New York Blesses 'Incest' Marriage

This post is from guest blogger Sandra Alcaide, Regent Law 2L and current Family Law student:

“New York State blesses ‘incest’ marriage between uncle, niece.”  That was the headline in a New York Post article by Julia Marsh on October 29th announcing to the world the unanimous decision of Nguyen v. Holder, No. 146, 2014 WL 5431014 (N.Y. Oct. 28, 2014) from New York’s State’s highest court on October 28, 2014, which held that marriage between a half-uncle and niece is not void as incestuous under New York’s Domestic Relations Law. The decision stemmed from Vietnamese citizen Huyen Nguyen’s appeal of a ruling by an immigration judge deeming the 14-year marriage to her half-uncle to be invalid.  You can read the entire article here at http://nypost.com/2014/10/29/new-york-state-blesses-incest-marriage-between-uncle-niece/.

The result is that New York has now legalized incestuous marriage. Why? Judge Robert Smith from the Court of Appeals wrote that though in common speech a half-blood relative would be called an uncle (or a brother or niece), New York case law hasn’t pointed to any clear conclusion that marriage between a half-uncle and niece is deemed void as incestuous. Section 5 of the Domestic Relations Law reads that marriage between a brother and sister, of either the whole or half blood, is prohibited. However, the provision prohibiting marriage between an uncle and niece or aunt and nephew does not include the words “of either whole or half blood,” suggesting the statute is ambiguous and allowing for some liberality in its interpretation.

Though Judge Smith conceded that he (clearly) is no geneticist and the briefs from the case did not contain scientific analysis, he made the “intuitively correct-seeming” conclusion that the risk of genetic disorders resulting from inbreeding between a half-uncle and half-niece is comparable to the “relatively small[] genetic risk” between first cousins – and an aversion of such a small risk is not the Legislature’s purpose behind the statute.

Whether or not one agrees with Judge Smith’s reasoning, there are serious consequences that can arise from this decision. Where is the line between who can and cannot marry drawn? Judge Smith stated that there is no strong objection to uncle-niece marriages (note, he did not state half-blood uncle-niece marriages, though the law strictly prohibits this). Is this true? It is hard to imagine that a majority of New Yorkers would find marriage between an uncle and a niece to be perfectly moral. I for one, born and bred in New York City, find it appalling that a judge has now legitimized incestuous marriage based on his liberal reading of what he deemed to be an “ambiguous statute.” It would be best to follow concurring Judge Graffeo’s sentiments and consider other public policy perspectives, such as the protection of the family hierarchy via the protection of young family members from exploitation.

If we continue to go down this slippery slope of extending marriage to all who simply desire to marry, pretty soon marriage will be nothing more than a “bond” between creatures (if that) that breathe. 


  1. First, this article ignores the fact that the judge was put in the position to deem invalid and essentially destroy a 14 year (committed loving?) marriage, between people of a culture which may have differing views on marriage. In that perspective he read a statute liberally to save a marriage which has stood the test of time. As a policy reason why shouldn't a judge read statutes liberally in order to save a marriage?

    Is it not the legislatures' job to define who and who cannot get married? If the people are appalled by this outcome, fix the statute!

    As a christian, this blog writer is appalled that a line was drawn for marriage that did not fit into her spiritual views on the institution of marriage. She would have it that the judge drawn the line where she thinks it should be... But why is that the case? It is not the case, anymore then the judge should draw the line where he sees fit. HE SHOULD'NT BE DRAWING LINES! He should be interpreting where the line was drawn, this is what he did here... he did it liberally. A line was not drawn, by the legislatures, for half-blood, the judge did not read one into the statute. If this is a bad outcome, the legislature should change the outcome and specify this more.

    If the people (not a judge) want to reduce marriage into a "bond" between any animal, what makes this improper? As christians we can bring christian thought into making good policy, but if the people do not want this standard to govern themselves, who are we to enforce it over the will of the people?

  2. While I do agree that courts should not be drawing lines regarding marriage institutions as such is the legislature's responsibility, it is well settled that judges may consider whether a marriage is so repugnant to the society that public policy discourages such marriage. I do not dispute that the judge might have had a good faith belief to construct the statute liberally to save a 14-year marriage. However, how do we know how the Vietnamese cultures sees the marriage that our culture considers as an incest? Where is the line drawn when judges decide to liberally construct a statute because no case law explicitly stated otherwise, especially in an effort to respect and recognize other cultural understandings.

  3. I agree with the author; this case sets very dangerous precedent. If the legislature was okay with this extraordinary conclusion that a person could marry her half-uncle, it should have specifically included it. Legislative acquiescence is hardly ever permitted to be solid ground for creative interpretation.

    More concerning is the trend towards the expansion of marriage. If "love" means that the boundaries and definition of marriage should be ever broadened so that any lovers may obtain marital benefits, where is the line drawn? Why should a person not marry his sister if they truly love each other? Or for that matter, why should a person not be allowed to marry an animal? In order for marriage to mean anything at all, it must have stringent standards beyond mere "love." The judge should have invalidated this marriage, and at that point, New York could have changed its statute if it truly meant to allow marriages of this kind.