More on the legalization of “icky.”
June 27, 2003
[warning, this entry is *long*]
OK, so this morning I was walking downtown thinking about _Lawrence v. Texas_. A lot of conservatives are upset because they think the court’s opinion logically leads to a forced legalization of (in Scalia’s words) “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.”
Now, when I first read this part of Scalia’s dissenting opinion I said “Woah, dude thinks the Government should criminalize masturbation?”
And then I read some other comments on “this thread at Eschaton”:http://www.atrios.blogspot.com/2003_06_22_atrios_archive.html#105670478329961794.
Liberals say whether or not people participate in acts of sodomy is no business of the government as long as it’s private and not hurting anyone. Some conservatives respond with “well, by that logic you have to legalize adult incest as well.” To which most liberals have said “don’t be silly.”
But conservatives are right. By this logic, adult incest should be legally tolerated.
Now, I don’t think conservatives are actually supporting legalization of adult incest. What they want to do is make the consequences of “winning” the sodomy argument too repugnant to be tolerated. That way people will say, “eww, we don’t want incest. Sorry gay people, we don’t mind you but we can’t have siblings screwing each other.”
But I’m going to go the other way. It seems to me consensual adult incest should be legalized. I mean, we can’t make something illegal just because we think it’s icky, can we?
Frankly, I think homosexual sex is icky. I also think eating caviar is icky and being a Republican is icky and adult incest is extremely icky — and of those, only the people choosing to be Republican (don’t worry, I can save you, I have a remedial compassion program, just come to my church) are the ones hurting me by their choice. Even so, I wouldn’t criminalize being Republican any more than I would criminalize eating caviar.
But see, here I did something that demonstrates why liberals often lose arguments. I checked myself for intellectual honesty. Here I was about to say “we should not criminalize something just because we think it’s icky.” Could I think of an icky thing so icky that no matter what logical argument was made I would want that icky thing banned?
The answer is “yes.” No matter the argument — they don’t have constitutional rights, they’re not human, whatever — I think the gratuitous abuse and torture of animals is very very icky indeed.
I would much rather spend six hours locked up in a closet with a gay caviar-eating Republican and his brother/boyfriend than share the same general airspace with someone who grills live kittens. Even if he does it in the privacy of his own bedroom.
But I can’t think of a single reason why the state has an overwhelming concern in animal welfare except the concept makes my skin crawl and I (as a citizen of the democracy) am part of the state. I want cruelty to animals to stay illegal because I think cruelty to animals is immoral. And that’s the only reason why.
So I think the “ickyness factor” does have an impact on our laws whether we like it or not. It will be part of our legal process as long as we actually have a legal process. Our feelings will always interfere with our best theories and philosophical posturing.
But government intervention should be for the really gut-wrenching stuff, I think. Animal abuse wrenches a lot of guts; gay sex wrenches fewer guts and less strongly. As I say, I think gay sex is icky, but on about the same level as someone eating live clams. I don’t feel strong enough about it to criminalize it, and neither do many other Americans.
Somewhere there’s a line. It’s a little fuzzy line and there’s no mathematical formula to say where that line is because it keeps moving. On one side of that line is “tolerable,” and on the other side is “universal (possibly violent) revulsion.”
Does that put gay people — or straight people, remember oral sex is illegal in Virginia — at the mercy of public opinion?
Yes, it does.
But we are all at the mercy of public opinion at some level or another.
It’s not fair, it’s not philosophically tidy, and it sucks for the people on the wrong side of public opinion. But it is pretty much the reality of the situation beyond any theory, and I think we’re all going to have to deal with that fact.
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June 27th, 2003 at 10:44 pm
Excellent post. Here is one thing, though:
>>>But government intervention should be for the really gut-wrenching stuff, I think. Animal abuse wrenches a lot of guts; gay sex wrenches fewer guts and less strongly. As I say, I think gay sex is icky, but on about the same level as someone eating live clams. I don’t feel strong enough about it to criminalize it, and neither do many other Americans.
