Rob: I’m not even sure we disagree on that! To me it’s not a question of whether or not it is right, just a matter of whether or not we can do it without it coming back and biting us on the collective posterior. Call it a pragmatic approach if you wish, though I don’t chafe under the label as much as the Chief Boar would like me to. That’s another topic for another day, however, so I’ll shut up about it. Suffice it so say that I think homosexuality is wrong, but that is quite a different question to my mind than whether or not it should be illegal. Lots of things are wrong but not illegal.
Be advised that I had written several long paragraphs on this topic before my computer locked up on me, so I’m now retyping more or less what I’d already typed, from memory. Poorly, I bet, since I’m so annoyed at myself for not saving early and often. Also, I encourage readers to not make the same mistake many people have made with Santorum and confuse questions of morality with questions of legality. I know you know better, Rob, but this is a popular website.
I see several issues that relate to the question of legislating morality, even tied into the topic at hand. The first of these is a question of federalism. (No, I’m not going to bring up the War Between The States again…) That is, leave aside the question of whether or not morality can or should be legislated and ask only whether or not the federal government should be able to attempt to legislate morality. In the case at hand, the law is a state one, but the federal government is being asked to overturn it. Hence Santorum’s original (and accurate) argument that there is no specific “right to privacy” within the Constitution (though the right to protection again unlawful search and seizure and the right to avoid self-incrimination come close in some ways). Of course, the Constitution enumerates the rights of the government, not of the people, so in the absence of an explicit right for Congress to legislate private morality, even a trumped-up right to privacy wins. However, while Santorum pulled a swing-and-a-miss on his specific legal argument, there is still a way the feds could get involved on the question of equal protection. The Texas law specifically prohibits the act only between two men and not the same act between a man and a woman. It is therefore argued that the law singles out a certain group or class of people, and is therefore illegal.
This leads to several questions, such as whether the act is even the same if performed with a woman. The most obvious answer is yes, it is, as can be seen by substituting a race for a gender. Any law which prohibits any act between members of different races while not forbidding it between members of the same race (or vice-versa) is clearly illegal. While the desire to commit the act in question may be self-select or voluntary (another debatable point, though not debated by me), legally that is not the issue. The argument is that the act should be illegal entirely for anyone or not at all, but certainly not just for two people who happen to be men. On the federalism issue, this line of reasoning can be seen to result in a clear case for the federal government to get involved without violating the Constitution, and to do so without explictly recognizing any inherent rights for a lifestyle that many people consider a choice and therefore not worthy of special protection.
Secondly is the distinction between public and private morality. Let’s say the federal government isn’t an issue and we’re discussing this on purely a local level. I am trying to be careful here in what I describe since some people might consider this a family blog (ha!), so please bear with me. There are many acts that are legal in private but not in public. Public nudity, for example, is illegal in most locales, as are (obviously given the prohibition of nudity) most public sex acts. Yet nudity and an assorted half-dozen or so of those acts are quite legal (and welcome) at my house. I’ll leave it as an exercise for the reader (and my wife) to guess the half-dozen to which I’m referring. Don’t strain too hard. 8^)
The general argument for this is that there is some harm to others. Theft obviously results in economic harm to the person from whom goods are stolen (we’ll leave intellectual property concerns alone today). Prostitution is generally argued in most (though as you point out, not all) places to not really be a victimless crime though it seems to be at first blush. Even so, prostitution that takes place in private is different from people walking the streets undressed or committing their acts in public. Polygamy has a long and complicated history and practice that makes it difficult to separate inherent harms from common harms, but generally it is (or at least was when the laws were passed) considered to be harmful to the (usually young) women involved. Still, consensual bigamy or polygamy is different from the common modern variety of simple fraud, where one wife doesn’t know about the other. Anyway, I could go point by point, but the general idea here is that each of these laws is considered to protect somebody. Women and children shouldn’t have to see public nudity (so goes the thinking), so public nudity is against the law. Private nudity is just fine. Public drunkennes is verboten, while you can drink yourself into a three-day stupor at home with no (legal) problems.
