Guest Column: Mistaking Common Sense for Dogma

In the final presidential debate, Senator John Kerry explained that he could not come to the defense of innocent human life because he is a Catholic. That would, he explained, be imposing his privately held beliefs. It apparently did not occur to him that babies obtain their inviolable right to life not because they are Catholic but because they are human beings. If he consistently held his point of view, poor Kerry could not even sign the Declaration of Independence, which asserts this truth.

Another, almost hilarious, example of this phenomenon was provided by the European Union, which threw a conniption over Turkey’s consideration of a law against adultery. In Europe, apparently, no one can conceive of a reason to have such a law whose “religious” grounding would disqualify Turkey from EU membership.

Religion, even Islam, is being used to scare people closer to home. Virginia’s law against adultery and the trial of a Virginia man found guilty of it came under attack in the September 5 Washington Post article “Of Lust and the Law.” Law professor Jonathan Turley said, “Like many fundamentalist Islamic states, the United States uses criminal penalties to police the morality of its citizens.”

This sounds shocking, but isn’t that what the police always do when they arrest murderers, thieves, and kidnappers—enforce laws based on the immorality of those activities? Why else stop them? Turley tried to make this position appear ridiculous by saying, “There are plenty of things that are ‘wrong’ but not crimes.” Yes, of course, but this truism does not undermine the fact that the state is empowered to pass and enforce laws related to public order and well-being on the premise that public order and well-being are “moral” goods. Some immoral acts do not directly impinge upon the public good and are there-fore not subject to legislation. Others are impractical to enforce and better left aside. This is called prudence.

Turley and the EU do not think adultery belongs in the sphere of legislation. Not only do Islamic states find adultery noxious but, according to Turley, our laws against it are founded in “morality laws [that] go back to the church-based ‘bawdy courts’ of 13th-century England.” But is it only religion that teaches against adultery? What does reason have to say? In fact, such laws existed far earlier in our tradition and were in no way church- based. Turley has overlooked the Lex Julia de Actulteriis, personally introduced by Augustus Caesar, who was neither an Islamic fundamentalist nor a Christian. This law stipulated adultery as a civil crime with penalties far harsher than the 20 hours of community service that the Virginia miscreant is being forced to serve.

The reason to forbid adultery is that it not only subverts virtue; it at-tacks the political foundations of society. Though committed in “private,” adultery becomes a political problem because it undermines chastity. Violations of chastity undermine not only the family but society as a whole. That is why chastity may be spoken of as the first political principle.

The broader implication of Turley’s and the EU’s position is that we are incapable of knowing in an objective way the goodness or evil of the sexual alternatives of marital fidelity or adultery. We are left not so much with “choices” as preferences for one thing or another. Preferences are based upon will, not reason. They are not subject to argument. And whoever is the stronger will get his preferences. Within Turley’s relativist framework, there can be no appeal to the “Laws of Nature and Nature’s God” upon which our existence as a free people depends. Such is the ultimate price for demoting morality to a “privately held” preference.

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Robert R. Reilly is the author of America on Trial: A Defense of the Founding, forthcoming from Ignatius Press.

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