Sin No More

From Abortion to Stem Cells, Understanding Crime, Law, and Morality in America

John Dombrink, Daniel Hillyard

• Publisher: NYU Press
• Year: 2007
• ISBN:
  9780814720240
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Read the Authors' Op-Ed on the Seattle Post-Intelligencer

Sin No More offers a vivid examination of some of the most morally and politically disputed issues of our time: abortion, gay rights, assisted suicide, stem cell research, and legalized gambling. These are moral values issues, all of which are hotly, sometimes violently, contested in America. The authors cover these issues in depth, looking at the nature of efforts to initiate reforms, to define constituencies, to mobilize resources, to frame debates, and to shape public opinion—all in an effort to achieve social change, create, or re-write legislation. Of the issues under scrutiny only legalized gambling has managed to achieve widespread acceptance despite moral qualms from some.

Sin No More seeks to show what these laws and attitudes tell us about Americans' approach to law and morality, and about our changing conceptions of sin, crime and illegality. Running through each chapter is a central tension: that American attitudes and laws toward these victimless crimes are going through a process of normalization. Despite conservative rhetoric the authors argue that the tide is turning on each of these issues, with all moving toward acceptance, or decriminalization, in society. Each issue is at a different point in terms of this acceptance, and each has traveled different roads to achieve their current status.

1

Changing Moralities

Shifts in American Attitudes and Law in the “Moral Values” Debate

There is a religious war going on in our country for the soul of America. It is a cultural war, as critical to the kind of nation we will one day be as was the Cold War itself.

—Patrick Buchanan, 1992 Republican National Convention

It’s not blue state versus red state after all, but more like blue urban versus red rural, skyscraper versus church house, Chez Panisse versus Denny’s. That is to say, it’s all about population density, cultural hub, all about the much-touted “redneck revenge” on the “liberal elite” for unleashing, I suppose, small European cars and artisan cheese and “Queer Eye” and “The West Wing” on them without their express written consent. It is, in short, all about Retro vs. Metro.

—Mark Morford, “Down with Fancy Book Learnin’: What’s It
Mean That the Big Cities and College Towns of
America All Voted Blue?” (2004)

November 2004: Return to “Values”?

American liberals could be forgiven for thinking that indeed things had turned screwy—or scary—in 2004. Everywhere one turned after the presidential elections of 2004, the Reverend Jerry Falwell was pronouncing the meaning of the election, and why George W. Bush was returned to office. Falwell, who many may have thought had flamed out with his intense and uncompromising conservative religious positions and ubiquitous media role since the Reagan years, was all over the airwaves. One night, he was explaining to Chris Matthews on MSNBC’s show Hardball the failings of an ad campaign by the United Church of Christ, a liberal Protestant denomination, that depicted a church open to gays and lesbians—insinuating to Falwell that evangelical churches in America were bigoted.¹ Another night he was debating on Meet the Press with progressive Christian minister Jim Wallis about the role of religion, politics, law, and society.²

The rush to engage Falwell, Dr. James Dobson, and other leading lights of the Christian Right as interpreters of the American public’s shift in attitudes related to politics in general and the law and personal morality in particular was a result of one frame the media had quickly placed on the 2004 election results.

This strong theme that was being trumpeted in the media was the importance of “values,” the result of exit polls taken on election day: As the New York Times reported:

In the survey, a striking portrait of one influential group emerged—that of a traditional, church-going electorate that leans conservative on social issues and strongly backed Mr. Bush. . . . Bush appealed overwhelmingly to voters on terrorism and to many others on his ability to handle the economy. But what gave him the edge in the election, which he won 51 percent to 48 percent, was a perceived sense of morality and traditional values.³

The election results were not necessarily a surprise to those who had worried throughout 2004 whether or not the Democrats had a “church gap.” Still, a progressive could be dismayed that such strutting by the Christian Right came so soon after what some progressives referred to as an unusual trifecta in the “gotcha” category of politics: who could have predicted that 2003 would have seen conservative author and former drug czar and cabinet secretary Bill Bennett exposed as an inveterate gambler who lost hundreds of thousands of dollars in video poker in Nevada and New Jersey? Or that conservative radio host Rush Limbaugh would be admitted to treatment with a drug problem centering on illegally obtained painkillers? Or that segregationist favorite and longtime U.S. senator Strom Thurmond was disclosed to have fathered a child with an African American woman?

