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A number of years back, I frequently quoted the adage that we cannot legislate morality, until a friend pointed out that we do, indeed, legislate morality all the time. His point was that laws against such things as murder, rape, theft, etc. were all legislation of morality, and that society was fully justified in these laws. I accepted this point for a long time, until a recent conversation started me thinking about this about this all over again. I've reached the conclusion that I was correct to begin with, and we cannot legislate morality.
To understand where I'm coming from on this, I think it is important to identify how law and morality compare. It is true that many of our laws are based on morality, but this does not indicate that the two concepts are the same. Let's begin by discussing law.
Law is established by a culture or society, in order to foster an environment of safety and cooperation. These laws are often voted on by the citizens, and determined by majority consensus of what is best for the effective operation of the society. Alternately, as in our system in the United States, many of the laws are enacted by representatives elected to make these decisions on our behalf. Laws establish rules and restrictions on the population, with methods of enforcement and penalties for infractions codified within the law.
Morality is a standard or code of behavior embraced by an individual, based on their beliefs and philosophies. These beliefs may be founded on a religious system, but even the most confirmed atheist will also have philosophies and beliefs that determine their morality and ethics. The concept of personal morality is less dependent on enforcement and penalties, and more dependent on the idea that the behavior is simply the right thing to do.
Law and morality parallel and overlap in many areas. It is against the law to commit murder, and most rational people will agree that it is also immoral to murder someone. Likewise with such crimes as stealing, rape, assault, kidnapping, etc. We have no problem with such laws enforcing these morals, as it truly is the only reasonable approach to keep society and the individual safe. As such, it can become easy to confuse the two concepts. If the laws based on morality are the only reasonable approach, then would not all laws therefore be based on morality?
This is where the incomplete logic falls apart. It's much like the line, "Chickens have feathers. Ducks have feathers. Therefore, a duck is a chicken." Many of our laws have absolutely no basis in any kind of traditional morality. Even the strictest Bible scholar, for example, would not be able to find a basis in Biblical Morality for speed limits, yet, the posted speed limit is the law. Such laws do not derive from any religious tradition, and are completely independent of individual morality.
This is a vital point to make - the law is independent of individual morality. The law does not provide exclusions based on our personal religious beliefs or morality. It does not matter if your religious system, for example, requires a human sacrifice. The law forbids human sacrifice, regardless of what your morality might say. While some cultures in this world hold to an idea that, if your child does something to bring shame on the family, you are obligated to restore your family honor by executing the child, our law will prosecute you for murder for doing such a thing.
By the same token, morality is independent of law. While the law may permit certain behaviors, morality eschews those behaviors because the individual believes it is wrong no matter what the law might say. An example of this would be the consenting adult laws. The law holds that an adult can engage in consensual sexual relations with another adult, regardless of the marital status of either. If a person cheats on their spouse with another consenting adult, they cannot be prosecuted under the law for that behavior, but a person who holds that such behavior is immoral, will not cheat anyway. People who believe that it is a sin to consume alcohol, abstains from drinking even though there is no legal consequence if they do consume a beer or margarita.
Why is this discussion important? Particularly during an election year, there tends to be quite a bit of talk about legislating morality. On the one side will be those who believe we need to enact stricter laws, and "return" this country to the moral purity of the past. They point to the "permissiveness" and lax morals as both evidence and cause for the decline of society. On the other side will be those who resent the imposition of what is perceived as religious beliefs on their behavior. They point to these laws as oppressive, and a violation of individual rights. It's difficult at best to find any common ground for the two opposing viewpoints to discuss and compromise, because both sides are thoroughly convinced of the importance of their positions.
The trouble with basing legislation on morality, however, is determining whose morality will be the standard upon which the laws will be based. Prohibition was based on the belief that alcohol was an evil influence on society, and should be outlawed. In reality, the law resulted in more crime and problems than the alcohol had, and it seemed the majority of the citizenry did not agree with the attitude that alcohol was a sin that should be outlawed.
Few of us would want legislation based on the morality of Fred Phelps, but Phelps' position is that the U.S. is suffering judgment from God because our laws permit too much immorality. I don't expect Phelps to be satisfied until the U.S. is remade into a "moral nation" after his ideologies, although few other people would be satisfied with the resulting society from such legislation.
For the most part, people that are in favor of legislating morality, favor the laws that agree with their morality. It becomes a different story, though, when morality that is contrary to their own is proposed. We all tend to believe our morality is correct. If we didn't, we would amend our morality to align with what we believe is the best overall standard of behavior. As such, this creates an attitude that finds it difficult to understand how someone else could hold to a different morality. They, of course, must be wrong, and if we could simply compel them to adhere to our morality for a while, they would come to see the superiority of it.
This is the crux of the difference. We can compel behavior, but we cannot compel attitude. By threat of consequence, a person can be forced to live a life that conforms to Christian morality, for example, but that does not make them a Christian. We can pass laws that compel someone to behave in a given manner, but it would be naïve at best to think that changes their attitudes. When there were still anti-homosexual laws being enforced, it didn't stop people from being gay. It only forced the gays to hide their sexual orientation, for fear of prosecution. The laws that discouraged gay behavior didn't force a gay man to actually desire women, nor to compel a lesbian to desire men.
Laws regulate behavior, while morality derives from attitudes. We must recognize that the most we can do, is to enforce the appearance of moral behavior. Fill Congress, the Supreme Court, and the Oval Office with religious people, and it will not make an atheist start believing in God, or Allah, or Krishna. They could pass laws that forced everyone to attend religious services each week, and the people wouldn't be religious unless they chose to be. Conversely, when governments attempt to stifle religion with an official position of atheism, it doesn't make believers stop believing.
If we are honest, I think we will admit that we really do not want to try and legislate morality. I don't want you to act like you believe what I believe, just because someone passed a law that puts you at risk of prosecution if you don't act that way. This should be only reasonable, because if my group can pass laws that compel you to act like us, someone else can pass laws that compel us to act like them. A free culture exists based on the concept that each individual has the right to believe as they feel best, and provided their behavior does not violate the rights of another, to live and act in accordance with those beliefs.
Even if they disagree with mine.
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