CHAPTER 4

                       MORALITY’S THIRD NORMAL FORM

 

            “The Lord of Heaven triumphs while Satan whistles.”[1]

 

                        - 1 -

            We always face moral choices 

              

            “Life” (and, consequently, morality) “is mostly about meeting obligations to others, with occasional moderate self-indulgence.” [2]  But, in the Me Generation, greed is indeed “good.”

            And, in Sunday School, we used to be taught, “Jesus first, others second, Me last.”  Well, maybe “girls first.”  Talk to an objectivist, of the Atlas Shrugged school, and he recoils in horror.  A person is rightfully entitled to the results of his or her own personal effort, and no one has a right to take it away.

            In my Baptist church of the Presidents, a new pastor announces that “a person is known as much by the way he accepts his limitations and by how he develops his talents.”

            All of these little proverbs are attempts to characterize, morality, that which distinguishes right from wrong. We disagree, even within our own “family” of relatively free people, on good and evil. We need to explore our different notions of right-and-wrong, and, as a somewhat consequential discussion, our process for implementing these notions, including the appropriate role for government involvement.  

            When President Clinton announced his disappointing “compromise” on the military gay ban, my White House source told me something like this: “it really wasn’t about the barracks and showers or about sexual conduct. It was just the moral objection that too many people have against homosexuality. The United States government would be seen as condoning immorality.” Indeed, as I had found with the Dean of  Men at William and Mary, homosexuality seemed to cross the line, and drop off into an unfathomable moral abyss. Similarly, in hearing before Senate on the Employment Non-Discrimination Act (ENDA), Senators were told by the Family Research Council that “many employers believe that homosexual behavior is immoral and they recognize it has been discouraged in every successful culture in the world.”[3]

            I do take this personally. I am leading a “cultural” lifestyle, as Roy Varghese (from Campus Crusade for Christ) once told me in a Dallas restaurant, that allegedly constitutes an “intrinsic moral evil.” And the Catholic Church at one time calls the inclination to commit homosexual acts an “objective disorder,” even as the Church waffles in self-contradictory and disorganized babble trying to distinguish the individual, his sin, and his propensity to sin.[4] Even if homosexuality is biologically or genetically mediated, it is supposedly no more morally excusable than alcoholism.

            People attack homosexuals because of their own personal insecurity, particularly about their own performance according to society’s previously accepted gender roles, and this insecurity makes people vulnerable to religious and political demagogues motivated by “greed.” Still, there must be substance to their “moral objections.”

            People generally don’t articulate these very well. The “moral” objections seem first to be based on superficial understandings of their religious faiths, and of “natural law.”  Then, homosexuality is seen as a vice, destructive to “the family” and to the social infrastructure and “sexual constitution” that is essential for society to work. At a supposedly deeper level, it seems to contradict the selflessness associated with the openness to procreation and future parenting implied by a sexual repertoire limited to procreative vaginal sexual intercourse within a monogamous, permanent heterosexual marriage.[5]  Perhaps, it encourages a narcissism and upward affiliation which, if imitated by everyone, would leave all but the most attractive and intact members of society in want of others who will really care about them. The combination of all these processes supposedly creates a disinterest in or discomfort with marital commitments (especially by otherwise now-centered males) that destabilizes existing families and prevents new ones from forming.  It interferes with the calming-down of male hormones, as if male domestication were at the heart of morality. The prohibitionist’s condemnation of homosexuality follows as a natural corollary of the old dictum, “no sexual intercourse before marriage” - or, even, no masturbation, no sexual excitement at all without the balloon-payment of procreation.   It’s not so much the contemplation of same-sex acts that upsets some people, as the potential vitality of an adult life without marital commitments (and children) at all. Curiously, while homosexuality sometimes complains that gender roles are “oppressive,” it tends to celebrate the differences of the sexes; for men, it extols the ideals of masculinity, with all of their erotic contradictions, as an absolute good which shouldn’t be sundered in fungibility to serve female or communal interests. In the 1960’s, when I went to church off campus from the University of Kansas, I heard a Presbyterian minister give some funny sermons on James Bond movies and our fascination with “what it means to be a man,” and with all the contradictions that go with “masculinity.”  The idea of sex between men offends some men’s idea of masculinity as would the body shaving associated with competitive cycling or swimming offend mine.    

            The leadership of the gay community has generally refused to respond to these clumsily articulated charges about “morals,” and have tried to portray gay men and lesbians as simply another oppressed “minority.”  Homosexuality is excused as an immutable, biological trait, a notion for which there is some rather ambiguous, although very recently growing, evidence[6]. I can remember a Dallas Gay Alliance meeting around 1980 when a speaker bragged, “I didn’t choose to be gay!”  The “liberal left” drops this argument in mid-sentence, leaving open the possible comparisons to schizophrenia, sociopathy, kleptomania, and pedophilia, let alone alcoholism. One scene in the 1996 film Jane Eyre[7] provides a complete metaphor to his kind of retort: a boarding-school girl is punished for letting her hair curl to show her “vanity,” when the curling is her “natural way”; the schoolmaster retorts that Godliness requires people to overcome their inborn vices. The obvious retort is that consensual, adult homosexual acts do not leave victims. Perhaps, this answer is incomplete in view of public health concerns. The immutability argument tries to remain silent on accountability for putatively harmful behaviors, and it insinuates (in a manner that reminds one of the Catholic Church) that homosexuality it fundamentally a negative trait. If the best we could do for gay people is to present them as an “oppressed” and handicapped class deserving deliberate and laborious protections in law, then I would want nothing to do with the “gay community.”  Science may well show, however, that homosexuality, to the extent that it is genetically or biologically mediated, tends to occur with other psychological traits (such as sensitivity, “hyper-awareness” and independence) that are very good for the individual, if problematic for their impact on the group. Even so, moralists will argue that, as with alcoholism, the biological convenience for some kind of self-transcendent, short-circuiting behavior needs to be suppressed by “society.”    

            Gay leadership has also largely ignored the older “moral” concern, rooted in religion, for the motivational example “open” homosexuals set for the values of the rest of society.  If homosexuality is eventually destructive, especially to the integrity of societal “good order and discipline,” then, so the prohibitionist reasons, the homosexual must indeed “change” into someone else, be reborn as someone normal and no longer so special or individual. However, Reverend Don Eastman, at MCC Dallas, used to say, “homosexuality itself is morally neutral, but what you do with your homosexuality is very much a moral issue.” An inclination which seems at first bent on gratuitous, destructive sex acts and which seems to focus on superficial ideas of beauty, like the picture of Dorian Gray, turns around and engenders love and commitment that might be a model for the rest of society after all.

             In the 1980’s, male homosexuality was becoming viewed as a fundamental threat to public health, and the association of male homosexuality with AIDS was getting to be elaborated into as evidence of homosexuality’s intrinsic “immorality”; but cooler heads, better science, and more compassion from the public has diminished the interest in connecting AIDS to moral failure.

            In the 1990’s, American society has generally reached a state of “toleration” of homosexuality as long it is kept largely out of sight. This seems to be an acquiescence to the private aspect of adult homosexuality (notwithstanding the eventual public consequences) and to its moral ambiguity. The charge is often made that gay activists demand, not just “toleration,” but also “acceptance,” “promotion,” or even “celebration.” However, the gay community is right to respond that, there is no guarantee that society could not slip back into the darker days of blacklists and military-style witch-hunts. Furthermore, the mandate that gays “keep quiet” and the hypocritical, evasive behavior of straight society hides deeper moral debate, and keeps all people, gay or straight, from really understanding the significance of their own personal decisions about intimate attachments. People need to feel proud of their loving and loved ones, regardless of the biological gender of their adult partners. Part of that pride is experienced through public expression or celebration of what is physically and materially a private experience. This open counter-demonstration to self-dissolution of marriage disquiets some people enough that politicians in Houston, for example, will court them by mounting a “straight slate,” dressed like Men in Black.          

            What is needed, first, is to stop, set aside the concern with just homosexuality, and then review carefully the foundations of our inculcation of right and wrong. In simplest form, “wrong” would be harming or stealing from another human being or failing to keep a contractual promise. Such simple consequentialism, though, could not have gotten “Western Civ” to the point that it could to allow afford the autonomy that people like me assume every day.

           

                        - 2 -

            MORE PERSONAL HISTORY

 

 

            In 1980, two years before AIDS would challenge the stamina and forbearance of the gay community, there had been a smaller challenge: to house thousands of refugiados cubanos fleeing Castro, a large percentage who were said to be homosexuals escaping persecution.

            There were calls for many of us to be willing to take them into our own homes, those of us with “spare bedrooms,” as if the security risk to taking in someone unknown and with questionable incentive to play by our rules, could be easily ignored.

            I paid a visit to Catholic Charities, housed in a WWII-era brown brick building, somewhat out of place on Oak Lawn Avenue in Dallas.

            I went into talk to one of their counselors about volunteering myself as a sponsor and housing him in the downstairs den in my condo. A Mr. Perez greeted me. Almost immediately, I “told.”

            “The fact that you have told me you are gay, ends this discussion,” he said, without standing up.                   A few days after that in-your-face put-down from the Catholics, I went back to a small gay church over in East Dallas - not the M.C.C., but a spin-off from one of the inevitable ego battles.

            No - MCC is for real - it’s not just “queers playing church” - any one who visits the Cathedral of Hope in Dallas today will find in it the inspiration that reminds one of the Crystal Cathedral in Garden Grove.  But, in any church, anywhere, there are real people, and there is a need for people to feel important. That makes us human. So people move on.

            MCC had brought up the need to shelter others had come up before. MCC sponsored “family groups,” and one man actually felt obliged to house another person in his group because, in our culture, the group had been defined as “family.”  

            The assistant pastor  over in East Dallas had taken a personal interest in the refugee problem, and had recommended one for me to befriend, a twenty-year-old named Carlos. I got to talking about what that would entail, and soon found out they needed volunteers who could stay home all day (how to make a living, I’m not sure) to teach the refugees to get along in English.  I was hardly ready to give my life up. So I backed out.  I wouldn’t volunteering when doing so interfered with my other purposes.)

            But, a few days later, on a warm fall Wednesday night, I walked into the service at the old Reagan Street MCC in Dallas, I saw a handwritten note on the bulletin board. It began with “Lost everything...”

            I wound up taking in a young man who had been kicked out of a home in Arkansas and moved to the big city.  He stayed in my condo for 3 months, before he moved on. He was tormented, with rejection by an older man, his “ex,” with whom he once carried on a soap opera in front of me in my own “arena stage” living room.  I know the trip of “rejection” well enough myself.  I learned from the experience. One day, when he was home in bed - in the living room, recovering from an anti-syphilis penicillin shot - his mere presence had prevented a burglary.  But I was relieved when he moved on and I had my privacy back. I could claim I had supported someone besides myself in a self-giving manner. Years later, I would make that same claim as I made someone’s mortgage payments after a default in a simple assumption situation.

            Recently, I stopped at a suburban strip mall on the way to a concert, and was approached by a man and son who actually wanted me to accompany him to by him and the son cheeseburgers. I declined.  

            ---

            This is part of my own morality play.  Once I entered the adult world as a single man, I quickly sensed that morality, beyond accepting immediate responsibility for one’s actions,  has something to do with meeting the needs of others, even when they don’t appeal to fantasies or personal goals.  I haven’t done that much of that - just when it was convenient for me, like washing the dishes (after Saturday night potluck suppers starting with chicken aspic) at the Ninth Street Center in the East Village, or acting four times as a “baby buddy.” Once, I would be told at the Center that Person X, whom I had seen as so “passive,” was indeed “very disciplined” in remaining dutiful to chores and quiet as he came to terms with his femininity, and that I would do well to follow suit.  

            Our emerging freedoms demand that we take hold of our own moral sense, if we are going to get government out of our lives. Before we can negotiate public policy alternatives (with our ‘intellectual bodies’), we need to look back into ourselves our “emotional bodies”. to look at the validity of what we really care about.

 

                        - 3 -    

            DEFINITIONS

---

            But what, after all, is “morality”?

            “History teaches us that the decay of various civilizations was caused not by the iron law of fate, but rather resulted from human failures to establish such values as constant concern for individual self-realization, respect for the dignity and worth of one’s fellowman, and appreciation of the imperatives of social justice. It is, therefore, up to us as citizens to build a national community with a common moral language, which does not guarantee the elimination of evil but does assure the awareness of values which elevate and do not degrade.” [8]

 

            This sounds like, “morality” is a benign concept which exalts the individual but is the responsibility of the community and even the state. It doesn’t sound like it has to cost anything.

