Ben Adler responds to my post in which I criticized his defense of banning the use of metal baseball bats in New York City high schools. Although he does not engage my entire argument, he takes issue with my suggestion that if we set the precedent that the government can ban activities that impose medical costs on society, it could provide a defense for sodomy laws.

Adler writes:

While Klein doesn't subscribe to the homophobic policy position, his comparison suggests an awfully backwards view of homosexuality. Since sexual orientation is part of one's intrinsic identity, banning sodomy is more analogous to banning a religious ritual than smoking in bars or swinging metal baseball bats. But apparently to the conservative way of thinking they are equally deserving of protection, at best.

Klein makes his criticism sound like a serious statement of consistent principle, but one would hope he's smart enough to realize the silliness of this comparison and is really just being facetious. First of all, a sodomy ban, unlike bans on smoking in bars and metal bats in high school baseball, is totally unenforceable because of the infinite number of locations where the act can take place. Secondarily, to enforce it would require invasions of people's personal homes, which none of the New York laws in question do, so the infraction on liberty is clearly an order of magnitude greater. I would not support a ban on smoking or consuming transfats in one's home for this reason.

It would be nice if conservatives like Klein debated a policy on its actual merits, instead of invoking this kind of fatuous slippery slope argumentation.

I wouldn't deny that gay sex is more important to somebody who was born homosexual than the use of a metal bat is to a high school baseball player. Nor would I deny that sodomy laws are more difficult–if not impossible–to enforce, and more intrusive to somebody's privacy. My point was a much narrower one. In his initial post, Alder had characterized the conservative/libertarian position as: "engaging in risky behavior with serious social costs is an entitlement." He then set out to reject this view by arguing that the medical costs imposed on society via emergency room payments, Medicare bills, etc. provide a green light for government to regulate risky behavior. So, in response, I tried to think of an activity that could be considered risky behavior that Adler and I would agree shouldn't be regulated. But now that he has offered an additional set of conditions that need to be satisfied to warrant legitimate government regulation, I can come up with a few more examples.

Adler's first condition is that the behavior has to be "risky" and impose "serious social costs." Given that Adler believes the use of metal baseball bats qualifies as having "serious social costs," I would say there's a pretty low threshold to satisfy that initial condition. After that, the law has to be practically enforceable, limited to certain locations, and not overly invasive into people's private space. So, with that said, I don't see why the City Council should stop with banning metal bats, when substituting softballs for baseballs would do much more to reduce the risk of injury, and would satisfy all of Adler's other conditions. Similarly, we could ban skateboarding and rollerblading in public parks. And get rid of high school football altogether.

Adler may respond that I am just using a slippery slope argument rather than discussing the merits of the policy at hand. But the reason why I use a slippery slope is that it takes a lot of creativity to imagine the types of behaviors do-gooders will want to regulate. More government begets more government. And over time, those regulations become sillier and more intrusive. It wasn't too long ago that smoking was allowed on airplanes, and the smoking/no-smoking sign would flash on and off like the seatbelt sign. Given the enclosed space of an airplane, and the fact that stale air is constantly re-circulating, prohibiting smoking on airplanes sounds pretty reasonable. But now, smoking bans in bars and restaurants are common, and that's just the tip of the iceberg. In Arkansas and Louisiana, drivers cannot smoke in their own cars in the presence of children. New Jersey has flirted with banning smoking while driving altogether. Adler says he wouldn't support banning smoking in people's homes, but the shoe is already starting to drop on that front too. In Vermont and Washington, foster parents are prohibited from smoking around children in their own homes and bans on smoking in public housing are sweeping the nation. So, if you're too poor to afford your own housing and happen to be a smoker, you can't light up in the privacy of your own apartment.     

In closing, let me point out that I'm actually a non-smoker. I hate inhaling second hand smoke and am annoyed when I come back from a smoke-filled bar smelling like cigarettes. But I'd much rather smell like cigarettes than live in a society where somebody can't relax in a bar and have a cigarette with their beer. I feel this way not only because I believe in liberty as a moral good and an end in and of itself, but selfishly because I know it's only a matter of time before the government prevents me from engaging some behaviors I do enjoy.   

(P.S. As a baseball purist, I also think metal bats are a disgrace.)