It's Simple Really
I know I've written about this topic many times, but it's been coming up a lot in many of the conversations I'm having in both real life and online. Not one who believes in coincidence, I take such recurrences as a sign and so I'm addressing it again. The issue is one that most people make far too complicated: legal vs. moral. Legal/illegal are objectively defined: moral/immoral (right/wrong) are subjectively defined based on what you believe and what faith you hold dear (even if that faith is atheism or agnosticism.) The Supreme Court of the United States, in the Lawrence v Texas ruling a couple years ago, reaffirmed that the job of government is NOT to define morality. They recognized that morality is based on one's personal beliefs and that such beliefs are part of one's right to life, liberty and the pursuit of happiness.
The founding fathers wrote a document entitled the Declaration of Independence. In that document, it declares that all individuals are entitled to life, liberty and the pursuit of happiness and that it is the government's job to protect those rights for EVERY individual. There is, in reality, only one way that can happen: through the limitation of any individual's actions that would interfere with another's right to live his or her life as s/he sees fit. This limitation can be voluntary or it can be done through the legal system. The problem is that over the course of the past 230 years (almost), the legal system has been clogged with unconstitutional laws. As a result, the line between legal and moral has been blurred so much that many have come to equate the two. In the past, I have always addressed this issue from a logical point of view. This time, it's going to be from a sort of experiential point of view. I'm going to provide examples of the difference between moral and legal. A key point to remember is that of the role of the government: to protect the rights of every individual to live his/her life as s/he sees fit.
Jack believes that he has the right to kill anyone he wants whenever he wants. So he goes out one night and kills Jim. In doing so, Jack has violated Jim's right to live his life as he sees fit, therefore, what Jack did is illegal and the state must remove Jack from society until such time as Jack is willing to respect everyone else's right to live their life as they see fit. The state is making no moral judgment on whether killing is moral or not: it is simply illegal because it interfered with another's right to live his/her life as s/he wants.
Sue believes that she can marry anyone she wants, as long as they're both legal adults who are able to give informed consent. Sue wants to marry Jane and Jane wants to marry Sue. If Sue marries Jane, neither of them are interfering with anyone else's right to live their life as they see fit, therefore the state has no valid reason for making such an activity illegal. Any laws that make it illegal are therefore unconstitutional because said laws are not protecting anyone's rights but they are preventing Sue and Jane from exercising their rights.
Tim believes he has the right to end his life when he decides that the quality of his life has fallen and will remain below a level he finds acceptable. Tim finds out that he's got inoperable brain cancer. He sells everything he has to finance the things he wanted to do but never got around to doing. When he's done, he decides to end his life and seeks the assistance of his physician to prescribe an overdose so that he will die painlessly and safely. The physician rights him a prescription knowing Tim's intentions and is later arrested and charged with murder. Such an arrest is unconstitutional. The acts of the physician did not violate anyone else's right to live their life as they see fit and therefore the government has no basis for preventing such an occurrence.
Mary believes she has the right to end her life when she decides that the quality of her life has fallen and will remain below a level she finds acceptable. Mary marries Lou and after several years of wedded bliss, Mary develops inoperable cancer. She and Lou begin taking trips and going places and doing things she's always wanted to do. But she's in ever increasing pain. One day, Lou slips Mary an overdose and Mary dies. Lou is arrested for her murder. And rightly so. While Tim (from example 3) and Mary held the same belief, in Tim's case it was he himself who decided when it was time to die. In Mary's case, it was Lou who decided when it was time to die. Lou interfered with Mary's right to live her life as she saw fit, which included her right to choose to end her life when SHE felt the quality of her life had fallen too low. Lou took that choice from her.
Jason believes he can drink a six pack of beer and still be safe behind the wheel. He stops at the bar after work one day and downs six beers before heading home in his car. He gets pulled over by the police for a headlight that's out— not for erratic driving— and the officer smells alcohol and administers a field sobriety test, which Jason passes, and then a breathalyzer, which he fails. He is arrested for DUI. And rightly so. Whether or not Jason believes he can drink six beers and still be safe behind the wheel, it is fact that drinking impairs judgment and increases the risk of car accidents. Anyone climbing into a car today— or even living near where cars are driven— has accepted the inherent risk that automobiles present: accident will happen and lives, including theirs, may be lost. But Jason, by drinking and driving, has INCREASED that risk without the permission of those he may pass on the road. Therefore, laws preventing drunk driving are constitutional because they protect the rights of ALL individuals.
