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LEGISLATING MORALITY: It's Unavoidable

You can't legislate morality!

People will not behave better just because a law tells them to do so, we are told. In fact, it's been repeated so often that the claim is regarded as being beyond debate in the minds of many people. And, it is strongly suggested, those seeking to pass laws prohibiting immoral conduct are no better than the Taliban.

There's just one problem with all of this: It isn't true.

To gain a clearer understanding, it is important to look at history, logic, and some recent examples where both behavior and beliefs have been dramatically impacted by legislation.

History

The origin of that claim is revealing. Even in its earliest iterations, the argument was made in connection with the larger effort to secularize the country and establish the public school system as the arbiter and instructor of all things related to "morality" and "virtue." It was part of the effort to exclude faith from all debates in the public square.

The earliest use of the phrase was in a book published in 1856. Written at the outset of this country's debate over the establishment of a public school system, here's what the author argued:
You cannot legislate men to morality; you must educate them to liberty and virtue . . . and the schools must give to the country a people who will require no such despotic laws. (James P. Hambleton)

Since then, the use of the argument has been singularly one-sided. It has tended to be used by those advocating for the "new morality," those who use the phrase as a club against all adherents of "traditional morality." Yet the advocates of the "new morality" (sometimes cynically described as the "old immorality") see no hypocrisy in their pursuit of legislation embracing their more permissive views of right and wrong. In such areas as abortion, sex education, and marriage, they have been quick to slam their opponents as "legislating morality" while they blithely pursue their own agenda to not only permit, but often to encourage and even impose, their less restrictive views.

But it should also be acknowledged that the phrase has likewise been used by well-meaning persons of faith who rightly understand that the most profound transformation of a person's character requires an act of God. Without this transcendent element, most efforts at transformation will be less than totally successful.

While there is a measure of truth in this observation that genuine transformation requires help from above, it ignores a corresponding truth that, if you aim at nothing, you'll hit it every time. This approach ignores the proper task of government - rewarding good and restraining evil - and claims instead that the heart and conduct of man cannot be transformed by government's edict or coercion.

Logic

If we stop and think for a moment, it should be easily understood that every law reflects the morality of the person or political body that enacted it. No exceptions.

Everyone knows that murder, robbery, arson, and kidnapping are immoral.

But what about laws imposing taxes. Aren't those rooted in a moral belief also. Doesn't every tax imposed reflect the lawmaker's conviction that it is a good thing to take money from someone who has earned it so long as it is then used for some common good. Doesn't this reflect the lawmakers' moral belief that it is a good thing to confiscate one person's money and use it for the assistance of someone else who has needs, but not resources.

Even today as we listen to the debate regarding health care, much of the rhetoric is phrased in moral terms. Each side claims to be doing the righteous thing while their opponents are doing that which is evil, or at least selfish.

While lawmakers use what they perceive as logical arguments for or against proposed legislation, at its core they are arguing whether the law would be "good" or "bad," Liberals essentially argue that expanded social programs is a valid and moral reason to redistribute wealth from the rich to the poor. Conservatives counter that such taxation and redistribution is nothing more than a Robin Hood-style theft from the rich to give to those who - often through a lack of hard work and discipline - have failed to generate their own wealth. But both arguments are rooted in the perception of what is right or wrong, good or evil, moral or immoral.

So then, if every law reflects an assessment of what is right and wrong, the only real question is: whose morality is going to be legislated.

If those who should naturally be the advocates for high standards of morality in the law can be sidelined by admonitions that you can't legislate morality, then the opponents of traditional morality will be the only players left on the field. Their victory will then be assured.

Examples

Ironically, the best examples of legislating morality come from American courts. There, legislating immorality from the bench has had a profound impact on the moral beliefs of this country.

In 1973, the United States Supreme Court in the case of Roe v. Wade declared that a woman had the constitutional right to an abortion. In doing so, it stretched the fabric of our constitution far beyond any manner that ever would have been conceived, even in their wildest imaginations, by our Founding Fathers. But within a few short years, the edict of the court protecting a woman's right to choose was embraced and accepted by a surprisingly large number of citizens who had viewed an abortion as the equivalent of murder just a few short years earlier.

Similarly, in 2003, the same court in Lawrence v. Texas concluded that all laws prohibiting homosexual conduct violated the constitutional right to privacy. And, again, within a few short years, the public's assessment of such conduct took a quantum leap toward tolerance of that which was previously regarded as criminal.

What we see in these examples is the tendency of the common culture to quickly and inexorably reflect the moral declarations of the lawmakers.

Conclusions

In a perfect world, our relationship with God will profoundly impact our conduct. Those who yearn to please a loving God will, in turn, be instructed and empowered to act in a gracious and loving manner toward all of His creatures and creation.

But some people may not share this motivation. Others may find it difficult to live out the teachings of their faith. So for people in that position, is it a good idea to decline to establish, or to even dissolve, the legal restraints that might constrain a person from bad conduct. Or should we, instead, be diligent to embed in our laws clear statements of right and wrong that reflect the highest standards to which we aspire.

At its root, the function of good government has always been to punish what is evil and promote what is good. Though we cannot make a bad man good by passing a law, perhaps we can at least encourage him to restrain his evil impulses by making the consequences of his failure to do so unpleasant.

It is, after all, the law that ultimately defines the boundaries of civilization. Failure to define those boundaries will leave our culture vulnerable to the attacks of those who would tyrannize, terrorize, and plunder by strength.

In the end, in light of our acquiescence to the ejection of our faith from the halls of governance, should we not be shamed by the words of Edmund Burke that the only thing necessary for evil to triumph is for good men to do nothing.


Barry Peters is an attorney in private practice with offices in Eagle, Idaho, and is one of the legal advisors for both ICHE and CHOIS. His law practice focuses on the areas of wills & trusts, real estate contracts, and business formations.

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