In 1988 James Moseley went through a bitter divorce in his home state of Georgia. His estranged wife, Bette Roberts had accused him of rape in an attempt to secure custody of their two children. At the trial, the jury found the wife’s claim not to be credible, her ex-husband was acquitted. However when Moseley took the witness stand, as part of his testimony he admitted to performing consensual oral sex on his then wife. In Georgia, sodomy (legally including oral sex among married heterosexual couples) was against the law. The maximum sentence for the “crime” in that state was 20 years in prison. Moseley was given five. He ended up serving 18-months.

Yes, in the land of the free, as a private citizen, going down on your wife was criminalized. And yes, penalized. Not exactly what the Founding Fathers had in mind when they rebelled against tyranny.

Moseley wrote a letter to Playboy in 1990 “My life has been virtually destroyed. I have lost everything, including my family. I am now a convicted felon, convicted of a sex crime. As a result, I will not be allowed to visit or have custody of my children. I cannot even be paroled to a Georgia halfway house, since Georgia will not accept convicted sex offenders in its halfway houses. The state will accept convicted murderers in the same halfway houses.”

It’s a story so stupid it sounds like an urban legend. It has an air of Vanishing Hitchhiker because the logic is missing: why put people in jail for doing something harmless in private?

It’s legislating morality and in Moseley’s case and the many others identical to his – preference. The whole idea of living in a country touted as free is to enjoy freedoms. One being what you do privately is your own business and not subjected to the scrutiny of the government.

For sodomy and its proponents this all changed with Lawrence & Garner v. State of Texas decision made by the U.S. Supreme Court on June 26, 2003. The court ruled 6-3 that sodomy laws are unconstitutional.

Reagan appointee Justice Antonin Scalia in his dissent wrote, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” Don’t feel bad for Scalia and his short view of what many consider to be a good time. Feel bad for his wife.

Justice Sandra Day O’Connor voted with the majority and wrote, “A law branding one class of persons as criminal solely based on the state’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review.”

One class of persons as criminal solely based on the states moral disapproval? Is that about sodomy or smoking weed? Not that it’s a good idea to do either while driving…

Let’s talk class of people, for argument sake let’s take potheads vs. beer drinkers:

One group can publicly claim they like to get high, do it all the time and have a great time doing it. The other has to feign back pain in order to not be thrown in jail.

Marijuana being an illegal substance, while booze is taxed and regulated, is legislating morality and also in this case – preference. It’s not getting buzzed that’s the issue – tons of mind altering drugs are legal and regulated. In regards to weed, it’s always been the circular logic: it’s illegal so it is therefore immoral.

Illegal is not the same as immoral. Jaywalking is illegal, few would argue it’s immoral. What deregulatory law makers, banks and brokers did to the economy was technically legal – but it was far from being moral.

Sodomy is an activity millions and millions of Americans enjoy without incident yet it was against the law and prosecuted. Of course, as soon as it was decriminalized there was not an increase in sodomy – there was only decrease in the prosecution of consensual acts. It didn’t alter morality in any way – it just made it not a punishable offense by authorities.

Indulging in some cannabis is an activity millions and millions of Americans enjoy without incident. Currently it’s still against the law and prosecuted. Mainly because some hold fast that it’s “a lifestyle that they believe to be immoral and destructive.”

What’s immoral and destructive is using the legal system to destroy people’s lives based on preferring the wrong (fun) drug or in Moseley’s case the wrong (fun) carnal feat.

This piece originally appeared in Kush LA.