December 23, 2005

NATURE SELECTS FOR PIPES AND SLIPPERS

Freedom to swing (National Post, December, 22nd, 2005)

For decades, social scientists have worried that the breakdown of the traditional family would lead to the total erosion of sexual mores in mainstream society. In this brave new post-Christian libertine world, it was feared, wife-swapping, neighbourhood orgies and key parties would become mainstays of middle-aged couples' weekend social agendas.

Needless to say, this never happened. It turns out that, whatever licence society may give us, common sense alone is enough to keep most people from throwing their Camry key into a neighbour's salad bowl. The 1960s ideal of "free love" is a myth: In the real world, sexual promiscuity and "open" relationships typically lead to confusion, heartbreak and shattered homes -- not to mention venereal disease. This is something mature people recognize instinctively.

But it is not the role of government to enforce life lessons. And if people want to go on trying to have their cake and eat it, too, the law should let them. That is why we applaud the Supreme Court of Canada for its judgment regarding the prosecution of James Kouri and Jean-Paul Labaye.

Messrs. Kouri and Labaye operated swingers clubs in Montreal, in which visiting adults would swap sexual partners. Both were originally convicted of operating a bawdy house. But on appeal, Mr. Kouri's conviction was affirmed while Mr. Labaye's was overturned. On Wednesday, the Supreme Court ruled that both men should go free. In so doing, it properly articulated a narrow definition of indecency. "The threshold is high," Chief Justice Beverley McLachlin wrote. "As members of a diverse society, we must be prepared to tolerate conduct of which we disapprove, short of conduct that can be objectively shown beyond a reasonable doubt to interfere with the proper functioning of society."

As noted above, swinging is an unpopular activity because the damage it does to relationships can generally be expected to outweigh the transient sexual thrills it provides. But as with such obsolete crimes as fornication and adultery, the harm is confined to those adults who freely partake in it: In the cases at issue before the Supreme Court, no one was coerced, bribed or tricked into swinging. Since there is no "victim," we find it hard to see why such activity should be outlawed.

Canada’s principal conservative newspaper is commenting here on yesterday’s Supreme Court decision that effectively threw out any notion of public decency as a legitimate basis for law and mandated the old J. S. Mill objective “harm” test beloved by liberals for generations. Presumably the near dead silence with which the decision was received indicates most people either agree or are completely unable to articulate any misgivings. What strikes one about this analysis is the complete denial of sweeping social changes that have occurred since the sixties and the confident assumption that most people will naturally adhere to a religiously-inspired morality on grounds of rational self-interest. It is amusing how, when discussing issues like divorce and gay marriage, liberals and libertarians will evince horror at the cruelty and injustice of a thwarted sexual-urge, but then blithely assume the vast majority of people are actually quite boring and will naturally shrug off temptation and choose traditional middle-class virtue unaided. Reading the Post’s confident assurances here, one would never suspect we live in an era of forty percent divorce rates, parentless and poor children, an explosion of porn for all tastes, teenage mental illness and an exploding sex industry with all manner of attendant exploitation and crime. It is one thing to argue that it is all a necessary price of freedom, quite another to look at it all with eyes wide open and tell oneself a modern fairy tale about how there are no victims.


Posted by Peter Burnet at December 23, 2005 7:17 AM
Comments

Happy Christmas, Peter.

Posted by: Brit at December 23, 2005 7:27 AM

Santorum was right. Dan Quayle was right. How irksome.

Posted by: ratbert at December 23, 2005 8:13 AM

Speaking of being irksome, I read somewhere that Matthews said on the air, that if Iraq turns into a moderate democracy, BushCo could say they were right about the war. If that's not irksome, then what would be?

Doesn't this guy understand that every word said on his program is saved on video tape for future generations to listen to and ponder?

As the kids say, what a maroon.


Posted by: erp at December 23, 2005 9:26 AM

The court is right, this is none of the government's business.

And material considerations, particularly women's, will ensure the incidence never rises above apocryphal, particularly for couples with children.

Human nature isn't malleable; women's sexual conservatism isn't about to change.

Religious morality doesn't make any difference one way or another.

The horror libertarians evince is not at thwarted sexual urges, but rather government sticking its nose where it doesn't belong.

