IGF CultureWatch

One of the delights of being a philosophy professor is that I occasionally come across charming texts in the history of ethics. Here's Mary Warnock in her 1960 classic Ethics Since 1900:

Many people...feel strongly that some kinds of behavior, though utterly harmless to other people, should nevertheless be avoided for their own sakes, and that this is a moral matter. They may feel, for instance, that to indulge in some kinds of pleasurable activities, such as reading novels in the mornings, is wrong...because they feel that to indulge in them would be to start some kind of downward trend, some degeneration which is their duty to avoid.

Reading novels in the morning?

Perhaps reading novels in the morning is the 1960 equivalent of watching reruns of "The Surreal Life." But I'm sure that even Mrs. Warnock (as the dust-jacket blurb quaintly calls her) could think of better examples of pleasurable activities that, though harmless to others, supposedly lead to degeneration.

I came across Warnock's text shortly after returning from Last Splash, an annual gay party in Austin, Texas. Last Splash, which takes place on Lake Travis at Hippie Hollow, Texas's only clothing-optional public park, has recently evolved into a long weekend of circuit-party events in addition to the activities at the lake. There's nudity. There's alcohol and other drugs. There's flirting and kissing and groping and all kinds of so-called "naughty" behavior. In short, it's the kind of event that makes Pat Robertson's skin crawl.

And I love it.

Let me backpedal for just a second before proceeding full speed ahead (with a column that's bound to be quoted out of context anyway). There are aspects of Splash weekend that I find deeply troubling-for example, the growing use of crystal meth and other hard drugs-and I strongly oppose them. You should too. But these activities need not be-and for the majority of us, are not-what the weekend is all about.

What the weekend IS about varies from person to person, but the common thread is pleasure-and in particular, physical pleasure. Why read novels in the morning when you can swim naked in the refreshing waters of Hippie Hollow, or sunbathe on the rocky shoreline, or kiss a beautiful stranger on a crowded dance floor? (Or take him back to your room, where you can do more than just kiss?)

Some readers will be surprised to find me-"the Gay Moralist"-seeming to advocate hedonism. Isn't that precisely the sort of self-indulgent posture that our critics love falsely to charge us with?

Yes, it is. Which is why I aim frequently to prove that gays are as responsible, altruistic, and moral as anyone else. But let's not make the mistake of thinking that, because we are not interested only in pleasure (as hedonists are), it follows that we aren't interested in pleasure at all.

That fallacy-call it the "prude's fallacy"-is by no means new. Hedonists and their opponents have been around at least since Plato. I for one think the hedonists are wrong: there are goods besides pleasure. But from the fact that pleasure isn't the only good, it does not follow that pleasure isn't good at all, as the prude falsely believes.

To deny pleasure's value is just silly. And to deny that sex is sometimes mostly about pleasure-and nonetheless valuable for that fact-is even sillier. Straight people know this, and are generally quite comfortable with it, the right-wing's protestations notwithstanding.

It is easy to understand why gay-rights advocates feel defensive on this point. Responding to myths about our being obsessed with sex, we sometimes appear to disclaim any interest in it at all. Eager to show that we understand its deep, serious, transformational aspects, we downplay its raw, playful, recreational side. Fighting for marriage rights, we sweep "casual sex" under the carpet. And these defense mechanisms are a shame, for they obscure the simple joy of physical intimacy.

This is not to say that the pleasures of sex are purely physical (far from it) or that sex is the only or the most important kind of physical pleasure. Gourmet food, fine wine, a vigorous massage, lavender-scented candles, a beautiful sunset…pick your favorite(s). They all have a place in a well-rounded life.

Nor do I deny that pleasure can be taken too far, can get in the way of other goods, can be dangerous when out of balance. That's true of most good things, although pleasure is especially tempting in this regard. Still, part of encouraging people to "play safe" is encouraging them to "play." All of us need to do that sometimes.

And so when I see thousands of people descend upon Austin to celebrate themselves and their bodies and their affection (even lust) for one another, I haven't the least inclination to wag my finger. Perhaps I would if I thought that there was nothing more to their lives than this-but that too would be a fallacy. It's possible to read novels on vacation and still hit the philosophy books with full force later on.

