Leave Consenting Adults Alone

Introduction

The groups seeking to ban gay marriages and civil unions either fail to understand liberty or place little value on it.

The same is true of others trying to restrict the freedom of consenting adults. They don’t want the U.S. to be “the land of the free” and would have the law impose their religious views on everyone.

To let them get away with it would be a tragic mistake. Their un-American crusades should be vigorously opposed.

Jeffersonian liberty

President Thomas Jefferson spoke of the American ideal of individual liberty in his First Inaugural Address. He said: “A wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement.”

Jefferson likewise wrote in his Notes on the State of Virginia: “The legitimate powers of government extend to such acts only as are injurious to others.”

The nineteenth-century economist and philosopher John Stuart Mill, author of the classic essay “On Liberty,” similarly explained: “So long as we do not harm others we should be free to think, speak, act, and live as we see fit, without molestation from individuals, law, or government. . . .”

Gay weddings and civil unions harm no one and make the couples, their friends, and families happy. Additionally, by showing the world that they view marriage and commitment as highly desirable, the participants in the ceremonies honor, strengthen, and promote those values.

Under traditional principles of individual liberty, then, there is no reason the government or anyone else should interfere with people’s deeply personal decisions about choosing a marriage partner.

As Jefferson and Mill recognized, a free society is justified in prohibiting only acts harming the person or property of another. By protecting citizens against those harms, government promotes liberty by enabling people to control their lives and property as they see fit.

A different result occurs, however, when government attempts to control the activities of consenting adults. These people do not interfere with the liberty of others or risk harm to anyone (other than possibly themselves). They only make a personal choice of how they – and they alone – will live.

Thus, government does not regulate consensual acts to protect people from others who would harm them. Government instead claims to know better than the adults themselves how their personal lives should be conducted – and therefore restricts their liberty.

This arrogant and patronizing claim is repugnant to the very foundations of a free society. And it is falsified by the blunders that even the better governments – let alone the really bad ones – have made throughout history in regulating people’s personal lives.

For instance, governments in the U.S. censored important information about healthcare as being “obscene,” prevented married couples from purchasing contraceptives, banned interracial marriages, made homosexuality a crime, and prohibited alcohol sales. Based on even this limited history, people should know that government cannot be trusted to make better decisions about their personal lives than they can.

Because governments were wrong on each of those subjects and many others, we should be loath to allow government to interfere with people’s personal liberty, provided they don’t harm others..

Morality cannot exist without liberty

Even if the bluenoses were right in saying homosexual marriage or certain other consensual behavior is immoral, outlawing the acts is not the way to make people moral. In order for morality to exist, people must have a choice of whether to engage in the acts – and then decide based on their own knowledge and values.

For example, prisoners generally don’t stay out late at night, eat excessive junk food, or go on drunken sprees. But no one would argue they are paragons of virtue and self-restraint. They simply don’t have the opportunity to do those things while incarcerated.

Likewise, people are not made moral by laws purporting to keep them from participating in consensual acts. Even if a law could succeed in doing so, their moral character would not necessarily improve. They might maintain a willingness to engage in the acts at the first opportunity.

A prerequisite for personal morality, then, is the freedom to choose whether to participate in an activity. Another essential element is to understand the possible advantages and disadvantages of engaging in it, and the ways to maximize the benefits and minimize the risks.

In other words, morality cannot exist without liberty and education. Once people are free and informed, they are in a position to refrain from an activity based on their knowledge, ethical system, and willpower.

Or possibly their analysis would lead them to conclude that their long-term happiness and the happiness of others would be maximized by engaging in the activity in an intelligent and moderate way, as opposed to a reckless and unrestrained one.

In any event, people become moral only by making an informed choice among alternative actions – not by being forced to act in a certain manner. And if they make the wrong choice, the way to make them moral is not to take away their liberty to choose, but to educate them so they can make right choices in the future.

As Jefferson also wrote: “I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion.” (Emphasis added.)

