The Eternal Legislator
Many members of the U.S. government currently view their professional responsibilities in religious terms. Consider the case of Roy Moore, chief justice of the Alabama Supreme Court. Finding himself confronted by the sixth-highest murder rate in the nation, Justice Moore thought it expedient to install a two-and-a-half-ton monument of the Ten Commandments in the rotunda of the state courthouse in Montgomery. Almost no one disputes that this was a violation of the spirit (if not the letter) of the "establishment" clause of the First Amendment to the U.S. Constitution. When a federal court ordered Justice Moore to remove the monument, he refused. Not wanting to have an obvious hand in actually separating church and state, the U.S. Congress amended an appropriations bill to ensure that federal funds could not be used for the monument's removal.4 Attorney General John Ashcroft, whose sole business is to enforce the nation's laws, maintained a pious silence all the while. This was not surprising, given that when he does speak, he is in the habit of saying things like "We are a nation called to defend freedom-freedom that is not the grant of any government or document, but is our endowment from God."5 According to a Gallup poll, Ashcroft and the Congress were on firm ground as far as the American people were concerned, because 78 percent of those polled objected to the removal of the monument.6 One wonders whether Moore, Ashcroft, the U.S. Congress, and three-quarters of the American people would like to see the punishments for breaking these hallowed commandments also specified in marble and placed in our nation's courts. What, after all, is the punishment for taking the Lord's name in vain? It happens to be death (Leviticus 24:16). What is the punishment for working on the Sabbath? Also death (Exodus 31:15). What is the punishment for cursing one's father or mother? Death again (Exodus 21:17). What is the punishment for adultery? You're catching on (Leviticus 20:10). While the commandments themselves are difficult to remember (especially since chapters 20 and 34 of Exodus provide us with incompatible lists), the penalty for breaking them is simplicity itself.
Contemporary examples of governmental piety are everywhere to be seen. Many prominent Republicans belong to the Council for National Policy, a secretive Christian pressure group founded by the fundamentalist Tim LaHaye (coauthor of the apocalyptic "Left Behind" series of novels). This organization meets quarterly to discuss who knows what. George W. Bush gave a closed-door speech to the council in 1999, after which the Christian Right endorsed his candidacy.7 Indeed,40 percent of those who eventually voted for Bush were white evangelicals.8 Beginning with his appointment of John Ashcroft as his attorney general, President Bush found no lack of occasions on which to return the favor. The departments of Justice, Housing and Urban Development, Health and Human Services, and Education now regularly issue directives that blur the separation between church and state.9 In his "faith-based initiative" Bush has managed to funnel tens of millions of taxpayer dollars directly to church groups, to be used more or less however they see fit.10 One of his appointments to the Food and Drug Administration was Dr. W. David Hager, a pro-life obstetrician who has declared publicly that premarital sex is a sin and that any attempt to separate "Christian truth" and "secular truth" is "dangerous."11 Lieutenant General William G. Boykin was recently appointed deputy undersecretary of defense for intelligence at the Pentagon. A highly decorated Special Forces officer, he now sets policy with respect to the search for Osama bin Laden, Mullah Omar, and the rest of
America's enemies in hiding. He is also, as it turns out, an ardent opponent of Satan. Analyzing a photograph of Mogadishu after the fateful routing of his forces there in 1993, Boykin remarked that certain shadows in the image revealed "the principalities of darkness ... a demonic presence in that city that God revealed to me as the enemy."12 On the subject of the war on terror, he has asserted that our "enemy is a guy named Satan."13 While these remarks sparked some controversy in the media, most Americans probably took them in stride. After all, 65 percent of us are quite certain that Satan exists.14
Men eager to do the Lord's work have been elected to other branches of the federal government as well. The House majority leader, Tom DeLay, is given to profundities like "Only Christianity offers a way to live in response to the realities that we find in this world. Only Christianity." He claims to have gone into politics "to promote a Biblical worldview." Apparently feeling that it is impossible to say anything stupid while in the service of this worldview, he attributed the shootings at the Columbine High School in Colorado to the fact that our schools teach the theory of evolution.15 We might wonder how it is that pronouncements this floridly irrational do not lead to immediate censure and removal from office.
Facts of this sort can be cataloged without apparent end-to the vexation of reader and writer alike. I will cite just one more, now from the judicial branch: In January of 2002, Supreme Court Justice Antonin Scalia, a devout Catholic, delivered a speech at the University of Chicago Divinity School on the subject of the death penalty. I quote Scalia at some length, because his remarks reveal just how close we are to living in a theocracy:
This is not the Old Testament, I emphasize, but St. Paul.... [T]he core of his message is that government-however you want to limit that concept-derives its moral authority from God.... Indeed, it seems to me that the more Christian a country is the less likely it is to regard the death penalty as immoral.... I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? ... For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act! ...
