Sex, Morality, and the Law

Like breathing and eating, sexual behavior is an element of the human condition that is necessary for keeping the species alive. But unlike other creatures roaming the planet, in human beings, sexual activity is more than just a means of procreation; sexual activity helps define who we are to ourselves and to others, it provides needed relief from stress, it gives us enjoyment, and it offers a form of intimacy that helps bond us together. It is unfortunate that many religious institutions have taken this most basic human activity and turned it into a moral issue in an effort to control their followers, create stigmas regarding certain behaviors, and relegate it to an act of necessity and not enjoyment. In so doing, the religious restrictions regarding sexual behavior have created an atmosphere of ambiguity and shame where none need exist.

This is not to say that sexual behavior should not have some restrictions that become codified into social laws. But it is important to remember that sexual norms are a constantly shifting paradigm, varying from one culture to the next and from one era to another. While certain prohibitions regarding sexual behavior are necessary for the well being of society, these taboos should reflect a sense of social safety needs, rather than religious values. Criminal sexual behaviors such as rape, child molestation and non-consensual sexual acts are abhorrent forms of expressing ones sexual desires because they deny the rights of the individual or take advantage of one who is not in a position to make an informed choice regarding the contact. These acts are, and should remain illegal, carrying serious consequences to those who violate the legal codes and inflict their sexual desires on unwilling victims.

Any other regulation of sexual behavior should not rise to the level of illegality simply because one or another religious group feels that it should be. To do so inflicts the moral values of one upon another and denies people the freedom of choice to experience sexuality as they see fit. For most people, sexual behavior does not remain static throughout their lives, since as their own goals for finding sexual partners changes, so too do their views on appropriate sexual behavior. As such, society has no right to dictate what constitutes acceptable sexual activity beyond those acts mentioned above.

In that vein, it seems ridiculous to have laws prohibiting acts like prostitution, adultery, consensual sodomy, oral copulation, homosexuality, and even displays of nudity when in the privacy of your own property or the property of like-minded individuals. Indeed, most sexually related laws stem from a puritanical religious morality rather than from any actual threat to society at large. Furthermore, such laws, many of which are wholly unenforceable, only serve to congest the legal codes and processes, waste precious public funds for spurious enforcement, and detract the public from issues that more appropriately belong in the public realm.

It’s not surprising that our most popular forms of entertainment- movies, music, television, and literature- are filled with sexual innuendo. After all, sexual behavior has many positive benefits, such as the ones listed at the beginning of this essay. What is surprising is the double speak with which society addresses the disparity between what we show and what we allow. It seems as if society is saying on one hand that sexuality and sexual behavior is okay to display in fictional or commercial terms, but not in actual, practical, real life situations. This dichotomy leads to confusion among the young who are experiencing their own sexuality for the first time as well as creating an environment for harmful sexual behaviors among the adult population.

A better solution would be to repeal all sexual laws except for those directly addressing rape, molestation of children, and other non-consensual sexual acts that actually infringe on a persons physical security. Society may have the right to create restrictions regarding appropriate locations for sexual activity and perhaps the authority to mandate age restrictions for consensual sexual activity, but not much else. I can hear the moralists begin to stammer now, with protestations about the impropriety of certain acts that, if legalized (or at least de-stigmatized), would likely lead to wide-spread orgies in the street, dehumanization of women in general, and random acts of sexual mayhem. But such statements are, of course, ridiculous. Simply making an act legal does not ensure that all public decency would be thrown out the window. The moral guidelines for sex should be passed down within our homes and churches, not in our legal codes, thus allowing people to choose what is acceptable to them without restricting the actions of others. And, comprehensive, factual education should be implemented regarding the physical and mental consequences of engaging in sexual activity before one is emotionally able to accept the results of sexual practices

So what are the benefits to society if sexual laws are repealed? For starters, the decriminalization of prostitution would allow for its practitioners to join the public workforce in a constructive manner, leading to an increase of taxable employment and a decrease in enforcement, prosecution, and incarceration costs. These funds could be funneled back into the public coffers to help pay for social programs and governmental obligations. The relief upon law enforcement would allow them to better spend their time protecting society from violent criminals instead of harassing sex workers. It would also protect those in the sex industry from the unscrupulous practice of sexual slavery by removing them from the dominion of pimps. Eliminating the stigma attached to the world’s oldest profession and requiring sex workers to engage in mandatory physical check-ups could improve public health issues. This might also reduce the instances of forced sexual activity by providing people a legal option for obtaining casual sex.