Moreover, the nineteenth-century lawyer and orator Robert Ingersoll said: “You never can make great men and great women by keeping them out of the way of temptation. You have to educate them to withstand temptation. It is all nonsense to tie a man’s hands behind him and then praise him for not picking pockets.”

When liberty increases, the number of choices available to people expands, the more opportunities they have for becoming educated about the choices, and the more correct decisions they can intelligently and ethically make on their own. Morality truly walks hand in hand with liberty.

And so does responsibility. When people are responsible for making decisions about their own lives, and must live with the consequences, they have a strong motivation to educate themselves about the alternatives and choose wisely. As Elizabeth Cady Stanton explained: “Nothing strengthens the judgment and quickens the conscience like individual responsibility.”

These views are consistent with religious thought. According to Christianity and many other religions, God gave people free will so they can decide for themselves the course they will take with their lives. He didn’t decide for them.

The idea there, too, seems to be that people can be sincerely religious only when they are free to choose and follow a particular religion – not when someone forces it on them.

Forbidden fruit appears sweetest

Not only do laws against consensual acts reduce opportunities for moral improvement, they increase participation in the banned activities. This is the “forbidden-fruit” effect.

The name originates, of course, from the creation myth contained in the biblical book of Genesis. According to that ancient story, the first humans chose to eat the very fruit God had told them to avoid.

Human nature has changed little, if at all, in the thousands of years since the story was first told.

Most people have had the experience of never desiring to engage in – or even contemplating – a particular act until the government started talking about banning or cracking down on it. Only at that point did the subject look interesting and inviting.

It’s a recurring theme. As Chaucer wrote in The Canterbury Tales: “When something’s difficult, or can’t be had / We crave and cry for it all day like mad.”

Historically, this phenomenon was often seen in efforts to ban certain publications. The attempted censorship was usually the best thing that ever happened to the materials. Public awareness of the items increased, the curiosity of many was piqued, and sales skyrocketed.

Conversely, when government discontinued the censorship, demand for the materials frequently underwent a precipitous decline. After the publications were no longer deemed illicit, much of the fun in possessing them was gone.

Another historical example is Prohibition. After it ended, there was a minor rise in the amount of drinking (possibly to celebrate the conclusion of the failed social experiment). But then alcohol consumption in the U.S. actually declined. Part of the reason was that the allure of the forbidden had been removed.

Further, by treating adults as children who need a paternalistic state to decide what they are allowed to see and do, government evokes resentment and antipathy from the public. This is another way people become motivated to do the opposite of what the government wants.

The same outcome occurs as a result of some people’s tendency to get a perverse thrill from outsmarting the government. This tendency manifests itself most often when they view government as oppressive or meddlesome. They find that defying such a government is fun and satisfying..

All these undesirable results would be avoided if government treated people as responsible adults who don’t need Big Brother making decisions for them about matters that are nobody’s business but their own.

Law-enforcement resources are wasted investigating consensual acts

Government’s focus on consensual acts leads to more unethical conduct in another way. To the extent law-enforcement resources are used against consenting adults, there is a corresponding reduction in the resources available for apprehending real criminals.

An enormous need exists to increase efforts to arrest those who harm the innocent. They victimize someone every two seconds in the U.S. Five out of six Americans may someday be victims of violent crime.

According to author Peter McWilliams, arrests are being made for only about 20% of crimes committed against persons or property. He also says one in six murderers gets away, eight of ten burglars aren’t arrested, and only 5% of forcible rapes lead to prison time.

McWilliams further reports that $10 billion in personal property is stolen each year and never recovered. Billions more are illicitly obtained through white-collar crime.

As for the criminals who are arrested, a large percentage of them get off scot-free, are not sentenced to the punishment they deserve, or are released before they have served an appropriate sentence. One reason is the lack of sufficient law-enforcement resources to properly investigate and prosecute their cases. Another factor is the overcrowding of jails and prisons with those convicted of consensual crimes, leaving insufficient room to house violent criminals.