            Let us move to a more hardcore “conservative” writer for a more challenging definition:

           

            “Morality, rightly understood, is a set of propositions about human nature: who we are where we came from, where we are bound, how we ought to conduct ourselves on the journey. From these propositions flow the code or rules - guidelines for enacting our role as members of the human family. The rules point back to our nature, telling us in essence that if this is who we are, then here is what we must do about it...An action at odds with that nature - one that is dangerous or harmful to it - is wrong, That means that morality is never arbitrary, never the result of individual or local perception. Its roots lie deep in our nature.

            “The commonness of that nature is what makes morality common. It is not yours, not mine, but ours corporately.” [9]

 

            The author goes on to appeal to external authority, a religious faith which accepts absolute moral principles (if not state-supported theology), a willingness to put the faith above one’s own ends.

            In its most innocent form, morality seems to be a set of ideas about how people should behave if they are to get along in some kind of mutual benefit. The fundamental conflict will be, is morality a matter of individual consequentialism, or is it based first on stability and social health for the group? If I think I’m right, may I rock the boat to get my way?     

 

                        - 4 -

            It’s in the Bible

 

            “Morality” applies both to the actions and values of individuals (relative to the interaction between the individual and his community), and to the policies of societal formulations which, in numbers, motivate individuals to act in their own long term interest, and in the public interest. “Policies” may be instruments of governments or of other bodies with quasi-government influence, that is, the “corporate state”: employers, financial institutions, churches, even labor unions.

            But we will maintain more focus if we think about individual morality first.

            A generally useful definition of  individual “morality” can be found in the Two Great Commandments, which are after all a reformulation of the Ten Commandments.

            This has nothing to do with being “religious.”  The Two Commandments do sum up what needs to be covered.

            Take the Second Commandment. “Love your neighbor as yourself.”  As a corollary, “do unto others as they would do unto you.” This does cover most situations, although maybe not completely. A suicidal person might not feel enjoined not to commit murder. But the Principle says to “love others as you love yourself.” The underlying meaning is to “love yourself” with some psychologically or spiritually appropriate perspective of who you are. Be able to say, “I am proud of who I am...”

            The First Commandment is, to “Love God.”  This can be expanded beyond the usual meaning of religious faith, where Christian, monotheistic, or not. The underlying concept is faithfulness to a set of principles which express who you are and which, if followed, will allow you to feel proud of the statement your life has made. Another formulation, is faithfulness to a higher “spiritual authority.” This might be seen as a corollary of self-concept.  Psychotherapist Paul Rosenfels had expressed the notion that the “masculine personality” should make itself the locus of a coherent moral statement, whereas the feminine personality would administer this statement with the “work” of love.[10]

            One can take the Two Commandments from the New Testament, and derive the original Ten as corollaries. For example, love of God would preclude “worship” of idols or heroes as a substitute for a healthy self. One can make some sense of all the details of Biblical law in the Old Testament, some of which are seen as onerous (especially to gays and lesbians) today. Most of these laws had a practical as well as spiritual purpose. For example, not eating certain kinds of meat probably prevented food poisoning in ancient times; today, dietary laws would probably stave off heart disease and cancer. In this substance, religious people and commentators (like Murchison) see a need to find “moral absolutes” in religious teachings and for society to enforce these absolutes. Some of the “laws” may have been conceived more as protecting the welfare of a particular group or tribe (in the Old Testament, the Jews), with the necessary constraints on the psychological space of the individuals.

            Unquestioned obedience to religious laws seems, to many people, to construct a moat which will guarantee personal morality. Some people feel that only religious faith can protect them from themselves; many convicts become “born again” to Christ in prison. Anytime I have “spied” on a Sunday morning service of a “fundamentalist” church, I hear in the sermons a need to find authority for everything in one’s life in the Bible rather than in some more personal notion of individual ethics.  I once had a supervisor who followed Orthodox Judaism, and who left work before sundown Fridays regardless of what was happening. (I covered for him on his Sabbath but I never asked anyone to cover for me regularly.) I asked him why, and he just said, “this is the law, you don’t question it.” Associated with this unwavering adherence to law is a humbleness about one’s own purpose; only God knows everything. The insistence that public schools teach “Creationism” as equally plausible as “Evolution” - that is, that religious explanations should compete equally with scientific ones rather than transcend them - demonstrates this authoritarianism.   This tendency in some religious peoples, whether Christian, Jewish, or Moslem, tends to lead to an abdication of all sense of personal moral responsibility to government or to some “extremist” religious “liberation” instrument. At a group level, governments, with their buildups of weapons of mass destruction and their various oppressions, seem, with only “mammon” to guide them, seem about as moral as the individual people who populate them. Modern political terrorism (whether Communist, Islamic, or Aryan Nation) becomes so dangerous that it seems to argue for a more individualized definition of morality, even among or more conservative religious groups (particularly the Baptists and the Roman Catholic Church!), and this presents them with a difficult paradox to resolve, between individual initiative and religious authority.

            Religion has a way of circumscribing one’s ambition. One is supposed to have faith in a theology that gives the knowable universe a certain finiteness; yet, at the same time, most established religions speak of places and events every bit as miraculous as UFO’s. The essential thing is “faith,” that one will believe in some principles without proof, and without one’s own control. One will accept limits on one’s reach, as evidence of faith, put presumably for the practical benefit of future definitions. A “doubter” is seen as someone lost in his own unfulfillment.  Faith may subsume the obligation to propagate the “good news” to others, even forcibly through the political area, as a prime motivation in living. On the other hand, modern religions generally respect a unique place for every individual who respects the limits and discipline of his faith. The impulse to convert others to one’s faith may become ingrained as another apparent moral imperative; but it may just disintegrate into unwelcome intrusion into the privacy of others.   

            One seeks a formulation which recognizes freedom, both to worship and to achieve, and the pursuit of happiness (if not the result) as essential moral values.  

 

                        - 5 -

            Morality plays the Modern Variation

 

            There is a way to define individual morality with a much more “secular” (or “Ethical Culture”) focus. That is, you may engage in any conduct and self-expression as you choose, as long as you do not interfere with the right of another consenting adult to do the same, and as long as you do not cause harm or adverse effect on another person against his or her “will” or against a person who cannot give “consent” (a child), and do not recklessly endanger such a person.

            The right to “become oneself” has been characterized as an invention of modern liberal thought. “By insisting that we are bound only by ends and roles we choose for ourselves, it (liberalism) denies that we can ever be claimed by ends we have not chosen - ends given by nature or God, for example, or by our identities as members of families, peoples, cultures, or traditions.”[11]   

            Personal autonomy is now the typical “libertarian” (rather than just “liberal”) approach to morality (and its implementation in policy); but really we need to look a bit deeper into the values beneath.  Early in his discourse about his initiation at the Naval Academy, Joe Steffan writes “What can be better than allowing people to live their lives as they choose, to give them the freedom to take the limited time they have on earth and craft an existence that is uniquely theirs?”[12]  Another way of putting this appeared in the Atlantic Monthly: “The central idea of the public philosophy by which we live is that freedom consists in our capacity to choose our ends for ourselves.”[13]  Presumably, one wants one’s own “unique existence” to matter to others and exert influence over them; the need to be important to other people seems to be a uniquely human trait.[14] After passing through one’s own tribunals, one is left with the idea that one’s unique existence, and the right to have others recognize it, is predicated most of all on Honor. So Steffan writes:   “Personal Honor is an absolute; you either have Honor of you do not.  No one can take it from you; it can only be surrendered willingly. And once it is surrendered, once it is compromised, it can never again be fully regained.”[15]   Joseph Steffan seems to have normalized the idea of “personal morality” into its most elementary possible form, beyond the Golden Rule of the Bible. His notion of honor as the proper consideration for personal autonomy focuses on autonomy and its limits as perhaps our most central moral controversy.  At the same time, the military application from which he derived his notion of honor serves the purpose of an individual’s subordinating himself to the purposes of the group, for being absolutely dependable for the group in life-and-death situations.[16]  Without honor, there is no freedom; there is only tribute to those who will protect you.

            Honor means telling the truth, even when there may be immediate adverse consequences. My  parents once taught me, “you’ll never be punished if you tell the truth” (even as they had once told me little white lies about Santa Claus, the Easter Bunny, and the stork, and then had “confessed” to these one at a time). “Scout’s” honor means, further, that if you know something is wrong, you won’t do it.  So, an important corollary to the Honor Principle  is that people keep their promises. A moral theory and associated public policy centered on individual liberty and personal autonomy must be predicated on holding everyone accountable to their promises, to their “contracts.”  This is no small order, in a culture where people have grown used to being forgiven many of their obligations upon mere personal “inconvenience”  when there is a government, mortgage lender, wealthier parent, or employer who can bail them out, and where people can rationalize small episodes of venial cheating (going back to plagiarizing term-papers from fraternity files) because “everybody does it.”  Successful practice of individualized morality would seem to demand one more virtue: civility, that is, a willingness to do what is right by others, given the totality of circumstance, even if not required by law or “constitution.”

            In my upbringing, religion actually did catalyze the notions of honor and accountability as components of personal pride as well as the more usual obligation to “God.” I recall Sunday school textbooks by the Judson Press talking about “responsibility for your own actions,” as a positive thing, not just an avoidance of sin. Despite their reputation for moralistic fundamentalism, Baptists are very good at presenting positive spin on personal morality. Another Sunday School lesson showed a board game, with a drawing of “bribery bridge”; I remember not understanding at first how it could be wrong to hand someone money.  Giving into blackmail would be bribery, wouldn’t it? 

            All too often, being a good person really isn’t good enough. There are many people who try to control others merely to gratify themselves. Their self-indulgence and playing out of compulsions - the giving in to Biblical temptations to “just do it” and then deny reality -  become their own ends. Some people do not seem to understand the moral constraints of karma or honor at all, and they are titillated by destructive, sadistic and mutilative behavior most of us find disgusting  - we call these Ted Bundy-types “sociopaths.” Sometimes they learn “morality” only when it comes from a compelling and controlling belief system, particularly religious faith.

            Or, men and women may learn personal honor  by having other people to take care of besides themselves. Laura Schlesinger once said as much on her talk show, “it makes you a man, when you have a child and have to care for another human being besides yourself.” A few conservatives (notably George Gilder) have insinuated that men, with their innate biological wildness and risk-taking, tend not to become trustworthy and honorable at all until they have families to support - a constructive outlet for their recklessness, tamed by women. I guess, not all young men (like me) are so rambunctious to need to have children; for us, work itself (or chess) is good therapy. Who is really “responsible for responsibility?” - the state? the culture? the individual? 

            Our more benign (if smug) definition of personal morality seems to leave out a factor which chronically bothers us: that some people seem to have or “inherit” more than they can earn with their own efforts. So another major component of a more secular formulation of personal morality must be, that one does not make use of resources which can only be produced at the unwilling expense or exploitation of others.

            There are many examples. Take child pornography, for example. Someone who buys a lewd photograph of a child does not harm the child directly, but is partaking of a pleasure or indulgence which could be sustained only if someone had exploited the child, so purchasing child pornography is clearly “immoral” by any reasonable secular standard.   A more generic example comes from the traditional political Left. Most “upper middle class” people today enjoy a lifestyle that could not have been created without the “exploitation” of lower-class workers in the past (such as child labor or coal miners and factory workers doing dangerous, repetitive tasks.)  An even more obvious example was the “plantation” lifestyle supported by slavery before the Civil War.

            The claim of a right to express one’s own “unique existence” becomes a moral issue if this expression is achieved, not just through dishonesty, but only through the unreturned indulgence of others or through the sacrifices of others. The effect on others may be unintended and unanticipated. This makes the moral claim of individual autonomy a fundamental element, like a field in a table in a normalized relational database, in any discussion of how moral values should be reconciled in public policy.  Homosexuality, particularly in men, is striking because the homosexual “lifestyle,” in modern culture, is perhaps society’s most visible expression of an intention to live one’s life for one’s own purposes, to define one’s identity first and only then live it out in relationships with others. Even if homosexuality is somehow intrinsic and immutable, homosexual men need to protect their autonomy and independence, even if only to float in a world of private sensations. Homosexuality tests the moral viability of  cultural openness to living out one’s life for one’s own expressive purposes.  There other paths to personal growth besides having children, even if they seem to thread among icons. 

