Privacy is a basic human right. Yet, for 200-plus years, Americans have tolerated “morals laws” that told them who we could marry and what sexual positions they were allowed to enjoy.
You couldn’t marry outside your “race” in every state until 1967. Oral and anal sex were illegal until 2003. But morals laws are doomed. Courts are throwing the government out of our bedrooms.
Puritanism is dying hard. Some people still want the police to regulate our sex lives. In his dissent to the 2003 Supreme Court decision striking down anti-sodomy laws in Texas, right-wing Justice Antonin Scalia complained that the SCOTUS had undermined “the ancient proposition that a governing majority’s belief that certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation.”
The ancient stupid proposition.
Agonizing about an imminent “massive disruption of the current social order,” Scalia predicted 10 years ago that, after the government relinquishes its power to govern personal sexual behavior and accepts that what happens between consenting adults in Americans’ bedrooms is their own damned business, “every single … law” against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” would fall in the wake of Lawrence v. Texas.
“This effectively decrees the end of all morals legislation,” Scalia said.
It looks like Scalia was right about that. Bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication and obscenity will likely be legalized in the near future. (But not bestiality. Animals can’t consent, so hands off Fido and Mittens.)
Lawrence has been repeatedly cited by judges ruling in favor of same-sex marriage.
Next to go: Laws against polygamy and bigamy.
Citing Lawrence, a federal judge recently declared parts of Utah’s anti-polygamy statutes unconstitutional. The U.S. Constitution, Judge Clark Waddoups ruled, protects Americans from “unwarranted government intrusions into a dwelling or other private places” and allows “an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.” Which includes butt sex. And having multiple spouses. Assuming you can handle them.
Legal experts say though the politics are different than they are for gay marriage — there isn’t a big, well-funded polygamist-rights movement — it’s only a matter of time before anti-polygamy laws get thrown out. Right-wingers, reeling from the fact that gay marriage has been made legal in 14 states, are freaking out about polygamy.
“Same-sex marriage advocates have told us that people ought to be able to ‘marry who they love,’ but have also always downplayed the idea that this would lead to legalized polygamy, a practice that very often victimizes women and children,” Tony Perkins, president of the Family Research Council, a Christianist group, said in a statement. “But if love and mutual consent become the definition of what the boundaries of marriage are, can we as a society any longer even define marriage coherently?”
Heaven forbid that “love and mutual consent” become the defining requirements for marriage!
Nothing lasts forever — not in a nation with a 50 percent divorce rate — but it’s clear that same-sex marriage will eventually be the law of the land.
Polygamy logically follows. “Liberals and libertarians tend to believe private sexual conduct between consenting adults ought to be beyond the reach of the law,” as Conor Friedersdorf writes in The Atlantic. “Applying that principle consistently would seem to carve out a decriminalized sphere for polygamous families.” Also, one assumes, for those organized around polyandry (one wife, multiple husbands).
It is estimated that there are 30,000 to 50,000 polygamous families living in the United States.
When gays and lesbians began agitating for the right to be married, I didn’t understand why they’d want to. Obviously the legal protections, tax benefits and health care advantages are nice. But wasn’t one of the best parts about being gay that you couldn’t get married?
After mulling it over, same-sex marriage passed my one-question test for proposed changes: What harm might result?
I couldn’t think of any. The best argument against same-gender that it “violates the sanctity of marriage.” Which is a set of words strung into a meaningless phrase. What sanctity? How does gay marriage hurt straight marriage? It can’t. It doesn’t. The same is true of polygamy and Scalia’s other bugaboos.
Same-sex marriage has been a rapid, and radical, change. Yet now, most Americans agree with me that it’s a good idea.
Let freedom march on. Including the freedom to jerk off.
As Justice Scalia said, there is no longer a constitutional basis for laws against masturbation. In Connecticut, where prisoners are banned from self-pleasure, it is time to let inmates touch their nutmegs. In Alabama, where you can yank it with your bare hands but not with the aid of a device, let a thousand Fleshlights sing.
Let us join the civilized world by decriminalizing the 50 percent to 70 percent of married Americans who have sex with people who are not their spouse.
“In nearly the entire rest of the industrialized world, adultery is not covered by the criminal code,” The New York Times reported in 2012. In the U.S., on the other hand, cheating is a crime in 23 states, and, for members of the military, grounds for court-martial.
In Minnesota, single women who have sex at all are subject to one year in prison plus a $3,000 fine.
Prosecutions for adultery are rare but not unheard of. “Just a year after the Lawrence decision, John R. Bushey Jr., then 66, the town attorney for Luray, Virginia, was prosecuted for adultery and agreed to a plea bargain of community service. A year later, Lucius James Penn, then 29, was charged with adultery in Fargo, North Dakota. In 2007, a Michigan appellate court ruled that adultery can still support a life sentence in that state,” reported USA Today.
Many arguments in support of moralizing legislation focus on the effect of targeted behavior on the vulnerable, including women and children. Moralizers miss that their proscriptions increase abuse by driving victims underground. For example, polygamous religious cults use their illegal status to isolate children, forcing some to marry against their will. Because they’re in secret compounds, they can’t call the police. Prostitution is most dangerous in states and countries where the oldest profession is illegal.
As gays and lesbians marry, there is zero sign of Scalia’s “massive disruption of the current social order.” To the contrary: morals laws are the disruptive force. Laws against victimless crimes subvert the primary purpose of law: to promote the common good. Laws that ban behavior that is widespread (such as adultery and masturbation) effectively criminalize the majority of citizens, which undermines respect for government.
Society can and will debate morality. It should not enforce moral judgments about personal behavior through the courts.
Moral laws are immoral.
Ted Rall is a syndicated cartoonist and columnist. © 2014 Ted Rall
By subscribing, you can help us get the story right.