Using law-enforcement resources against consensual acts also makes the U.S. more vulnerable to terrorism. According to The 9/11 Commission Report, in 2000 there were twice as many FBI agents assigned to enforcing drug laws than assigned to counterterrorism. The FBI’s head of counterterrorism told the Commission he wishes he’d had “500 analysts looking at Usama Bin Ladin . . . instead of two.”

And former Vice President Al Gore charged that, prior to the September 11 attacks, the Bush administration’s Justice Department had more FBI agents investigating a suspected brothel in New Orleans than monitoring Bin Ladin and al Qaeda.

Moreover, advances in DNA testing have proved that innocent people were wrongfully convicted of serious crimes and sentenced to many years in prison. Some even served time on death row before being exonerated.

In his book Presumed Guilty: When Innocent People Are Wrongly Convicted, journalist and private investigator Martin Yant cites experts who estimate the rate of wrongful convictions at between one-half percent to 10% of persons convicted of serious crimes. With an annual conviction rate of approximately 1.5 million, the conservative estimate of one-half percent means over 7,500 innocent people convicted each year in place of the guilty.

There obviously is a strong need for law enforcement to improve its responses to real crimes committed against persons or property. Yet each year in the U.S., law enforcement applies some $50 billion to arrest, prosecute, and lock up persons who commit consensual crimes. Some estimates are that roughly half of all law-enforcement resources are used in connection with consensual crimes.

Those resources could go a long way toward remedying the current deficiencies in law enforcement’s handling of serious crimes. Due to this misallocation of resources, many violent and sociopathic criminals are able to escape justice and continue preying on the public. The same goes, to a much larger extent, for white-collar criminals.

Arrests for consensual acts devastate lives

While numerous violent criminals and white-collar criminals roam free, and innocent people rot in prison and on death row for crimes they didn’t commit, law-enforcement resources are used to destroy the lives of consenting adults who don’t harm anyone.

There are a lot of them suffering the harm. Some four million people are arrested each year and 350,000 are in prison for consensual crimes.

When people are arrested for those crimes, their ability to remain employed is imperiled. A conviction and prison sentence virtually guarantee the loss of their livelihoods. Upon release from prison, the criminal record can impede their ability to find new jobs.

Even if they are not convicted of a crime, the arrest record alone can significantly harm their lives. It too can lead to loss of jobs and difficulty finding new ones. And it can interfere with other aspects of their lives, such as the ability to obtain credit, purchase a car, rent an apartment, and maintain custody of children.

Thus, the financial impact of either a conviction or arrest may mean these people need long-term assistance from government or charities. Or they may resort to serious crime based on what they learned from real criminals while incarcerated. This is all a huge drain on the economy, and is in addition to the costs of arresting, prosecuting, and imprisoning them.

To avoid conviction and prison, the accused may have to spend thousands of dollars on legal fees. For certain crimes, the amounts can run to tens or hundreds of thousand of dollars. When faced with the possibility of causing financial ruin to themselves and their families, some contemplate suicide and may see it as the only way out.

Government causes all this turmoil in the lives of consenting adults to “protect” them from possible consequences that might occur to them – and them alone – from their own freely chosen acts.

It’s hardly a way to inspire them to love their country. Edwin M. Schur states that when a victimless criminal “is treated as an enemy of society, he almost necessarily becomes one.”

Because these arrests devastate the lives of harmless people, a strong argument can be made that Christian mercy, along with the mercy taught by other religions and philosophies, is reason enough for leaving consenting adults alone.

Many harmful acts are legal

Some try to justify laws against consensual acts by arguing that although there is no harm to nonparticipants, the participants need to be protected against harm they might do to themselves. A problem with this position is that hardly anyone even thinks about outlawing many types of legal acts that harm participants.

