OKAY, OKAY, SO I

OKAY, OKAY, SO I AM NOT OKAY!!
I am a lifetime NRA member. (Is that “okay?”) And, much as I like and respect Clayton Cramer for his admirable work on behalf of the Second Amendment, I must address his latest remarks about sodomy laws. (See my previous related blog. And if you enjoy that, here’s something I wrote before I really began blogging in earnest.)
Back to Clayton Cramer’s latest blog:

Laws express moral disapproval all the time. Think of the South Africa divesture fights of a few years ago, and laws against racial discrimination. A law criminalizing homosexual acts, while generally unenforceable, is a similar form of moral disapproval. This doesn’t make such laws into totalitarianism. They can be an effective way to say, “We, as a society, think that there is something wrong with this.” For those people who are trying to figure out how to respond to urges that they don’t really understand, such laws act as an encouragement towards right behavior–and in some cases, may encourage them to look for help with their homosexuality. For others, such laws, by saying, “You aren’t okay,” make them miserable, without encouraging them to ask themselves any hard questions.

Clayton Cramer is a good man, and I enjoy reading his blogs, most of which I agree with most of the time. But when he decries Horowitz’s entirely reasonable position as “over the top” I feel morally obliged to speak up.
It would be one thing if sodomy laws were merely, as Cramer says, expressions of moral disapproval, in the same way as anti-discrimination or laws requiring divestment. But his analogy fails, because there are four fundamental distinctions between anti-discrimination/divestment laws and sodomy laws:

1. Laws against discrimination derive from the notion that there is a victim, who has been harmed by the perpetrator;
2. Anti-discrimination laws penalize conduct which is not private or consensual in nature. Businesses are granted licenses to operate, and have legal duties to the public at large which are not shared by private individuals in their bedrooms. (If Cramer can point to a statute which prohibits discrimination in the bedroom, I could see his point.)
3. The penalties for discrimination are civil in nature, and I have not (yet) heard of a case where anyone faced prison for, say, refusing to grant a home loan or rent an apartment to a member of a protected group. Sodomy laws traditionally carry draconian penalties far in excess of any need to express social disapproval. True, there are many ways of saying “You aren’t okay,” but should a twenty-year prison term be one of them?
4. Enforceability. While generally speaking, anti-discrimination laws tend to be self-enforcing because of the presence of a victim, I am not at all comforted by the assurance that any law is “unenforceable.” Laws against race mixing (which existed in America before the Nazis passed the Nuremburg Laws) were not particularly enforceable, but that is not an argument in their favor. And, as the state grows more powerful, and methods of crime detection more intrusive, laws which are “unenforceable” today might be easily enforceable tomorrow. Finally, it is not an argument in favor of a law to claim it is unenforceable; if anything it is an argument against having it clutter up the statute books!

Cramer claims Horowitz is wrong for invoking the totalitarian specter, but what Horowitz correctly asked was whether we “want government intruding on the voluntary associations we make as citizens or dictating to us our moral and spiritual choices.” While this might not be full “totalitarianism,” as Cramer says, such thinking certainly heads us more in the direction of totalitarianism than freedom.
In a free and civilized country, why should anyone get to decide what is “okay” unless there is demonstrable harm to someone else? Who gets to decide what is and is not “okay” and on what basis? How far should they go?
Let us assume that homos are really gross, sickening, disgusting, and even downright icky. Not only that, let us assume that all they need is a local shrink, or a good long prayer meeting. Once the power of the state is invoked to use the full criminal sanction against them for their offensiveness, why end there? I mean, aren’t there other people who might be deemed offensive or disgusting?
Didn’t the Nazis start by saying to the Jews, “You are not okay”?


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