The Ethical Trouble With Legislating Morality

by David Trillo, guest writer

“You can’t legislate morality!”  Few colloquial expressions depend more upon connotation than does this short, forceful proclamation of liberty.  And because it asserts liberty, few colloquialisms have weathered such a long, sustained, unrelenting campaign to discredit it, refute it and extinguish it from American parlance.

Most everyone knows what the expression means.  It means that we don’t, or shouldn’t, legislate moral beliefs based solely in tradition or religious beliefs.  Unfortunately, people and groups who wish to do exactly that have been attacking this axiom of freedom ever since.  Here I will explore one way that the phrase is attacked, and I will answer that while putting morality and ethics into clearer perspective.  I will explain why legislating morality is bad and wrong.

Wrong.  Was that a value judgment?

Perhaps the most common counter-claim is “every law legislates morality,” therefore “you must legislate morality.1”  Those who argue that we cannot escape legislating morality typically list murder and theft as common examples, but they sometimes go farther, asserting that even speed limits2 and no-smoking areas are legislation of morality.

One’s first reaction to these might be a sharp, involuntary gasp at what looks like an absurd word game meant to cloud the obvious issue, or to make bedroom laws sound as legitimate as homicide laws.  It would be a mistake, however, to miss an opportunity to examine morals, ethics, and the purposes of legislation.

Laws against murder, theft, speeding and running red lights exist to protect public safety, and to provide security in one’s person and property.  They are not enacted out of a belief that it’s a religious or moral sin to roll through a stop sign.

Though the words “morals” and “ethics” are sometimes used interchangeably, their connotations, i.e., their implied meanings are often different.

The familiar implied definition of “morals” was not lost on Supreme Court Justice Antonin Scalia when his dissent in Lawrence v. Texas3 forebodingly lamented that overturning Texas’ sodomy laws – and all similar laws – “decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.4

Scalia clearly understood the connotation behind “legislating morality,” legislating citizens’ private consenting behavior, usually related to sexuality.  He clearly was not saying that the Lawrence decision would put an end to all laws against murder, theft, rape, or speeding.

Thank you, Mr. Scalia for getting us back on topic.  Laws against murder and other public safety concerns are not examples of “legislating morality.”

“Ethics,” on the other hand, connote behavior or conduct as it affects, helps, or harms other people.  Murder, theft, fraud, false advertising, willful environmental pollution, and slander are clearly questions of ethics.  To a considerable extent, we do legislate ethics because of their relevance to safety and security.

These basic ethical principles are integral to human social nature, and are discovered naturally by most all people who grow up and develop normally.  We learn, through empathy and through the bitter experience of having it done to us, that it’s wrong to go around lying, cheating, stealing things or beating people up.  A natural sense of right and wrong is the inevitable product of an intelligent social species whose members must at once cooperate, co-exist, and compete.

It is therefore not surprising that these tenets, as well as treating others as we like to be treated, are teachings common to virtually all world religions and philosophies.

The Christian faith describes these ethics as “written on our hearts” (Romans 2:14-15), and notes that to love your neighbor (James 2:8) and not harming them (Romans 13:10) fulfill the spirit of the law.  The Affirmations of Humanism state that ethical principles can be discovered5 and tested by observing their consequences.  From culture to culture, these universal principles are exalted in words and ideals, if not always in deeds.

I describe these universals as “values that you can explain to someone else’s child, regardless of race or culture.”

It’s interesting that, when political activists talk of promoting moral values, they are rarely referring to these universal ethics.  What they strive to legislate instead are, more accurately, social customs — many of which seem, to me, arbitrary and sometimes even harmful, but which have been retained and perpetuated by cultural reinforcement alone, often through the teachings of religions.

You can explain to anyone’s child why murder and stealing are wrong.  It’s not so easy, on the other hand, to explain to a child raised in a primitive aboriginal (or advanced northern European) culture that nudity or non-marital sex is wrong.  “Why,” the child asks.  “Well, it just is!  It isn’t proper!” you plead.  You soon discover that you’re getting nowhere fast, and the explanation is actually easy:

Such moral beliefs are rooted in inherited cultural customs rather than universal human social nature.  It is impossible to communicate these ideas by appealing to universal ethics.  They are subjective in my secular view, having little justification apart from habit, convention or tradition.  As Antonin Scalia appears to note, they cannot survive rational basis review alone.

