(Note: It has taken, quite literally, years for me to figure out a certain point about the Alabama story, and I now realize I completely blew the point. Oh, well, that’s one less to carry around with me, but still, I’m left in need of a new anecdotal comparison. It’s a safe bet that whatever that is won’t be as spectacular as accusing a bigot of corruption. I suppose I owe Judge Pryor an apology for the corruption accusation. To the other, there’s still no justification for putting a bigot on the bench. It is, after all, worrisome when civil liberties and human rights are left to the aesthetics of a man who cares so little about the role of consent in sexual intercourse.)
Apparently some stupid laws need to be made because, well, people do stupid things. During the fracas surrounding the ascension of William H. Pryor to the 11th Circuit bench, I came across an amicus brief he signed his name to in the landmark Lawrence v. Texas case before the supreme court. Pryor, who was Alabama’s Attorney General, signed onto an amicus brief arguing in favor of anti-sodomy laws. Part of that brief argued the usual line that allowing gay men to have sex without fear of the law “must logically extend to activities like prostitution, adultery, necrophilia, possession of child pornography, and even incest and pedophilia“. The problem, of course, is that among the laws left to Attorney General Pryor to enforce was section 30-1-3 of the Code of Alabama, which states that, “The issue of any incestuous marriage, before the same is annulled, shall not be deemed illegitimate“.
Rather than dwelling on a federal judge who filed a false brief with the United States Supreme Court, though …. Well, actually, that is a fine thing to dwell on, but I’m not sure it means much these days. But what happened is that, after I finished scouring Alabama’s laws to see what other strangeness might be on the books, I hopped over to view similar laws in the state of Washington. I was unsettled at first to see that our laws about incest were actually more permissive. The people you can sleep with are a degree closer than they are in Alabama, I think, and the statute of limitations was only a year. That may have changed, of course, but I never did go back and look it up after the bit with the horse.
Because it was, for a few minutes, jaw-dropping when, after a man died while having sex with a horse, we discovered that up here in the evergreen state we apparently had no law against it. In fact, the most prominent charge I can recall was against the man who filmed the act. And that charge was trespassing.
And so it was that I was chuckling with some friends about the situation when someone pointed out the obvious. When I pointed out that Alabama had tighter laws about incest and bestiality, it was in fact my brother who pointed out, “They need them.”
It seems a satisfying argument. I can sleep at night. Okay, it’s not like I was losing sleep over what happened in Enumclaw.
But we have come to the relevant point: Certain laws are made only when it becomes necessary to make them.
We find ourselves, however, in an age where nitwits increasingly pick nits. I mean, one would think that driving a car while blindfolded would be at least somewhat reckless. But in Alabama, apparently, they needed to make a special law about it. And in Ohio, something compelled a law against getting a fish drunk.
I mean, there must be something more to those stories. Say the words. Just try: “There is a law in Ohio that makes it illegal to get a fish drunk.”
What is the back-story? What is the gray area? What lawyer made the point that there was no explicit law against it? Did someone say, “Well, dude, you know. It’s not actually cruel“?
Which brings me to my point. NPR’s Nina Totenberg reports:
All of the Democrats and most of the Republicans who spoke agreed that waterboarding is illegal under both U.S. and international law. Feinstein said she was troubled by Mukasey’s refusal to agree with that.
“But I don’t believe that Judge Mukasey should be denied confirmation for failing to provide an absolute answer on this one subject,” Feinstein said.
And Feinstein relied, too, on assurances Mukasey had given to Schumer:
“He has personally made clear to me that if Congress passes a bill banning torture, he will enforce it,” Schumer said.
That prompted this response from Sen. Ben Cardin (D-MD):
“Does that mean we have to outlaw the rack?” Cardin asked. “I’m even more troubled.”
And Sen. Edward M. Kennedy (D-MA) asked why, in essence, the Senate should trust Mukasey’s assurance about enforcing a new law when laws on the books already prohibit waterboarding.
“We are supposed to find comfort in the representation by a nominee to the highest law-enforcement office in the country that he will, in fact, enforce the laws that we pass in the future? Can our standards really have sunk so low?” Kennedy asked.
It’s a fair question.
B.D.'s Last Refuge 