MANHATTAN (CN) - New York lawmakers may need to revisit an incest law that permits the marriage of a Vietnamese woman and her half-uncle, three justices with the state's high court noted.
Vietnamese citizen Huyen Nguyen became a conditional permanent resident when she married Vu Truong, her U.S. citizen and half-uncle, 14 years ago in August 2000.
U.S. Customs and Immigration Service learned that Nguyen was both Truong's bride and half-niece only after Nguyen tried to remove the conditions on her residency two years later.
Fighting to remain in the United States, Nguyen appealed the agency's denial to the 2nd Circuit, which punted the matter to the New York Court of Appeals to clarify the state's laws on the matter.
With one member of the seven-judge court abstaining, the court issued two concurring opinions Tuesday that keep Nguyen and Truong's marriage intact.
The first opinion, by Judge Robert Smith, noted that New York's Domestic Relations Law voids a marriage between "a brother and sister either of the whole or the half blood," but another clause prohibiting pairings between "an uncle and niece or aunt and nephew" does not contain the "half-blood" language.
Smith said the authors of the statute likely "gave no particular thought to the half-uncle/half-niece question, since if they had they could easily have clarified it either way."
This may be because "parent-child and brother-sister marriages grounded in the almost universal horror with which such marriages are viewed - a horror perhaps attributable to the destructive effect on normal family life that would follow if people viewed their parents, children, brothers and sisters as potential sexual partners," the seven-page opinion states.
Such relationships are "so incestuous in degree as to have been regarded with abhorrence since time immemorial," it continues.
Taboos against uncle and niece marriages are a more recent phenomenon, Smith added.
"Indeed, until 1893 marriages between uncle and niece or aunt and nephew, of the whole or half blood, were lawful in New York," the opinion states.
Smith noted that this change fell around the same time of the rise of the modern science of genetics in the late 19th century.
"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.
Judges Jonathan Lippman and Jenny Rivera joined this opinion.
Judge Victoria Graffeo countered that her colleagues had "not been presented with scientific evidence" supporting the comparison of a marriage between half-uncle and half-niece to the risk in a marriage of first cousins.
"From a public policy perspective, there may be other important concerns," Graffeo wrote. "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."
Judges Susan Phillips Read and Eugene Pigott joined this concurring decision.
They urged the New York Legislature to take the matter up where they left off.
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