Case For Harmless Disapproval

In 2003 the US Supreme Court case, Lawrence vs Texas, struck down laws prohibiting gay sex in 14 states. This does not mean that those statutes are repealed, merely that they are legally void. Though all laws banning interracial sex and marriage were voided by Loving vs Virginia in 1967, it was more than 30 years before South Carolina (1998) and Alabama (2000) formally repealed these laws. New York, it should be noted, is one of a handful of states in the US never to have prohibited interracial sex. Some states maintain laws prohibiting adultery, though these are rarely enforced. In Michigan, the sentence can be life imprisonment, though in Maryland it is only a $10 fine.

These laws which cannot be or are not enforced are a stain upon the judicial and legislative system, not merely because all the laws cited above should be repealed, but because having laws which are not enforced, itself damages liberty. The American tradition of being a nation ruled by laws and not by men is degraded if enforcement of the law is arbitrary. Laws which are enforced only at the whim of the prosecutor diminish the liberty of all. What if a prosecutor in Michigan began to prosecute instances of adultery, but only when the parties involved are of different races?

All laws should be divided into two categories: those which are enforced and those which are repealed.

But this upsets some people. People wish to retain laws which ban adultery, even though they are not enforced, as a measure of social disapproval. Legislators – and probably voters – wish it to be known that they think cheating on your spouse is wrong. (Note, adultery statutes ban extra-marital sex, even in those instances where the spouse has granted permission or the couple are separated, so adultery is not synonymous with cheating. Indeed, such statutes do not cover cheating on a person to whom you are not married).

Well, if social disapproval matters to legislators, and to the voters who elect them, maybe they should explicitly engage in such disapproval. Consider, for a moment, the habit of some legislatures in adopting new laws banning things that are already illegal. This is often done merely because something has been in the news, and legislators wish to make a fatuous statement about it. No doubt there will soon be a law somewhere banning rape in cases where the parties met on the internet. No matter that rape is already illegal, however the parties met, internet rape will hit the headlines, and legislators will insist that something must be done.

So, perhaps, legislatures should sit for half their session (Common Sense might prefer it to be more than half) as debating societies, passing motions disapproving of things, and reserve the passing of laws for things which actually matter.

Such social disapproval would be controversial. Many people would wish to formally disapprove of gay sex, even if it is not actually illegal. No doubt there would be regular arguments about abortion. Perhaps these debates would become critical at elections. This is all to the good. Allow voters to let off steam by disapproving of things, without confusing this with matters of law. The left can join in, disapproving of politically incorrect language or non-violent but boorish sexual conduct. Keep your laws off my body, but debate it all you want.


Article provided by Quentin Langley
Lecturer in PR and Political Communications,
School of Journalism, Cardiff University

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