            It is this problem if second-handedness that tends to lead us back to more “authoritarian”, spiritual, or overtly religious definitions of morality, such as what Mr. Murchison proposes.

 

 

                        - 6 -

            Collectivism once pretended to have all the moral answers  

 

            Actually, we can reach back further, and understand the “moral” basic of a lot of past radical thought (both Left and Right). In Communist ideology, the ‘Bourgeoisie’ lives off the labor of a working underclass; that’s “immoral”  and must be overturned by revolutionary force, which will seek confrontation by tempting the ‘ruling powers” into even more repression. Before the Reagan years, we used to say, “it’s the Left (or Marx and Mao) that is so moralistic.” In right-wing “survivalist” thought (well put by Howard Ruff in the 1970’s but recently distorted by the militia movement), people who live in metropolitan areas in comfy white-collar jobs are depicted as vulnerable to external forces beyond their control and also as parasites on people in the countryside who do the “real work” of growing food. Amish culture certainly represents this elementary self-sufficiency at its Sunday best. Most recently, the “Unabomber” has attracted attention to these ideas with his “manifesto”, in which technology and political organization are depicted as over-socializing the individual and depriving him of real “freedom”,  which he defines as “being in control of  the life-and-death issues of one’s existence, food, clothing, shelter, and defense against whatever threats there may be in one’s environment.”[17]

            In the early 1970’s, right before I came out, I had attended several meetings of The People’s Party of New Jersey, and became struck with the level of indignation felt by many “baby boomers” with the exploitation of the poor by the “system,” the notorious military-industrial complex so pilloried by Oliver Stone’s films. I had been sheltered from all the protests by my own peculiar stint in the Army. The Party came up with an outrageous platform, suggesting, for example, that the government confiscate income over $50,000 a year. “How many people in this room make over $5000 a year,” screamed one girl in an impromptu meeting in a Newark rowhouse. Their tactics ranged from the silly (lettuce boycotts) to dangerous (threats to use violence, that is, convert themselves into communism). Their arguments focused on people who “couldn’t afford to buy cars.”  The racist, sexist, and homophobic ideology of the system supposedly kept the poor in an inescapable state if dependency and pseudo-slavery (which may be practically the case today with some migrant farm workers). People like me who had good jobs in the “establishment” were among the oppressors; working for a defense contractor in the 60’s was like working for a tobacco company (or an abortion clinic) in the 90’s. Their unstated assumption was that the welfare of society, particularly the naturally disadvantaged, preceded the well-being of individuals who comprise it; yet at other times their rhetoric directed blame on the “system” rather than particular people like me whom, however unreliability, benefited from it.  A political system which allowed this to go on and oppressors to live in relative comfort while slaughter went on in Viet Nam or in the ghettos  was, therefore, immoral. But, blaming “the system” for problems and calling for collectivistic “revolution” (indeed, in the manner of Shostakovich’s “October” Symphony) provided a convenient cop-out from looking at personal morality. Yet, it recognizes that some basic moral conundrums, such as racism, slavery, and later abortion, will surface in politics or even war before they filter down to individual choices. A 90’s transposition of this institutional approach would be the way many people now see the tobacco companies as propagating a “moral evil,”  by hooking young people on nicotine when the companies know many people will not be able to help themselves out of a stress-reducing but severely life-shortening behavior, cigarette smoking. “Profit,” in the minds of some, has become an evil itself.

            The left’s moral outrage at class and worker “oppression” contributed, during the late Sixties, to a loss of confidence on the family, which got to be seen as a transmitter of privilege through inheritance, and a feudal device to keep wealth in safe hands, all in the name of providing a “better future for one’s own children.” Today, we might see inheritance as a good thing, since we are rediscovering the advantages of the family, compared to both government and corporations, in teaching other fundamental moral values. What the Left is forgetting is that the State set itself up for grabs, to be “bought” as leverage for “ruling families” to use in keeping their competition at bay. Once the State subsidized discrimination, oppression, or outright slavery, the State would have to be empowered to reverse itself!     

            The parable of the Rich Young Ruler in the New Testament has been cited as a Biblical justification of a communitarian standard of morality, at least when it is superimposed on top of the personal accountability that would be shown in the behavior of anyone true to faith. Curiously, the willingness to distribute to others based on their needs without regard to their accountabilities seems to undermine the supremacy of personal responsibility as an individual moral teaching and suggests that, at least in a New Age “Christian” culture, morality may be much more a group concept than one which can censure individual moral choices. Yet, even in this religious paradigm, the morality of the individual is experienced through faith, the willingness to let go of things to deepen one’s faith and then do the appropriate good works of service to others.  There is a yet deeper paradox in this parable: the Ruler is challenged as to his own confidence in his emotional attachment to Christ - “follow me!” - as if Christ really were a “Mr. Right.”                   

            However, social, political. and economic “organization” - which started with primitive man’s family groups and leads to today’s information-oriented, expressive, pluralistic culture, arguably augments the importance of dynamic individual moral choices as opposed to those of the groups. A civilized and technologically advancing society enhances individual freedom because it gives the individual the chance to “specialize” in what he or she is good at. Psychotherapist Paul Rosenfels argued that, once adaptive needs are met, civilized individuals can even specialize in creative psychological processes regardless of gender.[18]  This “character specialization,” always involves at least barter of skills, and the willingness the forgo certain expressions so one can do what one is best at, and meet the needs of others.  And herein grows the central moral dichotomy of individualism, that one is defined in large part by one’s boundaries.

            I have always been stubborn about accepting that I can become so vulnerable to external events which I cannot control. The remedies offered by religion are particularly haunting, and need revisitation and examination beyond the usual recitations of the “narrowness” of morality one hears in Protestant sermons. I would sit in MCC[19] Sunday evening services (well before AIDS) and listen to public prayers about sickness and job loss.  I would wonder how oil shortages, mergers, and corporate downsizings would affect my own autonomy. Even more disarming would be for someone disturbed by my diffidence (and very much misreading my intelligence) to embrace me during a campfire while praying for me, or for another female minister from South Africa to preach, “the Lord wants your mind.” Curiously, most of the time, I would not be as concerned about the politics of gay rights or AIDS as it could affect me, even though I had already run the “mental illness” and security clearance treadmill; I did worry about how these affected a world that I wanted to listen to me. Surrendering all to “Christ” sounded like a copout for personal incompetence.

            Yet, faith, a certain humility and capitulation to group values all seem to connect directly to our moral debate, particularly over the “sinfulness” of homosexuality. Once, a particularly articulate Dallas MCC pastor, David Day, reminded us that the root of immorality is the desire for “Knowledge of Good and Evil.”  This knowledge is like the body of scientific evidence for evolution, which is to be humbled and then replaced by a faith in literal interpretations of the Bible. Or “knowledge” may portend of full public debate on sensitive issues, like sexuality, which many “conservatives” think should remain hidden, for the sake of the kids and probably those easily tempted husbands.  Day followed that sermon up with another dilly, “E.T. Phone Home!”  Or, “It’s Friday, but Sunday’s coming!”  One should not stake out a claim in the world without God’s help. Nor, without the involvement of others. It just won’t work. Similarly, other New Age moralists like Richard Kininger[20] have argued against maintenance of “attachments” (as to material possessions) as an impediment to real moral and spiritual development. A few of the more extreme cults (like the Unification Church) will admonish their flocks with, “no more concepts!” These views perceive homosexuality (particularly for men) as a kind of Faustian fascination with self-perception through vicarious association, and an unwillingness to give up something of oneself in order to progress into higher “union” and procreation. The best of homosexual men - likable, athletic, gifted, and articulate, like so many in the military - are seen as clones of Mephistopheles, defying the commitments required to true “Christians,” like the character in Boito’s opera as he angrily whistles while Faust is taken from him up to heaven. (Indeed, the congenial Satan is covets personal control over “good and evil,” so that the “Witches’ Sabbath” is the opera’s best scene; indeed, Boito knew why today we would have “witch-hunts.”) The proscription against sexual activity (not just sexual intercourse) before marriage is, in fact, designed as an instrument to force men to reconfigure their heads for monogamy and parenthood before initiation into legitimate adulthood and societal participation; after all, almost everyone (except, in some religions. “priests”) at least masturbates or experiences wet dreams. The organization of society around nuclear families with ukase to marry as a first obligation of manhood[21], seems to have arisen with the Torah, to enhance the “unit cohesion” of the Jewish “chosen” people as a group; then, loyalty to tribe and its Jehovah would supersede any claim to a separate and special “unique existence of one’s own.

            The “ex-gay” movement may be understood as an appeal to “religious” communitarianism. Although aversion therapy and other horrors have been tried, most “ex-gay” groups are centered around simple rituals and “prayer.”  Sometimes they really do succeed, with men who do finally get married and have children. I have known at least one person from such a group, and he had dedicated himself to service to AIDS victims through “Love and Action,” but he never tried to “convert” me. All these programs appeal to a desire to be accepted, to conform, to be less of one’s formal “selfish” self, to be more “like other boys.”  One church-sponsored “halfway house” residential program in Kansas, documented in the 1993 HBO film Why Am I Gay? would not allow clients to leave the premises (other than to go to work) on their own, as if to deny the notion of living independently as a single person. Yet, even for the mature homosexual, personal growth (following the model of Rosenfels and the Ninth Street Center) requires a letting go of old inhibitions and fantasies and the passing through a communal experience, into a new sense of self where such experiences as falling in love with a sexually “unattractive” person become thinkable. On psychological terms, this is not very different from ‘ex-gay.”

            A value system centered on individual specialization becomes morally viable when, in fact, persons first (as we indicated already) honor their promises and, also, recognize their temporal limitations and can focus on commitments that lead to meeting the real needs of others. In practical terms, this often means, being able to care about other people even when the work of loving them does not bring immediate “gratification.” It may mean washing the dishes or delivering meals before writing books. For the visually-oriented gay male, it may been openness to “falling in love” with someone less than perfect.[22]  In the modern commercial world, individual specialization is justified by integrity and, especially, professionalism and commitment to personal customer service. But the creativity that comes from using psychological surplus to build new commitment patterns is, in this era of civilization, a particularly striking opportunity for gay men and lesbians and is indeed a justification for , not just for conventional “gay pride,” but for personal pride in self-image. 

            “Unconditional love” becomes the bridge concept, linking communitarian Biblical moral teaching (particularly the New Testament) with liberal thinking from the mental health community. And the “moral” objection to much of self-indulgent behavior that characterizes a lot of modern “self-expression”  (or maybe “expressionism”) seems to weigh back to the possibility that the behavior (or craving for it) takes the person away from meeting the needs of others, at least with any enthusiasm or commitment. Character growth requires attunement to others, a balance between living openly and unconditionally (a mother’s love), and with a specific view to the results one wants to accomplish with the work of one’s Love (as with a father’s love).

            In a society where there is a voluntary caring of individuals for one another, often through the family, the notion that some people are much more successful than others, and can leverage their success, seems more morally acceptable. The idea that people can really earn success and deserve to enjoy it becomes more popular, and the idea that wide differences in wealth is inherently immoral - as in the eyes of the “People’s Party” -  becomes less credible. Still, much personal success could not occur without inheritance, or the previous self-sacrifice of others.  

            So, the homosexual, in conservative religious and moral thought, may indeed not only be at odds with “nature” but also has received benefits (from parents) he supposedly would not return (by having and raising children and by performing according to the expectations and limitations of gender role). Or, perhaps, by setting up a value-system in which only “attractive” men are valued by others - a tendency, which if repeated in general society, would tend to make the world very Darwinian indeed. The homosexual community often answers these charges superficially by emphasizing the “not choice,” putatively biological aspect to sexual orientation. The generous actions of the gay community towards those afflicted with AIDS would seem to rebut this assessment, as would the interest of some gay men and, more often, lesbians in becoming parents.

            Other behaviors may be understood in terms of their apparent tie to self-indulgence and their preclusion of a life that leads to commitment to others. Drugs, for example, by providing internal, chemical self-transcendence, short-circuit the desire of a person to become “productive.”  Legal abortion and euthanasia imply that we will decide which human life is “valuable” out of convenience to us, and encourage us to care about people only when they can care back or  please us. Indeed, the postulated “gay gene(s)” may (or may not)  be as difficult to verify as Close Encounters of the Third Kind; yet both may exist and someday we could find ourselves debating the value of a “gay” unborn child’s life. In the play Twilight of the Golds[23], one of the characters says about her unborn, “he will probably be very intelligent.” Let’s hope than sanity accompanies choice. 

