#196: The Man from H.A.L.F.-U.N.C.L.E.

196.1  Hey, did you hear the latest? The state of New York has legalized incest…woo hoo!

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196.2  Um…really?  No, of course not really. It’s just that in their unbridled rush to make everything sound as bad as possible, those who today pass for journalists often cross the line separating exaggeration from falsehood. This is why I haven’t watched watched broadcast news in 3 years…brush over newspaper stories with due skepticism…and turn to the internet when I need a good laugh.

196.3   Now to be precise, here’s what the court ruled: while marriages between uncles/aunts and their nieces/nephews are specifically prohibited by state law, half-relations such as half-uncle and half-niece are not the same thing, and since they are not addressed specifically, such marriages are not prohibited. In addition, the fact that a half-uncle/half-niece relationship is as genetically close as 1st cousins…and 1st cousins in New York State can marry…tended in the judges’ minds to lend common sense credence to their basic ruling, which was a simple interpretation of statuary intent.

196.4  And that all sounds fair enough. Mind you, that’s collateral relatives, not direct relatives. The relevant coefficient of relationship here is 1/8…you share 1/8 of your genes with your great grandparents and your great grandchildren…but marching them down the isle is still considered a no-no.

chart 703

196.5  Chart 703 marks you as X…and shows your simplest 1/8 relatives: 1st cousins (a), grand uncles/aunts/nephews/nieces (b), and half-uncles/aunts/nephews/nieces (c)…altho see today’s wicked ballsy.  And to play devil’s advocate for just a moment, one wonders why the lingering distinction between direct relations, those who passed genes on to you…and collateral relations, those who got genes from the same source as you did. As far as the genes are concerned, you share them with somebody or you don’t…and when we say “share genes”…we’re talking about copies of genes…not the literal genes themselves…it’s not like a blood transfusion, where blood that was at one time in somebody else’s body is now in yours. But that’s a philosophical debate for another day.

196.6   The ruling arose out of a case where the federal government wanted to deport a Vietnamese immigrant who claimed to be married to an American citizen. The federales’ argument was not, as it often is, that this was a marriage of convenience solely to gain residency…but that the marriage was prima facie invalid, since it was incestuous by New York state law. The couple have been married since 2000, and the groom was the half-brother of the bride’s mother.

chhart 704

196.7  Since matters of kinship are not that commonly deemed headline news, I thought it would be interesting to look at 3 different media reports. The original stories are in italics, my comments in red…and the first is from the New York Daily News, 10/28/2014, written by Glenn Blain…

196.8  New York’s highest court gave its blessings Tuesday to marriages that are all in the family. Not true…they blessed one specific, and I daresay seldom seen, matchup. To the extent that  this lead sentence implies ALL previously prohibited marriages are now kosher, it’s grossly misleading…but are you surprised?

Despite the ick factor, a union between a half-uncle and his half-niece is not incestuous under New York’s Domestic Relations Law, according to the unanimous Court of Appeals ruling. I’m not a lawyer, but I believe there are more serious considerations involved in crafting laws than whether certain behavior is thought by some people to be “icky.” Thus, had I been editor, I would have replaced “despite the ick factor” with “acknowledging that the so-called ick factor is irrelevant”…but that’s just me.

The court said a marriage in which the groom is the half-brother of the bride’s mother poses about the same genetic risk as marriages between first cousins. I’ll assume the ruling did actually say “about the same genetic risk”…had they left out the word “about,” I would have had no complaint.

“First cousins are allowed to marry in New York, and I conclude that it was not the Legislature’s purpose to avert the similar, relatively small genetic risk inherent in relationships like this one,” wrote Judge Robert Smith, a Republican. Yes, the genetic risk between 1/8 relatives is relatively small. That being said, you wonder if the New York Legislature was really that scientifically savvy…most aren’t. For example, of the 25 states that allow 1st cousin marriages, only North Carolina excludes double 1st cousins, recognizing they are as closely related as half-siblings, 1/4. 

