Should Adultery Be Illegal?

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Should Adultery Be Illegal?

June 19th, 2013

Peter Nolan

by
Laurence
M. Vance

Recently
by Laurence M. Vance: You
Might Be Guilty of Military Idolatry

The legislature
of the state of Colorado recently passed, and the governor signed
into law, a bill to repeal an antiquated state law that criminalized
adultery. The only thing worse than such a dumb law is an even dumber
preacher who bemoans its repeal.

Colorado House
Bill 13-1166
repeals two sections of the Colorado Revised Statutes. Section 18-6-501,
on adultery: “Any sexual intercourse by a married person other
than with that person’s spouse is adultery, which is prohibited,”
and section 18-7-208, on promoting sexual immorality:

Any person
who, for pecuniary gain, furnishes or makes available to another
person any facility, knowing that the same is to be used for or
in aid of sexual intercourse between persons who are not husband
and wife, or for or in aid of deviate sexual intercourse, or who
advertises in any manner that he furnishes or is willing to furnish
or make available any such facility for such purposes, commits
promoting sexual immorality.

Although adultery
was illegal, no criminal penalty was specified. However, promoting
sexual immorality was a class 2 misdemeanor.

The
bill was introduced on January 30 in the Colorado House and
on March 13 in the Colorado Senate. It passed the House Judiciary
Committee by a vote of 8-3 and the full House by a vote of 37-26.
It passed the Senate Judiciary Committee by a vote of 3-2 and the
full Senate by a vote of 23-10. It was signed into law by Governor
John Hickenlooper on March 22. The bill takes effect on August 7.

Every “no”
vote was a Republican vote. And only 4 Republicans out of 40 in
the legislature voted in favor of the repeal bill. Republican Sen.
Kevin
Lundberg opposed the bill, arguing that the law is not archaic
and that moral standards continue to be important.

I may not agree
with anything else that Denver Democratic Rep. Daniel
Kagan, an original supporter of the repeal bill, ever said or
ever will say, but this comment he made about the bill is right
on: “I see it as saying adultery is a matter between a spouse
and his conscience and his God, but not his local sheriff.”

Laws that criminalize
adultery or “promoting sexual immorality” are dumb laws.
There is no other way to describe them. As legal scholar Jonathan
Turley said in 2011 when a similar attempt at repeal failed:
“These laws harken back to an earlier period, where a majority
of citizens claimed the right to impose their values and morals
on their neighbors. The notion of a government policing immorality
runs against the grain of our constitutional system. That is more
often associated with countries like Iran, where morality police
roam the streets.” It is ridiculous to say, as Jessica
Haverkate, director of Colorado Family Action, a political arm
of Focus on the Family, did in 2011 that repealing the adultery
law encourages “the moral decay of our society.” Sorry,
Jessica, but the morals of society have already decayed. And no
one in Colorado who wanted to commit adultery was deterred by any
dumb law against adultery. Laws that legislate morality are not
what keep morality from decaying. If this were so, then no adultery
would have taken place in Colorado during the last century.

The only thing
dumber than a dumb law is a dumb preacher who defends it.

Dr.
R. Albert Mohler appears to be an intelligent man. He is the
president of the Southern Baptist Theological Seminary in Louisville,
Kentucky. He holds a Th.M. and a Ph.D. (in systematic and historical
theology) from the seminary where he is now the president. He also
teaches at the seminary and edits its theological journal. Time
calls him the “reigning intellectual of the evangelical movement
in the U.S.” The Chicago Tribune terms him “an
articulate voice for conservative Christianity at large.” Mohler
is the author of several books, writes a popular blog, has a daily
podcast, has appeared on national news programs, has been widely
published, and has lectured at many prestigious institutions.

Back in March,
when the Colorado legislature was considering the repeal of its
adultery law, Mohler
weighed in favor of keeping the law on the books. Explained Mohler:

Throughout
most of human history, morality and law were united and in agreement
when it came to the reality of adultery and the larger context
of sexual immorality. Laws criminalizing adultery were adopted
because the society believed that marriage was central to its
own existence and flourishing, and that adultery represented a
dagger struck at the heart of the society, as well as the heart
of marriage.

Marriage
was not considered merely a private arrangement. Every society
regulates marriage, and most have adopted clear and punitive sanctions
against adultery. But the moral and cultural revolutions of the
past several decades have shifted the meaning of marriage from
a public institution to a private contract.

