I have a friend; let’s call him Jeremy Arlington, since that’s his real name, who proclaimed that the Michigan state Senate’s supposed banning of sodomy represents “all that is wrong with America.” I can’t even begin to debate Jeremy or disabuse him of these notions, since the facts he is using to support his opinion are not the facts I have. We do not share a common frame of reference, so there is no reasonable foundation for analysis, argument, or even conversation. Jeremy is a leftist, so his line of thinking amounts to “first, Michigan Republicans deliberately poison Flint’s water supply, and to add insult to injury, they are dictating how Michigan residents can have sex in the privacy of their own homes!”
Except, Michigan did not just impose an archaic anti-sodomy law. Rather, the state Senate revised a portion of its penal code, section 750.158, as an update to its “Logan’s Laws”, which it employs to crack down on animal abuse.
A quick trip to Snopes.com reveals, “WHAT’S TRUE: The Michigan senate amended a portion of the state penal code dealing with animal cruelty without removing old, unenforceable language that criminalizes sodomy. WHAT’S FALSE: Michigan has passed a new law banning oral and anal sex.”
Thanks to the Supreme Court case Lawrence v. Texas, states’ anti-sodomy laws were struck down as unconstitutional. Rendering those laws unconstitutional makes them unenforceable, meaning no prosecutor is going to take a case to trial that involves charges of sodomy since he knows they won’t withstand the appellate process.
The revision to the Michigan Penal Code 750.158 only passed the state Senate. Michigan has a bicameral legislature, and SB19 would still have to be signed by Governor Rick Snyder should it pass the House. Who knows – that might not even happen. But if it does, no prosecutor would ever waste his time with a case involving a violation of the sodomy ban. But let’s take this further and assume SCOTUS never ruled on Lawrence, or ruled in the opposite direction: any Michigan prosecutor would only take the case to trial if he thought he could get a conviction, which means he needs evidence of the charge that is discovered via methods that do not violate the defendants’ Constitutional rights, that he is able to argue the merits of his case better than the defense is able to rebut them, and cross his fingers the jury doesn’t nullify the charge, despite a preponderance of evidence.
But no non-animal cruelty violation of Michigan’s penal code section 750.158 would ever be put on the docket, which makes the anti-sodomy ban, first enacted by the state in 1931, as silly as other ridiculous laws on the state’s books, such as the one that does not allow a woman to cut her hair without her husband’s permission, or the city of Detroit’s ordinance that makes it illegal for a man to scowl at his wife on Sunday. Steer clear of the Michigan city Grand Haven: it has an ordinance on the books in which throwing an abandoned hoop skirt onto any street or sidewalk will cost you five bucks.
I can’t help but think of the late, great Christopher Hitchens and his Vanity Fair piece, “I Fought The Law,” in which the author “went on a one-man crime spree: taking his feet off his bike pedals, feeding pigeons, and sitting on a milk crate, among other offenses.” Halfway through, Hitchens wrote, “The essence of tyranny is not iron law. It is capricious law. Tyranny can be petty.” I only half agree. If forced, I’d choose capricious laws over ones that prevent my enjoyment of the natural rights of man. It is possible that Hitchens included that line to provoke his readers, but he was not an insincere man. What is important to remember is the enacting of a law can be motivated by petty tyrannical impulses, but in this country, those who write the laws do not enforce them.
So, Lefties, Righties, and all other undesirables, rejoice! You live in a country where there are many obstacles between you and conviction of even good laws that make sense, let alone capricious ones.
The term “criminal” can be defined as both a person who commits unlawful acts and as a person convicted of an unlawful act. Since we libertarians are concerned mostly (read: obsessed) with the state, the more important connotation is the latter one, since it involves a redefinition of the individual’s relationship to the state.
As we are all aware, social media began as a space wherein people could (re)connect, share pictures and debate topics of any and all kind. Social media quickly evolved into a space where misinformation could spread and proliferate like the French Pox. The Non-Peer Reviewed/Fact Checking Blogosphere ™ and various social media platforms aggregate to a hyper echo chamber/outrage factory. It happens countless times a day. We libertarians should speak out whenever laws are proposed and passed that would do something other than protect the lives, liberties, and properties of citizens. I am not that concerned with the existence of capricious, unenforceable laws. Let’s not waste our time and energy on them, let’s focus our efforts to fight the War on Drugs, violent police tactics, corporatism, and egregious taxation.
I’ll end with a last bit of Hitchens we would all do well to remember: “The lawbreaking itch is not always an anarchic one. In the first place, the human personality has (or ought to have) a natural resistance to coercion. We don’t like to be pushed and shoved, even if it’s in a direction we might choose to go. In the second place, the human personality has (or ought to have) a natural sense of the preposterous.”
Don’t get too bent out of shape about the preposterous. It’s very likely those who are sworn to uphold the laws are aware which laws are worth enforcing.
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