The case involves a 19-year-old Huyen Nguyen of Vietnam, who married her 24-year-old half-uncle, Vu Truong, of Rochester, N.Y., in 2000. The bride’s grandmother — Nguyen Thi Ba — was also the groom’s mother. The groom, however, had a different father than the bride’s mother.

*** In 2007, an immigration judge ruled the marriage was bogus and ordered the bride deported. A federal appeals court, however, asked New York’s highest court to decide whether such marriages were, in fact, legal under state law. See comments below at ***

The Court of Appeals found that while marriages between uncles and nieces or aunts and nephews were expressly prohibited, there was no such prohibition on relations between half-blooded uncles and nieces, or half-blooded aunts and nephews. “Half-blooded” sounds like something out of Harry Potter, but that’s the wording used in the relevant law, and it’s a perfectly proper way to express it in English.

While the decision was unanimous, Judge Victoria Graffeo and two other judges suggested the state Legislature should revisit the issue. “Such relationships could implicate one of the purposes underlying incest laws, i.e., ‘maintaining the stability of the family hierarchy by protecting young family members from exploitation by older family members in positions of authority, and by reducing competition and jealous friction among family members,’ ” Graffeo wrote. Dear me…this concern is nothing more than modern-day psychobabble. Down thru human history, incest taboos have been based on religious beliefs, and civil laws followed suit. More recently, misunderstanding of genetic theory and the resulting overreaction has driven incest prohibitions…it is only very recently that “older family members exploiting younger family members” has become a social mantra.

And a goofy mantra it is…in this case the “uncle” and the “niece” are of the same generation, separated by only 5 years…indeed, an “uncle” can actually be younger than his “niece.” But further, except for establishing minimum ages, our laws have nothing to say about the relative ages of a bride and groom. And you’ve never heard of the young exploiting the old? Or people of the same age exploiting each other?

Then there’s this “reducing competition and jealous friction among family members.” So why isn’t there a law against marrying a woman who once dated your brother? As much as we’d like to have a world where everybody gets along, I  think you’ll agree that it’s well beyond the reach of the law to banish jealousy, envy, resentment, and, yes, wounded pride… within a family or otherwise. BTW,  this judge’s screed is lifted verbatim from Benton vs. The State of Georgia (1995)…doncha just love the internet? Used to be, you’d need a wall full of law books to ferret that out…not any more, nope.

Michael Marszalkowski, an attorney for the couple, hailed the decision and insisted Huyen’s marriage was not done for immigration purposes. “They have stayed together for 14 years and counting,” he said.  *** This is a very poorly written story…reading the paragraph I flagged above, I assumed the court action was indeed a marriage-for-residency issue…and I wondered what half-relations had to do with it? Turns out, the real issue was whether such a marriage legally qualified as a marriage in the first place, while the immigration implications were purely secondary.

Marszalkowski said the couple denied being related to each other but lower courts — based on evidence supplied by the groom’s sister — concluded they were. And one of the hallmarks of a poorly written news story is that it raises questions that it doesn’t answer…as here…did the couple really not know they were related or were they trying to hide the fact?  The groom’s sister spilling the beans fits in how exactly? She knew and her brother didn’t…because mom told her but not him? In terms of genealogy and kinship, this is the juicy part!

“This really was an all-or-nothing issue for them,” he said. “If this would have been denied, she would have been deported and sent back to Vietnam.”

About a half dozen other states, Marszalkowski said, allow such marriages. Did he mean half-uncle/half-niece marriages or 1st cousins marriages, because if he meant 1st cousins marriage he’s off by a factor of about 4. Or is the author of this story mixed up?

