Some Advice on Consent
Camera, July 20, 2003
1048 Pearl Street, Boulder, CO 80306
By Clay Evans
U.S. Supreme Court Justice Clarence Thomas, in his recent dissent from the
court’s dismantling of anti-sodomy laws, actually took a sane approach.
He argued that a Texas law criminalizing homosexual sodomy was “silly”
because it criminalizes consensual behavior between people of the same sex
that is legal for members of the opposite sex.
But Thomas believes that legislatures, not the courts, should make such
decisions. Not always: If it were up to states, we would have no Civil Rights
Act. But at least he’s sticking to judicial concepts, rather than stooping
to lunatic fear-mongering.
In a recent column, Mona Charen started with a “states’ rights”
argument, but soon staggered off into ranting hysteria. She wrote that the
decision leaves the door open to legalization of “adult incest, bigamy,
bestiality and many other sexual activities.” She waxed indignant that
“some homosexuals engage in ‘intimate conduct’ in the complete absence
of a ‘personal bond,’ as anyone who’s heard of a gay bathhouse knows.”
Gee. I never realized that sex sans “personal bond” was the sole
province of gay people. Perhaps Charen hasn’t heard of one-night-stands and
infidelity and sex with prostitutes—much more common, one statistically
assumes, than incidents of “bondless” gay sex.
And now the Rev. Pat Robertson has urged his followers to pray that God
will remove justices who voted to strike down sodomy laws, in a thinly veiled
wish that God will strike them dead. (But he’s on the right track: I’m
inclined to leave the judging to God.)
So will this ruling really destroy the “family” in America? Will it
pave the way for legalization of every kind of sex, no matter how depraved?
Unless he or she really is gay, no matter the legality of gay liaisons, few
kids just “try out” homosexuality. The costs in hatred and stigmatization
are—sadly—too high. Conversely, gay people do not “become straight”
just because the law is stacked against them.
The law correctly mandates mutual consent for any sex to be legal. Children
cannot consent, though sex play between kids is common, and seldom deserving
of legal intervention. (Older teenagers, however, can consent, as most state
laws reflect.) Animals and the dead cannot, by definition, consent.
Polygamy is trickier. But no matter how distasteful most people—myself
included—find it, the law should remain neutral, so long as such
relationships are consenting. In cases where coercion or some other illegality
(such as defrauding the government, as some Mormon polygamists have done) can
be demonstrated, other laws apply.
Adult incest? Indescribably revolting to me. Even religious taboos on
incest have their foundations in “science”: Children conceived through
incest are more likely to have genetic defects. But if two related people
aren’t reproducing, I’d argue that the state has no compelling interest in
seeking to enforce anti-incest laws. I think this is rare, anyway.
So long as sex is consenting and other laws are not violated, the
government should stay out of the bedroom, and even the bathhouse. But Mona,
Pat and their ilk want to govern people’s sex lives. The state should
“enforce minimal standards of decency in its citizenry,” Charen wrote.
So long as she gets to set the standards, of course.
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