News Center

May 18th, 2012

Victimless Crimes

By Nathan Tucker

It is common in the debate over gay marriage for proponents to argue that consenting adults should be free to do as they please.  Both social liberals and libertarians insist that, since there are no victims, government has no right to prohibit gay marriage.  This laissez-faire approach to legislation, however, defies credibility as a governing principle.

Local reaction to President Obama’s support for gay marriage included such brilliant analysis as, “What does it matter to a straight person if a couple of gay people marry????  How does that hurt anyone?”  And “marriage should be an individual right if that is one’s choice…”

The Economist has argued, “Why should one set of loving, consenting adults be denied a right that other such adults have and which, if exercised, will do no damage to anyone else?”  Similarly, John Stossel has reasoned, “If they redefine marriage to include gays, that doesn’t diminish my marriage.”  (emphasis original)

The Libertarian Party’s platform states that “Government does not have the authority to define, license or restrict personal relationships. Consenting adults should be free to choose their own sexual practices and personal relationships.”  Embracing  the “harm principle” (or “non-aggression principle”), they hold that all individuals “have the right to live in whatever manner they choose, so long as they do not forcibly interfere with the equal right of others to live in whatever manner they choose.”

In this age of moral relativism, this political philosophy greatly appeals to those who see advocates of traditional marriage as religious zealots.  As one recent commentator put it, this “is about every American citizen being able to live the life that seems best to them…I do not insist others live the way I do, think the way I do, marry whom I want them to marry.  I confess I don’t understand the impulse that drives others to exert such control over another’s choices that do not concern me.”

But all political principles, including the “harm principle,” are a reflection of a moral decision.  This libertarian philosophy is a product of one’s moral decision to value personal liberty to the exclusion of anything else.  To reach this conclusion, for instance, one has to make the moral decision that liberty is to be valued more than, say, the welfare state, or that all men have equal rights, or that man’s rights are more important than animals.

Additionally, most who embrace the “harm principle” to advocate for gay marriage would shudder at its application to all other laws.  Most libertarians have made no attempt to hide their belief that laws prohibiting prostitution, drugs and trafficking in human organs run afoul this “harm principle.”  Those are hardly, however, the only laws that would be invalidated under this principle.

For starters, the vast majority of traffic laws—from speeding, stop signs, seat belt laws, driver’s license and insurance requirements, and drunk driving—prohibit behavior that doesn’t, in and of itself, harm other people.  So to with laws regarding truancy, public intoxication, curfews, etc.

Turning to “social issues,” restrictions on euthanasia, gambling, animal cruelty, and obscenity over the public airwaves would be invalidated under the “harm principle.”  Cannibalism, in this case the eating but not the killing of humans, would also be legalized.

Unfettered access to pornography, even child pornography, would also be legalized.  Doubtless most libertarians would see the need to prohibit the filming of kiddie porn, but possession of it after the fact can hardly be said to be directly harming anyone.

Other sexual perversions—including homosexuality, incest, pedophilia, bestiality, sado-masochism, public nudity, and necrophilia—would be allowed.  Though most libertarians would agree that there needs to be some minimum age requirement to protect children, their philosophy would cast doubt on most cases of statutory rape and student-teacher sex.

In short, society has always had a legitimate interest in prohibiting self-evident violations of the “Laws of Nature and of Nature’s God”—an objective moral order out of which both vice crimes (inherently dehumanizing  behavior) and natural rights spring.  In contrast, the “harm principle” is simply a license for immorality operating under the guise of “liberty.”

It is disingenuous, therefore, for gay marriage activists to hide behind an empty slogan that they themselves would fear to apply elsewhere because of their moral convictions.  In the end, they believe it should be legal for no other reason than that they find it morally acceptable.  By the same token, they should not begrudge the majority of voters who believe the opposite.

Enhanced by Zemanta

About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at

blog comments powered by Disqus