Monday, October 24, 2005


Jody over at PolySciFi has a post about the Kansas State Court and its ruling that punishing homosexual coduct more than heterosexual conduct was wrong.

The Kansas Supreme Court on Friday unanimously struck down a state law that punished underage sex more severely if it involved homosexual acts, saying "moral disapproval" of such conduct is not enough to justify the different treatment.

While I would prefer a law that treated sex as sex, it appears to me that the KSC is effectively saying that morals cannot be considered a basis for law. This would represent a serious challenge to my legal philosophy and I dare say Kansans' legal philosophies as well as most of our readership's legal philosophies.

I understand that many people in this country have a strict moral code by which they lead their lives. And I would be lying if I said that I was not one of those people. But my moral code is probably quite different from Jody's moral code. Just as Hitler's moral code was different from Ghandi's. (You might disagree with this, and if you do then I will refer you to Pyrrho's post on Moral relativism and the subsequent debate. It is not a topic I intend to address here in any depth, I will leave that to the wise philosophers.)

While morals will always play some part in the laws of any country, it is important that the courts and the legislature not attempt to force morality onto a free society, because then that society will no longer be free. It is my opinion that the laws of a country exist to protect its citizens from harm, not to force them to be "good" people by someone's standard. Many laws serve important purposes without touching on morality, such as laws that protect individuals from physical harm, (such as laws against dueling or murder) or protect those who cannot protect themselves (such as laws against bestiality or pedophilia). But to base a system of law and judgement on what one group of people considers "moral" is to base it on a moving foundation.

Society has its own way of punishing what it sees as immorality. Gays are still subject to extreme predijuce and hate in some parts of the country. Extra legal persecution of them for their supposedly more immoral actions is unnecessary.

(Also For the Record: I oppose the Miers nomination. Not that anyone will be surprised or even care.)

1 comment:

Jody said...

Just saw this some 40 days later. Trackback man, trackback.

Actually I'm ok with getting morality out of the law - I just don't think it's feasible. And prior to this case, I thought that morality was an traditional basis for the law and the impossibility of removing morality from the law was recognized by the courts.

I can cite an innumerable number of laws that have little basis other than some system of morality. Why must I wear a seatbelt? Why must minors not drink at home? Why is murder outlawed? Why is ANWR off limits to drilling?

They all come back to moral axioms to which different people subscribe to different extents. Extending the concept a little, I despise Medicare, Welfare and Social Security partly because they're inefficient programs but largely because it's forcing someone else's morality on me. I recognize that the existence of the military coupled with compulsory taxes forces a distasteful morality onto pacifists. Indeed, I say it is impossible for the government to take any action in a way that that does not force one person's morality onto another.

In theory, these differences are supposed to be resolved via the democratic legislative process with the only constraint on the law being the law can't violate someone's Constitutional rights.

However, the court system appears to have said some morals are ok and others are not ok, which I find rather disturbing. But then again I think the entire legal system is f*d up so I guess that should be expected.