What had happened?

Was this a sign of the continued vitality of the “culture wars,” twenty years after that term had first been used? And maybe this was also a sign of the “stealth” nature of the network of Christian conservatives, a factor especially in previous local elections.

Was this a continuation of the conservative mobilization that had followed the sex scandal of Bill Clinton? Sexual behavior had been a major component of the Clinton era scandals and had contributed in no small part to the right’s coalescence on abstinence, zero tolerance, and the ascendance of other traditional values in the broader political debate.

Was this a very specific backlash to the issue of gay marriage, which had been raised by the decision of the Massachusetts Supreme Court in 2003, the Supreme Court antisodomy decision in 2003, and the extralegal marriages performed in San Francisco and other cities in 2004? A spokesman for the National Gay and Lesbian Task Force had commented on how the Supreme Court decision in Lawrence offered both promise and peril for those advocating equality for gays and lesbians.⁴ Certainly, the image of eleven states easily voting in defense of marriage acts (DOMAs) in November 2004, while not necessarily determinative of the Electoral College outcomes, speaks to this backlash.

Was this a continuing example of false consciousness, as raised so effectively by historian Thomas Frank in What’s the Matter with Kansas?,⁵ that led working-class evangelical Protestants to collaborate in their own economic demise by joining forces with a coalition of corporate power and social conservatives in the Republican Party? As Frank wrote: “As a formula for holding together a dominant political coalition, the backlash seems so improbable and so self-contradictory that liberal observers often have trouble believing it is actually happening.” Is there anything that progressives could take heart from in the 2004 results? Something had happened, but what?

This book will argue that there is much more consensus on moderate views among the American public on public policy toward issues of law and personal morality—where the “family values” come into debate. In fact, Americans are more “purple” than “red” or “blue” on many of these values issues. Activists care deeply about such issues—on either side of the debates—and political strategists find ways to use these beliefs to achieve success in political campaigns on the margins. Moreover, over the past thirty years America has incrementally liberalized its laws and attitudes across the range of these issues and has even seen new “combustible” issues emerge (assisted suicide and stem cell research, which are discussed in chapters 5 and 6, respectively). We argue:

1. The importance of the “values voters” was overstated, but they remain a vital force;

2. Americans have a more moderate–and tolerant—approach toward a range of policies in the personal morality area;

3. Not all persons of faith are conservative, but the marriage of secularization and religiosity is a confounding one

In this book, we analyze events and lawmaking across these several arenas of the culture war between 2004 and 2006 and present a counterinterpretation to the “values voters frame” of 2004. We end with an assessment of where America stands in 2007 after a few years of discussion and debate, use and abuse of “wedge issues,” and accusations of misplaced emphasis and false consciousness. We also present our thoughts on the nature of lawmaking in this complicated area and how the American consideration of legal changes in the area of “victimless crime” has changed in various ways since the concept was first introduced forty years ago.

We should explain the title of the book. The use of the word “sin” here is meant to convey the complexity and duality of the subjects of law and morality we address inside. In one use of the term, a Catholic priest encourages a penitent in confession (or the now renamed “sacrament of reconciliation”) to “go and sin no more,” with the understanding that the individual has transgressed and should now try to stay on the straight path. The second sense in which we use the term—and that which cuts against the first use—is in signifying that an activity, like abortion or same-sex relations, is no longer considered a “sin” by many. While ultimately we are not focused on religious changes, we have written a book about the changing of mores and norms, and the changing of laws to follow that societal trend, however contested it has been.