A community can and does indeed dictate many rules. All of which normally apply to things visible to the community. In some areas, you can’t paint your house certain colors or keep a Vietnamese pot-bellied pig in your yard or have more than three cars up on blocks in the front yard. These things all presumably lower the property values of your neighbors homes. But dressing up in…wait, self-editing… But whatever practices you undertake in your bedroom are your business, so long as you keep the blinds closed.
Various court cases have even address whether or not you can be nude in your own yard on your own property, with mixed results. If it is a question there, surely it is even less of a question inside your own home with the door shut. That’s the part that rankles most people and makes me nervous. These two guys weren’t committing a lewd act on the front porch. They were in their bedroom with the window shut, and cops came looking for them because a neighbor put two and two together and inferred that they must be violating the law and called in a false police report. Nothing was witnessed by anybody until the cops acted on that neighbor’s report of an armed man “going crazy” and busted into the apartment in the middle of the night and interrupted the defendants. As far as I’m concerned, it really doesn’t matter what they were doing, so long as it was in private and nobody was being coerced.
Obviously nobody has any right to satisfy their desires or lusts or deviancies in any way that affects somebody else against their will. That is true even to the point that I have legal protection against even seeing someone without clothes on.
So let’s assume that the law is changed to prohibit the act regardless of who is committing, keeping within Constitutional bounds. Let us further assume that the law is even more local than the entire state of Texas and that it only applies to a particular municipality. Let us further assume that even though I can’t find a strong Biblical basis for prohibiting either of the acts covered by this law (please don’t read too much into that statment, it’s a theoretical statement, okay?), the vast majority of Christians agree that certain acts are unbiblical. Do the good people of Onanville (or wherever) then have the right or obligation to vote to establish a law against those acts even within your own home?
Because we’re talking about something the Bible singles out several times as a sin worth paying special attention to (not unique by any means, but worth more attention than, say, walking too far on the Sabbath), I want to say, “Yes.” But then I consider the hypothetical possibility of my community agreeing that I shouldn’t be allowed to jump rope inside my house, and I wonder why on earth I would want a mob to have that much power.
Most people don’t want to live next to someone who practices deviant sexual behavior – I’ll grant that. I also suspect most people would be surprised at the extent of the deviancy that goes on in many homes that they would never expect, but my real response is that I don’t want to live next to someone who is so self-righteous that they lay awake at nights wondering just exactly how it is I’m making my wife so happy all the time and whether or not they should call the cops on me. Sadly, no laws protect me, and I live across the street from just such a person right now.
Obviously I realize that there are special Constitutional protections for religion in America, but I mentioned the zoning rules for a reason – it has become quite popular in SoCal to use them as an excuse for God-haters to shut down any religious meetings they don’t like. They don’t even have to be harmed in any way, they just have to complain that they’re bothered, and the letters go out and it is shut down. Again, it’s people who lay awake at night worrying about what other people do instead of getting on with life. It’s the same darn thing, and I don’t like it when it’s used against Christians, so I’m not sure why I should support it when it is used against people who sin differently than I do.
I do understand your point, that local communities should be able to set a certain standard. I wish your argument didn’t bring to mind a scene from Raisin In The Sun where a guy shows up and offers Sidney Poitier’s family more money for their new house than they just paid to buy it to settle the whole thing peacefully, but I know that’s not your intent, and I know that being born black is quite a different thing from growing up gay. I just don’t know that local communities can set a standard on private behavior without having too much power. I’d honestly be happier (again, this is a legal argument, not a moral one at this point) with laws prohibiting public displays of affection among any couples than laws prohibiting private behavior of any kind.
And I’m just coming off two days in a row home from work sick, so I might be a little incoherent as well. Please forgive. And I promise, Michael, that I’ll work up my objections to your over-dismissiveness of “pragmatism” later. 8^)