The Rev. Jason McGuire, executive director of conservative group New Yorkers for Constitutional Freedoms, saw danger signs in the court’s decision. “If government’s only interest in marriage is who loves each other, than what logical stopping point is there?” McGuire said. To answer the good Reverend’s question, there is no logical stopping point...none at all. Welcome to 2014. Then again, except in the case of marriage-for-residency, I don’t believe love has anything to do with the legal definition of marriage. One partner marries for sex, the other for money…you see that all the time. Or the love that once existed is gone but the marriage persists. Or you have “lavender widows,” women who marry closeted gays…there’s a real famous one in the US these days, in case you hadn’t noticed.

But precisely what the government’s interest in marriage should be is a fascinating question…it probably has something to do with the children that marriages traditionally produce…but beyond that…tax benefits, hospital visitations, inheritance, whatever…maybe everybody should be married, just to have a “buddy”…nez pah?           

196.9  Next, the New York Post’s take, 10/29/2014, written by Julia Marsh…

The state’s highest court has toppled a cultural taboo — legalizing a degree of incest, at least between an uncle and niece — in a unanimous ruling. Right from the get go you can tell the Post’s tone will be more hysterical than the peripatetic Daily News. And in their haste, they make their first  major factual mistake…marriage between uncle and niece was not legalized… thus no cultural taboo was toppled, and that’s mistake #2. In fact, nothing that was previously illegal was legalized…so that’s mistake #3…ambitious start, no?

While the laws against “parent-child and brother-sister marriages . . . are grounded in the almost universal horror with which such marriages are viewed . . . there is no comparably strong objection to uncle-niece marriages,” Tuesday’s ruling reads.

Judge Robert Smith of the Court of Appeals wrote that such unions were lawful in New York until 1893 and Rhode Island allows them. These 2 sentences make no sense…this case simply did not deal with an uncle-niece marriage. Again, one wonders who’s confused, the judges or the article’s author.

The decision stems from a case brought by Vietnamese citizen Huyen Nguyen, 34, a woman who had appealed a ruling by an immigration judge. The judge had tried to boot her from the United States after declaring that her 2000 marriage in Rochester to her mother’s half-brother was invalid. Nguyen and her husband, Vu Truong, 38, appealed and won. Fine…at last we switch from uncle/niece to half-uncle/half-niece…and it looks like the author of this article wasn’t really confused, just  taking the position that full and half collaterals were the same thing…when that was just what this case sought to clarity in the first place…that’s called begging the question, and is mistake #4…geesh…just out of junior high or what? Then again, maybe she wasn’t being willfully  opinionated….just confused after all…but at this point, who cares?…turn to the funnies…

“I’m very happy for my clients,” said their lawyer, Michael Marszalkowski. “They’ve been married 14 years now, but unfortunately, for half the time, there has been this concern over their heads about whether [the immigration issue] could be resolved. Thankfully, now it has been,” Marszalkowski said.

Marszalkowski said he won the case by zeroing in on the language of the state’s domestic-relations law. The statute reads that “a marriage is incestuous and void whether the relatives are legitimate or illegitimate between either: 1. An ancestor and a descendant; 2. A brother and sister of either the whole or half blood; 3. An uncle and niece or an aunt and nephew.”  What could it mean that “of either whole or half blood” is deemed a necessary addition when talking about brother/sister, but not when talking about uncle/niece? It’s clear cut to me: “a [sibling] of either whole or half blood” is another way of saying “siblings and half-siblings”…and that’s what the law means. Since it does not add “of either whole or half blood” to the part about uncles, it does not mean to include halfs, only wholes…otherwise, it would have done so, as it did with siblings…next case (no pun intended.)

Incest is a crime punishable by a $50 to $100 fine and up to six months in jail.

Marszalkowski determined that as a matter of consanguinity, or blood relations, half-uncles and nieces share the same level of genetic ties as first cousins — or only one-eighth the same DNA. Completely right…did his homework. “It really was the equivalent of cousins marrying, which has been allowed in New York state for well over 100 years,” Marszalkowski said.