            These varied questionable behaviors also have more immediate adverse consequences for self and for others. Sexual practices may indirectly endanger public health.  Drug use (even legal drug use) will shorten life and may (in the case of use of hallucinogens)  distort “reality” and lead a person to commit harmful acts that he or she cannot even remember. The self-destruction from drug use (including alcohol and tobacco) is more apparent in the “modern age” than in earlier times because people now live longer and don’t die as much of  “adaptive” causes; preserving one’s body and youth for as many years into adulthood and even old age has become an important value. The “moral” assessment of drug abuse may have grown more disapproving with modernity rather than more tolerant or even accepting, as with homosexuality. Abortion may destroy human life that has already become sentient. All of these problems reinforce the notion that a behavior is simply “wrong.”

 

                        - 7 -    

            When am I my brother’s keeper?

 

            The American people are developing the idea that morality is a process by  which the individual reconciles his or her own desires with the needs of  family, community, and society. Morality starts with the notion that the individual has intrinsic value, and government or community should get involved when the dignity of one person is damaged, directly or indirectly, by  the actions or even the values of others. Discussion of morality leads eventually to the mechanisms by which government reinforces or damages the dignity of the individual.

            But morality also invokes the consequences of  “self-actualization” or “self-transcendence.” Many  pleasurable experiences (whether sexual or spiritual) get to be elaborated as giving life ultimate meaning.  This must be both tempered and reinforced by motivation and even obligation by individuals to meet the needs of others. Government should leave people alone to do this, yet government and society traditionally defines the human associations that are most successful for our kind of society - the traditional family. A creative process develops when one does this on one’s own, and enriches one’s identity in the process. At the Ninth Street Center, I was once aghast in a “talk group” when another very disciplined participant felt so good merely about being able to “care” about other people.

             Of course, everyone agrees that parents must be responsible for their children and that they ought to stay together until children are grown. But when some people find self-fulfillment outside the obligations or traditional family - even people who never have children of their own - it seems that their public examples can undermine the guidance of “traditional values” that are so important to people growing up in less than optimal circumstances. Hence, gays and lesbians supposedly interfere with the transmission of “family values” as a stabilizing influence on the next generation. “Family” makes all our brothers’ keepers.  But, as a whole, the “general pubic”, except when stirred up by opportunistic “right wing” politicians, seems more willing to view adult homosexuality as a private psychological issue rather than a moral one, than in any pervious period in modern history.

            The inability to make human attachments does have very definite and bad effects. People, in their need to control the lives of others and enjoy “power,” may (if sufficiently sociopathic) create computer viruses (especially when they’re not old enough to be on their own), blow up buildings and kill people with bombs, or take over nations as tyrants and set up concentration camps and killing fields. This happens on both the Right and the Left. A society which drops the issue of family values (or, more generic human commitments) on the floor may not survive. 

            The main point of debating the gay and lesbian issue as a subset of “moral values” may be to frame the question, “when I am my brother’s keeper?”  That is, “to what extent are we all one?”

 

                        - 8 -

            Democracy must develop moral choices

 

            To maintain a functioning and civil society, government is allegedly forced to take positions that amount to moral judgments, whether it wants to or not. To some, the essence of government is the setting of public priorities, which are just expanded “collective” moral choices. With respect to abortion, it must weigh the privacy of the mother against the sanctity of life for a developing human being, and any position is a moral judgment. In conducting war, it must weigh the lives of young men who are sent off to war, to “sacrifice” themselves - an imbalance that became intolerable during the Viet Nam years. Or, as in ending World War II, it must weigh the “value” of the lives of civilians who may die in the name of saving more lives later (or the “national security” interest in interring Japanese Americans), or for the purpose of a more stable political order afterwards. Indeed, the allegedly absolute sanctity of sentient human life is a moral value (although it is really not so absolute unless we reject not just abortion but war, and follow Benjamin Britten’s pacifism).  Robert Bork writes, “there is, for example, no basis for worker safety laws other than the moral judgment that it is wrong to endanger workers’ lives and limbs in order to produce goods at lower cost. There is no objection to segregation or even to slavery other than moral disapproval.” [24] Bork could easily have said the same thing about abortion. All of these are moral calls, and they are relative; all fall far short of any absolutes that would be demanded of a higher moral authority.

            Democratic consensus, where the people give consent to their elected representatives to develop and communicate shared values of virtue and civility in one’s general relations with others, sometimes turns to intangible notions of public morality. Majority rule, if sometimes oppressive, certainly offers more people a chance at a productive life that an autocracy running the system just for the privileged few.  But this the reach of this “consensus” must not extend into private, self-identifying activities until they have a material, observable effect on others, and thus consensus must not be contrived to exclude people from full participation in society, on any grounds other than demonstrated conduct and merit. Remember Thomas Jefferson’s notions about the appropriate umbrella-reach of government. “The problem with government, as Jefferson saw it, was not to make people moral; that would be absurd, Jefferson believed, since the ‘moral faculty,’ the capacity for doing good to others, was inherent in man’s nature.” Morality as an issue does not go away just because government circumscribes its prerogatives in disseminating moral notions. “The problem of government, rather, was to maintain a social environment in which it was possible for individuals to be moral, to live harmoniously and benevolently together in society.”[25] John Stuart Mill, after all, had written, in a perfect world of “human beings in the maturity of their faculties,” “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty or action of any of their number, is self-protection.”[26]           

            Still, it is naive to assume that government will not get involved in legislating the weights of various moral agents. “Government did this not by directing persons’ lives through ordering society from above but instead by providing the underlying structure that made it possible for society to order itself.” [27]Another way to put it: “Politics should not try to form the character or cultivate virtue of its citizens, for to do so would ‘legislate morality.’ Government should not affirm, through its policies or laws, any particular conception of the good life; instead it should provide a neutral framework of rights, within which people can choose their own values and ends.”[28]  Still, we must consider the intrusiveness of various government schemes to do so, and weigh the policy implications, particularly the granting of privileges to one politically favored group at the expense of another, or of reaffirming “values” held to be important for societal cohesion. Hopefully, we can understand and encourage what Jefferson advocated, as a “limited government: a ‘wise a frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.’”[29]

            This confidence in people to run their own lives according to libertarian political principles and without overriding governmental morality is still vigorously questioned today. One reader of National Review says: “The libertarians are logical and consistent. Government has no business intervening in voluntary transactions. But what to do if the libertarian society results in a nation of dopeheads and its young men refuse to volunteer for military service during national emergencies. Libertarians fiddle while America burns. Maybe that’s why they get 1 percent of the vote.”[30] But, libertarians will punish people for harm to or endangerment of others and for, essentially, breaches of “honor,”  and see this as the only legitimate way o

            Libertarian Party Candidate for President Harry Brown  has a very simple explanation for the breakdown of moral order and explosion of violent crime in our culture. Government is diverted from catching real criminals and corrupted by this moralistic chase for perpetrators of vice, “victimless crimes,” where “no one has been assaulted, no one’s property has been invaded, no one has been cheated by fraud or broken promises, (and) there is no victim making a complaint.”[31]  Of course, it is not so easy to identify victims in a complex world. What happens to people brought up without semblance of stable family, with no personal human values? Are they the castoffs of people who renounce deeper obligations?

            Now, about those deeper obligations to set oneself aside for a deeper commitment, to family and even to country, again, there needs to be a culture of civility and of psychological commitment. Weekly Standard Editor William Kristol has articulated this concept as a “politics of liberty and a sociology of virtue.”[32]  My next two chapters, on “family values” and on the workplace, will indeed extract from the notion of voluntary “virtue.”  The libertarian approach does require a certain confidence (if not faith) in human reason and nature. Government has been the tool of the rich and powerful; then it pretended to be the guardian of the vulnerable, the guarantor of fairness and compassion, until we found out that behind the scenes it still serves the rich and powerful. The alternative to libertarian reductions in governmental refereeship is a corruptive barter of special interests bound outside of principle in unprincipled coalitions, followed by subrogation of the inevitable failures. For gays and lesbians, this means that there is no better reason to expect to be left alone and to escape discrimination than “immutability,” and this is really no principled reason at all.   

            Perhaps conductor Leonard Bernstein was communicating this when he conducted Beethoven’s Symphony #9 in Berlin on Christmas Day, 1989, soon after the Berlin Wall fell.  The resulting compact disc was called “Ode to Freedom.”[33]  This is a freedom where people, perhaps under the guidance of some kind of personal faith, build their own lives with minimal interference from government and voluntarily meet their obligations to others.

            Still, we need a consensus-point on the proper place for marjoritarian legislation of “morality.”   

           

                        - 9 -

             So, the Courts now let the state “implement morality”

 

            In 1980, shortly after I had moved to Dallas, there had been problems with police raid of gay bars, where men would be hauled off at random and charged with “public lewdness.”  One rogue policeman was responsible for many arrests, and one man, a two-time loser,  actually had to leave Dallas (by agreement with the D.A.) to stay out of jail.

            Sometime during that year, I had a chat in the Throckmorton Mining Company with a potential “trick,” and he said something like, the police raid had happened because “it’s against the law.” How so, I would argue.  It’s not against the law to congregate, and you aren’t going to get caught in the act if it happens in private. Why the big deal?

            Wrong.   

            In 1986, the Georgia sodomy statute came before the Supreme Court, which upheld it by a 5-4 majority.

            The historical facts are well known. In 1982, An Atlanta  policeman had visited the home of a Michael Hardwick to serve a misdemeanor ticket, and observed Hardwick engaging in oral sex with another man. Hardwick was arrested for sodomy, a felony with a maximum 10 year sentence, and was loudly jeered by other inmates as he was carted off to jail. The District Attorney quickly dropped the charges, but Harwick sued anyway. 

              The notoriety and angry vehemence of some of the majority text, with its invocations of the Bible and historical tradition, shocked many of us.

            “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. ...No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated...

Precedent aside respondent would have us announce... a fundamental right to engage in homosexual sodomy. It is true that despite the language of the due process clauses of the Fifth and Fourteenth Amendments, which appear to focus only on the processes by  which life, liberty, or property are taken, the cases are legion in which those clauses have been interpreted to have substantive content, subsuming rights that to a great extent are immune from federal or state regulation or proscription...

            “Proscriptions against that conduct have ancient roots... Sodomy was a criminal offense under common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights.”[34]

 

            It is clear that, in the majority opinion, “liberty” relates to prevailing moral notions of society and to the communal purposes (ultimately,  parentage) for which these associated “deeply rooted rights are used.  The Court went out of its way to emphasize that its analysis would apply to homosexuals only.  

              Finally. Justice Byron White's  claims that “law often expresses moral notions, and if every challenge to a law under the due process clause were heard, the courts would be very busy indeed.” [35]In fact, in 1985, the Fifth Circuit, in vacating  Baker vs. Wade, had commented that the 1973 Texas homosexual conduct law (21.06, a misdemeanor) had been drawn up for the purpose of “implementing morality, a permissible state goal.”

            Hardwick thus denied that straightforward  “Due Process” analysis could protect consensual homosexual sodomy because “homosexual sodomy” could not be a fundamental right (that government can’t take away without “due process of law”).  Previously, some litigators had tried to find this “fundamental right” indirectly through the “penumbra effect” of the 9th and 10th Amendments. The focus of the opinion has since encouraged gay activists to explore more fully the notion of becoming a suspect class and using the Equal Protection clause in a manner similar to that afforded other groups already defined by the Civil Rights Acts of 1964. This is all very thoroughly presented in many legal journals; I recommend one from Tulane.[36]  Chai Feldblum has argued effectively why gays and lesbians still deserve to be treated as a suspect class deserving “heightened scrutiny”; her reasons include the observation that sexual orientation is benign, does not affect competence, and has historically been the target of insidious (and often blatant) discrimination.[37] Generally, the Federal courts (at least at the appellate level) have refused to do this for sexual orientation, since “ordinary understanding” would seem (however questionably) to link homosexual orientation to conduct which society has already “constitutionally” criminalized (note the circularity).

