In Defense of the Morally Repugnant

In Western culture, few taboos remain as strong as those related to sex. Many people form a basis for morality on the concept of disgust, but what legal weight should disgust hold? Is a general perception of unpalatability a valid reason for prohibition of something? Incest, polygamy, and obscenity are all examples of legal prohibitions based on the concept of moral disgust; however, validity of a prohibition should be judged not on the social acceptability of the act in question, but on whether the act inflicts harm on a party involved. (To be clear, it is assumed that harm is inflicted if any participant is unable or unwilling to give consent, eg, cases of sexual abuse or pedophilia.) Individual autonomy is highly regarded in United States law, and many criminal laws protect that autonomy. For example, rape is considered a crime because it is a violation of one’s sexual autonomy. In other words, rape takes away the ability of the victim to make a decision regarding with whom they have sex. In the same way, laws that prohibit certain sexual relationships also violate the sexual autonomy of the individual, as they are a way for some people to decide what kinds of sexual relationships other people may have. 

John Stuart Mill, in On Liberty, stated, "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." This is commonly referred to as the “harm principle.” This can be contrasted against the idea of moral police, or the protection of the public from things that offend their sensibilities. Mill also addressed this idea, stating, “His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.” It is important to understand, however, where the need for moral police comes from. From an anthropological standpoint, humans developed the concept and feeling of disgust as a mechanism of self protection from disease. For some people, the concept of disgust informs their concept of morality; in other words, things that disgust are considered violations of the moral code. This serves as an incentive to refrain from activities that could pose some sort of danger. As a result of the idea of moral police, legal prohibitions of such taboo acts are put into place.

In his dissenting opinion in Lawrence v. Texas, the landmark Supreme Court case that declared sodomy laws unconstitutional, Justice Antonin Scalia made a point that certain sexual taboos were justified in their prohibition “only as moral offences, including homosexual sex, as well as bigamy, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” Although Scalia was meaning to imply that all of those acts should be prohibited, it is more important to point out that he grouped incest and obscenity in the same category as homosexual sex, considering that the Court in that case decided that the sodomy laws in question were unconstitutional.

An argument commonly made in opposition of homosexuality has to do with the potential negative effects on the children of same-sex couples. In a sense, detractors of homosexual relationships purport that they should remain prohibited because, in fact, there are “victims:” the children. As more research is done and discussion had on the subject, the less this argument seems to hold weight. The lack of any real harm to any party involved has become an argumental stronghold for gay rights advocates, because with the idea of “harm” removed from the equation, it becomes difficult to argue against applying the Fourteenth Amendment’s equal protection clause to the issue.

In the case of consensual incest, it is argued that a predisposition to genetic defects in children produced from such relationships essentially creates a “victim:” again, the children. When a German brother and sister argued in court for the right to be together, they made a point that if the law precludes incestuous relationships on the grounds of risk to the children, then the law must also preclude all other relationships where a risk of genetic defect in the children is present. Since it is not desirable to attempt to restrict traditional couples from taking the risk and having children, using this position as evidence against incest becomes a double standard, and therefore invalidates the argument. The harmfulness of an action is widely considered in Western culture to be an important factor in deciding whether or not the act should be considered immoral, or criminal, but it is important to ensure the even application of this concept regardless of the stigma attached to the act in question.

Having disposed with the “victim” argument, it becomes difficult to justify prohibition of incest. It is important to remember that Justice Scalia grouped homosexual sex, incest, prostitution, obscenity, and other crimes with no discernible victim together, the implication of such a grouping being that like homosexual sex, many of the other offenses listed have no real victim and are prohibited solely on the concept of moral repugnance. The fact that at least one of these acts--sodomy--has been declared constitutionally protected and legal while most remain illegal is an uneven application of the principle underlying the Court’s ruling in Lawrence. Again, a double standard emerges based on the subjective concept of disgust. If disgust is not a valid reason for prohibition of sodomy on its own merits, then neither is it a valid reason for prohibition of any other victimless, morally offensive acts such as incest, polygamy, or obscenity.

One of the most difficult hurdles in dealing with laws based on moral offense is that each state has varying laws regarding offenses. While Rhode Island, for example, has no incest statute, in some states the act garners up to a life term in prison. The National District Attorneys Association provides a document on their website listing obscenity statutes by state which is 248 pages long. Almost every state has statutes prohibiting prostitution (For more on the subject of prostitution laws read Nick Denning’s post--A Case for Legalized Prostitution). Part of the reason that laws related to the moral police are so varied from state to state is that in many cases, morality tends to be subjective. Justice Potter Stewart famously said, on obscenity, he could not define it, but he “know[s] it when [he] sees it.” It is time to remove moral subjectivity from criminal statutes, and the best way to accomplish that goal is to use a definitive guideline by which offenses may be judged, that guideline being Mill’s Harm Principle. This will ensure that every individual will have the right to decide for themselves what sort of sexual conduct is appropriate for themselves.

In Lawrence v. Texas, the court ruled that “(1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting a practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of ‘liberty’ protected by due process.” The decision does not specify sodomy, but rather speaks in more general terms about any particular practice which may have traditionally been viewed as immoral. Although the language of the decision could be applied to acts such as incest or polygamy, or creation and distribution of material deemed obscene, it was only applied to sodomy. It is time to remove subjectivity from law and to ensure that all people are free to pursue whatever makes them happy--no matter how disgusting it may be.