This is all well and good as far as it goes. But let’s focus on the “hard question” Wright leaves aside: is it a good thing that Tiger’s being “shower[ed with] condemnation”? My answer, for what’s it’s worth, is that it's a politically constructive phenomenon because it demonstrates that the public has a pretty firm grasp of the important respect in which Tiger’s sex life really is “none of [its] business.”“I want to defend the proposition that, in its own way, the Tiger Woods scandal is as important as Kandahar and the Catholic Church. Leaving aside the question of whether we should shower condemnation on Woods — a hard question that I don’t purport to have a compelling answer to — one thing I feel sure of is that this Tiger Woods thing matters. . . .
“All I’m saying is that the particular context in which they here present themselves — the problem of monogamous marriage, the problem of how you sustain an important but unnatural social institution — is a serious matter. As is, therefore, the sexual behavior of Tiger Woods — which indeed was none of my business until it moved from the private to the public realm and began to influence marriages other than his own.”
Most people think, reasonably enough, that adultery’s a bad thing, not only because it victimizes spouses and children, but because it undermines families, a crucial institutional building block of social order. If that’s true, it's reasonable for each of us to prefer that there be less adultery than there is. Even confirmed adulterers have a genuine interest in other people not committing adultery.
It doesn’t follow, however, that democratic majorities should be in the business of criminalizing adultery and punishing adulterers. Most of us think of adultery as a “private matter” because we’ve already decided that, as far as the law is concerned, the only preferences that should control the decision over whether any particular adulterous act occurs are those of the people contemplating it. We hold to this view knowing full well that prospective adulterers morally should, but too often won’t, take the interests of their spouses, children and society at large into account in forming their own preferences.
Given the present state of our constitutional jurisprudence, it’s an open question whether the unenforced laws still on the books criminalizing adultery are consistent with adulterers’ due process rights under the Constitution’s Fourteenth Amendment. But most of us don’t need to hear from judges before deciding that adultery’s a private matter. Even were the courts to reaffirm the constitutionality of laws criminalizing it, most of us would still think that there are compelling moral reasons why adultery should be legal even if, by our lights, it’s still immoral conduct.
That’s why it’s a good thing that we occasionally have the opportunity to shame people for conduct we regard as shameful without otherwise punishing them. When a democratic majority constrains itself in deference to beliefs about the rights of fellow citizens, it’s limiting the scope of democratic decision-making from the inside; it’s deciding, democratically, that some of its own members’ preferences about other people’s conduct shouldn’t count in democratic decision-making.
That kind of self-restraint is the People’s way of upholding the constitutional order without delegating that responsibility to unelected judges. All other things being equal, it’s better that democratic majorities decide for themselves which of their own preferences should and should not count in public decision-making. Tiger’s spectacular misadventures give the majority an edifying occasion for drawing, and demonstrating to everyone else that it’s inclined to draw, the line between private morality and public decisions in roughly the right place.