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The End of Morality Laws? Not Exactly

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Does the legalization of same-sex marriage and polygamy mean the end of all morality laws? George Washington University law professor Jonathan Turley thinks so, and he openly celebrates the death of all morals legislation—or, at least he says he does.

Turley was the lead counsel in the “Sister Wives” case in Utah that legalized polygamy in that state last month, a reversal of the very morals legislation that the U. S. government required of Utah for that territory to be admitted as a state in the late nineteenth century.

Here is how Professor Turley explained the case:

It’s true that the Utah ruling is one of the latest examples of a national trend away from laws that impose a moral code. There is a difference, however, between the demise of morality laws and the demise of morality. This distinction appears to escape social conservatives nostalgic for a time when the government dictated whom you could live with or sleep with. But the rejection of moral codes is no more a rejection of morality than the rejection of speech codes is a rejection of free speech. Our morality laws are falling, and we are a better nation for it.

That is an astounding if unsurprising argument. The argument isn’t new to Jonathan Turley, who came on the scene as an advocate for polygamy almost as soon as the Lawrence v. Texas decision was handed down by the Supreme Court in 2003. That case decriminalized homosexuality, and Turley soon made the case for decriminalizing polygamy.

Turley’s article is an example of a concerted, very sophisticated, libertarian argument that is fast gaining ground in American life. Just last year the state of Colorado decriminalized adultery. The president of the Independence Institute testified for the decriminalization, stating that “it is a conservative value to get rid of bills that are useless.”

The legislature followed his advice. But is a law against adultery a “useless” statute? Only in the sense that it is no longer enforced. But the original statute was hardly useless. It was a profound moral statement about the sanctity of marriage and the crime of violating the marriage vows, thus subverting marriage and the family and endangering children and weakening the larger community.

The argument for removing the laws was simple: the state has no business legislating morality. But every legislature legislates morality. Every code of laws is a codex of morality. The law is itself inherently and inescapably moral, even irreducibly moral. The law can’t be anything other than a moral statement. Every system of laws, whether primitive or sophisticated, old or new, whatever the cultural or ethnic or legal context, is a moral statement.  The removal of morals legislation and the celebration of that removal is itself a profound moral statement.

But it’s also a very inconsistent statement, as becomes very clear in Jonathan Turley’s article in The Washington Post. He celebrates the striking down of this law against polygamy, writing about it as a great moral liberation. He is also, of course, an advocate for the legalization of same-sex marriage. But Professor Turley is not going to accept every romantic or sexual relationship, even though he celebrates the end of what he calls “morality laws.”

Turley wants the law to continue to have sanctions against bestiality and incest. Why bestiality? Well, he says, there are obvious consent issues and very real harm. What about incest? He says laws against incest are not morality laws, but rather matters of health. Well let’s look at that for just a moment. That’s an argument that has been used before, but it can’t hold water. What about couples who are beyond the ages of childbearing? The medical issues related to incest have to do with a far-greater likelihood of genetic abnormalities in the offspring of closely-related couples. But if those closely-related couples—brother and sister, mother and son, father and daughter, or any kind of permutation thereabouts—if that intimate pair is beyond the age of childbearing, then what is the medical issue? It disappears. Nevertheless, Mr. Turley is not advocating the striking down of laws against incest. Why? It is because what he’s actually promoting is the progressive striking down of one set of laws and then another: first the laws against same-sex marriage; then the laws against plural marriage. Even he wants some morality laws to remain, but he claims to celebrate the end of all morals legislation.

In an amazing sentence, Mr. Turley writes:

The case [speaking about the Sister Wives case] was never about the recognition of multiple marriages or the acceptance of the religious values underlying this plural family. It was about the right of consenting adults to make decisions for themselves and their families.

Well, the only reason this was a legal case is because the decisions they were making were decisions about polygamy.

Later in the article, Turley writes: “Across the country, the era of morality codes is coming to an inglorious end.”

Well, it is and it isn’t. The law will continue to embody a morality code, just a very different code from the Christian moral system that undergirded Western law for more than a thousand years. This new secular morality is radically different, to be sure; there is just a very different morality driving the new morality laws.