There's no putting lipstick on this pig. Unless he changes his mind, California Governor Arnold Schwarzenegger will become the first executive anywhere in the world to veto a law allowing gay couples to marry. In fifty years, when the gay-marriage controversy will be history, nothing he has done as governor will be remembered more than that.

Make no mistake: the passage of a gay-marriage law by the California legislature was momentous. Even five years ago, having a legislative body in the United States approve gay marriage was unthinkable. Legislators fret about re-election and until now even the most liberal of them have justifiably worried that a vote for gay marriage would be the kiss of electoral death. If the brave California legislators who voted for the bill survive the next election, politicians around the country will finally have some evidence that they can safely support gay marriage.

Then there's Schwarzenegger, who came to office with the panache of a movie star, the swagger of a former body-builder, and the moral authority of a man unsullied by politics. He was refreshing. He could say what he thought and do what he wanted. He skillfully used his popularity to reshape politics and policy, for the better, in a state with ten percent of the population of the country.

Predictions that he would be an anti-gay governor, that he would support repealing domestic-partner benefits, and even that "our very lives" depended on defeating him (as one gay Democratic state legislator warned), were unfounded and proved untrue.

Instead, Schwarzenegger has signed pro-gay legislation. Just last week his spokesperson declared that he "believes that gay couples are entitled to full protection under the law and should not be discriminated against based upon their relationship." Schwarzenegger, she continued, "is proud that California provides the most rigorous protections in the nation for domestic partners." These are revolutionary statements for a Republican; indeed they're miles ahead of many Democratic politicians around the nation.

Schwarzenegger opposes "discrimination" against gay couples. Now, with history and equality staring him in the face, he is about to blink. Why?

The coy explanation given by his spokesperson last week was this: "Five years ago the matter of same-sex marriage was placed before the people of California. The people voted and the issue is now before the courts. The Governor believes the matter should be determined not by legislative action-which would be unconstitutional-but by court decision or another vote of the people of our state."

There are several things to unpack here. First note what this explanation does not say. It does not say that the governor will veto the marriage bill because he opposes gay marriage. Opposition to gay marriage itself would have been the most obvious-and defensible-reason to veto the bill.

But Schwarzenegger could not oppose gay marriage and be true to his publicly stated commitment to "full protection" for gay couples. Until he tells us otherwise, we must therefore presume that he supports gay marriage or at least that he sees no very good reason to oppose it.

So, again, why the threatened veto? The governor's spokesperson claims that the new marriage law would undo an initiative passed by California voters in 2000 declaring only heterosexual marriages "valid or recognized" in the state. Now, in principle, the fact that "the people" voted on an issue five years ago does not preclude them from reconsidering it, this time through their elected representatives. But under the state constitution the legislature cannot "amend or repeal" a popular initiative.

Whether the gay-marriage law would really do that is an interesting legal question. There are decent arguments both ways.

On the one hand, the 2000 initiative was passed to prevent the recognition of out-of-state gay marriages and is located in a section of the state code that deals with out-of-state marriages, not in-state marriages. The new gay-marriage law would not "amend or repeal" the prohibition on recognizing out-of-state gay marriages.

On the other hand, the 2000 initiative broadly declared that only male-female marriages are "valid." It was passed with the commonsensical background assumption that gay marriages would also not be validly performed within California.

Yet the parts of the state family code that actually define marriage were adopted in the 1970s by the legislature, not by popular initiative. So the legislature is presumptively free to change them.

My point is not to resolve this state constitutional issue, which the California courts can decide later. My point is that the issue is a debatable one and that where the issue is fairly debatable it is the responsibility of a leader to lead in the direction his heart and mind tell him is right.

If Gov. Schwarzenegger truly believes that gay couples deserve the same legal protection and support given to other couples, then it is his moral obligation to resolve reasonable doubts about his constitutional power in their favor. If he does not believe gay couples deserve marriage, then he should come out and say so, not hide behind courts and legalisms.

Around the country they are taunting Schwarzenegger with the "girlie man" label he used against his political opponents last year to accuse them of cowardice in the face of duty. He was right then about his enemies. It would be a shame if his epithet becomes his epitaph.

First published September 14, 2005, in the Chicago Free Press.

