Hold on to your hats, y’all, this post is going to be somewhat scandalous and controversial, I think.
There is a large block of we Christian who believe that our nation would be a better place if our laws forbade the things we think are immoral and punished those who infringed upon our beliefs about proper relationships and right behavior. I strongly disagree that this is a good idea or a worthwhile goal.
Why? Because mercy triumphs over judgment (James 2:13). Our focus as Christians in the world is the fixing of problems and the lifting up of people, not on the punishing of others because they act in ways that we don’t like but that are not directly harmful. The song goes, “They will know we are Christians by our love,” (a reference to John 13:35) not “They will know we are Christians by our judgmental and self-righteous attitudes”—though many outside the church might argue that we’re closer to the latter than the former at present.
We need to consider carefully the role of the law in democratic society. Our legal system must balance the preservation of as much freedom as possible with the protection of citizens from wrongdoing and exploitation. The best way to do this—and this is how the legal system often works—is to focus on injury, not morality.
Some acts prohibited by the law (civil or criminal) are very clear in their intent to prevent injury—laws prohibiting theft and violence are designed to prevent actual and quantifiable harm from coming to others.
Still, America has a strong history of legislating morality. Hold on to your hats, because we’re about to get scandalous. Here are three things that are (or have been) affected by legislation largely on grounds of morality rather than prevention of harm: obscenity, drugs and prostitution. Before we proceed further, I do not mean to say that there are not significant moral concerns to be attached to each of these things or that they are good things—only that they are places where the law seems to overstep based on a certain group’s idea of what is right.
And here’s the practical problem—you can’t actually enforce morality with laws. Human beings tend to ignore laws that they don’t believe have a moral basis (or when they disagree with someone else’s morality), resulting in punishments for “crimes” in which no party has actually been injured.
“Obscenity” is an ambiguous, “I can’t describe it but I know it when I see it” sort of thing. To help ground the discussion, I’m mostly going to focus on sexual content that falls under the typical definition of obscenity.
We live in an environment far more permissive of pornography than many others—pornography is ubiquitous, easily accessible to anyone with a computer, and often socially treated as “not a big deal.” There are very significant moral concerns to be tied to pornography—both in the way that the production of pornography has a tendency toward exploitation and in how the consumption of pornography insidiously normalizes the objectification and demeaning of sexual partners in general and women in particular.
Still, those concerns are about the potential results of pornography and not necessarily about the thing itself. We could (and often do) pass laws that address the punishment of certain consequential acts—like the provision of pornography to minors or that otherwise involves minors—rather than blanket “obscenity laws.”
In Texas, however, our penal code still contains obscenity laws that prevent store owners from describing sex toys as anything other than “novelties”—if it is hinted at that the object could be used for a sexual purpose, it violates the obscenity law and its sale is criminal. So, it is with some frequency that the owners of or workers at “adult” shops are arrested over nomenclature. This situation, I think, makes clear that the purpose of Texas’s obscenity law is to govern the action of otherwise free and consenting adults because of one group’s moral views.
Let me reiterate, I think that pornography engenders addictive tendencies in its consumers and has the potential to create numerous interpersonal problems for those who view it. But I can’t be sure that pornography is categorically immoral. Even if it is—and it might be—that doesn’t mean that I believe that people should be legally prohibited from certain acts that are immoral so long as there is not a direct injury to someone else.
The ad absurdum of this argument is the criminalization of any activity deemed to be detrimental to a person on behalf of that own person. There’s a good reason that that kind of government interventionism and protectionism is offensive to most Americans.
I think that we can look at drugs in a similar light. While the addictive effects of marijuana seem to be scientifically debatable at present, we can be sure that there are prohibited substances that are highly addictive, ruin lives and lead to destructive behavior. That is why they are criminalized—to prevent harm before it happens. Unfortunately, the attempt at prevention appears to be largely futile.
The problem lies in the fact that we cannot stop drug use by criminalization—the last forty years have proven that the “war on drugs” is a failure with a high cost—both in a system that has given financial incentive to the establishment of dangerous drug cartels and that breaks up families by punishing rather than helping those affected. We will not stop the addicted by making the possession of use of illegal substances punishable by jail time.