            Certainly, the Hardwick opinions and subsequent critiques would allow us to explore just what we mean by common moral convictions in a democratic society. Judge Blackmun, is his dissent, wrote, “The concept of privacy embodies the ‘moral’ fact that a person belongs to himself and not to others or to society as a whole.” Bork (in his own books and not as part of the Hardwick opinion) vehemently disagrees: “That view of the individual and his obligations can hardly be taken seriously. In our view of morality and responsibility, no husband or wife, no father or mother, should act on the principle that a ‘person belongs to himself and not to others.’ No citizen should take the view that no part of him belongs to ‘society as a whole.’ Under that notion, there would be no moral obligation to obey the law and it would be impossible to draft an army to defend the nation.”  Also, Bork writes, “knowledge that an activity is taking place is a harm to those who find it profoundly immoral.”[38]

            Of course, commentators like Bork like to deny the dichotomy between specific (putatively harmful) acts, and a mental state or motivation that might lead to those acts, which, as the dissent pointed out, ought to remain within one’s own identity and intimate association. Sodomy laws, in fact, have the chilling public effect of defining homosexuals by the behaviors in which they supposedly engage, even though gays and lesbians (as well as heterosexuals) can, with “will power,”  limit themselves sexual practices which technically don’t constitute “sodomy.”[39]  Bill Clinton, in defining his 1992 proposal to lift the ban on gays in the military, babbled naively of the difference between “status” and “conduct,” which was quickly destroyed by Sam Nunn on the Senate floor. Once homosexual status gets tied to “immoral conduct” in the public perception, discrimination, in both government and private sectors, becomes defensible, even desirable; it seems absurd to challenge discriminatory classification based on immoral associations or criminal propensities. Indeed, taking away someone’s career or “pursuit of happiness” because of unprovable presumptions seems to me like another way to deny “Due Process.”

            The majority opinion pretty much ignored the progressive idea that homosexual identity is something bigger than conduct, and that the adverse consequences to people affected by this perceptual connection (of status and conduct) could also present Due Process problems. The majority tried to have it both ways on whether or not its opinion was intended to single out homosexuals as a class for adverse treatment. Common sense says that the identity, which starts with something as simple as the gender of one’s partner, and then  brings out one’s sexual values, those things in other people that make one tick. Only the unavailability of vaginal intercourse makes homosexual practices different from heterosexual; so the “status” distinction must be much deeper.[40]  Yet, “conservatives” would insist that “ordinary understanding” implies that homosexuals just do certain untidy things. 

             The double-talk of the majority opinion in Hardwick tended (except when Byron White spoke of marriage and procreation) to slight the psychological dilemmas that the heightened personal freedom assumed by gays poses for everyone else. Indeed, when gay men and lesbians “come out” and make their self-definitions known to associates (including the workplace), the purely psychological dimensions of homosexuality (as apart from sex acts themselves) become apparent and at tolerable to more people. This has led some commentators to view coming out of the closet as a moral ukase of its own,[41]  especially as the closet is no refuge for economically disadvantaged people. Yet, forcing the issue of homosexuality upon unwelcoming “straights” lost in their own adaptive struggles in family life may simply invoke a kind of incredulity that one can actually live a life without the usual supports and purpose of opposite gender spouse and kids.      

            So, here we have it. The “people”, through their legislatures, through the “political process” -  through democracy - have the perfect right to declare a certain private behavior illegal because, in a collective or cultural sense, they believe it to be “immoral.” The  difficulty in gaining convictions for specific occurrences of violation does not mean the public cannot criminalize behavior for which it wants to express "moral" disapproval.

            Society may, therefore, constitutionally use the Law as a “teacher.” It  can adopt a strategy of defining moral approbation and conscience through its moral codes, in a hope that people will behave better when there is moral condemnation than when there is a real threat of being caught.[42]  In 1992, the "Oregon Citizens' Alliance" exceeded the Catholic Church and launched a dangerous (but, thankfully, unsuccessful) referendum which would have amended the state constitution to declare homosexuality (homosexual orientation??) "abnormal, wrong, unnatural, and perverse." This - in a state which has decriminalized the "act" of sodomy! A measure in Washington would have baited employers to single out and discriminate against gays.

            In fact, the most important observation about codification of  majoritarian “morality” into criminal law - vice law  - is that people who, by their associations and statements,  appear inclined to break the law, must anticipate that others will act against them solely because of these appearances. When our material standard of living was lower and the world was more obviously dangerous, people accepted that society should restrain certain “vices” - acts which do no immediate harm but set dangerous examples for others, create nuisances, or bring discredit to family values. Police could raid gay bars, arrest people for merely being there, and publish names in newspapers. But these behaviors could only be inferred (or “presumed” to borrow from the military) from appearances, inclinations and associations. The notion of “ordinary understanding” or even “common sense” was believed to be enough justification for concluding that unseen crimes actually took place. Cohabitation, because of its defiant mimicry of legitimate marriage, was regarded as a public offense to “morals” regardless of the physical privacy of the participants.  Slowly, the public has begun to realize that enforcing "morality" through presumption could invade the privacy of all "normal" people, and that it could trample “legitimate” political debate about many issues because speech and association connect as forums of personal expression.  Simultaneously, people began to appreciate freedom as a more personal experience with real zones of privacy even if it demanded public celebration. But Hardwick has already established, in case law, a precedent that undermines further claims of Constitutional protection of the most personal aspects of one’s life.

 

                        -10-

 

            AIDS is seen as a result of “moral” failure 

 

            Even though the Supreme Court’s majority opinion made no explicit mention of AIDS or sexually transmitted diseases, the panic over AIDS in the three years preceding the decision certainly must have produced a psychological effect on the Justices. Indeed, from perhaps early 1983 (when Newseek came out with its scare issue “Epidemic, the Public Health Threat of the Century”) until perhaps the end of Reagan’s terms, commentators seemed to want to connect AIDS to a particularly moral weakness in homosexuals. Commentator Pat Buchanan wrote of those “poor homosexuals” who had earned the “awful revenge” from nature for violating it.

            My  own indoctrination was gradual. I saw the first stories about Kaposi’s Sarcoma on the Texas TWIT as I went into the TMC bar in Dallas. A week later, I would watch a resident doctor friend pout over the early medical articles on the coffee table in his Oak Lawn apartment. In early 1983, gay doctors at a sudden information forum would tell us that few people seem to survive, that we were riding an iceberg, and that already we were asked not to donate blood.

             I was shocked. I had heard rumors of clusters of “contagious” cancer (such as Hodgkin’s Disease in 1978), and, even in the late Seventies in New York, of bizarre diseases appearing in the gay community. But I could never had conceived of anything so diabolical as AIDS; any new disease, I had thought, would spare most “stronger” hosts, as does hepatitis. I would go through the usual panic of looking at my trunk and legs for lesions, and even had a biopsy of a suspicious mark one Friday in the summer of 1983, and then a weekend of waiting. For a while, it looked like I would have to Go to War with the AIDS epidemic, when I had maneuvered my way out of combat in Viet Nam. For once, I might have to be a man.

            I spent a number of Saturday mornings at the Texas Health Sciences Center Library, desperately looking through medical journals for signs of hope. While trashy theories about AIDS (“poppers”) circulated in gay periodicals, I quickly encountered discussions a  retrovirus (HTLV-1) connected to a bizarre lymphatic cancer that seemed like a mirror-image of AIDS.  I was seeing countless studies comparing the immune systems and T-helper counts of heterosexual men and homosexual men. I felt personally slandered.

            I even traveled to investigate. On vacation, I drove a rental car to Belle Glade, Fla., and saw squalid tenements with outdoor laundries; and I was followed out of town.  On the plane, I met an anti-AIDS activist from the “Religious Right” and actually corresponded with him later.       

            Very quickly, on the basic of epidemiological evidence, authorities would conclude that a new virus had to be involved, particularly from the observation that the disease had gone from almost zero occurrence to a pattern of geometric doubling, and from the fact that specific chains of contact would be shown, from a “patient Zero.” Many, in gay and libertarian communities, wanted to deny this conclusion. The medical establishment has a vested interest in finding new viruses, it is claimed (as it once had with scurvy). Although questions of scientific integrity and government cover-ups would surface (most notably in the New York Native), the evidence that the cause was a retrovirus quickly became overwhelming. The Reagan Administration sounded pretty smug when it announced in April, 1984, that it had “discovered” the cause of AIDS, then called HTLV-III (later, HIV).                

            On the surface, it would seen that, once the panic over AIDS had become public, self-righteous "conservatives" could have gone after gays with the same fervor that they chased drug users. And, indeed, they tried.  It is important to depict the "theory" they constructed. “They”, of course, include the notorious Paul Cameron and Gene Antonio, and various other groups, such as the “Dallas Doctors Against AIDS” that surfaced in 1983 (with whom I actually corresponded “secretly” in the Spring of 1984).

            Sex acts outside of monogamous marriage, they claimed, facilitate transmission of disease and affect others for two reasons.  First, society has to pay the financial cost of STD's; and more important, STD's often chase "innocent" victims in ways that are unpredictable in advance. Hence, we were shocked to learn that AIDS could be transmitted "secondarily" by blood transfusions and from mother to child.  Even worse, a disease that appears to be transmitted only sexually might mutate later into a more contagious form, after "amplification" among the sexually active.  Or, a disease like HIV, by weakening immunity, makes its victims hosts for other diseases like tuberculosis that might multiply on them and then spread to the public.

            Furthermore, male homosexual sex, they claimed, was qualitatively even more dangerous to "society" than (multiple partner) vaginal sex because, first, the rectum (and perhaps mouth) were more easily damaged in intercourse (because of lack of lubrication and thinner rectal wall, making minor tears more likely) and, even more important, because among male homosexuals, the same individual who "receives" can turn around and "give," and propagate a chain letter or pyramid of easy transmission. (At least with vaginal sex, the difficulty of transmission from female to male, when there are not other diseases around to facilitate transmission, makes sustaining a long chain of infection less likely; this analogy does not hold with true “venereal,” as opposed to sexually transmitted, diseases like herpes and venereal warts.)  In just twelve years since Stonewall, they claimed, the gay community had incubated a horrible epidemic with its defiance of "nature," and now the survival of the species might be every much at stake as it had been with the threat of nuclear winter.  The "Experts" (Paul Cameron and Gene Antonio) traveled the country in lecture circuits, spreading images of scatology and rumors of casual secondary transmission of AIDS through the lungs,[43] while they characterized gay men as effeminate “sophisticates” contaminating normal men.  Talk-show callers would ask, “WHAT IF... a flight attendant has a nosebleed into your luncheon lasagna; sitcom scripts would claim, “there’s always a first time!” Gene Antonio, at a public forum held in a fundamentalist church in Carrollton, Texas in 1986, suggested that all employers should “ask.” Proposals were advanced to quarantine all AIDS patients and even all gay men (how they would be identified was never clear; maybe by the pupilometric machine from the 1974 movie, The Parallax View, or the penile plethysomograph of sex offender “rehabilitation” in prison.) National Review editor William Buckley sarcastically proposed tattooing persons testing positive on the buttocks; The New York Native fired back that this was another “Final Solution.” Worse still was the psychological scar associated with male autonomy and disinclination for marriage, now associated with likely disease and a short life span. Certainly, the notion that one has absolute moral dominion over one’s own body (previously also an underpinning of a “pro choice” position on abortion) had suddenly been gravely eroded; even if a male homosexual quite properly refrained from giving blood, one could say he had removed himself as a significant community medical resource.

             Generally, public health officials saw this chain-letter theory as “opportunistic” political crackpotism. Responsible clinicians would remind people at AIDS education forums of several facts.  First, one can meet all the political proscriptions against anal intercourse: while the contention that rectal sex more readily transmits disease (than vaginal sex) sounds like “common sense,” there are, in fact, no complete studies to back up that assertion.[44] The explosion of AIDS within the gay community may have been the result of promiscuity spreading a new agent within a concentrated, circumscribed population; the same “blast crises” seem to occur among heterosexual drug abusing populations here and general heterosexual populations in poor countries. While hepatitis B had also been associated with unprotected male anal sex, other bloodborne diseases such as HTLV-1 and hepatitis C have never shown a particular affinity for the male gay community. In less developed parts of the world, HIV seems as readily explosive in heterosexually active populations[45], and even in this country, there are now numerous tragic cases of heterosexual transmission with no other risk factors[46]. Second, using AIDS as an excuse to shut down the gay community and then walk away, would send a message to reckless young heterosexual men that fucking is OK as long as “boys are really boys.”; in fact promiscuity is dangerous for anyone, including heterosexuals.  How would the world’s Paul Cameron’s respond if there were a new form of herpes that affected mainly heterosexual women (after being carried by men), and then led to gradual senility over ten or so years? How much damage is done my largely heterosexual diseases like chlamydia?  How many cases of cervical cancer can be traced to papilloma (wart) virus from promiscuous vaginal sex? Could the next sci-fi “12 Monkeys” scenario for a deadly virus require the female reproductive tract for part of its life-cycle before amplification? Modern encroachment into remote turf of nature stirs up new bizarre and horrifying diseases[47], like Ebola and “Mad Cow,” but probably none of them will ever pick selectively on homosexuals again.

