Legislating Morality

"You can't legislate morality," they say. And you'll find lots of people who agree -- probably most. So let's be clear, first. When they say this, many mean that passing laws based on moral values will not make people moral. As an example, making murder (we all think that's immoral) illegal hasn't stopped murder. And it's true. Laws, moral or otherwise, do not make people moral people. Okay, fine.

Still, the term is simply wrong. The term, "legislate", simply means "to make or enact laws". Is it possible to make or enact laws based on moral values? Well, of course it is! In fact, most laws are based on moral values. An example of that would be speeding laws, because we think it is moral to have safe streets. "No, no," the objector cries. "Laws should be based on civil values, not moral values." Okay, perhaps, but this presupposes that it is more moral to pass laws based on safety and order than on "right and wrong". Indeed, the objection is that "safety and order" is "right and wrong". Since "morality" is simply "the things we value as right and wrong", then "civil values" are part of "morality" and the objector spirals into circular logic. Or, let me rephrase it. If "morality" is "right and wrong" and "It is wrong to pass laws based on right and wrong", we're in a circle. Laws are based on moral values, so there is no actual question of whether or not you can "legislate morality". We do it all the time.

So what is intended with the objection, "You can't legislate morality"? It is almost always with the intent of warding off "the religious right". You see, the perception is that if a Christian thinks something is immoral, he or she must also believe that it should be illegal. And if you look at what Christians believe to be immoral, we're looking at quite a long list of new laws. Adultery, once actually against the law, will need to go back on the books. The Bible is clear that it is a sin to commit homosexual acts, but I don't see Christians writing to their congressman to get that one on the books. No one questions whether or not sexual relations outside of marriage is sin, but we're not urging our legislative bodies to outlaw sex apart from marriage. No, it doesn't make sense. Still, it's the fear. "If we're going to legislate morality, whose morality do we use?" That's their question. The obvious answer (because I've never seen anyone actually answer their own question) is simply "Not God's morality ... that's for sure."

Here's the problem. While they're arguing that we can't legislate morality, they are legislating morality. They pass laws to alter the definition of marriage to something else ... a moral position. They argue that civil laws -- laws "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity" -- are the way we should go ... which is a statement on what is right and wrong -- a moral position. Conversely, when you point out that, say, adultery destroys union, defies justice, disturbs domestic tranquility, takes from the general welfare, and removes liberty from both ourselves and our posterity, well, that's definitely not something we can discuss. "That would be a moral position and we have already determined that your morality will not be the deciding factor here."

And that, you see, is the real point. When you hear "You can't legislate morality" meaning "you ought not", understand what is being said. What is really intended is "We will not allow for your moral views and will, instead, substitute our moral views." That's really the point here. Even saying "You can't legislate morality" is a moral perspective that says, "It's wrong to try." So don't let them fool you into thinking that "You can't legislate morality." The question is not whether you can or can't. The question really is who is doing it ... because it is being done.