Drugs, Sodomy, and Hookers!

Do I have your attention? 🙂

Actually, despite the rather provocative title, I would like to make a serious point. Referring to Sen. David Vitter and prostitution (see here), Ross Douthat at the Atlantic makes the following argument:

“Making use of a prostitution ring isn’t a private matter, and Vitter should not be sitting in the United States Senate while the “D.C. Madam” is facing up to 55 years in prison for selling what he was apparently interested in buying. I hope Deborah Jeane Palfrey does call him as a witness, so that he can explain how his phone number ended up on her call list, and whether the “very serious sin” he admits to committing includes, you know, breaking the law…. Are [other people on the list] fair game? Um, well, insofar as being on her call list suggests that they solicited sex for money, then the answer seems to me to be yes. If a politician were caught with his name on the “call list” of a prominent drug dealer, he wouldn’t be able to wriggle out of it by admitting to a “serious sin” and leaving it at that.”

I disagree with Douthat’s assessment, from a Catholic perspective. At times like this, it helps to go back to the thought of John Courtney Murray. The issue relates to the intersection of law and morality, and Murray’s distinction between public and private morality. Following Aquinas, Murray held that the purpose of law is not to enforce what is morally right and oppose what is morally wrong (some religious traditions do not make this distinction– think of Saudi Arabia).

Murray started from the principle that people should be granted as much freedom as possible, and that freedom should only be restricted when absolutely necessary. The coercive function of law should only come into play in narrow circumstances, and should focus exclusively on safeguarding “public peace, public morality, and justice”. The key is preserving the common good. But not even all matters of public morality are fitting subjects for the law, Murray argued, as people can only be coerced into obeying minimal standards. In that sense, coercive law should restrict itself serious cases, addressing threats that “seriously undermine the foundations of society or gravely threaten the moral life of the community”. Matters of enforcement call for prudence. And the law should keep its distance from private morality.

Famously, Murray applied this reasoning to the issue of artificial contraception, when he advised Cardinal Cushing of Boston not to oppose decriminalization. His reasoning had nothing to do with the immorality of the underlying act. Rather, he argued the issue of contraception was firmly in the domain of private morality. While it may have public consequences, these would be difficult to control by law, and anyway, using coercive law might backfire and cause other social ills.

In this light, it is quite possible to argue, within the Catholic tradition, that possession of drugs, prostitution, and sodomy should be decriminalized. The question to ask is whether these private acts affect public peace or morality in a way that would justify the use of coercive law. Remember, Thomas Aquinas himself did not support the criminalization of prostitution as he did not see it serving the common good. He noted clearly that that purpose of law was not to prohibit everything contrary to virtue. Sen. Vitter, and everybody, should be free to pay for sex, just people are free to commit adultery, and to engage in pre-marital sex. The same arguments can be made against the drug laws that cause so much carnage and chaos owing to the existence of brutal drug gangs; it is often said that decriminalization would end much of the misery. And finally, the same reasoning can be used to oppose laws that banning homosexual activity and other acts of “sodomy”. Here, Catholics would seem to part company with the evangelicals, many of whom expressed outrage when the Supreme Court struck down the prohibition of homosexual sodomy in Texas (Lawrence v. Texas).

And yet, we rarely hear Catholics making these arguments, even though they are well grounded in our tradition? Why not? Is it because people fear that supporting decriminalization means endorsing the activity itself? Or is it because people have implicitly accepted a more “Protestant” approach to law? Remember, the United States remains Protestant to its core. Ponder this: could a Catholic country have ever introduced prohibition? I think not.