Posted by: Jeff Guinn at December 23, 2005 9:34 AM

It is amusing how, when discussing issues like divorce and gay marriage, liberals and libertarians will evince horror at the cruelty and injustice of a thwarted sexual-urge, but then blithely assume the vast majority of people are actually quite boring and will naturally shrug off temptation and choose traditional middle-class virtue unaided.

There is no contradiction here. One of the reasons "liberals and libertarians" aren't for government regulation of peoples' private lives and bedrooms is that there isn't enough daagerous activity or bad results to warrant such an intrusion.

Funny how conservatives and fundies will tolerate government control of morals but not government control of the economy.

Posted by: bplus at December 23, 2005 9:46 AM

And Peter, I hate to break this to you, but there never was any "Leave it to Beaver"-"Father Knows Best"-"Donna Reed" golden age of sexual morality. What goes on today has always been going on somehwere.

Posted by: bplus at December 23, 2005 9:48 AM

"Human nature isn't malleable; women's sexual conservatism isn't about to change."

A sexist statement if ever I heard one. You must not have read any of the articles about the sexual aggressiveness of girls in junior high and high school these days.

With abortion readily available to take care of any oopsies, why should women be less cavalier about sex than men who have always been able to walk away?

"Funny how conservatives and fundies will tolerate government control of morals but not government control of the economy."

I always thought that was because morals were supposed to be the basis of society and they will direct everything else.

It's funny how liberals want the government to control the economy (and certain morals such as environmentalism) but not morals.

Posted by: sharon at December 23, 2005 10:06 AM

It used to be OK to just kill anyone who dissed you also. Does that mean that society should applaud it and support it without comment?

Government should not try to regulate it but also society should not applaud it.

Posted by: dick at December 23, 2005 10:35 AM

Don't Jeff and bplus need to fight it out before we take on the winner?

Posted by: David Cohen at December 23, 2005 10:44 AM

"Don't Jeff and bplus need to fight it out before we take on the winner?"

Will they do it in a big vat of chocolate pudding?


"Government should not try to regulate it but also society should not applaud it. "

Isn't denying government sanctions, or gov't regulation, a way for "society [to] not applaud it"?

Posted by: Raoul Ortega at December 23, 2005 12:07 PM

Precisely because the conduct sought to be regulated is somewhat private, we see here an excellent example of the utility of mythic enforcement over that of the heavy hand of the state.

Yes, a lack of state coerion will let the cynical enjoy what benefitr they think may accrue from immorality, but this issue is not making the disfavored disappeasr, merely to recuce its incidence so as the favor the education of children and disfaor the transmission of disease.

Now the problem is this: when society goes the "Rawls" route, holding that anything not proven to be immediately and directly harmful must be permitted and that the longrange, cultural harms of privagte behavior may not even be considered, then, to the unlettered, permission becomes approval.

Having lost the distinction between what is lawful and what is expedient, the harmful behavior multiplies to the extent that the harm becomes manifest, as when a loathsome and incurable disease is spread by deviant behavior.

Posted by: Lou Gots at December 23, 2005 12:48 PM

If you marriage is not bringing happiness to both parties, try to make it happy. Forget the religious nonsense, divorce is a losing proposition, try harder to find mutual happiness in your marriage.

Posted by: oldkayaker at December 23, 2005 2:21 PM

--, the harm is confined to those adults who freely partake in it: In the cases at issue before the Supreme Court, no one was coerced, bribed or tricked into swinging. Since there is no "victim," we find it hard to see why such activity should be outlawed.--

No harm, eh?

What about STDs that the Canadian taxpayer has to pay for?

Posted by: Sandy P at December 23, 2005 2:21 PM

Much harm can come to society as a result of private, consensual behavior. But man is not perfectible, and we shouldn't expect that government prohibition of harmful behavior will always do more good than harm.

I am not a libertarian in that I do believe government can and should regulate some private behavior that has an adverse impact on society. Drawing the line can't be a formulaic exercise, but must rely on that rare commodity, wisdom. A knee-jerk prohibition regime can be as harmful as a knee-jerk permissiveness regime.

