They say “you can’t legislate morality.” Nonsense. Of course you can. It’s quite simple to pass laws requiring moral behavior – whether directly or indirectly. We do it all the time. There are laws against committing murder (most of the time), laws against theft, laws against breaking a contract. Are these laws not written to require moral behavior?
What people usually mean when they say “you can’t legislate morality” is either “you can’t legislate willful morality” or “you shouldn’t legislate morality … especially if I don’t agree with your definition.” The first is tautology. If the legislated morality were willful, then there would be no need of a law. If the law goes against the free will, then it has failed in its task already. No government or earthly institution has ever had the power to compel the free will beyond its own freedom. Indeed, God grants us freedom to choose between good and evil.
So, what about the second one? Well, that’s where it gets tricky. We as people tend to disagree over what is and isn’t moral behavior. Is it immoral to drink alcohol? To excess? (Sidebar challenge: please define “excess” in a legally binding and morally unequivocal manner.) Is it immoral to punch another person? What if the life of my son depended on it?
It’s easy enough to show that different religions have differing requirements regarding the minutiae of moral behavior. But even intra-religion we find varied views. The Christian tee-totalers will say smoking is immoral. Yet, many of the great men of God in the 1800s were cigar smokers. Has morality changed or is one of these groups clearly wrong?
What I intend is not to help us clarify the definition of morality, but rather to demonstrate that the issues are difficult across religious, cultural, gender, and time boundaries. Well intentioned, caring, and compassionate people have disagreed vehemently on these issues. Surely they had a better chance of clarity than the federal government. If God Himself allows us freedom to choose moral behavior, then surely the government ought to allow the same freedom and not attempt to “require” it.
Do I then support anarchy? Of course not. It is certainly reasonable for a government to define (or better yet adopt) a set of human rights and ensure that those rights are protected. This is exactly what the framers chose to do with “life, liberty, and the pursuit of happiness.” The government absolutely has the right to ensure moral behavior to the extent that immoral behavior violates another person’s rights. You’re free to pick up a $20 bill off the sidewalk; you are NOT free to pick it up out of my wallet.
So then, in assessing the goodness of laws, let us continually ask the question: “whose rights are violated when this law is broken?” If we cannot come up with a reasonable answer (i.e., one that has a clearly defined victim with a clearly defined right) then perhaps the law is overreaching.