Cigarette smoking is an example. Each year approximately 300,000 Americans die because they chose to smoke cigarettes. Smoking causes lung cancer, heart disease, emphysema, and other serious illnesses.

In fact, smoking is worse than some illegal consensual acts because not only the smokers are harmed. Millions of nonsmokers have died from exposure to secondhand smoke. And some persons die from fires accidentally set by careless smokers.

Alcohol consumption illustrates the same point. Alcohol is a factor in many cases of murder, rape, assault, spousal abuse, child abuse, and other criminal acts. It also contributes to accidents in the home, workplace, and elsewhere. Treatment for alcohol addiction costs society billions of dollars annually.

Moreover, drinking and driving is a contributing factor in about half of all automobile accidents. The result is death or injury to tens of thousands of Americans each year.

The other half of the deadly or injurious traffic accidents could have been prevented if people didn’t drive – another dangerous activity they voluntarily undertake.

Even prescription medications can be harmful. An estimated 125,000 deaths are related to their use each year.

Many young Americans are injured from participating in athletics. The National Athletic Trainers’ Association estimates that 1.3 million students are injured in high-school sports each year. More than a quarter of the injuries are serious enough to sideline the athletes for longer than a week.

Additionally, an average of 36 high-school athletes sustain fatal or catastrophic injuries each year. The total is 24 for high-school football players alone.

As for the football players who eventually go on to a professional career, by their 40s many suffer from severe arthritis or other football-related ailments. Some even have brain damage from repeated concussions, similar to what some boxers suffer.

These examples show that if society is going to view possible harm to participants as sufficient reason to ban consensual acts, there will be no end to the banning – and very little freedom. Every activity carries risks to participants. That’s just life.

Virtually no one supports outlawing cigarettes, alcohol, automobiles, prescription drugs, sports, and many other causes of harm. Therefore, possible harm to participants isn’t the real reason people oppose legalizing other consensual acts. If it were, they would be calling for laws against many currently legal activities.

As J. P. Morgan said, people usually have two reasons for doing something: one that sounds good and a real one. The real goal of those opposed to certain consensual acts is not to prevent harm, but to have the government enforce their views of what is acceptable and unacceptable behavior.

Legislating personal morality, however, can be a double-edged sword for people engaging in it. By outlawing some acts that don’t harm the person or property of another, they establish precedents that can be used to outlaw other consensual acts – including ones they enjoy.

For this reason, laws against consensual acts should be opposed not only by those who engage in the illegal ones, but also by participants in the legal ones. If for no other reason, the latter group should do so in defense of their own personal freedom. It’s a matter of what goes around can come around.

There is one way to avoid endless disputes over whose preferred consensual acts will be permissible and whose will be illegal. That is to allow people to decide for themselves whether the possible happiness they may derive from a consensual act is worth the risks of participating in it. And if they decide to participate, they are responsible for taking precautions against the risks.

This solution would eliminate the unfairness, hypocrisy, and demoralization caused when society punishes people who commit certain consensual acts but does nothing about others who engage in far more dangerous and harmful ones.

Different strokes

Every person has a unique genetic makeup and social background that shaped his or her personality. As a result, there will naturally be differences among people as to their likes, dislikes, needs, desires, strengths, and weaknesses.

Because of those differences, it is simply impossible to decide what is best for others. Much is still unknown about genetic influences on people’s behavior. But whatever those influences are, there’s no reason that people with genetic dispositions to behave in a certain way should force others to adopt the same behavior. Others might be genetically predisposed to find happiness in another way.

As for environmental factors, people are unaware of long-forgotten experiences affecting their own behavior, because the influences operate at a subconscious level. If they cannot know the environmental influences causing them to have certain likes and dislikes, they surely cannot decide what is appropriate for people coming from markedly different but equally forgotten backgrounds – which might produce entirely different preferences.

In fact, parents often don’t understand what is best for their own children, even though they know their children extremely well and are genetically similar to them. It’s not unusual for young people to choose career and recreational paths that are quite different from what their parents think they should choose.

