Can I come out for a third position other than the Lopezite or Stuttafordian ones?
Intellectually I can understand the argument for legalized prostitution, even if I disagree with it. And, I can understand, even sympathize, with the view that there should be more than a rice-paper thin Japanese teahouse wall between one’s private life and public life, even for politicians.
So let me concede, for the sake of argument, that Andrew is right that the law is an ass when it comes to prostitution (though if we are going to be loyal to Dickens, shouldn’t that be “a ass”?) Let us also concede that it is something like a private matter for a married man to visit a prostitute (though obviously it isn’t private for the wife and the kids — or for the prostitute if, as in many circumstances, she’s forced into such work).
Still, to say that something is a “private matter” is not the same thing as saying something is beyond the scope of our judgment. If Tom is a drunk, it may be a private matter but that hardly means I must approve of his “lifestyle.” If one of my married friends was repeatedly visiting hookers, I might say for the sake of social peace that it’s none of my business, but I would still think much less of him. And, if he became more and more brazen — and hence more and more humiliating for the man’s wife and family — the more likely it would become that I would feel compelled to say something.
I fail to see why it should be different for public figures. This was my central disagreement with Jonathan Rauch’s “hidden law” argument saying that society should demand everyone lie about marital infidelity. Rauch wrote (I’m getting this from an old column btw):
Try a thought experiment. You’re at a dinner party. In full public hearing, someone demands to know whether you’re cheating on your wife. Civilized norms require you to evade the question. But suppose the boor persists, demanding an answer. If you must give an answer, civilized opinion requires you to look him in the eye and say, “Of course I don’t cheat on my wife” — even if you do cheat on her. Moreover, civilized opinion is not angry with you for lying; it is angry with him for demanding to know. You are invited to the next party. He isn’t.
“We therefore have a rule:” Rauch concluded, “If the adulterer and the spouse both prefer to hush up the affair, they lie, and no further questions are asked. Everybody pretends to believe them, and the children slumber untroubled by sin.”
I agree with him entirely that some social deception is necessary to maintain a healthy society. But once the deception has been exposed, forcing everyone to take sides, everyone must in fact take sides. One can be humane or sympathetic, but they should also judge. Here’s part of my response to Rauch:
…what this analysis really misses is that if you actually do get caught committing adultery — let alone maintaining numerous shameful affairs — than the community has an equal obligation to judge you and hold you accountable. We don’t go after private stuff, so long as it is private. But when …[cirumstances force that] behavior into public view, we must condemn it. This is the logical consequence of the “don’t ask, don’t tell policy” built into the heart of the hidden law Rauch exalts.
I have no problem with utilitarian arguments in support of social norms, but you can’t drop the ball halfway down the field — assuming that metaphor makes any sense. Privacy needs to be protected, but we also need to be protected from what people do in private. And the only way to do that is to exact a high price on those people who openly flout conventions.
As Rauch puts it, society maintains a fiction so that children may “slumber untroubled by sin.” By this he means that society upholds useful ideals even if those ideals cannot be achieved by everyone. Fine. Good. But once bad luck — or just desserts — expose your behavior and the issue is forced into public view, then society has to choose sides — against you. If there’s no stigma against people who humiliate their wives, or husbands, then there’s no reason to keep such things private and the whole system breaks down.
Spitzer’s been caught. Maybe he was caught “unfairly” in the sense that the law against his behavior is asinine. But fair ain’t got much to do with it.
Again, I can sympathize with a utilitarian argument for legalized prostitution — even if I don’t subscribe to that view. But I can’t subscribe to the view that just because prostitution should be legal that therefore society has to say not only is prostitution morally acceptable but that married men visiting hookers is just fine too.
This is one area where I most profoundly disagree with cultural libertarians. The more the state gets out of the business of policing the sin, the more the rest of the society needs to get into the business of condemning it.
Update: From a reader:
Two additional points to your excellent posting: First, marriage involves a public ceremony (with a state required license) with a public vow to forsake all others. A married man visiting a prostitute violates that public vow, and so the matter cannot be said to be private. Whether it should be criminal is another matter. Second, the governor is the head of the executive branch of the government. Of all people, he should honor the laws and respect public vows.