If it is left to the government to support public morality, then society is lost. Mores and taboos can only be preserved by social pressures. Many of these swingers wouldn't be caught dead with a lit cigarette because their social clique, such as it is, frowns upon demon tobacco. Those who would defend the swingers clubs have no problem banning smoking from all public buildings, including privately owned restaurants and bars.

Posted by: Robert Duquette at December 23, 2005 5:19 PM

bplus:

No offence, but few things are more tiresomely predictable than sexual libertines and modern libertarians telling us there never was a golden age of the fifties. It's like those who attack Christianity with great flourish by arguing that people have always sinned. What exactly is your point?

Sharon:

Don't you just love it when men get together to debate sexual morality, conclude everybody should be allowed to rut without let of hindrance and then congratulate one another on their intellectual acuity and courageous struggle for freedom?

Posted by: Peter B at December 23, 2005 6:28 PM

The horror libertarians evince is not at thwarted sexual urges, but rather government sticking its nose where it doesn't belong.

That's only true for some libertarians. Others -- like the Reason magazine editors who named Madonna and Dennis Rodman to their list of most-admired figures -- seem to equate libertarianism with the absence of moral restraints and are thus horrified by both factors.

Posted by: Matt Murphy at December 23, 2005 7:05 PM

. . . but it's okay for the government to ban smoking in private establishments!

Posted by: obc at December 23, 2005 7:10 PM

Peter,

The biggest problem this sexual liberation argument has is its deception that these are merely "private behaviors," as though there are no public consequences. You don't have to be a Puritan to see how swinging will weaken marriage as a foundation for civilization. All you have to do is look at the number of divorces and its effects on children (not just the obvious). Clearly, those who believe this behavior is acceptable do not want to believe that it has any effect whatsoever on what their children grow up believing.

Posted by: sharon at December 23, 2005 10:12 PM

Sharon:

You make a good point, I wrote somewhat hastily.

But if you follow your statement very far, then human nature is indeed completely malleable, and their is no reason for you not be part of the Angry Left, which I presume you very much are not.

Nothing about "swinging" is consistent with women's material interests. Therefore, no matter how many men might think such a thing would be wonderful, I predict only a vanishingly small proportion of women will view the prospect with anything other than looks of fear and eyes of hate.

This qualifies as private conduct, as do most things people get up to. Law or not, Canada is not about to be overwhelmed by a wave of these clubs.

Posted by: Jeff Guinn at December 23, 2005 10:24 PM

Robert:

Yes, both should be banned. There's no coherent reason for a decent society to stand idly by while people engage in self-destructive behavior. Laws are social pressure.

Posted by: oj at December 23, 2005 10:35 PM

Laws are the most blunt and extreme form of social pressure. They are not well suited for every occasion. The shame factor is the most important, and most effective form for discouraging the kinds of behavior that we see these people engaging in.

Certain activities should be permitted, but highly regulated to make their practice costly and difficult. Some will argue that people will always go around the law, which is true to a certain extent. But marginal costs do have an impact. A decent society does not require the outright elimination of vice, such an elimination is impossible. But a regime of legal encumbrance coupled with social pressure can make the difference between a decent society and an indecent one.

Posted by: Robert Duquette at December 23, 2005 11:39 PM

Peter:

In those rare moments when we take a break from congratulating each other, we accept that we live in a real world full of real people, and that real actions have real, often unintentional, consequences for those people. These factors have to be taken into account before trying to impose our principles - be they puritan or libertarian - in the form of legislation.

Posted by: Brit at December 24, 2005 5:16 AM

Brit/Robert

Very well put, both of you. It is indeed a delicate task to balance freedom and cohesive common decency. It's just that, once you put group sex houses for swingers in the freedom category, you leave me flummoxed about what could possibly go in the other.

Merry Christmas, guys.

Posted by: Peter B at December 24, 2005 12:20 PM

Peter:

I'm not sure keeping the intrusive nose of the government at bay puts something in the "freedom" category.

There are all sorts of things you may, but don't, do because of the resulting reprobation.

Just so here.

Merry Christmas to you, too, and all the best in the New Year.

Posted by: Jeff Guinn at December 24, 2005 12:44 PM
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