More controversy in Amsterdam…

The recent decision of the Amsterdam public authorities to decriminalize sexual acts in a certain part of the Vondelpark, one of the city's principal parks, has attracted a foreseeable degree of outraged comment.

Vondelpark: a popular tourist spot, for family picnics, and for a pick-up. What should the role of the State be in criminalising or de-criminalising immoral behaviour?

The debate touches, interestingly enough, on an issue of wide significance in Christian theology. And, no, it's not sex. It's the role of the state.

The back-story to this is that the rose garden in the Vondelpark has been a well-known gay cruising spot in Amsterdam for many years. Like it or not, pretty well all cities have districts where cruising goes on. People who need or want to know where the cruising areas are can generally find out without too much difficulty. People who would prefer not to know can usually manage not to.

From the perspective of most people, cruising is a Bad Thing. The morality of casual sex aside, cruising degrades public space. In general, sex is seen as an intimate activity, to be engaged in in an intimate setting. Public sex offensive and alienating. Most people fell uncomfortable, if not actually unsafe, if they know they are in a place where cruising goes on. And cruising spots can be dangerous; they attract those bent on homophobic violence, usually directed not only at gays, but at those who are assumed to be gay.

Public Opinion…

For all these reasons, the public, and therefore public authorities, generally don't like cruising. They try to prevent it, or at least to restrict it, sometimes by visible policing to drive the activity away, sometimes by entrapment by plain-clothes officers, to detect and prosecute those involved. Both of those techniques have in fact been used in the Vondelpark.

At best, these efforts meet with limited success. Cruising activity is reduced, or more usually relocated elsewhere, until police resources are allocated to some other priority, whereupon normal service, so to speak, is resumed.

The Netherlanders have something of a track record of accepting the limitations of what the law and the police can achieve. Famously, they have legalized prostitution and, even more famously, the sale and consumption of cannabis, under certain conditions, is permitted. Their attitude seems to be that if these things cannot be prevented, it is better that they be acknowledged and regulated, so that the harm they do can be minimised. And that seems to be what is happening in the Vondelpark. Having failed to eliminate cruising through the criminal law and police action, they see no value in maintaining the criminal law.

There is, needless to say, a good deal of debate over whether this approach really is effective at minimizing harm. But that is not my point here. My point is that this dispute neatly point up two opposing theological views about the role of the state.

Let's grant that public acts of homosexual sex are wrong. Does it follow that the state ought to forbid them?

The Catholic view on the role of the State…

It doesn't follow automatically — at least, not for a Catholic. The Catholic view has never been that it is the duty or role of the state to forbid acts because they are wrong.

In fact, it's easy to find counter-examples. Take prostitution, for instance:

• Augustine was clear that prostitution was gravely wrong, but he argued against banning it.
• Aquinas agreed. He wrote at great length on the inherent evil and harmful consequences of prostitution before asserting that, nevertheless, it should not be illegal.

For Aquinas, the primary purpose of civil law is not to reform people or to lead them to behave morally; that is a matter for the grace of God. Civil law can only have indirect, supporting role here. The primary purpose of civil law is to preserve social order and the common good. Things should be prohibited only if the common good requires it.

Now, in Aquinas' view, prostitution was very damaging to the community. But he shared the prevailing opinion of his time that, sinful and harmful as it was, prostitution provided a necessary outlet for the sexual energy of men who lacked the social or financial standing to become betrothed, and the moral fibre to practice chastity. There was a large class of young or poor men who, if they could not visit prostitutes, would tend to engage in more disruptive and harmful wrongs — rapes, seductions, debauches, threats to family, property and social relationships. The common good therefore required the state to accommodate prostitution.

Augustine's reasoning was slightly different. Laws, he felt, will not be respected or enforced unless they enjoy at least the assent, if not the active support, of a critical mass of the community (which, he considered, a ban on prostitution would not). It is damaging to society and to the rule of law to make laws which are not going to be respected or enforced. Therefore they should not be made.

So, although their reasoning was different, Augustine and Aquinas both agreed that showing that a particular act was wrong is not, in itself, a justification for outlawing it.

The views of Luther and Calvin…

It was the Protestants, notably Luther and Calvin who argued that the state has a duty to criminalise prostitution (and indeed adultery). The community should be Christian, they felt, and the state, as an emanation of the community, should also be Christian.

They were fully aware that laws attempting to legislate personal morality could not always be enforced, but they did not see this as an objection. Luther in particular argued that, if prostitution and adultery, when criminalised, went on anyway, but underground — well, at least the state would not be complicit. This was better than the state appearing to condone immorality.

For Luther, in other words, unworkability or unenforceability was not an objection. It was important that the law should say the right, Christian thing, even if that did not result in the right, Christian thing being done.

The Netherlands is an interesting country. For several centuries after the reformation it has been dominated by a Calvinist religious and political establishment. Calvinism was the established religion until 1853. But the Netherlands always had a substantial Catholic minority which, after a rough start, enjoyed a degree of toleration which was not common in other Protestant countries. The Calvinist political establishment placed a high value on social conformity, and the Netherlands was famous for its staid and solid citizens. The word "bourgeouis" was in fact coined to describe Netherlanders.

This state of affairs continued until after the Second World War, since when two things have happened.

• First, Catholics came to outnumber Protestants (and still do, although both are now outnumbered by people of no religion).
• Secondly, the Dutch abandoned social conservatism for social liberalism, at least so far as legislation is concerned.

It would be too simple to say that the first change led to the second. History is usually more complex. But I do not think it is a coincidence that the eclipse of Calvinism has been accompanied by the disappearance of a Calvinist attitude to the legislation of morality.

Common good versus personal morality…

That is why, today, the discussion about the legality of cruising in the Vondelpark proceeds with little or no reference to the intrinsic morality of casual sex. Various social surveys show that most Netherlanders do in fact disapprove strongly of casual sex, but they don't see that it is the role of the state to forbid it. Thus the discussion about cruising in the Vondelpark proceeds along other lines.

• Does cruising injure or harm other users of the park? The answer, obviously, is yes; they don't like it, and feel excluded by it.
• Can we avoid that harm by criminalising cruising? No. That's been tried; it hasn't worked.
• Is there any good, then, served by criminalising cruising? Not enough good, it seems, to justify criminalising it.

It may be ironic, but this debate seem to me to proceed along classically Catholic lines, focussing on the common good and largely ignoring the issue of personal morality.

Photo Credit:
The background image for the headline is of Vondelpark in Amerstdam taken from the ArtKanna wbsite: http://artkanna.com/wordpress/portfolio/?album=1&photo=45.

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Peregrinus can be contacted at: Peregrinus <peregrinus@catholica.com.au>

©2008 Peregrinus

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