To find contentment and self-actualization, the young need to “follow their bliss” by doing what feels rights for them – not what their parents or others think should be right for them. When they don’t pursue their heart’s desire, and instead let someone else dictate their careers, hobbies, or lifestyles, the consequences can be lack of both accomplishment and fulfillment.

As John Stuart Mill wrote: “Where, not the person’s own character, but the traditions or customs of other people are the rule of conduct, there is wanting one of the principal ingredients of human happiness, and . . . the chief ingredient of individual and social progress. . . .”

Because parents often cannot correctly determine what is best for their own children – whom they know better than they know anyone else – there is no way one group can intelligently decide the lifestyles for 300 million Americans they don’t know at all. Native Americans had it right in their adage about not judging others until one has walked a mile in their moccasins.

Further, allowing diversity of lifestyles enables people to discover what is right for them. After developing an interest in a particular activity, some people have trouble moving beyond that interest unless they have actually given the activity a whirl. Until they do, the interest can be a haunting obsession.

By trying the activity and getting it “out of their system,” they learn about themselves and can better decide what direction to take with their lives. Whether they find the activity is right for them or not, often the only way to know for sure is to experience it.

Fortunately for Americans, respect for diversity is what the U.S. has been about from the beginning. In the Constitution, the framers guaranteed the rights of freedom of speech, freedom of religion, and personal privacy.

They knew that people don’t have to think alike or adopt the same lifestyle to get along. Instead, they saw freedom and diversity as offering Americans the best opportunities to develop their unique talents, maximize individual happiness, and contribute the most to society.

Additional considerations

There are a number of other reasons the law should not prohibit activities of consenting adults.

First, when disputes arise between persons involved in illegal consensual acts, the courts are unavailable to resolve the issues. A contract to commit an illegal act is void under the law. But even if the contract were enforceable, the parties would likely shun the courts to avoid publicly announcing they were involved in the illegal act.

Because legal means of handling disputes are unavailable, the law of the jungle applies to the relationships. This can include misrepresentation and fraud in providing the goods or services to customers. It can also involve employer or customer abuse of persons working in the illegal businesses.

Whatever the type of wrongdoing, the aggrieved parties’ only alternatives may be to endure it or resort to a violent remedy. The result is more abuse, crime, and violence in society. These outcomes wouldn’t occur if the parties had access to nonviolent and civilized means of handling the disagreements.

Customers could then request assistance from governmental agencies dealing with consumer fraud. They could also sue for misrepresentation or breach of contract, and press charges over any criminal acts that occurred.

Likewise, workers could seek enforcement of laws governing hours of employment, minimum wage, overtime pay, workplace safety, etc. And they too could sue for damages over civil wrongs and file charges regarding any criminal acts.

The existence of governmental regulation and legal remedies would also deter the commission of many wrongful acts in the first place.

Second, consensual acts should be legalized because most people have, at one time or another, engaged in an illegal one. After doing so, they probably saw that the act was harmless and possibly even beneficial to them.

After learning that the law was nonsensical and opposed to their well being, their respect for the legal system diminishes. They begin suspecting that many laws may be equally wrong, and begin picking and choosing which to obey.

And when they see the police arrest others for the same harmless consensual acts they committed, they can acquire a Robin Hood mentality of identifying with and supporting lawbreakers instead of the police. They develop lower respect for law enforcement and provide less support for it than they would if the police pursued only those who harm others.

Third, laws against consensual acts do little or nothing to deter people from committing the acts. Criminologists tell us a law’s deterrent effect increases with the likelihood that violators will be caught and swiftly punished.

Although an extremely high percentage of people commit illegal consensual acts, a very low percentage of them ever get caught and punished. Thus, for persons contemplating whether to violate these laws, fear of arrest and punishment is usually not a significant factor in the decision.

