06/27/2003 Archived Entry: "Moral laws"

The Christian Science Monitor reports on Justice Sandra Day O'Connor's reasons for supporting the Supreme Court decision overturning sodomy laws here:

Although she joined in the judgment of the court, Justice Sandra Day O'Connor did not share in the majority's endorsement of a bedroom privacy right. Instead, she said that in her view the Texas law was unconstitutional because it violated equal-protection principles of the 14th Amendment by requiring gay Texans to face criminal penalties for conduct that was not illegal for heterosexual couples.

"A law branding one class of persons as criminal solely based on the state's moral disapproval of that class and the conduct associated with that class run contrary to the values of the Constitution and the Equal Protection Clause," she writes in her concurring opinion.

The Supreme Court made the correct decision in this issue, but this is not a good reason to support it. Freedom should not be supported at the expense of morality; the two go together. O'Connor is correct that anti-gay sodomy laws make certain acts criminal because of the state's moral disapproval of a class of people and the conduct associated with that class. However, this could be validly said of any criminal laws.

Walking around carrying signs shouldn't be illegal, in general. Walking around with signs that say libelous things about a private individual should be. Such laws discriminate against a specific class of people – namely those who choose to libel others – solely because the US legal tradition holds that libel is immoral and unlawful.

Sodomy laws, like all other laws, take the position that a class of conduct is sufficiently immoral and dangerous that people should be forced not to engage in it. This is as it should be; it is not the reason sodomy laws are immoral. Rather, they are immoral because they embody a false theory about the danger of sodomy.

Laws against consensual sexual behavior only make sense if there exist classes of consensual sex that are dangerous to society. People who advocate sodomy laws believe that gay sex is sufficiently dangerous to society that it must be stopped by force. But sodomy, even if immoral, isn't dangerous in that way. At worst, it's a moral error that harms a couple of consenting people and upsets some people who find out about it. Our society is strong enough to withstand mistakes of that nature.