Is Not Legislating Morality an Option?

“You can’t legislate morality” has become today’s secularist mantra, a cheap slogan that both liberals and the libertarians can gratuitously  herald with little pushback or questioning. In today’s political culture, disagreeing with this “truism” means being branded as a fascist, religious zealot.

But when you actually ask someone the meaning or purpose of the law, however, it becomes clear after a short discussion this phrase is apocryphal. Inevitably, the person’s answer will consist of some discussion of what is good for the community in which the law is enforced.

The fact is, the moral basis of the law is simply inescapable for liberals, conservatives, and libertarians alike. Behind each political view lies a world view and an idea of how the state should employ its power to enforce their vision of the common good.

The good in questions transcends passing fads, idiosyncratic preferences, or even values. The political power’s authority to pass laws accounts for the side of human nature that must be tempered and restrained while holding that some wrongs are so fundamentally reprehensible that they demand a robust legislative response.

In the Lincoln Douglas debates, Abraham Lincoln made it clear that Douglas’s ambivalence about whether states could choose for or against slavery revealed that he didn’t think slavery was morally abhorrent enough to legislate laws against it. By attempting to remain “neutral,” Douglas defended one of the most morally reprehensible practices in the history of the United States.

Today Douglas’s stand is comparable to those people who claim to personally accept that abortion or euthanasia as a moral evil, but express reluctance about restricting either by law. It is clear they make this decision on moral grounds. For them, it is more morally reprehensible to take away the choice of the mother to kill her child or not than to actually kill the child.

Beyond abortion, even economic legislation has its basis in morality. As Anthony Esolen says, “One man’s theft is another man’s redistribution of income.” All laws include, at the very least, a distant relation to a moral evaluation of good and bad, right and wrong. No man ever fought to the death for mere utility, but many a war and many a political stand have been made for justice’s sake.

Rejecting one dogma means accepting another. Resisting one type of moral legislation is promoting another. The law has its fundamental basis in morality. Not legislating morality, is simply not an option. The question is: which morality will we legislate?