            A very recent Wall Street Journal piece, discussing how the risks for heterosexuals have been exaggerated, may inflame this kind of debate again. This piece assembles the statistics from several separate studies by different entities. Supposedly vaginal intercourse results in 1 infection per 1000 unprotected acts with an infected partner (male-female and female-male are not differentiated), whereas unprotected receptive anal intercourse carries a risk of 5 to 30 infections per 1000 acts.[48]  Unprotected vaginal intercourse carries a risk 1 infection in 5 million acts. This would seem to reinforce the putative state interest in hammering down on, at least, male homosexual acts, until one remembers there is no danger at all with an uninfected partner, and much less (though not zero) when condoms are used; further, homosexuals are discovering non-penetrative forms of sexual enjoyment with little or no risk.

            I remember going to a party of the Oak Lawn Softball Association one night in April, 1984, when someone said, “they just closed the baths in San Francisco.” And soon, everywhere. Sex-club operators were selling “disease and death,” like drug dealers or even tobacco companies. But, at least, we could still meet socially. That was protected by the Constitution. “They’ll close down the MCC.” No, they can’t. Well, with a law like Texas HR 2138 the Dallas police could have done in the bars pretty quickly, and we’ll see in a minute how close we really came.

            The predictions that gays would be excluded from much of the mainstream workplace (and not just the military) would appear quickly. I recall the media reactions in 1983 when gay men had just been asked to defer themselves from giving blood (a “ban” which continues today, even for HIV- men who have had sex with other men since 1977). “Tomorrow, they will tell us we can’t work in hospitals,” lamented one man. It seemed that one’s blood belonged to the community, not to oneself.

            I wondered if  they gay community would survive as “life as we know it.”  For a while, I started buying into this guilt. I bought a private insurance policy specifically against AIDS, paying first $250 and then $500 for 6-month periods of protection. I imagined that I was taking financial responsibility for my own past “conduct.”  Would the Reagan Administration would indulge in its own rounds of political fag-bashing, as if homosexuality were suddenly a moral outrage, capable (like drugs and abortion) of dividing and then mobilizing a 1980’s version of the Crusades? The publicity surrounding cocaine abuse in professional sports and the military, and then some tragic accidents (such as a train wreck in Maryland in the mid 1980’s) in which crew members had used drugs, was already being met by the Presidential bully pulpit (Nancy Reagan’s “Just Say No!”), tougher laws and by widespread testing in private industry. Reagan had already written his little book, Abortion and the Conscience of a Nation.  In the mid 1980’s, I was, of course, disturbed by the Clive-Barker-Nightbreed-like minions with whom Reagan had surrounded himself (like Meese, who actually tried to ask Justice Department employees about their sexual habits), and was unaware of his own rather libertarian nature (Reagan had opposed the Briggs initiative).  At one point, in 1987, Reagan finally said, “I must say, that on this issue, medical teaching and moral teaching say the same things.”  Yet, that left open the notion that he was talking about promiscuity, not homosexuality. He never went before the public to announce some kind of initiative or vendetta to put away “homosexuality” as another social cancer like cocaine.

            History, moreover, provided a little-noticed break to our community. In 1982, a Federal Judge, Jerry Buchmeyer, had declared the Texas "homosexual conduct" law unconstitutional.  This decision (though later vacated in 1985 by a Federal appeals court[49]) was still in force during the days of panic in early 1983, during the horror-movie media panic. At that time, the  Dallas Doctors Against AIDS, who would talk gleefully about the ”food chain” and the “dental chain”[50] as well as the obvious “blood chain” in television interviews,  defied the Buchmeyer ruling and goaded the Judiciary Committee in the Texas House of Delegates to introduce a very Draconian bill which aimed to put the gay community out of business. (As one Dallas gay activist put it, “the Texas legislature passes unconstitutional legislation all the time!”) Besides making sodomy a felony, it made it very easy for police to arrest patrons of gay bars (for the slightest demonstration of physical affection) and close the bars down, and probably would have required holder of professional licenses from the state, as well as teachers, law enforcement, and food handlers to swear they were not engaging in homosexual conduct. Because of the Buchmeyer ruling, the gay community was able to persuade the judiciary committee not to report the bill out; it lost in committee, 7-2. But had it come up for a vote, it would have been very difficult for assemblymen to vote the bill down, because they would have been viewed as promoting homosexuality and AIDS.  But had this bill passed the Texas legislature, no doubt it would have been imitated in many other states.

            This spirit of such public policy would have been much meaner than the much maligned “don’t ask, don’t tell” of today’s notions of “toleration” instead of acceptance. Indeed, even the appearance of homosexual association was not to be tolerated at all. This position maintains that private lives are very much public business, and would normally be the subject of scrutiny of anyone intending to have a place in society. It reminds me of the disciplinary policies of the Civil Service when I took my first job in 1963, that “sexual perversion” was listed as an offense that warranted “removal.”  In a local Republican Party caucus in Dallas in 1986, one woman actually suggested a resolution that it be a crime to two adult members of the same sex to live together! An one Dallas attorney actually told me that cohabitation could be used to justify a sodomy conviction; other attorneys did not agree. Today, we debate whether same-sex couples should have legal recognition of marriage, not whether they can live together!    

            Should HIV infection, perhaps through some Trojan Horse mechanism, mutate into something more "contagious,"[51] or should some other disease get inseminated in the gay community - both are unlikely - or should radical right congressmen and assemblymen decide to run the anti-gay gauntlet after all - what could they do? Remember, once a "private act" has been defined as a "crime," then speech or assembly which suggests an intent or propensity to commit the "crime" is no longer protected under the First Amendment. Theoretically, patrons of a gay bar could be indicted for "conspiracy" to commit "sodomy." Immunity  could conceivably be granted to adults who would “name names” of others guilty of “sodomy,”  as in the military. (In fact, in the early 1950’s, gay government employees were often identified by such witch-hunts after one person would be busted in a public place.)   Cities could stop issuing permits for gay-pride parades. Tax-exempt status could be withdrawn from "gay churches" like MCC. A legislative body could, in fact, define in law the terms "gay" and "lesbian" as "expressive of intent or propensity to commit homosexual acts."  The groundwork for this has already been laid by the "Clinton-Nunn" "new" policy on gays in the military.  In the most extreme scenarios (of the Paul Cameron variety), one can imagine "chain letter" penetrative sex acts between men defined in law as a "terrorist" conspiracy to eventually bring disease upon "the heartland." Should the "wrong" people get into power, such draconian legislative formulations are hardly impossible.   

            Actually, "conspiracy" or "racketeering" charges are accepted ways for government to intervene in other areas, even when no harmful act has yet been committed, if law enforcement officials believe it will be.  Terrorists can be arrested before they start making their bombs. In one case, pedophiles in Richmond, Va. were arrested and convicted for planning "snuff" killings before the crimes took place.  Of course, in all these cases, there clearly would have been people harmed had intervention not happened. But, once an act (such as homosexual sodomy) has been declared a crime and "immoral" in law, the same right of government to intervene pre-emptively would apply.

            In the earliest days of the epidemic, I was critical of others in gay leadership for practicing denial. Many still wanted (even to this day) to deny a virus could be the cause, when actually its discovery probably made eventual political control (and distinction from actual disease from homosexual orientation) plausible. Others would say, “it’s just bugs!” - never mind that this bug is like an organic computer, a “screamer” or intelligent robot-cockroach from the X-files - and that bugs are spread by promiscuous sex.  “Don’t take the test,” would be a battle cry in 1985 and 1986, shortly after the first tests were announced. Some on the gay “left” sounded as though gay men shouldn’t have to answer for their own behavior if it led to disease; wasn’t sex a basic right? The Supreme Court had already said that, outside of procreative marriage, it was not.

            But the community would organize quickly, as it organized frequent education forums. The community quickly developed notions of  “safer sex,” and, indeed, men can have physiologically and emotionally satisfying interaction without penetration. Don Eastman preached at sermon at MCC that proposed that a moral answer was, to stay with one partner and effectively “get ‘married.’”  The “religious right” still gleefully quotes statistics about condom failures and recoils at the suggestion that a vaccine might someday make anal intercourse “safe”, claiming, notwithstanding an uninfected partner and particularly lesbianism, that homosexual sex simply can’t be made “safe.” Their real objection, of course, is that homosexual sex, like elective abortion, further disconnects intimacy from the impulse to marry and become a parent, and make all this a life-defining event. Their intent is to present sexual acts (“conduct”) and the culture surrounding sexual orientation as synonymous.

            But the gay community rebutted and buttressed it moral stature with the enormous, altruistic volunteer efforts to take care of People with AIDS.  I participated, somewhat at the limits of my convenience, as an “assistant” or “baby” buddy. A couple of the clients were shocking to me, having withered to perhaps 70 pounds, covered with sores and in almost constant nausea until they died. One had been a Viet Nam veteran, and would lie in a coma for three days in a hot apartment until he let go. But another became a hero, evoking a reverence from me for having made a comeback from Kaposi’s Sarcoma that made him a legend, an example for others, then to go back to work with a long sleeve to hide his catheter for pentamadine infusions.  He drifted away as I got involved in my own job, lost again in overtime to meet “due dates,” then went downhill and died. Another buddy from the Oak Lawn Counseling Center would tell the story, that when the parents of his client came the night the client died, their reaction was, “now, don’t you see what you’ve done!”

            But the changes of behavior in gay men have been remarkable. Today, younger gay men (in their twenties) in large cities tend to become infected at 2%-3% per year. But many more men are remaining uninfected, and the majority of gay men today are actually HIV-negative. There is still another irony: had there been no AIDS epidemic, and resulting moderation in the behavior of gay men, the issue of enteric diseases spread by infected food handlers probably would have resulted in even more intrusive employment practices (like those proposed and then reversed by Enserch in Dallas in 1985, that would have screened executive food-handlers even for worms!)  Now, younger gay men have the luxury of knowing that they do not have to let themselves ever get infected. In the long run, the political as well as medical well being of gay men may depend on the determination of enough of them to remain uninfected. Again, an individual person gay male may avoid penetrative sexual acts (at least with infected partners), protect his own health and own moral karma; yet he must endure the public’s political connection between his lifeline (and the apparently  “logical” conclusion that he will probably become infected eventually, other that he participates in a culture that results in many of its “vulnerable” members getting infected) and “sodomy.” 

            The response of the best in the gay community, both men and women, did help ultimately to contribute to a climate that, even with the conservative Reagan and Bush administrations, would allow reasonable funding for research (some say it’s inadequate, but the progress with this virus was amazing) and would allow temperance in public policy, including reasonable protections for the rights of HIV-infected people (through the Americans with Disabilities Act in 1992) in the workplace, and even, until very recently, the military. The worst fears of the  “don’t take the test” crowd have generally, outside the military and possibly some areas in medicine (where invasive procedures are practiced) not materialized, and, as we have already seen from the experience in Texas, they very well could have.      

            There has always been a tendency in society to rationalize bad things as “moral failures.”  We see equate obesity with the “deadly sins” of gluttony and sloth (to be discovered in decrepit apartments by Brad-Pitt-like or Mulder-like detectives in the movies) , and blame the “victims” not only of AIDS, but of cancer, stroke, and heart disease on bad lifestyle habits, the cost of which is borne by the public. Likewise, we blame earthquake or flood victims for flouting nature and then forcing everyone else to pay the bills. In time of war, we might blame civilian and military victims of “cowardice” for unwillingness to sacrifice themselves. So, AIDS becomes equated to the “moral failure” of non-commitment, of a narcissistic sexuality that refuses to accept limitation and commitment. The gaudy, charismatic young gay man is viewed as a white-hot, blue giant star, burning itself out before it can grow old and wither. Then, the moralists can quote their “statistics” on gay longevity from the obituaries of gay newspapers. But their insistence on blaming the epidemic on gay men’s sexuality is a bit like blaming overpopulation or even nationalistic “manifest destiny” on heterosexuality. 

