IGF CultureWatch

Utah Governor Gary Herbert's statement yesterday about gay rights has a message bigger than I think he intended:

"We don't have to have a rule for everybody to do the right thing. We ought to just do the right thing because it's the right thing to do and we don't have to have a law that punishes us if we don't."

Herbert was talking about a state law that would prohibit discrimination against lesbians and gay men, and expresses an optimism about human nature that he'd probably be embarrassed about in any context except gay rights. His position looks to be that the law should not be used to punish people who do bad things because -- well, he doesn't get into that; we just should do good things. I think it's fair to assume he confines this theory to laws about homosexuality, since it's hard to imagine a public official who would support eliminating or ignoring all laws that punish people for doing things we agree are degraded or despicable. I also think it's fair to assume he wouldn't want to rely solely on human virtue even in the face of other forms of discrimination. Perhaps, though, he is not being inconsistent here, and has asked the Utah Antidiscrimination and Labor Division to refrain from enforcing any existing anti-discrimination laws against African-Americans or others.

But his focus on laws that punish people only applies to one species of laws -- those that affirmatively state what should be prohibited. But look at Herbert's statement in the context of Utah's law that prohibits same-sex couples from the benefits of the state's marriage laws. This is not a law that (technically) punishes anyone, it is a law that encourages something we agree is good. But if, as Herbert seems to believe, it is the "right thing to do" not to discriminate against homosexuals, why does this law unambiguously demand the government engage in that discrimination?

Perhaps Utah doesn't need to pass a law prohibiting discrimination against lesbians and gay men. Perhaps people in Utah can be relied on to treat homosexuals fairly. But the state's existing marriage law certainly doesn't support the Governor's optimism. In fact, that law is pretty solid evidence proving him wrong.