This past week the California legislature, ever the harbinger of progress, passed a bill reducing, under certain circumstances, the penalties related to physical intimacy between adults and minors. It involves a reduction in (not elimination of) penalties for adults (18 and up) who engage in certain activities with minors (under 18), provided the age gap is 10 years or less and the minor is 14 or over; the upshot of the bill (if California governor Gavin Newsom signs it) is likely be unfortunate rather than dire.

This is not the bill to be worried about, if you are a social conservative. But it does raise questions, for — like all such bills — it relies on the notion of consent.

Consent is the sine qua non in extra-familial relationships: without it, the term “relationship” is rather meaningless.  But though consent is necessary for a healthy relationship, it is insufficient.

Consider, for example, the analogy of finance, or labor, or sports.  We might obtain verbal “consent” from 10-year-old Rupert to invest his inheritance in mutual funds; but the law generally does not accept that Rupert has the judgment to determine his investments, and so requires that his financial interests be vested in a parent or guardian until he “comes of age.” Again, 12-year-old Evangelina might want desperately to contribute to the family finances; but modern child labor laws frequently presume that her consent to a working arrangement should be overridden for her own good.  And finally, 14-year-old Arthur, when he signs up for the competitive soccer team, signs a waiver about injuries and indemnity — but, critically, his parent signs too, because it is assumed that Arthur, being a tender 14 years of age, is not mature enough to sign away his own ability to sue the living daylights out of the soccer coach, should his malleus, incus and stapes fracture in an ill-advised headshot.

There are plenty of other things government and society (let alone parents) do not think that children and teens are competent to decide: many medical procedures, whether and what school to attend, the right age for walking to the park or riding the subway alone or watching in a public theater an NC-17 movie (the very restriction is baked into the designation!).  In all these cases the presumption is that a young person’s consent is not sufficient: and the implication is that there is a deep sense in which people do not always know what is good for them. Their consent, we might say, is uninformed — not simply because they lack information intellectually, but because their lack of emotional and life experience makes them necessarily less able to handle decisions that even adults can agonize over.

And yet — and yet — there is one area in modern life in which young people are supposed to be able to consent: the matter of SB-145.  When it comes to intimacy, our culture accepts that a 14- or 15- or 16-year-old has the judgment and maturity to make decisions.

I would not attempt to argue that all teenagers are too immature to determine what constitutes a healthy romantic relationship; but such maturity is rare. In ancient and medieval times the nobility (but not, notably, peasants) were frequently married quite young — to people chosen by their parents. Nobody thought Romeo and Juliet were old enough for informed consent; and Shakespeare hints that they may have been are the exception that proves the rule.

The same holds true today: I know of a few people who got together in their teens and are living happily ever after; but most people would agree that their teenage judgment about who constituted a worthwhile partner was atrocious.

So what gives?  Why are we careful to protect teenagers from bad choices about money, work, safety, movies, and drugs, but casual about potential bad choices in the area of romance?

“Oh, but Mrs. Feingold, that word ‘romance’ is the point. You’re imagining teenagers are going to stay with their crushes, but that just isn’t so. They’ll be together a few weeks, a month, a year — then it’s over. It’s no big deal.”

Oh, so if we let the same teenager play unregistered soccer for — what was it? a few weeks, a month, a year? — that would be acceptable? What if we let them handle their inheritance for that long? Or drink for that long? Would that be harmless too, because those things are all temporary?

“That’s ridiculous, Mrs. Feingold! A teen in those situations could make decisions that have serious long-term effects!”

Very true. And the decision to date a succession of creeps in high school will not have bad effects? To be clear: I am talking purely about emotional effects here — I am assuming that the physical safety standards to which our teens adhere are perfectly compatible with the best directives of the HHS and FDA and WHO in saecula saeculorum, in COVID times and bad.

It seems clear to me that teenage “romantic” choices can absolutely have permanent effects. A traumatic injury to the heart or psyche can be quite as debilitating as gambling away one’s college funds or breaking a femur. Indeed, it may be more traumatic: emotional PTSD can take as much time and effort to repair (when it is reparable) as traction and physical therapy or the years of work required to earn tuition.

That, at any rate, is my philosophy of human nature. I think human beings are the sort of animal that can break their hearts, and mend them again only with difficulty, if at all.  And I think that this “law” of human nature — a “natural law” if you will — can be supported from observation and data, without recourse to preconceived philosophical or religious ideas about where human beings came from and where we’re going. (Mind you, I have those preconceptions as well, or I wouldn’t be writing in the Register.)

And it seems clear that the other side has their own theory of human nature too. Oftentimes this is denied; “human nature,” the argument runs, implies a belief in a creator, or at least a belief in the strong sort of teleology that Aristotle possessed and which is anathema to the modern secular agnosticism.  But “human nature” and “natural law” do not reside solely within the purview of radical reactionaries. Anyone claiming the ability to generalize about what is or is not good for human beings, what does or does not make them happy, has a view of human nature.

“People should be free to choose how to live their lives.”

“People are the happiest when society does not tell them how to live.”

“People want a judgment-free arena to act in.”

“Teenagers are competent to negotiate relationships on their own.”

“Human beings are radically indeterminate; they decide what makes them happy.”

What are these if not attempts to state a natural law by any other name? Even the last, which appears open-ended, is a statement of nature: it simply attributes to the human will a blank-slate nature similar to that which Locke attributed to the intellect, or perhaps the “universal tool” nature that Aristotle described for the mind which “is in a sense all things.”

Radical freedom of action (well, some kinds of actions) is a nature; it is simply a different sort of nature than that in which social conservatives believe.