The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible. We have done that in this country (and continental Europe has not) by preserving in our public life many visible reminders that-in the words of a Supreme Court opinion from the 1940s-"we are a religious people, whose institutions presuppose a Supreme Being." ... All this, as I say, is most un-European, and helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as "the minister of God," to "execute wrath" upon the evildoer.16
All of this should be terrifying to anyone who expects that reason will prevail in the inner sanctums of power in the West. Scalia is right to observe that what a person believes happens after death determines his view of it-and, therefore, his ethics. Although he is a Catholic, Scalia differs from the pope on the subject of capital punishment, but then so do a majority of Americans (74 percent).17 It is remarkable that we are the last civilized nation to put "evildoers" to death, and Justice Scalia rightly attributes this to our style of religiosity. Perhaps we can take a moment, in this context, to wonder whether our unique position in the world is really the moral accomplishment that Scalia imagines it to be. We know, for instance, that no human being creates his own genes or his early life experiences, and yet most of us believe that these factors determine his character throughout life. It seems true enough to say that the men and women on death row either have bad genes, bad parents, bad ideas, or bad luck. Which of these quantities are they responsible for? Resorting to biblical justifications for capital punishment does nothing to reconcile our growing understanding of human behavior with our desire for retribution in the face of the most appalling crimes. There is undoubtedly an important secular debate to be had about the ethics of the death penalty, but it is just as obvious that we should be drawing upon sources that show a greater understanding of the human mind and modern society than is evident in Saint Paul.
But men like Scalia-men who believe that we already have God's eternal decrees on paper-have been inoculated against doubts on this subject or, indeed, against the nuances of a scientific worldview. It is not surprising that Scalia is the kind of judge that President Bush has sought to appoint to the federal courts.18 Scalia supp
orts the use of capital punishment even in cases where the defendant is acknowledged to be mentally retarded.19 He also upholds state sodomy laws (in this case, even when they are applied in an exclusive and discriminating way to homosexuals).20 Needless to say, Scalia has found legal reasons to insist that the Supreme Court not leaven the religious dogmatism of the states, but he leaves little doubt that he looks to Saint Paul, and perhaps to the barbarous author of Leviticus, for guidance on these matters.
The War on Sin
In the United States, and in much of the rest of the world, it is currently illegal to seek certain experiences of pleasure. Seek pleasure by a forbidden means, even in the privacy of your own home, and men with guns may kick in the door and carry you away to prison for it. One of the most surprising things about this situation is how unsurprising most of us find it. As in most dreams, the very faculty of reason that would otherwise notice the strangeness of these events seems to have succumbed to sleep.
Behaviors like drug use, prostitution, sodomy, and the viewing of obscene materials have been categorized as "victimless crimes." Of course, society is the tangible victim of almost everything human beings do-from making noise to manufacturing chemical waste-but we have not made it a crime to do such things within certain limits. Setting these limits is invariably a matter of assessing risk. One could argue that it is, at the very least, conceivable that certain activities engaged in private, like the viewing of sexually violent pornography, might incline some people to commit genuine crimes against others.21 There is a tension, therefore, between private freedom and public risk. If there were a drug, or a book, or a film, or a sexual position that led 90 percent of its users to rush into the street and begin killing people at random, concerns over private pleasure would surely yield to those of public safety. We can also stipulate that no one is eager to see generations of children raised on a steady diet of methamphetamine and Marquis de Sade. Society as a whole has an interest in how its children develop, and the private behavior of parents, along with the contents of our media, clearly play a role in this. But we must ask ourselves, why would anyone want to punish people for engaging in behavior that brings no significant risk of harm to anyone? Indeed, what is startling about the notion of a victimless crime is that even when the behavior in question is genuinely victimless, its criminality is still affirmed by those who are eager to punish it. It is in such cases that the true genius lurking behind many of our laws stands revealed. The idea of a victimless crime is nothing more than a judicial reprise of the Christian notion of sin.
It is no accident that people of faith often want to curtail the private freedoms of others. This impulse has less to do with the history of religion and more to do with its logic, because the very idea of privacy is incompatible with the existence of God. If God sees and knows all things, and remains so provincial a creature as to be scandalized by certain sexual behaviors or states of the brain, then what people do in the privacy of their own homes, though it may not have the slightest implication for their behavior in public, will still be a matter of public concern for people of faith.22
A variety of religious notions of wrongdoing can be seen con- verging here-concerns over non-procreative sexuality and idolatry especially-and these seem to have given many of us the sense that it is ethical to punish people, often severely, for engaging in private behavior that harms no one. Like most costly examples of irrationality, in which human happiness has been blindly subverted for generations, the role of religion here is both explicit and foundational. To see that our laws against "vice" have actually nothing to do with keeping people from coming to physical or psychological harm, and everything to do with not angering God, we need only consider that oral or anal sex between consenting adults remains a criminal offense in thirteen states. Four of the states (Texas, Kansas, Oklahoma, and Missouri) prohibit these acts between same-sex couples and, therefore, effectively prohibit homosexuality. The other nine ban consensual sodomy for everyone (these places of equity are Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia).23 One does not have to be a demographer to grasp that the impulse to prosecute consenting adults for non-procreative sexual behavior will correlate rather strongly with religious faith.