Lambda Legal Defense and Education Fund recently developed a list of some 30 questions it hoped would be asked of Supreme Court Chief Justice nominee John G. Roberts, Jr., and, presumably, the as yet unnamed associate justice nominee.

Among them were: Is there a Constitutional right to privacy? Can the government make it a crime for gay people to have sex? and Do gay people have a right to equal protection under the law?

Roberts will probably not discuss his views on most substantive issues since he would lose votes no matter how he answers. But those are good questions that point to the still-developing area of people's rights against government interference. Lambda unfortunately neglects to educate the gay public about the basis for these rights, so a radical rethinking may be invited.

The right to privacy is an umbrella term for a bundle of different rights and immunities such as the right to be secure from intrusion in a person's body, in his (or her) home, and in his most intimate relationships. The core concept is the right to personal autonomy, the right to be left alone. As the old adage had it: A man's home is his castle. The winds may blow through it, the rain may pour through the roof, but the King of England may not enter.

"Privacy" is not mentioned in the Constitution, but elements have been found in several specific guarantees in the first ten amendments, most convincingly in the Fourth Amendment's guarantee of security "in their persons, houses, papers, and effects," in the Fifth Amendment's guarantee of private property rights and its prohibition of taking "life, liberty, or property," without due process.

Are there other "unenumerated" rights against government interference that individuals retain? There are. How do we know that? The Constitution says so. Where does it say that? In the Ninth Amendment. What does it say? It states in its entirety, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

Having set up an "energetic" federal government with the Constitution, the Framers felt a need to reassure people that their new government could not become tyrannical and that they retained all the traditional rights of Englishmen plus additional rights to prevent potential abuses. Although they listed several, they realized that no list could be complete. Hence the Ninth Amendment.

Some advocates of government control over people's social and economic lives have tried to evade the Ninth Amendment, saying it just repeats the Tenth Amendment. But that is flagrantly dishonest. The Ninth Amendment refers to "rights"-i.e., immunities against government-retained by "the people"-i.e., individual persons. By contrast the Tenth refers to "powers"-i.e., governing authorities-reserved for "the states."

In recent years as courts began trying to expand certain privacy or personal autonomy rights, particularly in the social and sexual sphere, they cautiously began to mention the Ninth Amendment, which one author called "The forgotten Ninth Amendment" and Justice Goldberg in his 1965 Griswold (birth control) concurrence said "may be regarded by some as a rediscovery."

Although the Ninth Amendment must have some substantive content, judges have been terrified to base decisions on it alone. Currently, it seems to be viewed at most as a kind of nagging reminder to judges to hunt for specific privacy and autonomy rights elsewhere in the Constitution. The appeal is usually to the First, Fourth and Fifth Amendments, often in tandem with the Fourteenth Amendment's specification that "nor shall any State deprive any person of life, liberty, or property, without due process of law."

But slowly, by engaging in expansive readings of those other amendments, the Supreme Court seems to be approaching, by the back door as it were, the original intent of the Ninth Amendment-that there are a lot of rights not explicitly stated.

At some point the courts should simply acknowledge that they have been going about things backwards. Instead of trying to find a constitutional basis for every specific privacy or autonomy or liberty right, they should begin with the assumption that people have a right to do whatever (peaceful, consenting) they desire and require the government to assert some specific constitutional authorization to prohibit it.

Thus, it seems obvious that private homosexual activity should not be the subject of legal attention. The Constitution gives no government power to prohibit homosexual activity because it is no one else's business what goes on in my home or someone else's home.

And it seems clear that my ongoing intimate relationship with some other willing adult partner is none of the government's business either, but so long as it extends certain privileges to contracting heterosexual couples, the Constitution provides no basis for denying "equal protection of the laws" to me and my contracting partner.

Such a reversal of the burden of proof for the legitimacy of government policies would restore a healthy modesty among government authorities and free citizens to conduct their lives for well or ill according to their own personal tastes and aspirations.

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Addendum: Readers wishing to explore the Ninth Amendment further are referred to Randy E. Barnett, The Rights Retained by the People: The History and Meaning of the Ninth Amendment (George Mason University Press, 1991) as well as other works by Barnett.