Mohler criticizes
the aforementioned Colorado legislator Daniel Kagan for saying:

Adultery
is a matter between a person and their spouse and their conscience
and their minister, but not between a person and the full enforcement
of the state of Colorado. Let’s keep the police out of our bedrooms.

Although acknowledging
that “the law in Colorado criminalizes adultery, but includes
no penalty,” Mohler likes the law because it “has been,
at a bare minimum, a reminder of the public nature of marriage and
the societal threat of adultery.”

Some observations.

Governments
at all levels – federal, state, and local – have too many laws.
There are thousands of dumb and illegitimate laws that should be
repealed by all levels of government. We should rejoice when any
of these laws are repealed.

If a law is
legitimate, then its purpose is never to make a statement or serve
as a reminder of anything. The purpose of any legitimate law – those
that criminalize aggression against one’s person or property and
protect people from the violence and fraud of others – is to punish
genuine criminal activity. A law without a penalty for violating
it is no law at all; it is merely a suggestion.

The fact that
throughout human history rulers and government bureaucrats have
been nanny statists and puritanical busybodies that wanted to unite
law and their concept of morality is a historical fact, but it is
certainly not the way things ought to be – not if we are to have
a free society.

Laws that criminalize
activities that voluntarily take place behind closed doors are unenforceable.
An unenforceable law is no law at all. Again, it is merely a suggestion.

Every crime
needs a victim, not a potential victim, a possible victim, or a
supposed victim, but an actual victim who suffers actual harm or
loss. This means that over 90 percent of all federal and state laws
are bogus.

Moral crusades
of the nanny state fail to distinguish between vices and crimes.
As the 19th-century classical-liberal political philosopher Lysander
Spooner explained it:

Vices are
those acts by which a man harms himself or his property. Crimes
are those acts by which one man harms the person or property of
another. Vices are simply the errors which a man makes in his
search after his own happiness. Unlike crimes, they imply no malice
toward others, and no interference with their persons or property.

Unless this
clear distinction between vices and crimes be made and recognized
by the laws, there can be on earth no such thing as individual
right, liberty, or property – no such things as the right of one
man to the control of his own person and property, and the corresponding
and coequal rights of another man to the control of his own person
and property.

To be a crime,
adds Spooner, there must exist criminal intent to invade the person
or property of another. But vices are not engaged in with criminal
intent. A man practices a vice “for his own happiness solely,
and not from any malice toward others.”

And finally,
there is no support in the New Testament for the idea that Christians
should seek legislation that would criminalize immoral behavior.
For Baptist Christians like myself and Mohler, the New Testament
is our rule for faith and life. Christians are making a grave mistake
when they look to the state to legislate morality. Why would they
even think of looking to the state to enforce their moral code?
The actions of the state are the greatest examples of immoral behavior
that one could possibly think of. The state exists only by stealing
and killing, and then lying about it. It is not the purpose of Christianity
to use force or the threat of force to keep people from sinning.
Christians who are quick to criticize Islamic countries for prescribing
and proscribing all manner of behavior are very inconsistent when
they support the same thing here.

Let me be perfectly
clear: I think adultery is always wrong. I believe it is immoral.
I consider it to be a grave sin. But it is neither my business nor
the business of government to keep people from bad habits, vice,
or immoral activities that take place between consenting adults.

If Mohler wants
adultery laws to be enforced he should volunteer to be the first
to have cameras installed in his home, office, and car (with full
NSA surveillance everywhere else), and be taxed to support the army
of bureaucrats it will take to monitor the cameras to make sure
he doesn’t commit adultery.

Laws against
adultery are not what deter people in Colorado or other states from
committing adultery. Religion, morality, fear, reputation, and/or
family might serve as deterrents, but not dumb laws.

I don’t know
if my state of Florida has an antiquated state law against adultery
that is not enforced, but whether such a law exists or whether such
a law is enforced has no bearing whatsoever on why I choose to be
faithful to my wife.

June
19, 2013

Laurence
M. Vance [send him mail]
writes from central Florida. He is the author of Christianity
and War and Other Essays Against the Warfare State, The
Revolution that Wasn’t, Rethinking
the Good War, and The
Quatercentenary of the King James Bible. His latest book
is The
War on Drugs Is a War on Freedom. Visit his
website.