Church-state legislation has made common criminals of us all. Dr. Alfred Kinsey has estimated that if the sex laws of the United States were conscientiously and successfully enforced, over 90 percent of the adult population would be in prison.
A free society, through its government, passes and enforces laws for the protection and welfare of its individual members. Thus the state may sometimes quite properly prohibit certain actions—murder and theft, for example—that are also condemned as immoral or sinful by religion. This overlap of secular and clerical law is not, in itself, any indication of the improper interinvolvement of church and state. But secular law should be based on a rational concern for the happiness and well-being of man; whereas clerical law is based upon theology or faith. It is only when secular law is predicted on religious faith, rather than reason, that it is improper.
The Ten Commandments provide the basic moral laws for both the Christian and the Jewish religions, and while the Commandments "Thou shalt not kill" and "Thou shalt not steal" have their logical conterparts in our secular law, protecting the individual citizen's life and property, few would seriously suggest that these ten Biblical pronouncements be turned, in toto, into legal statutes. The devout may accept "Thou shalt have no other gods before me," may consider it a sin to "take the name of the Lord, thy God, in vain," and may sincerely believe that we should "remember the sabbath day, to keep it holy," but only the smallest handful would want these religious laws turned into governmental ones; and only the most tyrannical parent would wish "Honour thy father and thy mother" turned into a legal edict.
From whence, then, comes the logic of turning the Sixth Commandment (or the Seventh, depending on your religious affiliation), "Thou shalt not commit adultery," into a criminal offense? Only if one adheres to the ancient concept of the wife being property of the husband, rather than an individual human being, can one justify such a law; and it is from this idea of the female being a possession of the male, as we have previously noted, that the prohibition regarding adultery originally sprang. This is re-emphasized by the last Commandment(s), in which a number of specific possessions are mentioned, with the admonition, "Thou shalt not covet," presumably listed in the order of their importance: "thy neighbour's house...thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour's." In a rational society that views all human beings as free individuals, how do we justify turning the religious Commandment "Thou shalt not commit adultery" into a secular law? And how do we broaden its original Biblical implication to include, not only wives, but husbands as well? In the time of the Old Testament, it was accepted that the wealthy male should have many wives and mistresses. We have shown that the broader antisexual implications were supplied by the medieval Church and that it was in that time that they found their way from the clerical into the secular law. But how did they find their way into our own law—with all of our righteous proclamations about religious freedom and the separation of our church and state in America?
And what of fornication? There is nothing in the Old Testament, or in the teachings of Christ, that specifically prohibits all sex out of wedlock. This too is derived, not from the Bible, but from the extreme antisexualism of the Middle Ages. Nevertheless, in 1963, in an era of supposed enlightenment, in a society supposedly free, premarital sex is prohibited by law by most of the 50 United States.
But it is not our place to point out the non-Biblical origins of these religious laws—for modern theological dogma can be drawn from any source, or from no source at all. Neither is our intent to proclaim the moral desirability of either adultery or fornication. It is simply our purpose, at this moment, to point out the utter lack of justification in the state making unlawful these private acts performed between two consenting adults. Organized religions may preach against them if they wish—and there may well be some logic in their doing so, since extreme sexual permissiveness is not without its negative aspects—but there can be no possible justification for religion using the state to coercively control the sexual conduct of the members in a free society.
Some sexual behavior is the proper concern of the state. In protecting its citizens, the state has the right to prohibit unwelcome acts of sexual violence or aggression; it also has the right to protect the individual from sexual exploitation and fraud. Before a certain age, individuals lack the maturity necessary for full participation in a free society and so it is logical to have special legislation for the protection of minors—although in matters of sex, our society is woefully unrealistic about both the nature and needs of its youth and is, itself, largely responsible for perpetuating sexual immaturity and irresponsibility in our young. Society also has the right to prohibit, solely on the grounds of taste, public sexual activity or immodesty that may be unwelcome to other members of the community—though in this regard, we should mention that sexual anxiety, repression, guilt and shame traditionally accompany a social order that is, by our standards, relatively immodest.
All other sexual activity—specifically, all private sex between consenting adults—is the personal business of the individuals involved and in a free society the state has no right to interfere.
This is not the radical viewpoint that some readers may assume. It is shared by a great number of the religious leaders of America and represents the general trend in religious thinking regarding sex in our contemporary society. This position was expressed recently by Father James Jones, a priest of the Episcopal Church, in a television debate on changing sexual morality; Father Jones pointed out that when private morality is legislated against by government, it goes underground, and it thus becomes more difficult for religion to reach and influence.
As we have previously noted, England is presently undergoing a Sexual Revolution quite similar to our own; their similar Puritan heritage produced a like set of unrealistically suppressive sex laws also. On this matter, the Moral Welfare Council of the Church of England recently stated: "It is not the function of the state and the law to constitute themselves guardians of private morality, and thus to deal with sin as such, which belongs to the province of the church. On the other hand, it is the duty of the state to punish crimes, and it may properly take cognizance of, and define as criminal, those sins which also constitute offense against public morality."
The now famous Wolfenden Report was presented to the British Parliament in the fall of 1957 by a committee drawn from the clergy, medicine, sociology, psychiatry, and the law, under the chairmanship of Sir John Wolfenden, C.B.E. The Wolfenden committee not only included members of the clergy, it sought advice and guidance from others in both the Anglican and Roman Catholic Churches. Thus, seven Catholic clergymen and laymen appointed by the late Bernard Cardinal Griffin, Archbishop of Westminster, submitted a report to the committee that stated:
"It is not the business of the state to intervene in the purely private sphere but to act solely as the defender of the common good. Morally evil things so far as they do not affect the common good are not the concerns of the human legislator.
"Sin as such is not the concern of the state, but affects the relations between the souls and God. Attempts by the state to enlarge its authority and invade the individual conscience, however high-minded, always fail and frequently do positive harm."
The official Wolfenden Report to Parliament reflected these same views. As yet no significant British legislation has resulted.
A similar trend in thinking exists in legal circles here in the United States. The draft of a Model Penal Code published early in 1955 by the American Law Institute contained a recommendation that all consensual relations between adults in private should be excluded from the criminal law. The philosophy underlying this recommendation was stated to be that "no harm to the secular interests of the community is involved in atypical sex practice in private between consenting adult partners" and "there is the fundamental question of the protection to which every individual is entitled against state interference in his personal affairs when he is not hurting others."
Although this Model Penal Code was published nearly nine years ago, no state has yet reshaped its statutes on sex along the lines recommended by the Law Institute.
In the next installment of The Playboy Philosophy, we will consider, in some detail, the sexual activity currently prohibited by law in the 50 states and contrast the statutes with actual sex behavior in contemporary society.