Tuesday, November 24, 2009

Should the Government Regulate Sin?

When the civil rights acts passed in the 1960s, critics argued that government shouldn’t legislate morality. In that particular instance, I’d argue that they were only stepping in to allow people to enjoy their constitutional rights. But how much government should legislate morality is nonetheless a question worth asking.

It seems that most of the time, legislating purely for moral reasons is almost necessarily hypocritical. Let’s consider the example of prostitution. Prostitutes and “Johns” can both receive criminal penalties for transactions. But I’m not sure it’s right to throw people in jail for having sex for money. In many cases, the woman is poor and desperate and simply trying to make a living. By contrast, plenty of rich women from elite colleges end up marrying a man solely for his money. In essence, they are agreeing to be the man’s sexual partner in return for a life of material comfort. That sounds an awful lot like prostitution to me. In fact I would even go so far as to say the rich woman is worse morally. The poor woman sells her body because she needs the money and has few other options. The rich one just doesn’t want to work at anything, and thinks that vacations to Europe, and dinners at fancy restaurants are her birthright. It’s galling to me that we would punish the poor woman, but not the rich one.

Even when we consider the man, legislating against prostitution on moral grounds is wrong. The man who takes the sorority girl for a wife so he can have a consistent sexual partner and some social respectability sounds like a John. The difference is that he can afford to “pay” the woman more. By that, I mean that a lot of the men who visit brothels can’t afford to take the woman to expensive dinners, or vacations to exotic locales. A lot of the men would probably prefer a consistent sexual partner, but can only afford a one-night stand. I’m not sure the men who visit brothels are morally worse than the ones who marry sorority girls for a consistent sex partner.

Even if we grant that people engaging in prostitution are immoral, does that give us a right to put them in jail? Do people who drink alcohol to excess, commit adultery, lie, and gossip about their neighbors, like so many people do, have any right to put people in jail because they think their activities are immoral? No. So when we endorse the notion of government regulating sin, we’re really saying that’s only ok as long as the government doesn’t lock us up for ours.

Now, you’re probably thinking, but what about murder? Isn’t it ok to prevent murder because it’s immoral? The most important reason we prohibit murder is that it causes a compelling direct harm to another person, i.e., they can’t exercise their right to life anymore. And that seems like a fine reason for government to prohibit certain behaviors. Even in the example of prostitution, you can argue that the woman is harmed in a compelling direct way as a prostitute.

Nor is saying the government shouldn’t prohibit certain behaviors saying that society has to condone every behavior. I’m fine with certain things, from drunken hookups, to adultery being cultural taboos. A good example is racism. There is no law against joining the KKK, or being a racist. People who join the KKK need not fear mandatory minimums. But the reason so few people do join, or behave as open racists is because such behavior is culturally unacceptable.

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