I do understand and appreciate that devout religious believers consider their doctrines to be stipulations of fact.  But to accept a faith’s teachings as fact, one must first adopt the faith itself – and as anyone experienced in Christian apologetics knows, convincing a person of a different or no religion (or a critical thinker) of the faith’s factual basis is practically impossible.  The believer must accept on faith that its teachings are fact.

It is perhaps because of this difficulty of convincing others, by reason alone, of deeply held traditional beliefs that political force is so often sought to enforce these conventions.  That feeling of powerlessness to persuade others, rationally, to accept one’s own deeply held moral beliefs, tempts some to resort to legal force — which is, after all, a standing threat of physical force.

It is because legislation amounts to a codified threat of physical force and punishment that makes the legislation of non-universal “opinion morals” ethically wrong.  It is little better than threatening your neighbors with violence because you don’t like how they live.  It may follow an orderly pattern of due process and appear to inherit the legitimacy lent by state sanctioned authority, but it is base aggression nonetheless – hardly in keeping with the Golden Rule, or with the Christian faith’s teaching to live in peace with those around us.

There’s a more serious reason why legislating these morals is harmful and wrong, however.  These moral opinions, particularly sexual opinions, have a curious way of being quickly blown out of proportion, and being so wildly exaggerated, that grave ethical priorities such as public safety and peace get pushed aside – both in the importance that we give to each, and the amount of public resources that we invest in them.  Police that could be working the gang unit are deployed to “vice” instead.  When being an unwed mother is considered worse than shoplifting, when otherwise rational and sane Americans begin seriously predicting the end of the world, catastrophic disasters, or the collapse of our nation because a few people might skinny-dip co-ed or marry their own gender, then, in my opinion, we have a “proportion and perspective” problem.

One of the most extreme examples of how a culture’s obsession with “sexual morality” can actually corrupt a culture’s ethical compass is given in the stories of Middle Eastern “honor killings” where family members kill their own daughters caught violating “sexual laws.”

We see something similar but milder coming from some members of American culture.  We heard, in the hurting days immediately after the 9/11 attacks and Hurricane Katrina, certain preachers almost finding satisfaction in the thought that these calamities were “God’s punishment” for our “depravity.”  One radical Catholic preacher’s frothing anti-sexual tirade speculates that the Space Shuttle Challenger disaster was perhaps an act of God meant to punish the use of contraceptives7.

The murderous Norway extremist Anders Behring Breivik was reportedly fueled in part by hatred of women, feminism, and women’s sexual freedom6.

In the minds of these beholders, sexual morals become so important, or so singular an obsession, that human life itself is devalued in comparison.

Truly, these are extreme examples of broken ethical compasses.  But if American politics reach a point where enough Americans feel that it’s more important to legally punish private non-conformity or recreation than it is to protect human life, or promote the overall physical safety and mental health of our citizens, or lead the world in scientific progress, achievement, and educational excellence, then we have reached a point where our values have become scrambled, distorted and re-ordered enough to do much more harm to America’s ethical foundations than good.

When a politician who campaigns on science and math education, and funding for space or our public colleges and universities, can barely raise enough campaign money for one TV ad, while another candidate who promises to stick it to the gays and step up the war on sex can rake in tens of millions, that is when we as a nation have become lost in a minotaur maze of misplaced values.

At least I own a mirror and use it, for I know that my own foreboding warnings about our nation’s ethical compass sound a bit like the very people whom I criticize.  Yet we already see it happening in other parts of the world, where cultures forsake health, education and prosperity in favor of crushing women’s rights and brutal, overarching punishments for perceived sexual misconduct.

If it happens there, it can happen here, if we permit it.  We’re all human beings with the potential for misplaced sub-human aggressions.  I am doing my part to prevent our culture from resembling the very parts of the world that many Americans fear.

Certainly, people who believe that homosexuality or non-marital sex is wrong are free to continue in their faith.  We do have freedom of religion, after all, and there is real beauty in “saving yourself for marriage” if you consider abstinence sacred.  Live by your moral values, for they are indeed sacred to those who hold them.  Live them well, and Scripture teaches that your exemplary life will be an effective living witness (1 Peter 2:12).