The Importance of the “Values Voters”

The night of the November 2, 2004, presidential election, exit polls—which had already caused havoc earlier in the day by contributing to a prediction of a Kerry victory—began shaping a story line from the election that would be startling to many: that “moral values” was the leading reason given by voters for their reelection of George W. Bush. According to the New York Times, “What gave him the edge in the election, which he won 51 percent to 48 percent, was a perceived sense of morality and traditional values.”⁶ In opening a panel discussion on the topic among reporters, pollsters, and analyst two weeks later, journalist Marvin Kalb framed the discussion by introducing the “now conventional wisdom, raised and debunked at the same time, that moral values, more than terrorism, more than the war in Iraq, more than the economy, was the one issue that mattered most to the people voting for President.”⁷

Within a few days, critiques had arisen from political analysts and pollsters, noting that the choice of closed-ended questions from a list had skewed the results, so that “moral values” headed a list of seven choices. (By comparison, an open-ended list elicited a much weaker finding.) Even Michael Barone, a conservative political analysts, allowed as to how, when aggregated, the combination of the Iraq war and terrorism (37 percent) or four leading domestic issues (37 percent) both dwarfed the values item.⁸ The Pew Research Center concluded that while “moral values is a top-tier issue for voters . . . the relative importance of moral values depends greatly on how the question is framed.”⁹

Andrew Kohut further explained, from data from the Pew Research Center:

In our post-election survey we did a little experiment. We repeated the question that the exit pollsters used, asking voters to choose from five or six items, including moral values, and in the other half of our sample we asked people on an open-ended basis to tell us what issues were on their mind, and we got quite different answers. In the fixed list column, which is that first column, we got 27 percent mentioning moral values—the most frequently given response, just like in the exit polls. Iraq came second, then economy, then terrorism. But in the open-ended question we just got 14 percent saying anything remotely close to moral values, either moral values itself, social issues such as—one of the social issues such as abortion or gay marriage.¹⁰

Others commented on the ambiguous nature of all the polls. Adam Nagourney, a political writer for the New York Times, observed: “Presidential elections often produce a clear story line, a lesson for losers and winners alike. Not this one, at least not yet. . . . the very ambiguity of the 2004 election results has pushed the party into new sets of arguments. . . . did Democrats lose because they were seen as lax on ‘values,’ which was the early verdict on the Kerry loss, or because they were seen as weak on terrorism?”¹¹ Sen. Edward Kennedy later added: “Defeat has a thousand causes, and it is too easy to blame it on particular issues or tactics or on the larger debate about values.”¹²

In a listing that approximates the concerns of many of the Christian Right groups, a Catholic group has identified the “five nonnegotiables”—abortion, gay rights, assisted suicide, stem cells, and cloning—for focus in its political activity.¹³ However, by most measures, Americans currently:

1. support the key tenets of Roe v. Wade,

2. support civil unions for same-sex couples, and oppose a constitutional amendment against same-sex marriage,

3. support suffering patients enlisting doctors to end their life,

4. support research using stem cells to end serious disease, and

5. support legal gambling in many forms throughout the country.

Arenas of Contestation

Abortion

Americans have been consistently supportive of the main tenets of Roe v. Wade in polls since 1973, even as the Supreme Court has been reshaped and determined to undercut it. At the same time, polls have captured the ambivalence of many toward the implications of that support or, more appropriately, the limits of that support—such as Medicaid funding, teenage access, and late-term abortions. Still, a November 2004 poll taken for the Associated Press found what many precursor polls had—that most Americans (59 percent in the AP poll) thought that President Bush should choose a nominee who would uphold Roe v. Wade.¹⁴

Gay Rights

While 2004 may be remembered for the political fallout from the raising of the gay marriage issues—in legal decisions, extralegal actions, church pronouncements, and philosophical discussions—the common ground that did exist was downplayed in favor of the contestation that made for better media coverage. According to those measures, a majority of Americans favor at least the establishment of civil unions for same-sex couples.¹⁵ Clearly, only a majority of Americans favor allowing same-sex marriages. At the same time, clearly only a majority of Americans support a constitutional amendment opposing gay marriage (such as the 56 percent in the November 2004 New York Times–CBS poll). Taken by itself, the majority support for civil unions is a remarkable figure, especially given that only one state (Vermont) then allowed them, and that they were controversial not so long ago. This trend can be seen as signifying the increasing support among a majority of Americans for a range of legal protections for gays and lesbians, beginning with city and county antidiscrimination ordinances in the 1970s. Only a minority thus embraces a position such as that of U.S. Senator John Cornyn (R-Tex.), who offered this assessment of the classic Millian position on gay marriage, morality, and harm: “It does not affect your daily life very much if your neighbor marries a box turtle. But that does not mean it is right. . . . Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife.”¹⁶

Death with Dignity

Gradually, since the 1970s, Americans have su...