June 26, 2003
We The People...
Nice little quote in the comments section of one of the blog entries at Daily Kos. He's responding to Clarence Thomas' petulant dissent where he says he's looking, and he's looking, and gosh darn it, can't seem to find a specifically mandated right to privacy anywhere...You can't go looking for a right to privacy in the Constitution, for that is impossible, you have to go looking for a right we gave to the government to deny such a right.
Here's another great one..
We agree to allow the government to take away some of our liberties to live in an ordered society - its not the other way around - not the government giving us liberties if we can prove that we should have them. Why shouldn't something you do with another person in privacy without hurting anyone else be off limits to the government - why shouldn't that be part of the essential liberties you maintain and do not sacrifice in order to live in an ordered society? I completely do not understand this perspective.
The discussion is fascinating, partly because it reflects on Santorum's quote about the legal rationale also being applicable to legally allowing incest, bigamy, bestiality, adultery, etc. Scalia made the same noises in his dissent, even going so far as to include masturbation. Heavens, anti-masturbation laws might be struck down. Anyway, it is worthwhile to actually think about each of these things, isolate where the parallels break down, and think about what is consistent:
- homosexual sex acts: this is defined as consensual private sex between people of the same gender. Now explicitly constitutionally allowed.
- masturbation: this would also be protected when engaged in as a private, consensual (hahaha) sex act. (Honestly, I'm not sure there are any anti-masturbation laws to strike down.)
- molestation, bestiality: In both cases, the subject is not able to responsibly give consent. The parallel breaks down. They are still illegal, the laws against them are still constitutional.
- incest between consenting adults: It starts to get interesting here - the most convincing argument was that states could have a reason to control this because it can lead to public health issues through inbreeding/recessive genes. Honestly, on a legal framework this feels iffy, because in my mind, they could have used that same line of thought to restrict anal sex due to the slightly increased risk of disease passage. Remember, the exercise is to find a way to reconcile these different behaviors in a way that does not include moral judgments. Also, I think I got initially convinced that there were laws against this all over the place when there might not be. If there aren't, I don't think it's necessary to implement them.
- bigamy: If we use the judgment that bigamy marrying a second spouse without the first spouse being aware of it, there is no contradiction; this is simply a break in contract, the illegality of which is not challenged by the ruling
- polygamy: consensually having multiple spouses. First, it appears today's ruling is about privacy more than equal protection; meaning, constitutionally allowing consensual private behavior, not challenging the definition of marriage. So with polygamy being against the legal definition of marriage, the constitutionality of its illegality is not challenged.
- adultery: Again, a break in contract. The constitutionality of its illegality is not challenged. (I found that some states do have criminal laws against adultery.)
A quick personal note: I believe the laws against polygamy and adultery are stupid. Having something be illegal isn't the only way for something to be wrong.
The most interesting case to think about is consenting-adult-incest, because it can include same-sex incest. With today's decision, the only legal distinction between the legality of adult consensual homosexual acts, and the illegality of adult consensual same-sex incest, is the matter of the incestual couple being related by blood and sharing a family unit. The possibility of deformed offspring is out of the equation. The only grounds on making it illegal is the family ties issue. How is this not a moral judgment?
So, is adult consensual incest (non-procreation) even illegal? I guess I don't know. I've got this Coors billboard saying "Here's to twins!" on my drive home. Nudie magazines do sister shoots all the time. Can't be illegal everywhere.
I suspect that this might actually come down to disguised morality, by which I mean judgments that those predisposed to incest are mentally ill and need help, while those predisposed to homosexuality are not mentally ill. I suppose they would feel the need to supply some biological evidence of this. This whole path is just strewn with problems.
But what is most frustrating about this exercise is that we are letting ourselves be convinced that in order to differentiate between these things, we have to keep ourselves from making moral judgments. This is a bad, bad position to be in. The statement that we've subconsciously accepted is that it would be impossible for anyone to prove which subjective moral judgments are Good and which ones are Bad. The right-conservatives love this because it allows them to both throw around their "morality" as a disguise for intolerance, while also denying the left any room to practice and preach their own morality.
So I think the real exercise is to find out where the parallelism breaks down between our morality and their "morality".
I want to chew on this a bit more, but I think there honestly is a distinction in there somewhere. The morality that defends rights to privacy and civil rights, yet still opposes certain behaviors, recognizes that sometimes one needs to defend the people that are not currently able to defend themselves. Intervening with counseling and social services is an example of that. But what is interesting about this is that if someone finds out someone they care about is in an incestual relationship, and they are concerned about that, they don't need to involve the law to intervene.
And that's part of what it comes down to I guess. The right believes that a clear moral judgment compels them to make a law limiting that "immoral behavior". The right believes their religious beliefs of what behaviors should and should not be limited... should, by definition, be translated into law. The left can actually have all the moral judgments it wants; we just don't always think they need to be translated into law. I personally think laws should be more about keeping one group from removing the rights of another group.
Scalia evidently believes that populations have the constitutional right to remove human rights from other people through simple majority rule. That's really what it comes down to. It's good that his beliefs were defeated today.
(Fair warning, I reserve the right to revise this posting. ;-) )