The elimination of adultery laws, admittedly rarely enforced already, would allow single people to enjoy and experiment with sex without having to commit to a serious relationship before they were ready, leading to a decrease in failed relationships borne from social pressure to “get hitched before getting it on.” The removal of taboos on certain sexual practices would free people to enjoy their sexual preferences without being ostracized. Relaxing the bans on public nudity, in appropriate locations, would negate the feelings of shame that many wrongly associate with evil but instead is the natural state of the human body. And proper education could limit the instances of teen pregnancy, which in itself contributes to a multitude of societal upheaval.

We should leave it to parents and pastors to impart sexual morality to their children and let society provide the educational material necessary to make good sexual choices. Leave it to individuals to discover what sexual behavior best suits their needs at a given point in their lives. Reduce the social stigmas attached to sexual activity and you increase the odds of couples engaging in healthy sexual behavior that is conducive to the creation of stronger intimacy and personal ties. And attach certain social and legal obligations to any sexual behavior that results in the creation of new life, ensuring that with sexual activity comes the responsibility to properly take care of that new life.

Much like the laws against drugs, laws against sexual behavior only assure that more people will attempt to push the envelope of healthy behavior and act in ways that are more harmful to themselves and to society in general. Only through their elimination coupled with comprehensive education can we guarantee that people are able to experience individual freedom without draining the public resources or encroaching on the most personal behaviors of us all.

Ending the War on Drugs

In 1933, the Congress of the United States passed the 21st Article to the U.S. Constitution, repealing the prohibition of alcohol. In doing so, they recognized that rather than reduce the use of alcohol, by making it an illegal substance they had only exacerbated its influence on society. Instead of making this country a safer place for the citizens, prohibition had created a whole new class of criminals, namely, ordinary citizens who wanted nothing more than a relaxing beverage at the end of a hard days work. In addition, by outlawing the manufacture and sale of alcohol, the U.S. government had helped usher in an era of black market hoodlums who sought only to line their pockets and elevate violence through territorial claims on the liquor market. Religious moralists who sought to control an individual’s right to consume a product that created an altered state of consciousness, something that they claimed went against the rule of God, preceded the passage of prohibition in 1919. As an after thought, they also claimed that the use of alcohol was the cause of crime, poor health, and wreaked havoc on the family structure. While the latter elements of their position had some merit, it was the religious element of prohibition that helped gain passage of the law. But in outlawing its use, the prohibitionists only succeeding in increasing public consumption, increasing crime, and increasing the governments restriction on individual freedoms.

Today we have the War on Drugs. Though not enacted through a constitutional amendment, our prohibition on the use of some drugs has had the exact same result as the prohibition on alcohol, only more so. According to the Federal Prison Bureau, nearly 60% of convicted inmates are serving sentences for non-violent drug offenses. According to the DEA, nearly 40 million Americans use some type of illegal drug each year. In 1995, the federal government spent over $13 billion just for enforcement of the nations drug laws. This figure does not include the costs of incarceration, treatment programs, or arrogant foreign policy. Nor does it take into account the number of families torn apart by the arrests of people whose only crime is ingesting something into their own bodies for their own sense of pleasure. Despite these draconian figures, drug use has remained fairly constant, with the only real negative effects being those caused by the laws themselves Obviously, there is something seriously amiss in these policies.

I could write pages and pages regarding the historical and political machinations that have been employed to create the current state of drug laws in this country, but several good works have already documented these facts. (You can find some of this yourself at www.druglibrary.org or by reviewing The Emperor Wears No Clothes by Jack Herrar, among others.) Instead, I will discuss how the current anti-drug regime contradicts the notions of common sense governing and inhibits personal responsibility and freedom. Suffice it to say that the War on Drugs has become a marriage between religious morality and big business and is more about maintaining money and power than about public safety. Drug laws are arbitrarily applied and lacking the scientific and practical evidence necessary to back up the claims used to maintain their illegality. In fact, the current regime of drug laws creates a self-perpetuating cycle by making criminals out of ordinary citizens for the purpose of rationalizing their very existence. And the economic windfalls realized by private incarceration, treatment programs, defense lawyers and testing centers exert pressure on the politicians to maintain the status quo.