You do have to remember (and I think you do, you may have just not written it out) that to a lot of people gay sex is not just “icky”, it’s against natural law and the Word of God. It doesn’t really matter how they feel about it from an aesthetic point of view, but their religious beliefs totally condemn it. And, judging by the number of abortion clinic bombings, anthrax mailings, planes flying into skyscrapers, people blowing themselves up in marketplaces, etc - even the “icky” factor can be overcome when religious zeal is involved.
June 27th, 2003 at 10:48 pm
Interesting post. On the animal thing - I guess there’s *not* another way to make animal abuse of the kind you’ve described illegal without acknowledging a host of animal rights that would essentially make the meat industry and animal research illegal as a result? Child abuse and statuatory rape are illegal no matter what because humans that age can’t give consent… it isn’t recognized. (Bear with me - I’m not arguing children and animals are equal. I don’t want to have that conversation. I’m just making an objective policy comparison without assigning values.) I guess a similar policy couldn’t apply to animals because there would have to be too many loopholes and “if/then” statements to make our culture’s other “uses” of animals legal? If you argued that animals couldn’t be used for sexual gratification because they are living, sentient beings that can’t register consent, then there would still be those that argued they liked to torture animals, but not for sexual gratification… and that would be enough to get them out of court. It would be interesting to see how the animal abuse laws are currently written… it seems like they are very loose and hard to enforce in their current state. I wonder how those laws could be strengthened but in a way consistent with our other policies *and* that speaks to both the kind of society we live in and the one we aspire to. Maybe that’s too much to ask? (When you bring aspirations into the picture, it undoubtedly is, I suppose…)
June 29th, 2003 at 5:20 pm
But just so we’re clear, you don’t think right-leaning libertarians are “icky”, right?
What a great post. I said something similar in a debate about censorship of pro-ped0philia literature. Getting squicked about something and having the knee-jerk, “it’s wrong, make it go away” reaction is easy. But seeing these resources as a way into the “monster’s” mind which can subsequently allow us to protect children a little better? That takes setting aside the “icky” factor and having a good hard look at the thoroughly repugnant.
I just don’t think most folks realize how much bad shite happens when they’re busy flinching and looking the other way.
To a lesser extent, I’ve often commented that if certain forms of rain forest slugs were as cute and cuddly-looking as the typical owl, we’d prolly be trying a little harder to save them. This ick-factor problem is a pervasive one.
June 30th, 2003 at 9:29 am
Speaking of the “icky” factor, you should read “Time Enough For Love” by Robert Heinlein. It spends a good deal of time debating social taboos, reasons for them, and reasons for ignoring them. It comes to the conclusion that if you do not hurt others, then there is no reason to adhere to the taboo (he says that incest is only bad because it increases the chances of reinforcing a defective recessive gene, which hurts the baby). He also says that hurting yourself is not a crime. It is just stupid.
As far as the animal thing, I think that we just need to put a “cruel and unusual punishment” statement in the animal laws. If we do that, then slaughterhouses are legal, but grilling live kittens can carry the death penalty (for first offense, of course).
July 1st, 2003 at 6:00 pm
Adult incest should be legal, and in some places it is legal for first cousins to marry if they can prove that they are not capable of procreation (ie, the woman has reached menopause or either of the pair has undergone a generally acceptable sterilization procedure). We have a compelling interest to prevent procreation due to incest (look at the European royal history if you doubt this one) because of the increased likelihood of health problems of the offspring.
Likewise, we have a compelling interest in preventing cruelty to animals because of the effects on humans. Cruelty to animals isn’t prohibited so much because an animal will be frightened or harmed as because 1) humans who hurt animals are more likely to be cruel to humans (long suspected, since confirmed) and 2) humans are angered or saddened by cruelty to their own animals or animals that are familiar to them.