Last edited: February 06, 2005

Some Advice on Consent

The Daily Camera, July 20, 2003
1048 Pearl Street, Boulder, CO 80306
Fax: 303-442-1508

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? No.

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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