A reader writes:
I know from the catechism that gambling is not immortal per se as long as it is fair, the money can afford to be lost, etc.
However, is a low-stakes home poker game sinful if there are state laws prohibiting such?
I have to confess that I know very little about gambling or what laws may apply to it, so I don’t know if there even are state laws prohibiting people from playing poker in their homes, but let’s suppose that there are.
Would it be immoral to violate these laws?
A good starting point in answering this question is to refresh ourselves on what the definition of a law is. According to St. Thomas Aquinas, a law
is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated [ST I-II:90:4].
There are five elements that have to be present for something to count as a law on this view: (1) It has to be an ordinance, (2) it has to be in accord with reason, (3) it has to be oriented toward the common good, (4) it has to be made by someone with the right authority, and (5) it has to be promulgated so that the public knows what it is to do or not do.
Anything not meeting these criteria is not a law in the proper sense and is not binding, legally or morally from a Thomistic perspective. (That does not mean that you won’t go to jail for violating it, though. Dictatorships frequently have all kinds of unjust laws that serve as pretexts for locking inconvenient people up.)
Of the five conditions named above, it is clear that state laws against playing low-stakes poker in your home would meet seveal of them: In particular, they would seem to meet conditions (1), (4), and (5) right out of the gate, so the real question is whether they also meet conditions (2) and (3).
With regard to these conditions, it would seem that the common good does suggest at least some kind of regulation of gambling, like any entertainment. I wouldn’t want my next door neighbor running a casino out of his garage any more than I would want him running a disco or a bar or a boxing venue or a movie theater out of it. Zoning laws are directed toward the common good (even if one can quibble with any particular zoning law).
Given the history of the gambling industry, it would seem to be particularly subject to the need for regulation to keep it clean and fair.
(I know I wouldn’t want to play dabo in Quark’s bar; his wheel is rigged!)
So laws regulating gambling seem to be reasonable and (hopefully) directed toward the common good in general, but what about in this particular case?
Here let me introduce the concept of a legamoron.
A legamoron is a "legal oxymoron"–a law providing that something is illegal even though the government has no intention of enforcing the law rigorously.
The classic example of a legamoron is the speed limit. Almost everybody, at least sometimes, violates the speed limit by at least a little bit. And almost everybody does it deliberately at some point.
The government knows that (its own members do it just as much as everyone else) and that is one reason why there is "tolerance" shown for minor violations of the law (e.g., going two miles over the limit). If you commit a flagrant violation, though, expect to get nailed and to have every mile you were going over the limit charged against you.
Legamorons can be bad. There are some legamorons that should be rigorously enforced, even though they’re not. Many people today would put immigration laws in that category.
Legamorons can also be selectively enforced in ways that are unjust, such as enforcing traffic laws more rigorously in the case of some groups than others, leading to the "Driving while black" phenomenon.
But in principle legamorons can establish a kind of framework that helps keep society orderly by establishing a model for what should happen and providing a basis for prosecuting flagrant violations.
As I’ve said, I’m woefully ignorant of the laws regarding gambling (though I’m sure I’ll get enlightened in the combox), but assuming there are state laws that prohibit playing small-stakes poker in your home, I would be inclined to regard them as legamorons–statutes meant to provide a kind of societal "rule of thumb" that can be used as a hard rule when flagrant violations are committed, even though there is no intention or desire on the part of legislators to have them followed rigidly.
If someone is running a poker game in his house where tens of thousands of dollars are changing hands (y’know, the kind of money people might actually pull guns on each other over or that organized crime might take an interest in) then the state wants the ability to prosecute. But if someone is running a poker game where the pot never exceeds $50 then I don’t think the legislature cares about that any more than it cares about people going one mile over the speed limit (in most cases).
It thus strikes me that there is a case to be made that such laws are not intended–despite the imprecise way they may be written–to be applied to genuine small stakes poker games.
If they are then it seems to me that the question comes on the table of whether they meet the second condition for a law–that they have to be in accord with reason.
Given that gambling in general is not intrinsically immoral (a point that may not be recognized in some areas), and if we take it as given that poker can be played morally (if not then pick a form of gambling that you think can be played morally), it would seem that there would be a threshold below which the stakes of the game are so small that it is not rational to try to regulate it.
I mean, suppose people aren’t playing for money at all but just for "points," which can’t be redeemed for anything other than the satisfaction of having won so many points in an evening–a genuine zero-money game.
It would seem to me that it is not reasonable for the state to try to stop people from playing zero-stakes poker.
So let’s increase the size of the pot from nothing to something measured in pennies. It still strikes me that it would be irrational for the state to seriously prohibit such games.
Likewise if the pot is measured in individual dollars.
Or tens of dollars.
At some point, though, the pot becomes large enough that the state has a rational interest in regulating the game. Where that point is, I can’t say–and the legislature may have a hard time with it as well, which is the reason for many legamorons. (What the legislature is really concerned with in setting speed limits is keeping people from driving unsafely, but since it’s hard to define that precisely, they set a limit that ostensibly bars all driving over a certain speed in an area.)
I would guess that by the time thousands of dollars are being exchanged, the state has the ability to rationally intervene, though that is a personal opinion.
As long as one stays below the threshold of rational intervention–whatever that fuzzy threshold is–then by definition it is not rational for the state to prohibit a particular type of game and, according to Aquinas, the law would not bind morally (at least in this application of it).
Which is not to say that you won’t get fined or go to jail over violating it.
If you’re driving one mile over the limit, you may get a ticket, and if you’re running a low-stakes poker game in an area where it’s illegal, you may have the law come down on you.
That’s the risk you take.
