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I love Michael Wilbon’s work as a sports journalist, columnist with The Washington Post, as a commentator on the NBA on ESPN/ABC, and as co-host of Pardon the Interruption (PTI) on ESPN with Tony Kornheiser. I’ve loved his work for a bit more than two decades, certainly in comparison to Pope Lupica and the other holier-than-thou sports reporters and columnists out there these days. I find him refreshing as a journalist and writer, and an unabashed and unafraid host when it comes to how sports and American society intersect.

But I found myself bitterly disappointed in Wilbon’s “can’t legislate morality” comment on PTI on Wednesday, April 21. Wilbon said this in response to the NFL’s six-game suspension of two-time-Super Bowl-winning-quarterback and Pittsburgh Steeler Ben Roethlisberger for the latter’s violation of the league’s personal conduct policy. The NFL “shouldn’t legislate morality,” Wilbon said, as Roethlisberger “hadn’t committed a crime.” NFL Commissioner Roger Goodell, the league, and the Steelers ownership were all “overreacting,” according to Wilbon. Well, Wilbon has certainly earned the right to be entitled to his opinion. But, as my wife has said to me on countless occasions, Wilbon’s also entitled to be wrong.

Societies, governments, employers and families “legislate morality” every single day, and have been doing so for as long as there has been a human civilization on this planet. Murder, stealing, banking regulations, adultery, and certainly sexual assault and rape are all examples of us “legislating morality” over the past five millenia. Now, I’m not totally naive — I know what Wilbon was attempting to say (I think). That because Roethlisberger wasn’t arrested, indicted or convicted, that the issue of his alleged encounter with a twenty-year-old White college student whom he helped become incredibly intoxicated is now a moral one, not a criminal one. Yes, this is true. But what would ESPN do to someone like Wilbon in the same situation? What would the University of Maryland system do to me in that situation? Would ESPN let Wilbon continue to show up for work without a reprimand, a suspension, or a quiet termination? Would I continue to teach classes, or would my employer consider not renewing my teaching contract?

We as a people legislate morality in ways that none of us really think about. Like Wilbon, most of us think that crimes are crimes and morals are morals, as if passed down from Moses or Hammurabi completely unchanged for the past 3,800 years. But moral issues have led to things that once were not crimes becoming crimes. The whole notion of illegal drugs or illegal immigrants didn’t exist in this country a century ago. Someone could’ve been a pot-smoking Polish immigrant “without papers” in 1910, and that immigrant wouldn’t have gone to jail. The folks in favor of making marijuana illegal or shutting off immigration from Southern and Eastern Europe didn’t end their crusades (however misguided) by saying, “Well, we can’t legislate morality!”

Or, to use much more recent examples, those White supremacists who said, “you can’t legislate morality” after the Brown v. Board of Education decision, the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. For nearly twenty years, those opposed to Black civil rights argued that the issue of Black equality was a moral issue, not a legal or human rights one. Or those from the Religious Right who said, “you can’t legislate morality” when the Supreme Court’s Roe v. Wade decision came down in 1973 or in the wake of the growing Gay Rights Movement in the late-1970s. Of course, in both cases, those in leadership who were influenced by what we now call the evangelical movement have engaged in legislating morality since the early ’90s, attempting to roll back Roe v. Wade and putting laws on books defining marriage as only between a heterosexual adult male and a heterosexual adult female.

On the issue of civil rights, desegregation, reproductive rights and gay rights, what is and isn’t moral isn’t just a matter of perspective. It’s also a matter of power and bias and the people who are wielding that power in order to reflect their bias. I’m not saying that Roethlisberger actually committed a crime, or that he didn’t commit a crime. Yet we cannot say that what Roethlisberger engaged in was simply a violation of the generally accepted morals of American society either. Even if seen in the most optimistic light, Roethlisberger brought significant embarrassment to himself, his team and teammates and the NFL. An executive at a Fortune 500 company could no more get away with going on a bender and attempting to have sex in a public bathroom — an incident that somehow becomes public — than Roethlisberger could. So for Wilbon or anyone else to rally around the “can’t legislate morality” flag is somewhere between idiotic and shameful.

The issue with Roethlisberger isn’t that the NFL’s engaged in legislating morality. Nor is it that the district attorney in Georgia wanted to bring a case to trial but couldn’t because of insufficient evidence. The real issue here is that we as a society have made a thick distinction between what is and isn’t moral behavior and what is and isn’t criminal behavior, because they aren’t mutually exclusive. For progressives and libertarians, the distinction is whether one’s behavior is detrimental to the health and lives of other people. Black civil rights, gay rights, and smoking weed are among the things that most would assume would not harm the lives of other citizens, at least in 2010. Having an encounter in a bathroom that leads to another person going to the hospital with bruising and bleeding, however minor, is detrimental to that other person.

In light of this being Sexual Assault Awareness and Prevention Month, maybe folks like Wilbon should be more careful when choosing words like “can’t legislate morality.” Not only do we legislate morality, societies will engage in this kind of activity as long as there is such a thing as a society. So I ask that everyone with a microphone and a camera pointed at them to stop talking about legislating morality as if moral values are as set in stone as the Earth orbiting the Sun. You’re merely reflecting your own bias, against women, gays, Blacks, drugs, science. Or in Wilbon’s case, a need to stay out of the judgment fray that moves us from one scandal to the next, a need to get to the day when Roethlisberger throws three, four or five touchdown passes in a game. On that part I fully agree. But say that, Wilbon, because that’s what you’re good at. Don’t say you can’t legislate morality, because last I checked, this isn’t your area of journalistic expertise.