Muth v. Frank

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Muth v. Frank, 412 F.3d 808 (7th Cir. 2005),[1] was a case in which the United States Court of Appeals for the Seventh Circuit held that the U.S. Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 (2003), striking down anti-homosexual sodomy laws as unconstitutional did not extend to the conclusion that laws against consensual adult incest were similarly unconstitutional. The case, docketed as #03-3984, was decided 22 June 2005.


The case originated in the case of Allen Muth and his younger sister Patricia Teernstra Muth, who claimed to be but were never legally married and had four children (this can be considered a case of genetic sexual attraction, as the two had been separated three months after Patty was born during the entire rest of their childhood). Their second child, Tiffany, was developmentally disabled, but she was not genetically disabled. They worked as over-the-road truckers, and often left her with babysitters after the trucking company Allen worked for prevented them from having the child on the truck. When they were a month late in returning to pick up the child from Allen's legal wife (who was babysitting), Allen's wife called child services and claimed they had abandoned her in the house of a baby-sitter. The abandonment led to the state of Wisconsin successfully seeking to have a court terminate their parental rights in respect to the child, on grounds of their incestuous parenthood as well as the child's condition and evidence that they had neglected her. After obeying the child services regulations to get their child back (including undergoing couples counseling) while receiving simultaneous orders to separate from the criminal court division which eventually prosecuted them for felony incest under an obscure statute from the mid-19th century, their parental rights were terminated. An examination of the court transcripts and social services records shows that the deputy district attorney prosecuting the case, Nancy Ettenheim, was outraged that the Muths had conceived children from their incestuous union, and that the "evidence" of neglect was largely slanted toward convincing the Judge to terminate their parental rights under any circumstance. The Muths tried to appeal, claiming that the "termination of their parental rights based on their incestuous parenthood denied them due process of law and their rights to equal protection of the law". The court denied these claims.

This case arose when in a subsequent trial, both were convicted of incest and sentenced to prison (8 yrs for Allen and 5 yrs for Patricia Muth), and an attempted appeal on similar grounds failed again. Finally, Allen Muth applied while imprisoned for a writ of habeas corpus in federal court on the grounds that the state anti-incest laws violated his constitutional rights and hence his imprisonment was illegal.

Grounds of dismissal[edit]

The grounds for dismissal, that Lawrence had dealt specifically with homosexual sodomy and not other consensual private sexual activity between adults, were considered "narrow and strained" by at least one newspaper, The Boston Globe [1]. As legal scholar Matthew Franck observed, the writer of the opinion, Judge Daniel Manion, must have been "desperate to avoid the plain consequences of the [Supreme] Court's recent precedents on sexual liberty."

The court ruled that Lawrence v. Texas was:

"a new substantive rule and is thus retroactive ... If it would be unconstitutional to punish a person for an act that cannot be subject to criminal penalties it is no less unconstitutional to keep a person in prison for committing the same act [...] The ultimate question then is not whether Lawrence is retroactive, but, rather, whether Muth is a beneficiary of the rule Lawrence announced. He is not. Lawrence did not address the constitutionality of incest statutes. Rather, the statute at issue in Lawrence was one proscribing homosexual sodomy..."

However a closer reading of the decision indicates that this was not the only factor. Muth and his sister were convicted under State law, and were convicted before the Federal courts ruled in Lawrence v. Texas. There are only specific circumstances where a federal court may overturn a State decision, and the other legal issue considered was therefore if a federal court could intervene to overturn a State ruling, based on a matter that was a crime at the time of conviction:

"AEDPA instructs a federal court reviewing a state conviction on habeas review to determine whether the decision of the last state court to adjudicate the merits of the petitioner’s claim was reasonably correct as of the time the decision was made. As discussed below, only in limited circumstances are legal developments occurring after the state court’s decision considered. Lawrence was decided after Muth’s conviction and the exhaustion of his state post-conviction remedies. Muth has not identified, and we have not found, a federal court decision (and certainly not a Supreme Court decision) prior to the Wisconsin Court of Appeals decision in Muth I that even discussed whether criminal penalties for incest might be unconstitutional."


  1. ^ Text of the court decision (PDF)

External links[edit]