“Thou shalt not commit adultery.”
Ah, the juiciest Commandment. If everybody followed this one, where would Jerry Springer’s career be? Where would most of daytime TV be? Come to think of it, most of our entertainment seems to revolve around breaking this one, so obviously it hits a sore spot for a lot of us, even the folks who aren’t married. But should it be enshrined in law?
The first and most important question is, what exactly is adultery? Don’t be too quick to answer that one. Throughout history and in different jurisdictions, even in the U.S. today, the definition can vary. In North Carolina as recently as 2010 it was as simple as premarital sex. The penalties for adultery have historically ranged from the well-known shunning (think of a certain scarlet letter) to the much more serious and permanent stoning deaths that have occurred in some countries even into the 21st century.
Now, before anyone accuses me of being a libertine (I am not; I am a libertarian, big difference), I would like to point out that I am simply arguing against making adultery as such a criminal offense. So far as I see it the government has no presiding interest in the goings on in private bedrooms. But there is a role to be had for the government relating to this Commandment, one that is both simple and just.
I asked before, “what is adultery?” My answer would be, “a violation of the marital contract.” Now that may sound to some to be somewhat akin to the famous definition of pornography (“I know it when I see it”), but in fact it is much more direct and simple than that. Each couple, when they marry, takes certain vows, and in so doing they enter into what is commonly accepted (one might even refer to it as being common law) as a binding contract. Those vows may differ from couple to couple, but that does not make them any less binding than if my lease is different than the lease you have with your landlord. In the same way that if I have a dispute with my landlord, we can choose to resolve it privately, or either one of us can choose to take it to court.
Viewed through this lens, the role of the government becomes not one of deciding what does or does not constitute proper behavior, or even what does or does not constitute a proper marriage, but simply one of performing two tasks the court system is eminently and explicitly designed for: determining the validity of a contract, and adjudicating the proper performance of contractual obligations. If “forsaking all others” was a part of the marital vows (as it commonly is, in some form or other) then adultery would be a violation of that contract, and would be grounds for a termination of that contract, presumably with favorable terms to the aggrieved party.
In this world I envision, so-called immoral behavior would not, shockingly, go up. I say “so-called immoral behavior” because I’m a big believer in expressed preference. I’ve known too many people who talk a good game about their morality but don’t live it, and often those are the same people who want to pass laws to force others to live by that same moral code. What I believe is that if you think something is wrong, don’t do it. It really is that simple. Note that I didn’t say it was easy, but then the right thing rarely is. Still, as I was reminded in a talk recently with the Anglican Anarchist, we were given free will for a reason. If you aren’t free to choose to do the wrong thing, there is no value in doing the right thing.
If the government is not dictating morality, it is up to us, as individuals and as a society, to determine what morality is. We can preach it in our churches, teach it in our homes, argue it in our coffee shops and town squares, and when and if we decide to marry, we can draw up the contracts that suit us as individuals and couples best, without someone else deciding for us what our marriage will mean.