Why then do we allow the current drug laws to remain? Study after study shows that the application of drug laws is unevenly enforced. Sentencing of drug offenders is not commensurate to the act, especially when compared to the penalties given to violent criminals. Our overburdened prisons and overtaxed public finances can’t keep up with the demands created by these drug laws, and the loss of otherwise productive citizens from the social and economic grid creates staggering consequences for families and business alike. Further, potential harmful effects of drug use are infinitesimal compared to the harm caused by legal drugs like alcohol, nicotine, and pharmaceuticals. While I can concede that on an individual level, drug abuse can have grave consequences for the user and their close family members, on a societal scale, drug use is of no concern to a free nation, except when it causes great harm. In that context, the real criminals are the drug laws themselves.

The only logical answer is to follow the same course that ended the prohibition of alcohol. From both a social and political standpoint, the eradication of the War on Drugs provides a way to strengthen moral values without legislating them, while reducing the drain on government funds and the strain on society.

From a social standpoint, decriminalization of drug use and sales would put an end to the scourge of broken families that incarceration creates. The stigma surrounding drug use would lessen and the user would no longer have to feel threatened or need to hide from society because their actions would no longer carry criminal penalties. Similarly, drug manufacturers and sellers would no longer stand to make great profits through the underground market, thus eliminating the criminal element from the economic side of drugs. Society benefits through the reduction of street gangs vying for territory and market share, creating safer neighborhoods for everyone. The absence of criminal status would further reduce the instances of people using drugs simply because they were taboo, because the element of danger would be eradicated as would the so-called “coolness” factor that accompanies such actions.

On the governmental level, the amount of tax money saved by the reduction of enforcement, prosecution, and incarceration costs could be funneled into educational efforts that provided honest information to students regarding the effects, uses, and potential problems associated with drug usage, as well as providing a proper social context for their use. Further, the legalization of drugs would allow for increased tax revenue to be generated by the creation of a new legal product that could in turn be used to fund social programs that benefit everyone. Also, the need for ever increasing prison space would become a non-issue, allowing for violent criminals to be kept incarcerated until such time as they could be rehabilitated rather than releasing them back into society due to lack of prison space.

For those who claim that legalized drug use would lead to an increase in crazed individual’s who would be more likely to commit crimes to support their drug habits, I would support strict criminal penalties for anyone who commits a criminal act while under the influence of a drug, much like we do today with the alcohol laws. Through increased public education, without the propagandized scare tactics, citizens would grow up knowing that drug use as a recreational endeavor is not an excuse for unacceptable or dangerous, anti-social behavior. Finally, by allowing drugs to be sold in the open market, society could regulate the quality, potency, and purity levels of a given drug, much like we do with alcohol, tobacco, and the legal pharmaceuticals today.

While the use of drugs may seem morally unacceptable to some people, that is not reason enough to maintain a legal prohibition. The War on Drugs has proven itself to be ineffective at preventing drug use, financially unsupportable and wasteful of tax dollars, and constitutionally questionable with regards to personal freedom. It has created a violent sub-culture of distributors and manufacturers and has caused otherwise productive citizens to become a drain on the social coffers. Never mind the implications of legislating individual morality; these reasons alone are enough to put an end to it.

Morality and the Law

The next several essays will attempt to underscore the difference between religious morality and legal morality. In doing so, I fully understand that these next essays will probably bring about much contentious hand-wringing among my readers who will try to assert that their personal religious morals supercede social legal issues. So, before I dive into the topics themselves, it is important to lay some common sense ground rules regarding these issues.

First, it is important to understand that while most of our founders followed some tenet of Christian faith, they recognized the importance of maintaining a separation between religion and politics. By creating this separation between the Church and the Government, they were trying to ensure that certain religious tenets would not be the driving force behind the creation of legal codes. This common sense approach to religious tolerance in the midst of religious diversity showed a distinct maturity of thought. Their creation of the independent judiciary and their charge of it to ensure that the laws of the land were impartial to all, regardless of religion, was another stroke of genius on their part, and lucky for us. For in today’s religiously charged political and social atmosphere, such a foundation would not necessarily have been included.

Secondly, in order to fully appreciate the proposals that I am to set forth, it is absolutely necessary to recognize that our religious differences, while important to many, are not in themselves sufficient to create and enforce social norms or laws. In any government system that purports to recognize certain individual freedoms as innate and irrevocable, the freedom to worship a god of your choosing is just as important as the freedom to engage in certain behaviors that others may find reprehensible, so long as those behaviors do not present a danger to society.

