(YBH) – David Epstein’s lawyer Matthew Galluzzo responded to YBH! publisher John Romano’s article “HuffPo Blogger’s Lawyer Compares Incest to Homosexuality”. Below are Mr. Galluzzo’s unedited comments:
Hello John, this is Matthew Galluzzo. I am disappointed that you wrote this piece without speaking to me first, as I would have been happy to discuss these issues with you or clarify my arguments for you. In my opinion, you have grossly misconstrued my arguments, and I write now to set the record straight.
First, I take issue with your observation that it is “odd” that the Huffington Post has not condemned Prof. Esptein; he has not been condemned by the Huffington Post because he denies the allegations against him and he is innocent until proven guilty. I have never conceded his guilt of these allegations; I have argued that the prosecutor’s own accusations suggest that if anything, his daughter ought to be charged as an accomplice, rather than considered by them to be a “victim”.
Second, I am a criminal defense attorney and not a religious leader or political activist, and accordingly, my argument is a legal one, not a moral or political one. I have never argued that homosexuality is the moral equivalent of incest, nor would I. I have never argued that the two are somehow similar biologically, psychologically, or ethically. (For the record, I am not a homophobe; in fact, I fully support the gay marriage cause and could really care less what consenting adults do in private. I have also represented a number of clients from the LGBT community to the best of my ability and each of them would tell you that I was a passionate advocate for their rights). For you to accuse me of suggesting that homosexuality is a mental illness is completely unjustified and baseless.
The comparison between the two is purely a legal one, and the legal argument that I am making is not a novel one – in fact, no less a legal scholar than Justice Scalia has already made it. I suggest that you read his dissent in Lawrence v. Texas, but I will summarize the case for you:
Perhaps you didn’t realize it, but up until 2003, homosexual sodomy was still illegal in Texas and a few other states. Mr. Lawrence was arrested in Texas after being caught in the act by police officers in his own home, and was convicted of a crime as a result! He challenged the constitutionality of the state ban on sodomy, and initially lost because the Supreme Court had previously upheld the constitutionality of a similar state-level ban on sodomy in Bowers v. Hardwick in 1986.
However, in 2003, the Supreme Court overturned its own recent decision in Bowers v. Hardwick and declared that Mr. Lawrence had a constitutional right to engage in sodomy in the privacy of his own home, and that public opinion about the morality of such conduct was no longer a valid basis to deny him that liberty. In the dissenting opinion, Scalia countered that as a result of this logic, there is a very valid argument to be made that there is now a constitutional right to engage in acts of consensual adult incest. That is the argument that I am now making on behalf of my client, and i explained that to both ABC News and the Huffington Post.
If your counter-argument is that incest ought to be illegal because it is always coercive (and thus, the ban on it is necessary to advance a compelling state interest), then I ask you the following questions:
1) Should it be illegal for a 33 year old sister and a 34 year old brother to have sex with each other? Is that relationship really coercive? Or is it just gross to you? If it’s the latter, keep in mind that there a surprising number of people that think homosexual sex is gross or immoral or contrary to their religious values, and many of those people in the U.S. would like nothing more than to ban homosexual conduct or gay marriage for precisely those reasons. If you need evidence of this, see California’s Proposition 8, or the fact that the state of Texas was still attempting to uphold its anti-sodomy law in 2003.
2) Should all coercive sex result in an arrest? If so, the police would need to start arresting bosses for having sex with their secretaries, rich older men for having sex with younger less-wealthy people, and so on, and so on. Fortunately for them, there is nothing in the New York penal law that makes “coercive” sex illegal in the absence of force. Personally, and as a matter of policy, I do not think that it is wrong to say that an adult has to be responsible for the sexual decisions that they make. It is for that reason that I believe that is questionable for the prosecutor in this case to characterize the complainant as a “victim”. In fact, to suggest that a 23-year old woman is somehow incapable of making a consensual decision about sex, as you and they both do, is somewhat offensive to women, in my opinion. I concede that the idea of predators grooming their juvenile children is troubling. But I believe that the Penal Law is already equipped to deal with that problem (in the form of child endangerment laws). Also, the New York Penal Law does not call “fear of physical harm” “coercion”, it calls it “forcible compulsion”, and when someone has sex by forcible compulsion, it is called rape. So we don’t need anti-incest laws to prevent relatives from having sex as a result of a “fear of physical harm”. By the way, I have personally prosecuted people for rape by means of forcible compulsion, as I used to be a member of the Manhattan DA’s Sex Crimes Unit.
In sum, I want to be clear that I am not encouraging incest, or attempting to discourage the gay rights cause. My point is that the decision in Lawrence, if applied logically, has consequences, and one of those necessary logical consequences might be the legalization of adult incest. Liberty often does have consequences: the First Amendment gives scoundrels the right to say vile things, and we have to live with that. It is my sincere hope that American legislatures at the state and federal levels grant the LGBT community equal rights. But that is a decision that ought to be made democratically by the will of the people. (The Supreme Court’s Lawrence decision, by contrast, was a decision of the judiciary overriding the will of Texas). If the legislatures would just vote to give the LGBT community equal rights, then we wouldn’t have this logical inconsistency identified by Scalia in his dissent.
Matthew Galluzzo is a partner at the law firm of Galluzzo and Johnson LLP in New York.
John Romano’s note: I disagree with much of what Mr. Galluzzo puts forth above. To me it is a defense of the indefensible. However, I do applaud Mr. Galluzzo for taking the time to write to me and keeping the personal rhetoric and attacks to an absolute minimum. That is an increasingly rare thing on the internet these days.
Related posts:
- More on the lawyer who became a stripper to pay the bills, from an actual lawyer…
- Twitter User Who Threatened Zimmerman Judge Responds
- Romney jokes about Santorum, responds to Russia on ‘Tonight Show’
- David Limbaugh Column: Thank You, Ms. Rosen
Fair and objective news reporting, insightful and incisive opinion and analysis, and all of the hot stories and breaking news from the entertainment industry, the sports world, the financial markets, and the tech industry, delivered 24/7.No nonsense, no agenda, and no subscription required.YBH! article archive.
