Americans are perpetually debating about whether or not the so-called "vice laws" are effective means deterring activities. Let' s define what we mean by a "vice law". A vice law is a law which criminalizes an activity, not so much because it is a crime but because it is a vice. There are two prime examples in American law: the illegality of prostitution and marijuana. Other examples are the so-called "sabbtine laws" that prohibit purchasing liquor on Sundays before noon, old fashioned laws that prohibited spitting or swearing in front of a woman, as well as (now obsolete) military laws forbidding blasphemy. An additional example of a vice law would be (as is in place in several states) laws making sodomy a crime, as well as adultery. I do not know if adultery is still illegal anywhere, but I know this used to be the case in many states and colonies even before the Revolution. Now, from a Catholic perspective, do these laws work to deter the vices they target?
First, let's look at the opposition to the vice laws from proponents of prostitution and marijuana, to use two examples. The first critique is that these things (marijuana and prostitution) do not harm anybody. Sure, they may be destructive to the persons involved (and the pot-heads would certainly contest even that), but as long as the behavior does not harm anybody else, then we have no business telling people they can't engage in it. The second critique, which is the most powerful and often used critique, is that the vice laws actually create more crime than they prevent. The classic textbook case is Prohibition: (1) alcohol is outlawed (2) the only people still willing to deal in alcohol are outlaws (3) a huge criminal network of booze distribution pops up. When Prohibition was repealed and people could get booze legally, the need for people like Al Capone and the gangsters vanished. The third critique is that the activities targeted in the vice laws are admittedly moral issues (hence the term "vice laws") and it is not the job of government to legislate morality. Therefore, we ought not to have vice laws. The final critique is that the vice laws were set up by Christian men presupposing a Christian set of morals; our nation is no longer Christian, and therefore we ought not to have Christian morals be codified in law.
Now, what can we say to these charges? Is there a place for vice laws? I would say this: all of the above objections underly a fundamental misunderstanding about what the purpose of a "vice law" is. The question so often revolves around whether or not the vice laws" work," but perhaps people have not stopped to reason whether or not that is really the reason for the law. For example, most places have laws against bestiality. Now, if a man, in the privacy of his own barn, wants to engage in bestial sex with a sheep, how is that harming anybody? And secondly, even if we did outlaw bestiality, how on earth can you enforce it? By criminalizing something so private, you in effect make a law that is impossible to enforce (so proponents of legalized bestiality would say). However, the reason bestiality is illegal is not because we consider it a crime against some other person, but because we recognize that bestiality is a socially damaging behavior in itself; it is unacceptable that one single act of bestiality should in any barn anywhere happen even once. Though we know we cannot positively stop this action, we codify this sensus populorum into law. It is a symbolic action that probably can't be enforced but (if anyone was caught in the act) must be enforced in order to demonstrate and reaffirm society's opprobrium to the behavior. This ought to be the case with homosexuality as well.
Now let's look at the objections. First, I would argue that it is not true that vices targeted by the vice laws do not hurt anybody. Marijuana and prostitution certainly do damage to the persons involved and the persons who get addicted to them through others. Also, it is not the point whether anyone is harmed. The point is that we recognize these behaviors as damaging to society as a whole and thus proscribe them for the sake of the common good.
Second, that the vice laws create more crime than they prevent. This presupposes that people are going to continue doing the behavior no matter what. For example, "If you outlaw abortion, women will just have recourse to illegal and dangerous abortions by untrained hack-doctors." How many times have we heard this? They assume that people will do the action no matter what. First, I don't think this is necessarily true. I'm sure there are a lot of people who do not do drugs because they are illegal that if they were not illegal perhaps would take up the habit. If pornography were illegal, you don't think there would be a huge drop in the amount of people trying to buy porn? Sure, there will always be those die-hard addicts who will try to get their fix whether it is legal or not, but there are vastly more who will say, "It's not worth it," and will give up the addiction or switch to something else. Also, whether or not crime happens as a result of the law is not the point. Sure, making prostitution illegal necessarily brings into existence pimps, who are violent, unsavory individuals. But society is willing to tolerate the existence of a few pimps in exchange for not having to tolerate legal, open prostitution, which would certainly do much more damage to the nation's moral status. It's the principle of double-effect: keeping prostitution illegal is such a common good for the people that the fact that it causes a lesser evil (the existence of pimps) is tolerated but not willed.
Third, the allegation that vice laws legislate morality, which ought never be done. Newsflash: all our laws are attempts to legislate morality. That is why they are laws. Stealing is immoral, and hence, illegal. Same with murder, and so on. We legislate our morals because our morals are timeless and give us insight into the fundamental way society ought to be set up that is not subject to culture, time and place. So to the charge that we are legislating morality, I say, "Yep. So what?" Now, of course, not all of our laws are based on morality, but many of the fundamental ones are.
Fourth, that the laws come from a Christian culture and ought not apply. Well, I would say that you don't have to be a Christian to see that prostitution, marijuana, etc. are bad for society. But I have no problem with legislating specifically "Christian" laws, so long as they do not infringe on the religious practices of others. But Catholics often say that some of these laws, like the one prohibiting alcohol sales before noon on Sundays, reflect a puritan mentality that is not compatible with Catholicism, I would say this: there is absolutely no reason somebody needs to buy liquor on Sunday morning (unless it's the priest getting wine for the Eucharist). If somebody has to buy it that morning, that means they are intending on consuming it that morning (otherwise they could wait), and there is no reason people ought to be getting drunk on the morning that the Lord rose from the dead. I know many of you will disagree with me on this point. I want to look at the substance of the law; I don't care who instituted it. Sure, a chasm of difference divides us from the puritans. But I think this was a good law.
I say, bring back laws forbidding cussing in front of a woman or spitting in front of her. Bring back fines for blasphemy (our Social Security budget crisis would be solved in a week if that ever happened). We have lost sight of a fundamental truth that was understood by all our forefathers, even in the darkest of the dark ages: crimes are crimes exactly because they are vices (ie, vicious deeds) and society deserves to be free from vice.
Am I completely off the wall on this or do I have a good point? Click here to see a related article on legislating morality; in fact, it was the first post ever on this blog, posted on the last day of June, 2007.