Tuesday, February 18, 2014

Snake-handling, Suicide, and Sodomy

Yesterday it was reported that snake-handling, Pentecostal pastor, Jamie Coots, died of a snakebite. Apparently it was the 10th time he was bitten.  Coots lived in Kentucky which is one of a few states that both has snake-handling churches and laws against snake-handling.  The Kentucky law even mentions snake-handling church services and has the penalty as a misdemeanor fine.

Here is one of these borderline cases where a law teeters on violating the Free Exercise clause in the 1st Amendment (at least if one interprets the clause as applying to states which is the dubious, current interpretation).  A libertarian would find such a law appalling and even a number of conservatives would as well.  Nonetheless if a strong case could be made that, say, children are likely to be harmed by the practice, an argument of some merit could be made that this is a case where the state has an interest in promoting the common good at the expense of free exercise of religion.

A quick Wikipedia search reveals that Georgia once had the draconian penalty of DEATH for snake-handling which any sane person should agree is, well, a BIT excessive.  The law was eventually abolished since juries refused to convict given the extreme penalty.  Similarly, it was reported yesterday that, in Kentucky, even though snake-handling is considered a misdemeanor, arrest and conviction seldom takes place--the executive branch being leery of imposing on freedom of religion.  Which brings us to suicide and sodomy.
One often hears the following objections to suicide and unenforced laws more generally: (a) it's stupid to criminalize suicide since one cannot punish someone who is dead(!) and (b) it's stupid to pass laws that are unenforced and a fortiori unenforceable.  Why is it stupid?  The assumption seems to be that one only has a good reason to pass a law outlawing an action if enforcing sanctions is practically possible.  But is this assumption right?

I think not, and laws against suicide are a good illustration of why not.  But let me first set aside a complication.  There is a sense in which laws against suicide can be enforced: someone attempting to commit suicide could be arrested and forced into treatment.  In addition someone who commits suicide could have his legacy relinquished by the state confiscating his property after death.  Be that as it may, I want to ignore those possible sanctions and suppose that a state has a law criminalizing suicide but with none of those sanctions attached nor any others like them.  Is there still, then, any good reason to criminalize suicide?

Yes there is.  In criminalizing suicide the state is taking a position on the value of life of its citizens, and any just state takes that as a chief value.  Looking at such a law from the positive side, it is endorsing the life of its citizens as a good, and, from the negative side, the taking of innocent life--even by oneself--as an unlawful act.  And we have good reason to believe that outlawing an action--even if there is little or no penalty--does have some motivating force within society.  It would have what we might call reprobative force--it sends a message that the action is not one that society condones.  For one, (right or wrong) many take illegal actions to be immoral actions, at least where the law is not obviously unjust.  Furthermore, most attach illegal actions with public scorn and shame.  Of course, that such laws without sanctions have reprobative force is an empirical claim subject to confirmation or dis-confirmation, but we have good anecdotal evidence for confirmation.

This brings us to anti-sodomy laws.  Anti-sodomy laws seem to have a similar past as snake-handling.  Prior to the 1960's in the U.S. (which was typical of the West more generally and still typical in places like Africa today) all states criminalized sodomy.  Early in its history the punishment was sometimes death but gradually the severity of the punishments was lessened.  By the time anti-sodomy laws were struck down in 2003 (on the tried-and-true but absurd grounds that such laws violate due process) in the Lawrence v. Texas case, enforcement of the laws was (rightly, in my opinion) rare.

Now let's imagine a world where the 14th Amendment is not grounds for judges to insert into their "interpretations" their contemporary moral feelings--a world where anti-sodomy laws are not ruled as unconstitutional.  And let's not play favorites--throw in other laws which have nothing to do with sodomy. Here is a question for the libertarian and the conservative:  Might there be good reason for laws like these which criminalize actions but explicitly have no sanctions attached? Could conservatives live with some laws with no sanctions and libertarians live with criminalizing some actions that don't directly seem to involve harming or thwarting the liberty of others?  I'm unsure about both of these questions.

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