The Lawrence Case, C.S. Lewis, and Americans
First, let me see if I've got this right. The U.S. Supreme Court, with Justice Kennedy writing for the majority, has ruled that a state cannot ban homosexual sex acts conducted in private between consenting adults. State laws against "sodomy," which were upheld in the Bowers decision in 1986, have been struck down. (In some states "sodomy" has referred to acts between heterosexuals as well as homosexuals). The "right to privacy," which has been central in cases concerning birth control and abortion, has been expanded further so that it is a right to "intimate association/sexual autonomy/reproductive autonomy," in the words of Professor Jack Balkin.
It is not yet clear whether the Court will use this reasoning to provide a constitutional right to gay marriages, to strike down "don't ask, don't tell" in the military, or to strike down laws against incest, polygamy, or bestiality. Everyone seems to agree, however, that the Court's rulings on privacy do not allow for laws against masturbation (if there have been such things in recent decades) or adultery.
On the danger of bestiality see (original interview not available) Congressman Santorum.
On masturbation among other matters see Justice Scalia in dissent.
In my recent research on C.S. Lewis, I came across these passages in Present Concerns, in the essay "Sex in Literature" (1962):
"The older law...embodied a morality for which masturbation, perversion, fornication and adultery were great evils. It therefore, not illogically, discountenanced the publication of books which seemed likely to encourage these modes of behaviour. The morality of the modern intelligentsia...if it were fully and frankly stated...would, I believe, run as follows: 'We are not sure that these things are evils at all, and we are quite sure that they are not the sort of evils the law ought to be concerned with.'
"My own view...is that they are evils, but that the law should be concerned with none of them except adultery. Adultery is an affair for law because it offends the Hobbesian principle 'that men perform their covenants'."
Lewis begins the essay by recalling that criminal penalties became less harsh, over the course of many years, because juries would refuse to convict. (I believe this is called jury nullification). "The moral seems to me to be clear. When the prevalent morality of a nation comes to differ unduly from that presupposed in its laws, the laws must sooner or later change and conform to it. And the sooner they do so the better. For till they do we inevitably have humbug, perjury, and confusion."
I take it Lewis means not simply that when society has come to accept these practices, we should eliminate laws directed at books where they are recommended, but that we should eliminate laws against the deeds themselves. Interestingly, he doesn't seem to have favoured such laws whether society was "right" about morality or not; if society is right, the laws are not needed, and if society is wrong, it seems, the laws will do more harm than good.
There are many church-going Americans who certainly object to "liberating" sexual acts, and who would like to see laws on the books making many of them illegal. On the other hand, the U.S. is the land of liberal divorce, of liberal abortion which is largely understood as an extension of birth control for women, of an entertainment industry that Joe Lieberman describes as dangerously coarse, and of a substantial portion of the world's total production of pornography.
I have some sympathy for the argument that states should be able to legislate on such matters with only limited oversight by the courts, so that it is the deliberation of a large number of citizens that counts. On the other hand, for modern-day Texas and other states to have a law against sodomy certainly smacks of humbug and confusion. The U.S. is a land of widespread libertarianism, partly or largely driven by the profit motive, but also of widespread puritanism.
It is interesting that Lewis identifies adultery as the one thing from the list about which there should be laws. Americans seem committed now to "serial monogamy," with an emphasis on both words. Obviously many or most newlyweds in the U.S. believe that the marriage could last forever, and hope it will, but they surely are not shocked when this does not happen. Yet they want to be married, monogamously. It is important that divorce be truly final--more final, in fact, than marriage. Adultery may be a common stage between one marriage and the next, but no one really wants to talk about that. Adultery is much more shameful than divorce. As I used to explain to students, this seems to be the reverse of an old-fashioned, somewhat cynical French attitude. In the French movie "Cousin, Cousine," the man and woman are in love--they have found their one true love--yet there is nothing they can do about it, since divorce is unthinkable. They will live out their lives in a beautiful melancholy, full of rich memories, many of which are sad. In the American re-make, "Cousins," there is a solution after all: two divorces.
How can a society that so widely accepts a solution like that, and dusts its fingers in a businesslike way afterwards, also be a society that debates laws on sodomy? Part of the answer must be: you can break old taboos as long as you make a case this is done for a career, getting ahead, making a deal, calculating advantages. If you do it merely for pleasure, you're still (officially) a swine. Even an old guy dumping his wife for a young woman isn't necessarily thinking only of bed. He's gaining a status symbol (the U.S. has given us the expression "trophy wife"), he may have a chance at more children, hence heirs and continuity, and all those deep things, someone to leave the business to. If he met wife #2 through work, she may be more part of the business, more up to date.
No, that's too cold. Love must be one of the things that is allowed, even required, to override considerations of money and career. But then why the attempts to regulate what lovers do in bed together?
It's a fascinating mystery.
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