The influence of faith on our criminal laws comes at a remarkable price. Consider the case of drugs. As it happens, there are many substances-many of them naturally occurring-the consumption of which leads to transient states of inordinate pleasure. Occasionally, it is true, they lead to transient states of misery as well, but there is no doubt that pleasure is the norm, otherwise human beings would not have felt the continual desire to take such substances for millennia. Of course, pleasure is precisely the problem with these substances, since pleasure and piety have always had an uneasy relationship.
When one looks at our drug laws-indeed, at our vice laws altogether-the only organizing principle that appears to make sense of them is that anything which might radically eclipse prayer or pro-creative sexuality as a source of pleasure has been outlawed. In particular, any drug (LSD, mescaline, psilocybin, DMT, MDMA, marijuana, etc.) to which spiritual or religious significance has been ascribed by its users has been prohibited. Concerns about the health of our citizens, or about their productivity, are red herrings in this debate, as the legality of alcohol and cigarettes attests.
The fact that people are being prosecuted and imprisoned for using marijuana, while alcohol remains a staple commodity, is surely the reductio ad absurdum of any notion that our drug laws are designed to keep people from harming themselves or others.24 Alcohol is by any measure the more dangerous substance. It has no approved medical use, and its lethal dose is rather easily achieved. Its role in causing automobile accidents is beyond dispute. The manner in which alcohol relieves people of their inhibitions contributes to human violence, personal injury, unplanned pregnancy, and the spread of sexual disease. Alcohol is also well known to be addictive. When consumed in large quantities over many years, it can lead to devastating neurological impairments, to cirrhosis of the liver, and to death. In the United States alone, more than 100,000 people annually die from its use. It is also more toxic to a developing fetus than any other drug of abuse. (Indeed, "crack babies" appear to have been really suffering from fetal-alcohol syndrome.)25 None of these charges can be leveled at marijuana. As a drug, marijuana is nearly unique in having several medical applications and no known lethal dosage. While adverse reactions to drugs; like aspirin and ibuprofen account for an estimated 7,600 deaths (and 76,000 hospitalizations) each year in the United States alone, marijuana kills no one.26 Its role as a "gateway drug" now seems less plausible than ever (and it was never plausible).27 In fact, nearly everything human beings do-driving cars, flying planes, hitting golf balls-is more dangerous than smoking marijuana in the privacy of one's own home. Anyone who would seriously attempt to argue that marijuana is worthy of prohibition because of the risk it poses to human beings will find that the powers of the human brain are simply insufficient for the job.
And yet, we are so far from the shady groves of reason now that people are still receiving life sentences without the possibility of parole for growing, selling, possessing, or buying what is, in fact, a naturally occurring plant.28 Cancer patients and paraplegics have been sentenced to decades in prison for marijuana possession. Owners of garden-supply stores have received similar sentences because some of their customers were caught growing marijuana. What explains this astonishing wastage of human life and material resources? The only explanation is that our discourse on this subject has never been obliged to function within the bounds of rationality. Under our current laws, it is safe to say, if a drug were invented that posed no risk of physical harm or addiction to its users but produced a brief feeling of spiritual bliss and epiphany in 100 percent of those who tried it, this drug would be illegal, and people would be punished mercilessly for its use. Only anxiety about the biblical crime of idolatry would appear to make sense of this retribut
ive impulse. Because we are a people of faith, taught to concern ourselves with the sinfulness of our neighbors, we have grown tolerant of irrational uses of state power.
Our prohibition of certain substances has led thousands of otherwise productive and law-abiding men and women to be locked away for decades at a stretch, sometimes for life. Their children have become wards of the state. As if such cascading horror were not disturbing enough, violent criminals-murders, rapists, and child molesters-are regularly paroled to make room for them.29 Here we appear to have overstepped the banality of evil and plunged to the absurdity at its depths.30
The consequences of our irrationality on this front are so egregious that they bear closer examination. Each year, over 1.5 million men and women are arrested in the United States because of our drug laws. At this moment, somewhere on the order of 400,000 men and women languish in U.S. prisons for nonviolent drug offenses. One million others are currently on probation.31 More people are imprisoned for nonviolent drug offenses in the United States than are incarcerated, for any reason, in all of Western Europe (which has a larger population). The cost of these efforts, at the federal level alone, is nearly $20 billion dollars annually.32 The total cost of our drug laws-when one factors in the expense to state and local governments and the tax revenue lost by our failure to regulate the sale of drugs-could easily be in excess of $100 billion dollars each year.33 Our war on drugs consumes an estimated 50 percent of the trial time of our courts and the full-time energies of over 400,000 police officers.34 These are resources that might otherwise be used to fight violent crime and terrorism.