Again, it is clear that drugs often lead people to criminal acts out of negligence or desperation—but these are already illegal. Driving under the influence, theft, child endangerment, assault, even murder are unfortunately too common in the world of some of the drug addicted. But since those things are already illegal, why do we need to criminalize the drug user for the use of the drug in the case (rare as it may be) where there are no consequences to others from the use? (I phrase it in terms of consequences because I’m unwilling to call illicit drug use “responsible,” but there are many other legal activities which might be self-injurious and not terribly responsible, too).
Likewise, prostitution has always been with us in civilized history. Some governments have permitted legal prostitution (ancient Rome and some of the modern Northern European states); others have outlawed it (the U.S.). In medieval Europe, the church even supported prostitution as a lesser evil at a time when social tendencies (at least for the wealthy) were for older men (in their thirties, often) to marry younger women (in their late teens or early twenties). This created a situation in which older married men feared the seduction of their wives by unmarried men their spouse’s own age. Prostitution seemed to provide a sort of safeguard against infidelity—for the young men, at least. As far as I know, there were no significant initiatives to help young brides bond with their older husbands.
Prostitution seems morally questionable at best and certainly a hindrance to the promotion of healthier (both psychologically and theologically) romantic and sexual relationships. But the reality is that none of our laws against prostitution have stopped the institution. Our attempts at regulation have only made things worse. By pushing prostitution into the realm of the illicit, we have deprived sex workers of safe and healthy working conditions that might be provided under regulation rather than illegalization, have institutionally supported human trafficking and sex-slavery by making such business profitable, and have deprived those who work in the sex industry of legal productions taken for granted by others.
And that lays bare the common thread for all of these issues—our attempt to criminalize these choices en masse rather than to focus on the injurious effects of such practices has made the situation worse rather than better. Our attempts at judgment have created additional suffering when we are called to mercifully relieve the suffering of others.
You may ask (and I hope you do) what the alternative is. It is rather simple—we persuade others about morality, we inform them about the potential harm that could come from the types of things I’ve described above, but we leave the law to criminalize only those actions that directly and tangibly harm another person. The American constitution is founded on the principle that one is free to believe what one wants but not free to act on those beliefs to the direct injury of another.
We addressed this belief in my constitutional law class in law school. In reviewing First Amendment case law, our professor would often remind us, “Often, the answer is not less speech, but more.”
The fundamental difference between the law and morality is this: the goal of the law is to prevent certain results; the goal of morality is to avoid certain intentions.
So, we ought to be focusing our faithful energies on eradicating the factors that lead toward the immoralities we seek to curtail. Want to curtail the use of pornography and prostitution? Help people focus on healthy human interactions and relationships. Want to limit drug use in our country? Fight generational poverty, the large disparity of wealth and racism to limit the oppressions that drive many to the escape of drugs.
Is it extremely uncomfortable to try to talk to others about moral issues? Yes. Will there be disagreements even among Christians about moral questions? Of course. Isn’t it just easier to legislate morality? Certainly. But is it better than calling people to be better rather than trying to punish them into morality? Absolutely not.
When Jesus tells us to render unto Caesar what is Caesar’s and to render unto God what is God’s, I think this idea is somewhere in his intent. The role of government is not the same as the role of our faith (thank God!) and we cannot expect to use the one to achieve the goals of the other. Jesus had no interest in using governmental authority to draw others to his message of striving to “become perfect as our Father in heaven is perfect.” Why are we so interested in doing so? Our efforts would be much better spent on helping people make better choices and showing mercy when they make poor ones by helping to improve situations.
At the end of the day, would we be better off if we stopped focusing law enforcement efforts on criminalizing obscenity and instead spent more time promoting healthy human interaction? I certainly think so.
(1) Attempts by Christians to legislate morality have been a poor witness of Christ because these attempts have increased suffering rather than alleviating suffering.
(2) Criminalizing immorality does not create morality.
(3) Our efforts as politically-active Christians are better spent persuading others to be moral without the coercive force of the state, addressing the social, economic and political conditions that drive people to immoral behavior and helping others who have made poor moral choices to remediate the personal suffering their actions have caused and to alleviate the suffering they have caused for others.