There is no reason to believe that there is one law for families and another for nations. - Mohandas Gandhi
The state of cognitive dissonance in which supporters of big government live is truly stupefying; it requires acceptance of the notion that an action which is wrong for one person, and even worse if repeated by many people, somehow becomes not merely acceptable but moral if practiced by governments or their representatives. If one man steals it’s “theft”, if many do it together it’s “looting”, but when the perpetrator is a government it becomes either “asset forfeiture” or “eminent domain”. We could make similar statements about such crimes as assault, trespassing, perjury, extortion, bribery, kidnapping and murder. And though we rightfully revile individuals who go peeking into others’ windows to spy on them, especially if the window is in a bathroom or other private place, governments seem to consider voyeuristic intrusion into the bedrooms of citizens to be not merely a right, but a moral imperative.
Though religions (especially Judeo-Christian ones) have long felt entitled to dictate the sexual behavior of their followers, civil governments have generally pursued the subject with less enthusiasm and vice laws have therefore repeatedly gone in and out of favor since the Fall of Rome. As regular readers know, the last great proliferation of such laws came with the social purity movement of the late 19th century, and though this mountain of busybody legislation has been slowly worn away since the beginning of the 1930s, in the United States the rate of erosion has been intermittent and progress at removing this vast insult to liberty has been impeded at every step of the process by the kind of people who stay up late at night trying to imagine what their neighbors might be doing behind drawn blinds.
But in 2003 the United States Supreme Court struck terror into the hearts of control freaks from sea to shining sea with its Lawrence vs. Texas decision, which declared sodomy laws unconstitutional. John Lawrence and Tyron Gardner were having consensual homosexual relations in Lawrence’s Houston apartment one September night in 1997 when a Houston cop (summoned by a false domestic disturbance call from a jealous neighbor who was in love with Garner) literally peeked in the back window, saw the two having sex and entered like a big hero with gun drawn to arrest the dirty fags and thereby save the unsuspecting citizens of Texas from perverts in their midst. They pled no contest to violating Texas’ sodomy law but their appeals went all the way to the SCOTUS, which overturned their conviction, the law under which they had been charged, all similar laws in every state and the 1986 Bowers vs. Hardwick decision, which had essentially ruled that sodomy laws were OK because the Founding Fathers hated homos. Justice
Torquemada Scalia vehemently opposed the entire decision, but especially the overturning of Bowers because, as he correctly pointed out, “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’s validation of laws based on moral choices.” (Actually, there are valid arguments for laws against adultery and bestiality that aren’t based in Christian morality, but we’ll leave that for another time).
Though homosexuals (rightfully) hailed the ruling as a giant step forward for individual sexual freedom, the whore-haters were not to be outmaneuvered so easily; they quietly inserted an “anti-prostitution pledge” into a major humanitarian aid bill and began to ramp up the “human trafficking” hysteria, thus preemptively blocking any attempt to argue that prostitution laws were unconstitutional under Lawrence by intentionally and deceptively conflating a now-technically-legal activity with a serious (but extremely rare) crime specifically prohibited by the 13th amendment to the Constitution. Meanwhile in Louisiana, felony persecution of whores continued unabated thanks to the Louisiana legislature’s foresight in having enacted (back in 1982) a separate “Crime Against Nature by Solicitation” law which allowed the state to continue torturing adults for life if they dared to mix behavior protected under Lawrence with the capitalistic principles on which the entire American system was founded. But the tide released by Lawrence is still dissolving prudery everywhere; the anti-prostitution pledge was struck down by an appeals court on July 6th, and facing the specter of Doe vs. Jindal Louisiana reduced the penalty for “Crime Against Nature by Solicitation” to the same as those for simple prostitution. And now, as Scalia predicted, Utah’s law against polyamory is under attack:
…On Wednesday [July 13th], the Brown family — the husband, four wives, and 16 children who star in the reality TV show [Sister Wives]…file[d] a lawsuit in federal court in Utah. The family members say the state’s anti-bigamy law is unconstitutional and that Supreme Court precedent backs them up…Brown and his four wives knew they were taking a risk when they signed the deal with the network TLC. But Robyn Brown, wife No. 4, told viewers they wanted to make a point. “It’s OK for us to live this way, honestly,” she said. ”I’m sorry — but this is a nation of freedom of choice. We should have this choice, and I want my kids to know that.”
…Kody Brown is legally married to only one wife; the three others are his “spiritual wives.” But [Utah] law says it’s a crime if a married person purports to marry or cohabits with another person. Prosecutors say they’ll decide whether to bring charges against the Browns in the next two or three weeks. In the meantime, the Browns have moved to Nevada and are suing in federal court. Their lawyer, Jonathan Turley, says the state is persecuting model citizens for living out their religious values. “There is no allegation of child abuse, no allegation of child brides, no allegations of so-called collateral crimes,” says Turley, a constitutional law professor at George Washington University Law School. ”But prosecutors have stated publicly that they believe the family is committing a felony every night on television.” Turley says prosecutors look the other way when it comes to nonpolygamous relationships. “You can have multiple lovers; you can have adulterous affairs and not be subject to prosecution,” he says. ”But the minute you refer to her as your spiritual wife, you become a potential criminal defendant.”
This isn’t about personal rights, says Marci Hamilton. It’s about a state’s ability to regulate marital relationships. Hamilton, an expert on polygamy law and a professor at Cardozo School of Law, says there is a mountain of evidence that polygamy is bad for women and children…”This isn’t a lifestyle choice,” she says. ”This is a culture in which men must rule and women are not equal. Three women are equal to one man, nine women are equal to one man — and the children are second-class citizens.” Hamilton says there have been more than 100 challenges to polygamy laws, including in Utah, and all have failed.
But Turley may have powerful ammunition: the Supreme Court’s 2003 decision in Lawrence v. Texas. In that case, the majority ruled that the state could not prosecute people for engaging in private, consensual sexual behavior…Turley’s case is exactly what some have feared — and Justice Antonin Scalia predicted. In his scathing dissent in the Lawrence decision, Scalia said the ruling calls into question any law trying to rein in “immoral and unacceptable” sexual behavior…”Under this principle, it really is anything goes,” says Robert George, who teaches constitutional law at Princeton University. “State laws to protect public morality by prohibiting what have been regarded as immoral sexual conduct just can’t stand constitutional scrutiny,” George says. ”So, if they accept the logic of their own principles, then Turley is going to win this in a knockdown”…
I hope they do win. Too long have we allowed busybodies and control freaks to use laws intended to protect the innocent (in the case of bigamy laws, women who unknowingly marry predatory men who are already married to others) as clubs to beat all nonconforming sexual behavior into a bloody pulp. If multiple adult women choose to share one man, or if people of the same sex choose to live together, or if one person wants to be the sexual slave of another, or if a woman agrees to provide sexual favors to a man for a price, it is nobody’s business but theirs and appeals to “protecting women and children” are nothing but sleazy attempts to pimp those women and children to serve the perverted needs of control freaks. As I pointed out in my column of one year ago today, pimping was invented by governments, and it’s pretty obvious that government representatives like Marci Hamilton (who apparently forgets that children are always second-class citizens) are still the most numerous practitioners of the behavior. Scalia’s analysis is correct, but his morality is wrong. In the wake of Lawrence vs. Texas government suppression of individual, consenting adult sexual behavior is doomed, and that is a very good thing.