Those on the six-person judicial panel acknowledged that they are not scientists, but noted that the “genetic risk in a half-uncle, half-niece relationship is half what it would be if the parties were related by the full blood.”  It’s just a common sense conclusion, owing to the fact that each of us has 2 parents.

Nguyen and her husband, a truck driver, still live in Rochester and do not have any children. She sued the US Attorney General Eric Holder, who enforces the country’s immigration laws. A spokesman from his office did not return a message. They never do…I think that’s part of  their job.

Family law expert Michael Stutman of the firm Mishcon de Reya, who is not involved in the case, said the ruling is in synch with today’s modern families. 

“As people are more mobile and living longer marriages are ending and people remarry and you get blended families with step children and half children,” Stutman reasoned. Wrong…such “blends” have always been common, but for different reasons…in olden days, it was because spouses tended to die younger, and it was considered proper that everyone be married, and every child have a father and a mother…fancy that.

“There are plenty of other societies that allow so-called intermarriage without worrying about genetic defects. And frankly we have a long history of cousins marrying each other, take FDR and Eleanor Roosevelt,” he said. The president and his wife were fifth cousins once removed.  This “expert” is a dummy…sure, he did get the Roosevelt relationship correct, but their degree of relationship is 1/4096…cousin-like genetic connections end around 1/128 or 3rd cousins, for whom over 99% of their genes are different…they are genetically only as cousin-like as 2 random people off the street.

196.10  Finally, Joel Stashenko in the New York Law Journal, 10/30/2014…

 New York’s Domestic Relations Law does not regard marriages between half-uncles and half-nieces as incest, the state Court of Appeals has determined. A hifalutin’ law journal? You’d be within your rights to expect a much more sober and level-headed approach than we’re seen so far…and based on this lead sentence, I’d say that’s just what you’re going to get.

Making a rare foray into human genetics, the court unanimously said that “half-blood” uncles and nieces—or half-aunts and half-nephews—may marry without violating the prohibitions in Domestic Relations Law §5(3) against marriages between parents and offspring, brothers and sisters and aunts/uncles and nephews/nieces.

The question arose in the form of a certified question from the U.S. Court of Appeals for the Second Circuit. It asked for clarification in Nguyen v. Holder, 146, whether a marriage in Rochester between a half-uncle and his half-niece qualified as incest under state law and, consequently, the marriage was void. Could hardly be more accurate and to the point…wow.

The federal government is involved because it sought to have the niece, Huyen Nguyen, removed to her native Vietnam after contending that her 2000 marriage to her half uncle, Vu Truong, was invalid and that Nguyen could not remain in the United States by dint of her marriage to Truong, a U.S. citizen.

The federal appeals court said it could not decide that question without a clarification of state law from the Court of Appeals (NYLJ, Feb. 24).

While all six of the Albany judges participating in Tuesday’s ruling said in a brief memorandum that state law does not regard marriages like the Truong-Nguyen union as incestuous, each of the judges joined in concurring opinions which elaborated on their views.

Judge Robert Smith wrote in one of them that §5(3) is “ambiguous.” He said the most likely explanation for the Legislature not including half-uncles and half-aunts in the statute’s prohibition against aunts/uncles marrying nephews/nieces is that they did not intend to extend the law’s restrictions that far, not that it was an unintentional oversight.”

Smith noted that “since time immemorial,” society has regarded parent-child and brother-sister marriages as abhorrent, but has not treated uncle-niece marriages with the same horror.

In fact, Smith noted, marriages between aunts/uncles and nephews/nieces, of full- or half-blood, were lawful in New York state until 1893.  At last…somebody understands that full relatives and half relatives are not the same thing. He theorized that enactment of the prohibition against uncles or aunts marrying their nieces or nephews may have been related to the development of the science of genetics in the late 1800s. 

