By the time you read this column (if we are lucky), the Indiana Legislature will have finished its work and gone home. Watching the legislative process always makes me wonder whether democracy can really last…
By the time you read this column (if we are lucky), the Indiana Legislature will have finished its work and gone home. Watching the legislative process always makes me wonder whether democracy can really last; it is impossible to follow statehouse shenanigans without recalling the old adage that the two things one should never watch being made are sausages and laws.
Legislation in a democratic system will always represent compromise among factions. I am far less troubled by the introduction of bills with which I disagree than with the growing tendency to use the law "to send a message." With all due respect to all the folks who want to use the General Assembly instead of Western Union, I believe such an approach to the process is wrongheaded and dangerous for a number of reasons.
1.) Trivializing the Law.The purpose of law is to regulate behavior. When we have too many laws that do not distinguish between seriously antisocial behavior and private idiosyncrasies, we undermine respect for the rule of law and encourage people to flout laws they don’t agree with.
When the legislature passes measures to criminalize private sexual behavior, for example, no one seriously believes that the local constable is going to come into every bedroom to check for violations. When the seatbelt law was enacted, few rational people thought everyone would suddenly "buckle up." These and numerous other measures were justified because they "sent a message." And indeed they do, which brings us to the next problem. See Paragraph 2.
2.) Such Laws Send Different Messages to Different People. The seatbelt law "sent a message" to African-Americans that here was yet another rule that could be applied selectively by police officers inclined to harass blacks. Sodomy laws "send a message" to gays that they are second-class citizens. Laws making women submit to multiple "counseling sessions" in order to obtain abortions signal legislative contempt for women, not respect for life. See Paragraph 3.
3.) Message"Laws Promote Pandering. If our lawmakers know that the passage of a law is serious business, if they know that each new enactment will actually be enforced, they will be under at least some pressure to act responsibly. When they know perfectly well that they are engaging in a meaningless gesture, the urge to satisfy extremist constituencies can easily be justified; after all, where’s the harm? So Indiana, like many states, passed the Defense of Marriage Act to "send a message" that Indiana believes in "traditional morality." That satisfied the Christian Right, and lawmakers could defend their actions to rational folks by pointing out, quite correctly, that the law hurt no one, because there was no gay marriage to refuse to recognize. It was a model example of "Law as an Empty Gesture." Of course, to gay citizens, it sent a different message. See paragraph two.
4.) Unconstitutional "Messages" Distort the Balance of Power in Our Legal System. This session, lawmakers decided to support the posting of the Ten Commandments in public buildings. At this writing, that bill looks likely to pass easily. Of course, it is patently unconstitutional, and lawmakers know that. When I asked a friend who is a State Representative why he and others were voting for a measure they knew would be struck down, his answer was candid: "We all have to go back and justify ourselves to the voters in Mayberry. Let the Courts take the heat."
Somebody back in "Mayberry" should stand up and ask why their Representative is knowingly passing legislation that violates the Constitution he swore to uphold; why he is willing to spend taxpayer dollars to defend in court a measure he knows perfectly well is indefensible. The answer is in Paragraph 3, of course, but the problem is that our legal system requires all three branches of government to defend the Constitution. When lawmakers engage in this sort of unethical game playing, it feeds hostility to the judicial system, which must protect individual rights by voiding such improper and cynical measures. That hostility further erodes respect for law, and that brings us full circle. See Paragraph 1.
For those of you reading this who may be nodding in agreement, secure in the belief that only the theocratic right wing engages in these games, let me remind you about the amount of time and energy expended on behalf of a totally symbolic hate crimes law. No similar effort has been mounted over the last several years to amend the state’s civil rights statute to include sexual orientation as a protected class, although such a measure would have a genuine and immediate positive impact on the gay community. Nor has there been any organized effort to oppose criminal justice measures that lend themselves to discriminatory application against gays. The community has chosen to work for legislation that "will send a message."
See Paragraphs 1 through 4.