Connie is a smoker. She smokes in her car, in her house and outside on her porch. She believes she should have the right to smoke wherever she wants in public. But in doing so, Connie is forcing others to breathe her cancer-causing second hand smoke. Therefore, laws banning smoking in public places are constitutional because they're protecting the rights of ALL individuals.
Connie, however, argues that by banning smoking, you're violating the rights of the bar owner to allow whatever behavior he wants in his bar. Anyone coming into a bar has to know that the bar will be smokey and so they're tacitly agreeing to breathe smoke-filled air. Even employees have to know that when they take a job there, they're going to have to breath smoke-filled air. Therefore, it's the non-smoker's responsibility to not expose him-/herself to those places and to go elsewhere to dine.
As "logical" as that may sound, the bottom line is that the smoker is the one introducing the dangerous chemical into the shared environment and therefore it is the smoker's responsibility to insure that such chemicals don't affect others. Bar and restaurants are open to the public and as such, it is the bar owner's responsibility to protect the health and welfare of ALL the public who enter there-- smoker and non-smokers alike. If the bar owner wants a place where anyone can smoke anywhere, then s/he should open a private, members only club. All potential members and employees would be informed of the "smoke anywhere" policy. When a bar hires a bartender, the bartender is hired to mix and serve drinks. S/he should not be forced to compromise his/her health in order to hold a job unless such risk is inherent in the job. (For example, fire fighters have an inherent risk of having to breathe smoke and/or be burned while fighting fires.) There is no such inherent risk to the health in mixing and serving drinks to others. Simply walking into a bar does not mean that one gives informed consent to be poisoned by second hand smoke— it means one has come to enjoy a drink and/or to dine.
Oh, and one more thing. I'm a social smoker. But I don't even smoke in my own home because of my kids. I don't smoke in the car if they're in the car with me. And if I want to smoke when I'm with a crowd of people, I move away from the crowd (and downwind) so my smoke doesn't bother anyone else.
Mike believes he has the right to smoke marijuana. But he realizes it does impair his ability to operate a motor vehicle and so he never drives after he uses it or does anything might endanger anyone else. He doesn't use it before going to work or any other time when his he needs to be unimpaired. He grows his own weed in his home and doesn't offer it to anyone else although he will share if asked by another consenting adult. He never gives weed to minors and he never sells what he grows. What Mike is doing is not violating the rights of any other individual and therefore the government has no justification for making it illegal.
Example 8: Sharon believes she has the right to gamble on who's going to win sporting events. As long as she's using her money that's not supposed to be paying bills, then her actions are not interfering with anyone else's right to live their life as they see fit and the government has no justification for making it illegal.
Example 9: Tom believes he should be able to pay someone to have sex with him and Allison believes that she should be able to earn a living having sex with whoever is willing to pay her, provided they are legal adults able to give informed consent. As long as both reveal relevant health facts and use precautions against the transmission of STD's and any partners they have are aware of their intent, then their actions are not violating the rights of any other individual to live his/her life as s/he sees fit and the government has no justification for making it illegal.
The question to ask yourself with respect to any action you take is "Does this harm someone else or interfere with their ability to live their life as they see fit?" If it does, then it should be illegal. If it does not, then it should be legal. Whether or not you consider some actions that are legal to be immoral is between you and your conscience. You might even consider some actions that are illegal to be moral. The two are not synonymous since morality is based solely and utterly on what one believes. One need only look at the Catholic position on birth control: those Catholics who use birth control obviously don't find birth control immoral although the faith they profess to follow does. So morality is based on the beliefs of the individual, which are protected by the first amendment, which is why the government must not legislate morality and why any law that attempts to do so is unconstitutional.
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