But please, let’s maintain perspective and not let worry over select perceived sins or other people’s sexuality grow so disproportionate that our obsession with “curing” or “correcting” them pushes aside all the values that made America great: freedom of choice and religion, opportunity for prosperity, physical safety, self-determination, education, and science.

We’ll never get back to the moon if most of our resources are busy micromanaging one another and keeping our fellow Americans down.

References:

  1. Selwyn Duke, “The reality about legislating morality,” RenewAmerica.com, 9/14/2004, http://www.renewamerica.com/columns/duke/040914 .
  2. Chuck Colson, “Remembering Russell Kirk,” Townhall.com, 10/24/2003, http://townhall.com/columnists/chuckcolson/2003/10/24/remembering_russell_kirk .
  3. Lawrence  v. Texas (2003), United States Supreme Court, http://www.law.cornell.edu/supct/html/02-102.ZS.html
  4. Antonin Scalia dissent, Lawrence  v. Texas (2003), United States Supreme Court, http://www.law.cornell.edu/supct/html/02-102.ZD.html
  5. Affirmations of Humanism, http://www.secularhumanism.org/index.php?page=affirmations&section=main
  6. Michelle Goldberg, “Norway Killer’s Hatred of Women,” The Daily Beast, http://www.thedailybeast.com/articles/2011/07/24/norway-massacre-anders-breivik-s-deadly-attack-fueled-by-hatred-of-women.html
  7. Fr. David Trosch, “Distillation or DOOM Will it begin on October 5, 1997?”, http://www.trosch.org/the/7oct05.htm

4 thoughts on “The Ethical Trouble With Legislating Morality

  1. Very insightful, well written piece. Good job, David. It’s quite amazing that it is often those making the most noise for the cameras about supporting our freedoms who are also the ones first in line to curtail those freedoms with attempts to use legal force to impose selective (usually religious) morality on all. It’s disheartening that they can’t, or won’t, grasp the contradiction in that. It is this insidious kind of encroachment on freedoms that is often the most dangerous.

  2. Thank you, Ken — I have read your excellent pieces here as well.

    At this moment, I’m writing an analysis of the Castle Rock school voucher issue and its primary underlying philosophy, parental rights.

    That upcoming piece will look into that contradiction.

  3. Well done. You put words, articulate ones at that, to my feelings on this subject. It surprised me how difficult it was to find someone who could do just this. Keep up the good work.

  4. So your point seems to be that morals are based on faith in ungrounded superstitions, whereas ethics are based on actual, scientifically measured harm. Tell me if I’m wrong about that restatement.

    Assuming I’m understanding your point, isn’t there a problem since what we define as harmful is based on our morals? Some people believe, for example, certain behaviors harm a society in the long-run. These harms cannot easily be measured and predicted because science is much better at measuring short time-scales. I’m thinking of behaviors include things like emission of carbon dioxide or broadening the definition of marriage. It’s hard to explain to a kid why any rule exists regarding lots of things if they kid say “But why?” enough times.

    You appear to appeal to the majority view of good and then try to legitimized it by calling it “natural” and an ethical rule, but in the end aren’t you just promoting the moral tyranny of the super majority? And who really cares that Scalia borrowed some language from his opponents in writing a dissent? After reading this article, I’m not sure that I can perceive another distinction between morals and ethics? I was hoping to find more of a difference. Maybe I’m missing something. Or maybe your article is just another predictable and routine attempt to minimize society’s reliance on religious tradition. That seems likely since Wikipedia informs me of the intertwined interests of Citizens Project and the plaintiffs in Romer v. Evans (517 U.S. 620 (1996)).

    I’m really not trying to knock science. Science is great–I am a scientist and so is my whole family–but maybe we should use our spiritual senses when we make decisions regarding public policy as well. Why? Because over-reliance on either science or any single religion is a bad idea. Diversity is often great, and that includes diversity of moral authorities in the marketplace of ideas.

    So I guess my proposal is that some people need to stop pretending that “legislating morality” is totally and completely different from “legislating ethics.” The difference between the words is not especially meaningful because it just means whether or not a super majority holds a particular moral.

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