             We don’t like to recognize that bad things can happen to good people. At some point, any humane society, however determined to venture in the libertarian direction of personal responsibility, must look for appropriate levels of compassion and social responsibility.   

 

                        -11-

            Government  intervenes on other moral vice issues

 

            To get a grip on the level government leadership on “moral” matters, it is important to develop a comparative perspective on a number of moral “problems.”  If government gives up its involvement with homosexuality, does it follow that it backs out of all other issues where there is moral disturbance? Is homosexuality somehow different?

            In fact, with the other major “moral” issues, it is usually easier to identify and prosecute specific acts of wrong doing. Someone can be convicted of drug possession if, for example, drugs are found in his car when stopped legally for a traffic offense. Sexual abuse of a child can lead to conviction because the court testimony of minors is often admissible. (I sat on a voire dire for such as case myself once in Texas, and the issue was whether a perspective juror would accept the testimony of a 9-year-old girl.)  An abortion performed too late in a pregnancy would be easy to prove.

            Furthermore, the harm to specific non-consenting others may be easier to argue. A child cannot give consent to sex. A “hard’ drug user is likely to be unable to control his actions. Gingrich writes, “every wealthy drug user is subsidizing a system that wreaks its violence and brutality on poorer people.”[52]   An aborted unborn child may feel unbelievable pain if it is in late-term. Violence and pornography in the media may, in practice, incite minors and unstable adults into destructive behavior. However, if this is true, society must walk a tightrope in allowing controversial sexual material (legally “indecent” regardless of well-intended context) to be presented in electronic  forums (intended for adults and probably with imperfect controls to prevent access by children) of political debate and medical information.[53]

             A variation on the “indirect harm” them is endangerment. Drunk driving or operating machinery under the influence of drugs is properly a crime because the actor will not be able to prevent himself from injuring others. Although there are probable cause issues in, for example, New Years Eve roadblock and although there should be attention to the liability of businesses who knowingly encourage careless behavior by their customers, prevention of recklessness does fall well within libertarian notions of specific harm to others. Of course, as we saw, some people claim that promiscuous sex is reckless endangerment of others.    

            As a whole, and despite the rhetoric of the far right, the “mid American” probably is not as concerned about consenting adult sexual behavior as about other “moral” issues, where harm is more clear-cut. The good examples set by some gay men and women are pertinent in bringing about this change in attitude. And this is a good thing, because “moral condemnation” still is a powerful deterrent even for associative behavior or statements. A pedophile may somehow rationalize his cravings, but it is hardly tenable for him to mention his inclinations in today’s workplace; a gay person (with adult partners) today is likely to enjoy at least moderate freedom to be open about “who he is.”           

            Of course, political speech to argue for the legal right to engage in behavior (even pedophilia) is always protected, but in practice a distinction between "political" speech and mere "intent" may be difficult to establish.  A little thought shows that, uncircumscribed, marjoritarian "rights" to outlaw private behavior (even when it has remote harmful consequences) and then control the behavior with "presumption," could rapidly lead to a super-conformist society vulnerable to tyranny.

            Actually, some pressure groups maintain that this is already happening now with drug abuse. Even cocaine can be used by many individuals without lasting ill effects.  Mandatory sentencing laws and asset forfeiture laws[54], libertarians often maintain, have led to witch-hunts among casual, non-violent drug offenders (even for johns fishing for prostitutes and, under RICO laws, sellers of obscenity[55]) and police corruption. The damage to society from bidding up the profitability of drug cartels greatly exceeds the damage from abuse, and legalization of most substances should then be seriously studied.[56] However, social conservatives have justified keeping possession of mind-altering drugs  a crime with the notion that showing "zero tolerance" for even casual drug use will dry up demand.  Oliver North has suggested that the well-to-do who drive into the inner city to purchase cocaine for their own self-indulgence could be easily apprehended with undercover stings.  Small-time users are easier to catch than kingpin pushers.

             There are significant differences between "sodomy laws" and laws concerning drug possession. First, it is easier to establish probable cause and obtain a conviction with drug use; secondly, it may be maintained that some drugs prevent an individual from even being aware, much less responsible, for and of his own actions. Some drugs have even been used to drug rape victims so that they cannot testify. Is setting up stings to ensnare drug purchases like posting vice cops in gay bars to trap “propensitory” sex offenders? Not exactly, because someone can make a “proposition” in a tavern without mentioning the sex act, and the actual “crime” will still take place in a private place. Nevertheless, the idea that "zero tolerance" public policy might someday be extended to homosexual conduct is frightening indeed. The "witch-hunts" of casual drug users on some university campuses sound too much like the hunting down and "naming names" of homosexuals in the military. This is reprehensible law enforcement practice.

            The current “war on drugs,”  for all the draconian hype that started during the Reagan years, is certainly falling short.  True, in many communities (my own, included), it is no longer as acceptable to use pot, steroids, recreational drugs at parties, or even smoke cigarettes as it once was.

            I don’t like to see my own friends use drugs.  When I see a younger friend, in his twenties, smoking cigarettes, I know he will age more rapidly than he would if he stopped.  This affects how I feel about the friend personally, even if  I could stay loyal in feeling as a “partner.” But I don’t think for once that government should criminalize drug possession or use unless the drug is one that provides an immediate threat to life, or undermines one’s grip on reality. There is medical judgment here. Cannabis should be available legally for chemotherapy  patients (I knew one man recovering from testicular cancer cis-Platinum treatments by buying pot three times a week from a “supplier”, and he never vomited once from the treatments.)  Sales to minors should be prohibited and vigorously punished, but for some substances control, legal sales should be allowed (with taxes). Laws could be structured around sale or conveyance in public places (such as in vehicles on highways or in airplanes) rather than use in private homes.  With more dangerous substances, however, penalties for public exchange, upon actual conviction (not civil forfeiture), should still be draconian. Nevertheless, the possibility of removing the profit incentive for illegal drug trafficking by full legalization and then taxation or control (following the model for prohibition of alcohol) is tempting indeed. 

            Control of substances which are questionable and of intermediate hazard could probably be controlled effectively by private employment and contractual practice, rather than by criminal code. This is discussed later, when the problem of personal privacy and discrimination (for sexual orientation, compared to other issues) is discussed.

            Decriminalization and legalization of the use of mind-altering substances should not mean condoning their abuse or even casual trials.  Criminal sanction, indeed, seems to be more costly to non-users (or only occasional users) than to the addicted (or to the pushers).  Effective cultural disapproval is to be enforced through private channels. Why, then, is it not disingenuous to maintain that removal of sodomy laws won’t leave an active social disapproval of the homosexual “lifestyle” in its place? The major reasons are two. First, sexual preference is a far more personal matter, with the potential for genuine commitment. Second, many gay men and lesbians do set good examples for others as roles models in such matters as civility, charity, and personal responsibility.

            Somewhat similar, if less pressing, to the question of legalizing drugs would be legalizing prostitution (possibly with a government-run bureaucracy to protect customers from STD’s, as is done in Nevada!)  Consistent with less intrusive government would be to outlaw public “cruising,” loitering, and soliciting (on public streets), but not to punish consensual acts on private property, even if they are commercial. This may lead many otherwise happily married men into temptation - sorry!          

            With abortion, there is always a moral choice. Once an unborn child is sentient, destroying him or her would seem as potentially immoral to the next century’s citizens as slavery got to be in the last century (or as conscription got to be seen thirty years ago).  One may argue, of course, about when the child does know he or she exists.   A decision made by a mother after consulting with her doctor, to abort because the child will have a birth defect certain makes a statement of moral importance; the woman and doctor are deciding to value a child less because of its defect. (If a gene were found associated with homosexuality - such a gene would probably mediate visual response to color and form -  would some mothers want to abort for that reason? That may be possible, at least theoretically, today.) We are disturbed about the notion of drawing a line on where we value life enough to protect it; we tend not to value life as much if it doesn’t appeal to or reward us. Obviously, many of us don’t value a human zygote the day after conception as much as we would a family pet. As a practical, if not exactly moral, corollary, easy availability of abortion tends to undermine the connection of sexual intercourse with stable marriage and family; I have always felt that protecting the marital bedrock for sexuality, and not the human qualities of unborn babies, provided the pro-Life movement with most of its moral fervor.  There must be limits on the State to intervene between mother, father, and physician on a matter of the unborn immediately after conception. That is why the Federal Congress should not decide the legality of abortion, and the states ought, one by one, to make up there own minds about the legality of elective abortion after the first trimester, or perhaps, the first 60 days.

            The abortion issue does provide a lesson on containing the government’s involvement in moral debates, and reminds us that government “permissiveness” does not make the real moral issue go away. It is not hard to see that abortion can contribute to a certain social crassness towards women and towards “inconvenient” human life, and set a bad example in the ghetto, where a human life can be worth less than a fancy pair of tennis shoes. Could abortion, and perhaps assisted suicide in terminal illness, release us down the greasy slope to state-mandated euthanasia?  With abortion, in comparison to sodomy, government can intervene without implying that certain people are to be “excluded,” but when it does so it definitely implies an upper bound on the right of a person to manipulate her or his own body - on the “right to privacy.” Moral debate forces the reconciliation of freedom and self-expression not only with direct responsibility, but with a deeper sense of constraint, a recognition of what is one’s to have after considering the totality of one’s circumstances and commitments.

            An even more troubling conundrum than abortion may develop as science develops the ability to clone agricultural animals (hardly the innocent sheep in Babe), and, eventually, people. George Gilder describes this as the ultimate end-stage of the “sexual suicide society,” where people engage in sex for pleasure only, and order mail-order, manufactured babies bred for genetic perfection. No doubt, this Nazi-like potentiality could eliminate all “undesirables,” including gays, just as this simultaneously could liberate gays from the charge of “recruiting” instead of ‘reproducing.” The scenario begs the question of government intervention to stop people from playing God and interfering with “nature.” How, then, could you defend homosexuality against the suddenly renewed charge of unnaturalness?  The point is, the state is intervening because other human lives are involved, whether conceived “naturally” or created in test tubes.  The made-to-order babies, who certainly challenge our concept of individual identity and “nature,” would be real victims.

             Already, the capability for women without husbands (or perhaps lesbians with devoted partners) to have babies by artificial insemination could pose a similar “moral” issue. Some people may want to outlaw this, since the children were intentionally conceived to be borne into less than optimal circumstances. Should the state be able to tell a woman she cannot use medical science to conceive in her own womb just because she doesn’t participate in a state-approved marriage? I hope not.   

            On several of these “moral” issues, apart from homosexuality, then, there are real “moral” concerns and possibilities for unintended consequences, which call for a thoughtfully struck balance between state adjudication and individual responsibility.    

 

                        -13-

            “Church and State” must strike a delicate equilibrium

           

 

            Since many people still see religious faith as the ultimate authority for determining right and wrong, the role of religious faith and spiritual disciplines in undergirding an ordered infrastructure for human rights presents a special issue in discussing the role of government. The “Founding Fathers” probably did not intend that government would play no influence in religious life; they certainly intended that a national government could not favor one faith over another. What is appropriate today? Religious training, and the moral values it can convey, certainly belong first in the home, church and other private institutions, including private schools. But there should be no harm in incidental reference to religious ideas in publicly funded places, so long as all faiths (or non-faiths) have access. There should be no objection to silent prayer in public schools, or even brief and incidental references to faith, as in assemblies, again as long as all faiths can be represented. What is objectionable, is the call to “Christianize America” through the use of the state, which would turn America into another kind of Iran. Again, the warning sign is the attempt to use to state to gain privileges for one group (Christians or the heterosexually married) at the expense of others. 

             

                        -14-

            Morality needs to be the responsibility of individuals and communities, as well as             government.

     

            Morality is a broad concept that operates at many levels, individual and societal, “me” and “they.”  It is inevitable that the state will concern itself with expressing moral notions. Subjectively constructed cultural moral values are held as necessary to protect not only children, but disadvantaged and more vulnerable adults who otherwise have little reason to live productively and, at least, not to give in to temptation.  Most religious faiths give particular attention to the moral requirement to protect the “meek.” How can we justify the desired result that the state should stay away from the intimate relations of consenting adults if there are associated “moral questions,” when the state clearly will have some involvement with other questions like abortion and chemical abuse?  Part of the answer lies in the deeply personal nature of adult intimate relationships; it ought to be possible to acknowledge them publicly without dwelling on them. But, again in an appeal to Jeffersonian ideals, we recognize the danger in giving the state a free hand in any areas of “private” morality. When we let the state define everyone’s moral character, there are at least two bad consequences. First, people really think less about their own moral standards and they tend to see morality in terms of the welfare of their own “tribes.” Second, this addiction of personal sensibility leaves people vulnerable to manipulation of politicians, who simply will pit these tribes against one another for the consolidation of their own power. It happened with Hitler, Stalin, and Mao. It would happen with a Buchanan. All of these exploited the “immorality” of parasitism and privilege.

