On Morality and the Law

There has been an increasing debate about the role of morality in the law.  Can moral revulsion alone justify a law?  A libertarian might say, for instance, that as long as everyone is a consenting adult and no one is hurt (except consenting adults), people should be allowed to do whatever they want.  In other words, unless you can show some kind of harm to a third person who is not a consenting adult by certain conduct, you can’t ban or regulate that conduct.

By comparison, liberals often claim to believe this but in practice do not.  Either they really don’t believe it, or they define the concept of harm so broadly, that it really encompasses almost anything.  So we have Mayor Michael Bloomberg can declare that what consenting adults do in their bedroom is no one's business but their own... unless they want to drink a large soda.

Meanwhile, conservatives insist that morality can be the basis of law.

So who is right?

Well, let me give you an example of this: the law of incest.  Yes, it’s an icky subject but in a way that is precisely why this is a good place to discuss whether law is based simply on third party effects or not.

There is a common myth that incest laws are about “mutant children.”  Or to put it more scientifically, when two people of blood relation have sex and have children their offspring is more likely to match up recessive traits that are often extremely negative.  But that is not what the law prohibiting incest is really about.

Now, first, I think most Americans are not comfortable with a government that is in the genetic purity business.  If we say that the government can stop two relatives from having sex because they might bring forth a certain recessive trait, what about forbidding certain people with certain traits from having sex at all?  Or forced sterilization?  It seems like the first step down a very dangerous path.

And more importantly it doesn’t relate to what most incest laws actually say.  So it helps to look at what the incest laws actually say.  We’ll pick on Maryland, because I have become more familiar with this subject in Maryland law than I ever wanted to be.

I won’t bother to quote the law criminalizing the sex act because it is so basically written.  What it says is 1) you can’t have sex with anyone you can’t marry under Md. Family Law Code § 2-202 (2013), and 2) if you do, you can go to prison for ten years per act.

So then you have to flip over to Md. Family Law Code § 2-202 (2013), which states:

§ 2-202. Marriages within certain degrees of relationship void; penalties

(a) In general. -- Any marriage performed in this State that is prohibited by this section is void.

(b) Marriages within 3 degrees of direct lineal consanguinity or within first degree of collateral consanguinity prohibited; penalties. --

(1) An individual may not marry the individual's:

(i) grandparent;

(ii) parent;

(iii) child;

(iv) sibling; or

(v) grandchild.

(2) An individual who violates any provision of this subsection is guilty of a misdemeanor and on conviction is subject to a fine of $ 1,500.

(c) Certain marriages within other degrees of affinity or consanguinity prohibited; penalties. --

(1) An individual may not marry the individual's:

(i) grandparent's spouse;

(ii) spouse's grandparent;

(iii) parent's sibling;

(iv) stepparent;

(v) spouse's parent;

(vi) spouse's child;

(vii) child's spouse;

(viii) grandchild's spouse;

(ix) spouse's grandchild; or

(x) sibling's child.

(2) An individual who violates any provision of this subsection is guilty of a misdemeanor and on conviction is subject to a fine of $ 500.

If you go through the list, you start off with obvious stuff.  You can’t marry your own sibling, child, parent, etc.  And it is doubly bad if you go back in time and become your own grandfather:

But then the list gets strange.  I mean bigamy is illegal in Maryland, so why is it necessary to say that you cannot marry your “grandparent’s spouse”?  Well, there is no case law on this, but I think the best way to understand these sections is that you cannot marry a person who has ever been your grandparent’s spouse.  Maybe the next time I am in the Montgomery Circuit Courthouse in the marriage licensing department, I will ask the clerk if that is how they interpret this provision.

Either that, or maybe the point relates to the provision criminalizing incestuous sex.  Maybe the Maryland legislature said, “yes, because of the ban on bigamy, you can’t marry your ‘grandparent’s spouse’ anyway, but while it is redundant in relationship to marriage, it is necessary in relationship to the laws prohibiting incestuous sex because obviously you don’t have to be married in order to have sex.”

And this ban on incestuous sex—which carries a prison sentence of up to ten years per act—applies to many relationships that have no unique risk of “mutant children.”  For instance, if one has sex with one’s own stepchild, there is no unique danger of negative recessive traits coming to the surface—the two are no more likely to share those same recessive traits as any other two random people.  And yet if some pervy dad has sex with his own stepdaughter, he can go to prison for up to ten years per act.  And if the step child is also under the age of 16, the punishments could really add up.

So why is this kind of thing banned?  I suppose the standard explanation is that it is psychologically unhealthy, but this law dates back to colonial times, long before we had modern psychology.  Indeed, they were adopted from ecclesiastical law, which is a clue as to their origin.  Like many rules in our society, they are at the bottom moral laws derived directly from the bible.  They are certainly not the product of an amoral moral code.  Instead it seems, at least as an original matter, to have been guided by nothing more than moral disapproval.

And really, when it comes right down to it, the reason why a person should go to prison for having sex with his own stepdaughter, even if she is above the age of consent, is because it is just plain wrong.  And that’s not just me, but the State of Maryland saying that.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.