"Underwear is called underwear for a reason—because it is normally worn under your clothes." This explanation was offered to fellow legislators earlier this year by a member of Virginia's House of Delegates. It came amid a searing floor debate over a measure introduced by Algie T. Howell, a Democrat from Norfolk, that would levy a $50 fine for the wearing of pants that droop, hip-hop style, allowing underwear to show. Supporters of the bill hoped that it would begin to stem the "coarsening of society." Opponents, including the American Civil Liberties Union, argued that the fine amounted to racial profiling, because the fashion statement at issue is associated with African-American males. The House of Delegates passed the bill by a wide margin, but then, in the face of nationwide ridicule, a committee of Virginia's senate convened a special meeting and killed it.
During most of my lifetime America has been a land where governments took little regulatory interest in the nanobehavior of everyday life. To be sure, there were plenty of so-called blue laws back in Colonial times, some of which remain on the books. (Even now local lore holds that it is technically illegal to kiss in front of a church in the city of Boston.) There was also the failed experiment of Prohibition. And to this day that tag on mattresses cannot be torn off without risk of peine forte et dure. But in recent decades we have not had to live according to fatwas like those of Iraq's Grand Ayatollah Ali Sistani, who has decreed, for instance, in Fatwa 2648: "It is unworthy to drink too much water, to drink water after eating fatty food, and to drink water while standing during the night." (Or this, Fatwa 2479: "A man cannot marry a girl who has been suckled fully by his mother or paternal grandmother.") We have not been forced to adhere to fastidious strictures like those of Singapore, where the offense of spitting on the sidewalk carries a $600 fine. The ongoing "Let us trim our hair in accordance with Socialist lifestyle" campaign in North Korea has posed no imminent threat of infiltration here. If anything, the tendency in late-twentieth-century America was in exactly the opposite direction—toward moral laissez-faire.
That said, and despite the failure of the "droopy drawers" bill, the tide now appears to be turning, and turning fast. My files are far from exhaustive, but they overflow with examples. In Texas a Republican lawmaker has proposed a bill that would require teenagers under eighteen to have a grade-point average of 2.0 or above in order to be issued a driver's license. Arguing that "parents with young children should not have to explain to them what a four-hour erection is," a Virginia congressman, Jim Moran, introduced an amendment (to H.R. 310) that would outlaw TV ads for erectile-dysfunction drugs between 6:00 a.m. and 10:00 p.m. The state of Arkansas has now mandated that all schoolchildren be evaluated for their body-mass index, and that they receive an annual BMI "report card." In Alabama proponents of a law forbidding the sale of sex toys are breathing easier (and opponents less heavily) after the collapse in February of a legal challenge mounted by the ACLU, which argued that the ban violated the right to privacy; the U.S. Supreme Court declined to consider the matter. In Sutter, California, students this year were issued radio identification tags in order to automate the monitoring of attendance (and, parents wondered, who knew what else?). In Hawaii legislators are considering a prohibition on smoking at public beaches and parks—the first extension by any state of smoking bans to the outdoors. Meanwhile, the same Virginia legislator who was troubled by exposed underwear has introduced legislation that would penalize drivers for playing music too loudly in their cars or for slouching too far back in their seats.
Language, of course, has long been a target of those who would legislate morality, and the Federal Communications Commission under Michael Powell was an increasingly stern watchdog. Earlier this year PBS distributed to its affiliates only the expurgated version of A Company of Soldiers, a Frontline documentary about American forces in Iraq, because of concerns that obscenities shouted by military personnel during an ambush might bring censure from the FCC; it released the unbleeped version only to those local stations willing to sign waivers absolving PBS of liability for any fines. In Congress, Representative Douglas Ose, a Republican from California, is pushing legislation (H.R. 3687) that would explicitly forbid certain words from being broadcast in America under any circumstances. Thirty years ago the comedian George Carlin built a routine around the seven forbidden words, the words that "curve your spine and grow hair on your hands." Congressman Ose's list is nearly the same as Carlin's, except that Ose would for some reason permit the use of "tits" but proscribe the use of "asshole." The fine-tuning of linguistic etiquette is not confined to the United States. Our British cousins, through the auspices of the British Medical Journal, have proposed the eradication of a dozen terms, including "911" (the easy shorthand conceals the enormity of thousands of deaths) and "kiddie porn" (it sounds too chirpy for something so terrible). The journal's editor, Richard Smith, observes, "The proposal to ban a word focuses attention on the many wrong assumptions, prejudices, and even evil thoughts that might be contained within a word."
Legislating morality takes many forms; it doesn't require actual legislation. One indication of a creeping moralism is the application of a religious gloss to activities or phenomena where previously there had been none. On the outskirts of Tampa, Florida, a developer named Bill Martin plans to open a refuge called Club Natura, a nudist camp with an overtly Christian theme, which aims to offer an experience of the virtuous life in the Garden of Eden (and which will not tolerate any tasting of the forbidden fruit, unlike other nudist camps Martin could name). Cosmopolitan magazine, once a lodestar of earthly pleasuring, has hired a spirituality editor, its first, for the British edition. The editor, Hannah Borno, writes, "I've come to the painful realization that men and shoes are not enough to make me happy." Cleaning up nuclear contamination is too important to be left to the scientists: Madonna, whose interest in kabbalah is well known, was recently observed (by an undercover BBC reporter, according to the New York Post) trying to rid Chernobyl of excessive radiation by means of "a weird religious service, which started with prayer readings and chanting that culminated in everyone turning to the east, pushing the air with their hands, and crying out 'Cher-er-er-er-nobyl' at the top of their voices." Even devil worship, once widely regarded as outside the religious fold almost by definition, has received the balm of sanctification: the Royal Navy now recognizes devil worship as a religion, opening the way for a seaman named Chris Cranmer, a technician on the HMS Cumberland, to perform Satanist rituals aboard ship and, in the event he falls in battle, to have a Church of Satan funeral (which brings up an intriguing theological point: if killed during a conflict with the Axis of Evil, should he be denied a Satanic service?).
"We shouldn't legislate morality," the liberals say, to which a social conservative like John Ashcroft would (and does) reply, "I think all we should legislate is morality. We shouldn't legislate immorality." No one wants to get caught between the antagonists in this debate. Like most Americans, I take a libertotalitarian stance, believing that government should not legislate my morality but in certain areas could do a lot more legislating of other people's. That's not a very helpful guide to good public policy, but maybe this is: If instead of referring to legislation as H.R. 310 or H.R. 3687 we referred to Fatwa 310 or Fatwa 3687, we might instinctively know better where to draw a line.