And thirdly, since each of the worlds major religions profess to be the only true and accurate religion for humanity, it is wholly impossible for all of them, or perhaps any of them, to be one hundred per cent correct. Simply asserting that one’s own god is the true and only god does not make it empirically so, nor are the religious texts that accompany each religion and provide that religion with the rules of god able to be empirically attributed as having come from the mouth and mind of god itself. The mere fact that religious texts are filtered through the mouths and minds of men ensures that some distortions will be present and some prejudices included.

Morality then, in both a religious and legal form, is a kind of double-edged sword. As members of society, we can agree on the morality of certain acts and create laws to prohibit them. Such acts like murder, theft, and rape are moral issues that transcend most religious beliefs and can therefore safely be legislated. The Christian religion, or for that matter the Jewish, Muslim, Buddhist, Hindu, or any other religion, does not have any sovereign claim to these kinds of moral issues, as they are readily accepted by most of humanity as being wrongful acts that need to be outlawed. But other beliefs and actions are not universally held, and therefore can’t be legislated without trampling the freedoms of others, despite the perceived religious prohibitions against them.

In accepting these facts, we can only conclude then, that any laws that reflect moral judgments other than the ones overwhelmingly accepted by a near universal majority should not be included into our legal codes. So, in creating a society that respects individual choice and freedom of expression, it is imperative that we agree to remove certain behaviors beyond the reach of legal justice and instead agree to disagree on their eternal consequences, if any exist at all.

Before I go on much further, let me make clear that I am not decrying the role of religion in our world, nor am I implying that our laws have no basis in religious history. To do either of those things would assure you that you should read no more of what I have to say because I would clearly be a fool. Religion, of some kind, is one of the few, near universal conditions of mankind. To deny its role in the daily lives of people is ridiculous. Many hundreds of millions seek and receive some kind of guidance and comfort through the practice of their religious beliefs. But these beliefs should continue where government ends, providing answers to eternal questions and providing spiritual relief when there is little in the physical world. In fact, it is these very aspects of religion that make it such a varied and complex system. And that complexity assures that society will never see eye to eye on certain behaviors. But rather than criminalize these behaviors, we should work together to minimize those behaviors that offer the greatest possibility of individual harm; rather than legislate with religion, we should educate with facts.

As such, it is time to take religious based morality out of the political equation. Our country is not a theocracy, nor was it intended to be one. We have enough to agree on, and enough to improve upon, that to waste our time on bitter debates about personal behavioral matters serves no purpose other than to allow ourselves to be divided unnecessarily and to keep the politicians wheeling and dealing out of sight. But agreeing to take these issues off the table, so to speak, is not to abandon your own personally held beliefs. I think that everyone should be encouraged to believe in their religion, to practice their religion, and to teach their religion to their children and others who are interested. But this does not mean that your religion should become governmental rule. We have to accept the fact that everyone doesn’t believe in all the same things, and that it is these differences that should be most respected, so that your beliefs are respected in kind.

With those thoughts in mind, my next several essays will examine the impropriety of the current illegality of drug possession and use, prostitution and consensual adult sexual behavior, gambling, suicide and euthanasia, homosexuality, and abortion. I will explain why our government has no need to insert itself into these types of behavior, except where they infringe upon the safety or financial security of society in general. Further, I will show how the current imposition of laws in these areas needlessly expend tax resources that could be better spent to promote general social welfare or reduce the public tax burden.

In so doing, I am in no way attempting to altar your own personally held religious views on these issues. Rather, I am asserting that your religious views, even if shared by thousands of similarly minded people, can not be forced upon the public simply because your holy texts say they should be. To do so would be a total contradiction to the freedoms guaranteed in our Constitution and conveyed upon all citizens, regardless of their religious beliefs or lack thereof. This doesn’t mean that there shouldn’t be guidelines for public behavior, and some consequences for individuals who allow their personal peccadilloes to become public hazards. We should have some rules regarding proper conduct in public. But if we really want to move forward and repair the rift in our country we must remember these rules first: Do unto others, as you would have them do unto you; and, live and let live. Meaning, if we can’t overwhelmingly agree on whether a moral should be law or should remain in the religious realm, we shouldn’t be too quick to force our religious beliefs on the rest of society.