At any rate, he said the genetic risks of a marriage between a half-uncle and half-niece would seem to be roughly equivalent to marriages between first cousins, which are legal in New York. “Would seem to be roughly equivalent” is needlessly fuzzy. Better is “are equivalent.”

“We are not geneticists, and the record and the briefs in this case do not contain any scientific analysis; but neither party disputes the intuitively correct-seeming conclusion that the genetic risk in a half-uncle, half-niece relationship is half what it would be if the parties were related by the full blood,” Smith wrote. “Indeed, both parties acknowledged at oral argument that the risk in a half-uncle/half-niece marriage is comparable to the risk in a marriage of first cousins.”  Now this last bit is interesting…so the bone of contention was not how closely half-uncles/nieces are related…it was instead what the law actually intended.

Chief Judge Jonathan Lippman and Judge Jenny Rivera joined in Smith’s concurrence.In a separate concurrence, Judge Victoria Graffeo said the legality of a half-uncle/half-niece marriage may be an issue for the Legislature to revisit. She wrote that there could be cultural implications in such marriages that are not present in the Truong-Nguyen union, namely protecting young family members from the possibility of being exploited by older family members in positions of authority.

“The issue of unequal stature in a family or cultural structure may not be implicated in this case but certainly could exist in other contexts, and a number of states have retained statutory prohibitions involving such marriages,” she wrote. “These considerations are more appropriately evaluated in the legislative process.” So even the psychobabble lady had the sense to admit that familial balance of power, the bee in her particular bonnet, simply wasn’t relevant in this case…while it could be in other cases…just couldn’t resist getting that in there, could she?

Judges Susan Phillips Read and Eugene Pigott Jr. joined in Graffeo’s concurrence.Judge Sheila Abdus-Salaam took no part in the case. Michael Marszalkowski of Buffalo represented Nguyen. Assistant Attorney General Michael Heyse argued for the U.S. Justice Department.

Nguyen was admitted as a conditional permanent resident of the United States in 2000 based on her marriage to Truong. He was 24 and she was 19 when they were married and they have lived together since.

The government took issue with their marital status in 2006, when the couple filed to remove her conditional resident classification and make her residency permanent based on her marriage to a U.S. citizen. Instead, the Department of Homeland Security sought and secured a removal order from U.S. Immigration Judge Philip Montante Jr. based on her allegedly incestuous and invalid marriage.The Board of Immigration Appeals affirmed Montante’s finding in January 2013.  Clean and concise, top to bottom…makes the Daily News and the Post look like raving maniacs…and ignoramuses to boot…but then wasn’t that the point of today’s exercise?

196.11  Next week, another round of everybody’s favorite indoor sport, Wack-a-Wiki…too much fun, sez me…

wicked ballsy

chart 705

The underlying question today is this: when a law allows 1st cousins to marry, does this imply that all kin who are related by 1/8, the degree to which 1st cousins are related, can also marry? The obvious answer is no: the universal prohibition of marriage between direct relatives…”ancestors and descendants” as New York state law puts it…rules out great grandparents and great grandchildren. Beyond that, grand uncles/nieces and half-uncles/nieces are the simplest collaterals that are at 1/8. But there are many others, 4 of which are illustrated in Chart 705.

Unilineal double 1st cousin once removed means the bride is the groom’s father’s double 1st cousin. Bilineal double 1st cousins once removed means the bride is the 1st cousin of both the groom’s father and mother. Here unilineal means the relationship is thru only one of the groom’s lines, in this case his father’s…bilineal means thru both the groom’s lines, his father’s and his mother’s.

Double-half 1st cousins means the bride is the child of the groom’s father’s half-sibling and mother’s half-sibling. And quadruple 2nd cousins means the bride is the child of the groom’s father’s double 1st cousin and mother’s double 1st cousin. Sure, it’s starting to get rather complicated, but the math doesn’t lie…it is what it is…or say math would say, it = it.

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Copyright © 2014 Mark John Astolfi, All Rights Reserved

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