Legislating Morality

"You can't legislate morality." I'm sure you've heard it. You may have even said it. You may actually believe it. But ... is it true?

If, by "legislate morality", you mean "make people good", we're all in agreement there. You can't pass laws that will make people, internally, moral. Indeed, the only one that can alter the insides of a human being is not even that human being himself, but God and God alone. So that form of legislating morality is not possible for humans.

But can you "legislate morality" in the (most common) sense of passing laws based on morality? Is it possible to make laws that, if followed, would build a more moral society? This argument is that the State (human government) has no business passing laws that criminalize behavior based solely on a moral code. In this kind of thinking, laws against sodomy, for instance, would be not merely pointless (pointless because they are unenforceable), but wrong to have. (By the way, in the American military, under the Uniform Code of Military Justice -- the laws that govern the military -- it is still illegal to pretend to be sick to miss work ("malingering" -- Article 115), to make provoking speeches or gestures (Article 117), and to engage in sodomy (defined as "unnatural carnal copulation with another person of the same or opposite sex or with an animal" -- Article 125) among other things.) The argument is that not only is it impossible to make people good ("legislate morality"), but it would be wrong to "legislate morality" in the sense of making laws based on moral codes. Why? Here's the standard answer: "Whose moral code would you use?" You see, if you went with the Moslem moral code, for instance, we'd be abusing women and cutting off hands for theft. If we went with the Buddhist moral code, on the other hand, it would be illegal to kill a bug. "So, you hating Christians, that's why we don't believe that you can or should legislate morality."

Oh, really? So would you favor removing laws based on moral codes? What would that look like? Well, I'm pretty sure we'd eliminate historical, traditional, and religious marriage definitions in favor of a purely humanist version that would redefine "marriage" as any union between two (or more) persons. And, of course, the current laws are moving that way, which should necessarily eliminate laws against polygamy (a husband with more than one wife or a wife with more than one husband) and polyamory (multiple males married to multiple females). Do you consider that a good thing? The basis for some laws on the books appears to be a matter of consent. Laws like sex with minors or bestiality, they tell me, are primarily concerned not with moral issues, but with the ability of the "victim" to consent. So a minor cannot consent (in some sense) and an animal cannot consent and, so, it would violate their rights. Therefore, it is illegal. But is it rational? Can you rationally say that a 16-year-old cannot "consent"? That would be a tough argument, I think. And what rights do animals have regarding "consent"? I mean, I'm pretty sure they don't consent to being killed for food, so ...? So I would think that you'd prefer to have those things legalized, right? And with the suggestion that modern psychology is moving toward making "minor attraction" (a sexual attraction of an adult to a child) a "sexual orientation" rather than a sick mind, it would seem like eliminating laws against sex with minors would be a sure thing. Or how about incest laws? While the argument there is "Keep them because of health and safety concerns" (not moral values), what about a father and son, a mother and daughter, two brothers, or any other non-childbearing permutation? Wouldn't you want to legalize that?

Of course, the argument mostly is that laws should be based on "harm". What harms others? If it harms or has a good potential for harm, pass a law. If it is a "victimless crime" (as if there really is such a thing), don't. But, as I've already indicated, we're not very good at this kind of measurement. We'll classify X as bad for you and then discover that it's actually beneficial, and we'll assure everyone that Y does no harm only to find that it's killing people.

You know, if you think about it, I'd suggest that we really don't want an end to legislation based on morality. That would have another name: anarchy. What we want is legislation based on our moral code. "Make what I find morally offensive illegal, like bestiality because that's icky or Christians who believe that what I'm doing is sin. Make those things of which I approve legal. We're done!" Or, to put it another way, to the question, "Whose moral code would you use?", the honest answer would be "Mine!" Because the truth is that we all know, at some place inside, that legislating morality is good, necessary, and required. It's just hashing out the details that are problematic, and we forget that "the heart is deceitful and desperately wicked."