream a sex act. Both Congress and Texas attempt to criminalize their actions. Try the question yourself, and then check the A+ answer.
Instructions: The year is 2017. You are an intern for a criminal defense attorney in Houston representing Bert and Ernie. They are facing felony charges in both state and federal court. Your supervisor has asked you to prepare a memorandum of no more than 1,000 words addressing five important constitutional questions presented in their cases.
Bert and Ernie, residents of Houston, have been in love for over a decade. Leading up to the Supreme Court’s decision in Obergefell v. Hodges, the couple launched an internet reality show to teach the people of Texas that gays and lesbians should be given the ability to marry. The show, which gained a sizeable following, was live-streamed twenty-four hours a day as Bert and Ernie went about their lives. After Obergefell was decided, the couple proudly streamed their wedding online, as millions celebrated along with them.
In 2017, Bert and Ernie submitted their DNA for testing. Both were adopted, and they wanted to learn more about their ancestry. The results were not what they expected: Bert and Ernie were fraternal twins, from the same mother and father. They soon learned that their parents abandoned Bert and Ernie when they were toddlers. Soon, parents in Dallas and San Antonio, respectively, adopted the brothers, keeping them apart. Bert and Ernie met by chance while attending college in Houston, and had no idea they were related. Indeed, they struck up their first conversation over the fact that they shared the same birthday.
The revelation that they were brothers was at first shocking to the couple, though after some reflection, they came to terms with the fact that they still loved each other, and wanted to stay together. Bert and Ernie had spent years trying to remove the taboo from same-sex relationships, and now sought to do the same for same-family relationships. They decided to continue live-streaming their show, demonstrating to the world that brothers could love each other. That evening, with an audience of millions, the two brothers kissed, and announced their commitment to stay together.
The program outraged millions across the country. Pundits on cable news and talk radio hosts called on the government to prohibit such morally repugnant conduct, and prevent Bert and Ernie from livestreaming obscene conduct. Government, at both the state and federal level, took swift action.
First, the House of Representatives and Senate promptly vote on, and approve a new bill, titled Scrutinizing Internet Broadcasts because Livestreamed Incest is Not Good, commonly known as SIBLING.
Section 1: Congress finds and declares all the following:
- that depictions of incestuous relationships are obscene, because they appeal to a prurient interest in sex, portray sexual conduct in a patently offensive way, and which, taken as a whole, lack any serious literary, artistic, political, or scientific value;
- that depictions of incestuous relationships among consenting adults increase the likelihood of incestuous relationships between adults and children, thus leading to a rise in sexual abuse of minors;
- and criminalizing the depiction of incestuous relationships will both promote traditional notions of morality and decrease sexual abuse among children.
Section 2: In this section, “incestuous video” means any photograph, motion-picture film, video or digital recording, or electronic image that depicts sexual intercourse between a person and his or her biological brother or sister;
Section 3: It shall be unlawful for any person to knowingly record an incestuous video.
The President promptly signed SIBLING into law.
The Governor of Texas convenes an emergency sessions of the Legislature, and proposes the enactment of a statute criminalizing incestuous relationship, titled Texans Reject Incestuous Couples because won’t somebody please think of the Kids, commonly known as TRICK.
Section 1: The Texas Legislature finds and declares all the followings:
- it is both appropriate and necessary for Texas to do what it can to defend the institution of traditional non-incestuous relationships;
- both moral disapproval of incest, and a moral conviction that non-incestuous relationships better comport with traditional morality;
- and criminalizing incestuous relationships will both promote traditional notions of morality and decrease sexual abuse among children.
Section 2: A person commits a felony if he engages in sexual intercourse with his or her biological brother or sister.
Both houses of the Texas legislature approve TRICK, and the Governor promptly signed it into law.
Bert and Ernie are incensed at these incest laws, which they claim Congress and Texas enacted to disapprove of their loving relationship. In an act of civil disobedience, the couple engage in sexual intercourse during their livestreamed program. They broke the internet. Millions of Americans called their members of Congress and the President, demanding they prosecute Bert and Ernie for flooding the internet with obscene materials. Likewise, Texans demanded the Attorney General prosecute the incestuous couple.
The next day, Bert and Ernie were arrested by the Texas Rangers, and charged in Harris County Criminal Court for violating TRICK. The following week, the United States Attorney for the Southern District of Texas secured an indictment for Bert and Ernie for violating SIBLING.
The criminal defense attorney you work for filed motions to dismiss the indictments in state and federal court, arguing that both SIBLING and TRICK are unconstitutional. She has asked you to prepare a memorandum of no more than 1,000 words addressing five questions affecting the case. In doing so, please prepare an objective analysis of the legal issues, rather than advocating for your clients’ cases.
- Assess the constitutionality of TRICK under the Due Process Clause of the Fourteenth Amendment.
- Assess the constitutionality of SIBLING under the Free Speech clause of the First Amendment.
- Assess the constitutionality of SIBLING under the Due Process Clause of the Fifth Amendment.
- Assess whether Congress has the authority under Article I to enact SIBLING.
- Discuss how the courts should consider Section 1 of both TRICK and SIBLING in assessing the constitutionality of these laws.