            Of course, there is a certain objectivistic edge to my position on restraint in implementing moral notions. Some might find I am picking my own moral bones for my own advantage. In eschewing “cultural protectionism,” I am willing to give individuals enough rope to hang themselves, and then hang them high when they go astray.  The government should leave people alone to define their own intimate lives without foreclosing opportunity, but should act vigorously to hold them accountable for provable actions (or negligence) that have a clear, direct effect on others.  But when government tries to codify cultural values into law, it simply denies rights of one citizen in order to give more privileges to another.  

            As with drug abuse, it is appropriate to allow private interests appropriate discretion in exercising their own “moral” standards. How this applies to the workplace is taken up in a subsequent chapter. In other areas, such as renting rooms in private homes, examples can be composed. A homeowner might refrain from renting a room to an “apparent” homosexual, to a smoker or drug user, to an unmarried heterosexual couple, to someone who works for a tobacco company (or even for a defense contractor), to a woman who has just had an abortion, or to someone who refuses to say he’s “Born Again.”  Some of these items may indeed be valid risk issues for an individual homeowner. Others would just be expressions of personal values that should not be allowed for larger, for-profit commercial landlords. But if  small homeowners or private organizations are allowed to express their moral convictions in this way, with the appropriation of their own property, that might not be such a bad thing.

            With some other “moral issues,” private interests can be even more effective, relatively speaking, in striking a moral balance. One big example comes from telecommunications media. “Conservatives” have depicted the Internet as a public town square, continuously viewable by anyone, and where certain ideas (let alone pornographic images) just must not be shown in polite company. Indeed, the quasi-public character of the self-publishing that goes on with bulletin boards provides a way to keep people immediately informed about abuses by government (particularly with subjects like the military ban), and some politicians don’t like that, anymore than tyrants would.  Free speech on-line is a new defense against tyranny.  Appropriately, on-line service provides have plenty of incentive to provide parent-friendly software switches (and panic buttons) to prevent their children from seeing material the parents themselves believe is objectionable (even when the parents aren’t around), even if they think it is objectionable for mentioning “gay.” Similarly, television manufacturers do not need to have government telling them how to install  firmware to screen violent of sexually explicit programs, whose designations may be hard-coded by government bureaucracy. Some of the programs in the past were just as nasty as today: in the early 50’s, there was a Saturday morning series called “Movies for Kids” that featured violent serials such as The Clutching Hand.

            There is, however, a fundamental reason why some public sexual expressions are proscribed. Nudity or excretion in public is prohibited, not just for health or sanitation reasons, but to preserve a sense of public modesty so that there is more to reveal in the private bedroom, where passion is called for. This is reasonable, but some people want to quash all pornography or commercial “bod beautiful,”  on the theory it weakens the interests of (mainly heterosexual men) in staying with one partner. Following the Devlin paradigm[57], they want to turn behavior that makes them “uncomfortable” into a moral vice. People do have to take responsibility for what is in their own heads, and stop blaming the temptation of a sexual refrigerator and expect the government to keep the keys for everyone. I recall once at the Los Angeles airport picking up a tract that criticized Playboy and similar magazines for presenting American men with sexual thresholds they would not be able to meet in real life! 

            There are multiple other behaviors where we are challenged to return responsibility to the individual. Take, for example, “guns.” One participant at a recent Virginia Libertarian Party convention argued, “if you can be trusted on the streets at all, you can be trusted to own a gun.”  Likewise, the blame for the outcome of terrorist acts and assassinations belongs to the mercenaries,  psychopaths and martyrs who commit them, not to manufacturers of weapons or publishers  of “how to” manuals and bulletin boards. Of course, a victim of one of these acts will fell very differently. The Constitution recognizes a right to own weapons for legitimate self-protection, not to overthrow the government (or conspire with others to do so). In resolving issues involving weapons, the burden of proof should be on the state to show that the only purpose for possession or information dissemination is genuine criminal conspiracy.

            Another good one is gambling.  The Left used to say that lotteries are the most regressive of all possible taxes because poor people fall for them. Conservatives point out the way legalized gambling leads to addiction and extortion. On the other hand, I can enjoy a walk through underground Reno without the urge to play a single machine. There are reasonable security measures which gaming businesses should follow (just as bartenders should follow) to turn away vulnerable customers.

            Our public permissiveness about values, and accompanying rise in self-indulgent behaviors and the examples these adult behaviors set for imperfectly situated children  is often blamed for the increase in violent crime. But crime has increased because people don’t expect to be held accountable for their crimes. Our trend toward pass “hate crimes” laws shows our lack of confidence that the justice system will punish crimes against baited people. If punishment is certain and swift, there is no need to punish crimes differently according to the political status of the victim.                  

 

                        -15-

            Moral focus has gradually migrated from “society” to the individual 

   

            The arguments of the “moral values” affecting sodomy an abortion certainly force us to draw our understanding of morality into non-Euclidean extensions. We can describe a “society” as immoral when its rulers maintain control of it by oppression or terror, yet such monarchs or robber barons usually have little objective understanding beyond their own hunger for power over others, as their “divine right.” In a democratic society, it is more difficult to assign responsibility for “collective” oppression, such as slavery (even conscription), segregation, and gay-bashing (even in America until roughly the 1960’s), practices that seem obviously wrong to most progressive people today but only because of the “moral outrage” of the dissidents during the Johnson and Nixon years. A related moral outrage is desensitization to the suffering of ”them,” a trend which eventually leads to horrors like the Holocaust, but can be seen when the affable young Byron Henry character in Herman Wouk’s The Winds of War says of the carnage in Poland around him, “this is the most exciting thing that has happened in my life.”  These practices are possible in a society that is still considerably preoccupied with “survival,” and whose citizens do not have the sense individuality that would force them to question “moral” assumptions.  And these exploitative practices do not result from free markets and profit motives themselves, but from the permission given to the state to sell off favors to privileged (indeed “bourgeois”) groups.

            Indeed, the most politicized of collective immoralities, “discrimination,” is a creation of government. Jim Crow laws maintained segregation when many private businesses wanted to end it (although as late as 1972 I knew of apartment complexes in Northern Virginia that bragged about their efforts not to rent to Blacks, like “most of them don’t qualify.”) . “Affirmative action” has sometimes created another immorality: the “reverse” rejection of a more qualified person for a less qualified for reasons of skin color or genetic inheritance alone, as well as a result that “few perceive themselves as beneficiaries, while many perceive themselves as victims,”[58]  and a reinforcement of “the propensity for individuals to define themselves in terms of their race.”[59] While government may need to check discrimination by race or, in a real world, to protect to free exercise of religious beliefs, many government initiatives in other areas like gender and age are so difficult to enforce that they tend to encourage evasion, cynicism, and even sexual harassment. Government is faced with its own self-created quandary: it has favored various groups at the expense of others in the past, and encouraged an adversarial climate in which groups try to impose their own “moral visions” - often plain prejudices - on everyone else to get their ways. Ultimately, government can no more legislate away personal prejudice or “religious” judgment than it can impose “Victorian” moral standard on individuals.

            In modern times, government finds ways to create “Hobson’s choice” moral problems. To some people, availability to serve in the military and die or be maimed for (or at least be coarsened by the vulgarities of some of military life) the women and children in their country has always seemed like a moral obligation of young men. Hence, government justified the draft - essentially slavery - and then the moral abyss of deferments. Today, we still have a contingent Selective Service system, whose propaganda is available in any post office.[60] That means we have a contingent way to out gay men, at least.   

            Paul Rosenfels would often tell his Ninth Street Center talk groups that “we live in an immoral world”; but the creative use of individual surplus, allowed in a relatively stable, even if nominally hostile, political environment would eventually make society as a whole more “moral.” But people would have to recognize their obligations to others on their own volition, and would have to accede to a certain communitarianism in conducting their personal lives, if they were sincere about wanting public life to get better.     

             Moral education of the “general public” must be a continuous process, passed on and grown with each generation. As civilization and science progresses, we may well collectively make new moral assessments on many matters such as the environment and animal rights (especially as we learn that many animals, like the dolphins that we kill in tuna-fishing and the chimpanzees that we sacrificed in medical -even AIDS - research.  are much more sentient than we had ever imagined).  Judge Bork’s concern that a individually-defined morality will void incentives to obey the law, may be met once we define individual “success” in terms of keeping promises to others, not harming others, and behaving with a measure of civility and appropriate level of caring.

            Where, then, will we finally draw the line on governmental implementation of “majoritarian” moral notions.  The purely libertarian formula, originating with John Stuart Mill, of dealing only with harm to others can slip into a shortsighted, greedy Darwinism. A useful modification is to propose that society may condemn (including outlawing) behaviors that make most people “uncomfortable”  and that undermine social cohesion, as long as the individual members of “groups” culled by these laws are not personally harmed. Nudists can wear clothes in public, but gays cannot reasonably give up sex or afford the stigma of their supposedly indecent associations. But wait a minute! They can go straight and get married and become parents, then they’ll be like everybody else and be equal, and not be hurt! That depends on whom you believe. The verdict on homosexuality and biology is hardly a quick one. A “libertarian” model will work when enough people want to behave with honor and decency in the first place.

                 ---

              There is a growing tendency to soften “morally didactic” law, to support positions that protect the privacy of the individual until it is clear that he or she is harming or is imminently likely to harm others. Indeed, during the period I grew up and came out, simply defending my privacy from state-sanctioned intrusions (as with my security clearances after my “psychiatric” background) seemed like a major assertion of rights. From having worked on the military ban, I have come to appreciate that the question of my rights and dignity are much broader than just privacy, because privacy, like light passing around a star, follows relativity: my private life is still an expression to others and it affects them. I don’t expect unconditional celebration or approval, and I don’t expect some kind of algebraic equality for my “lifestyle,” for, as the next chapters show, that is nonsense. What I do expect is respect. And I offer, as my part of the bargain, to keep my promises; that’s an absolute. 

            If my privacy and autonomy are to be respected, then I realize I must contract and meet very deep personal, practical, and even psychological obligations, if I am to be happy and become important to others. Fulfilling these obligations is a definite moral value, and it can be enforced, by the set-union of private interests, effectively by “society” as a whole. But the government has no business enforcing it, not if it has to come into my bedroom, and draw “presumptions” about my “conduct” from my self-expressive statements.      

            There is very little justification for the state to intervene on a person’s sexual orientation , and there is little desire on the part of average Americans to see it do so, until politicians stir up some bait. Americans tend to become much more accepting of gay men and lesbians as they get to know them personally, even if they are uncomfortable with the lifestyle concepts.  The “liberal”  differentiation between practiced homosexuality and other disdained behaviors has some substance. Immutability is not what matters; rather, many gay men and lesbians are outstanding citizens as persons, whereas the same cannot be said of drug addicts or pedophiles. The debate has tended to shift from protecting the privacy of gays from witch-hunts to allowing gays to be open and “proud,” and to receive “face value” political equality; although a resurgence of the “Old” military ban can force it back.  In a practical level, “coming out,” in appropriate situations by good gay role-models, will, while hardly a moral mandate, lead over time to much greater personal toleration and defuse the likelihood that the public would ever want to go back to the draconian tactics of past McCarthyism; yet it may not be enough to persuade the public in such touchy areas as the military or marriage; and it certainly won’t wake average people up into admitting their own comparable vulnerabilities.  Conservatives now present much of the “gay rights” political debate as gays’ asking for “privileges” from the state, to marry , for instance; but what we really should be asking is why members of the general public are so dependent on the “state” to legitimatize their relationships (marriages). We focus on this problem in more detail in the next chapter on “Family Values.”  In a more libertarian world, nobody’s essence is “endorsed” at the expense to or exclusion of others;  people have ample opportunity to like themselves “as they are”  and affirm their self-worth publicly when they are prepared to take full responsibility for their own conduct.

              Indeed, our rethinking of the interaction between morality and law ought to respect the observation that the modern world offers much greater opportunity for extended and productive life for everyone that will take care of himself - given that we accept as postulates such basic virtues as honor and civility.