Fourth, legalizing consensual acts would mean the income from the transactions could be taxed for society’s benefit. Those transactions currently occur in a completely untaxed and unregulated underground economy.

If the dealings were legal and out in the open, millions of tax-paying jobs would be added to the economy. The taxes collected could increase governmental revenues by billions. This would be in addition to the billions saved from no longer wasting law-enforcement resources on investigating, prosecuting, and locking up consenting adults.

Making the transactions legal would also be consistent with free enterprise and the right to acquire and control private property. As Peter McWilliams writes: “For the government to say that certain things cannot be owned, bought, given away, traded, or sold is a direct violation of both the sanctity of private property and the fundamental principles of capitalism.”

Finally, allowing adults to make their own decisions about consensual acts is required by the Golden Rule – the principle of treating others as one would like to be treated. Many religions and philosophies teach this moral precept.

People don’t want others telling them whether they can engage in acts harming no one else. Thus, in living by the Golden Rule, they should treat others the way they would like to be treated – by not imposing their personal morality on them.

Conclusion

Laws against consensual acts are vestiges of ignorant and authoritarian times when governments and religions were thought to have divine knowledge and authority to decide all aspects of people’s lives.

Enlightenment thinkers of the eighteenth century took a different view, and their support for freedom strongly influenced the founders of the U.S. The Declaration of Independence therefore proclaimed that people have an inalienable right to life, liberty, and the pursuit of happiness.

The Enlightenment’s influence also led to strong affirmations of liberty in the U.S. Constitution. These include the guarantees of freedom of speech and religion, the rights of privacy and individual liberty, the limited powers granted to the federal government, and the stipulation that the powers not granted are reserved by the states and the people. Further, the Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

According to most constitutional scholars, the Constitution is not a static document whose meaning remains the same as in the eighteenth century. By phrasing constitutional rights in general terms, the founders intended the principles to be applied to new circumstances and in light of increasing knowledge and experience.

As Thomas Jefferson said: “Laws and institutions must go hand in hand with the progress of the human mind. . . . As new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”

The U.S. Supreme Court reaffirmed Jefferson’s view in the 2003 case of Lawrence v. Texas, which used the constitutional rights of liberty and privacy to invalidate a state law that banned private, consensual “homosexual conduct.” The court observed that in the U.S. and other Western nations during the previous half century, laws and social practices had increasingly and widely recognized that adults have a substantial liberty interest in deciding how to conduct their private sexual lives.

The court concluded its decision by eloquently stating: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Previous generations have certainly done so. For example, some constitutional provisions were originally interpreted as providing limited or no protection to women and racial minorities. After many decades of increasing knowledge about gender and race, however, the interpretations evolved to protect not only white males but also women and other groups.

A similar evolution should continue based on current knowledge of the harms caused by enforcing laws against consenting adults. The constitutional rights of privacy, religious freedom, and individual liberty should be viewed as protecting consenting adults from governmental intrusions into their private lives.

In the 1930s, Prohibition was repealed after people realized that government’s attempts to prohibit the sale and consumption of alcohol did more harm than good. It’s time to recognize the same fact concerning other consensual acts.

President John F. Kennedy reminded Americans that “the one great irreversible trend in the history of the world is on the side of liberty – and we, for all time to come, are on the same side.”

Unfortunately, those seeking to outlaw gay marriages and civil unions – and otherwise use the law to impose their personal morality on others – have gone over to the other side. They are working against the invaluable principles of individual liberty and personal privacy.

Although they call themselves conservatives, they are not true conservatives. The noted conservative Senator Barry Goldwater wrote in a 1994 essay: “The conservative movement is founded on the simple tenet that people have the right to live life as they please as long as they don’t hurt anyone else in the process.”

Goldwater was right. As long as people don’t harm the person or property of another, they should be free to pursue happiness in whatever ways they choose.

[Much of the information in this article is from Peter McWilliams’ great book Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crimes in a Free Society (Los Angeles: Prelude Press, 1993).]