In the cartoon, Wizard of Id, by Parker and Hart, August 2005, the following dialogue is depicted.
An aspiring employee approaches Rodney: “I understand the King is looking for a poll-taker”
Rodney replies: “That’s right. How many flagpoles did you steal last year?” Quickly adding, “Just kidding.”
Rodney presents the gentleman to the King: “Your first applicant for poll-taker, sire.”
The King welcomes the man and asks: “How do you people work?”
The applicant responds: “We have a list of smart people and a list of stupid people. We phrase questions differently for each list. Then we determine which results to use....based on which answers are most newsworthy.”
Much to Rodney’s dismay, the King shakes the man’s hand and says: “You’re hired... Lose the smart list.”
In late December, the Supreme Court did one better than the King, the justices threw out both lists and invented their own.
In a 7-2 decision, the Court redefined indecency by using “harm,” rather than “community standards,” as their key benchmark and in the process legalized swinger clubs complete with orgies, partner swapping and voyeurs.
Defining indecency has always been difficult, and judges have wrestled over the issue for a century or more, prompting Chief Justice Beverley Mclachlin to write: “Over time, courts increasingly came to recognize that morals and taste were subjective, arbitrary and unworkable in the criminal context and that a diverse society would function only with a generous measure of tolerance for minority mores and practices.”
In her estimation the Courts have gradually moved from subjective considerations to objective standards, to focus on harm caused by the acts.
Mclachlin writes that indecency may be conduct that i) interferes with a person’s autonomy or liberty, ii) pre-disposes others to anti-social behaviour or iii) causes physical or psychological harm. Further, the harm must be “of a degree incompatible with the proper functioning of society.”
There are a number of problems with the reasoning of the justices. If they thought it was difficult to define indecency, just wait until they have to struggle with defining “harm”within their parameters. This new standard will be even more problematic.
The Latin word “mos” (plural, mores) means “custom” or “practice”. “Moralia” are habitual ways of doing things - right ways, it is to be hoped; wrong ways, it is to be feared. A moralist is not a censorious busybody but a transmitter of a culture, one who reminds others how to live humanly and not as beasts of the field. “This is our customary way of living, or should be, “ moralists say, “and these are the reasons for it.”
Furthermore, our traditions run deep.
Consider the following quotation from Cicero: “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands and averts from wrongdoing by it prohibitions ... It is a sin to try to alter this law, nor is it allowable to try to repeal any part of it, and it is impossible to abolish it entirely ... there will not be different laws at Rome or at Athens, or different laws now and in the future, but one eternal and unchangeable law will be one master and one ruler, that is, God, over us all, for God is the author of this law, its promulgator and its enforcing judge. (De Republica II, xxii,33)
Many of us feel more of a kinship with the philosophy of the non-Christian Cicero than the individualistic liberal theories of John Stuart Mill.
The dissenting justices, rather than the majority, got it right when they argued that the standard of tolerance does not impose a morality based on particular religious beliefs or particular ideologies. It implements a social morality that is the product of values characteristic of the entire community.
These values generally reflect a social consensus that manifests itself through, for example, a concern for the dignity of individuals and their autonomy, the nature of sexuality, potential for development and fundamental equality.
The saddest part of the justices' decision is their misunderstanding of human nature and human sexuality. Passion will continue to rage within the human breast, and reason and religious conviction will try to get the upper hand until the end of time. But once unlimited opportunity for sex is available, the contest becomes unequal. The last barrier to fall is social sanction. The moment society stops saying that sex outside marriage (one’s own marriage) is sin, injustice, or reprehensible conduct, but says instead that sex of any kind is available to everyone in the normal course of things regardless of state or circumstance, then sex outside marriage begins to “happen” more and more. The abnormal becomes the normal, the unusual the usual.
But both the laws of human biology and the human heart continue to operate and we will continue to see ever increasing numbers of people terribly hurt by recreational sex. Some will even become deadened to the possibility of love or marriage by their endless search for “perfect sex.”