On Legislating Morality

With the current political climate focused as it is on issues like the unemployment rate, deficit spending and debt, the size and scope of government, etc., issues that have traditionally been identified with the so called “culture war” have seemingly taken a back seat. Witness the latest election: how many political ads did you hear touting a candidate’s position on abortion, the institution of marriage, or the like? Certainly these issues came up in particular races, but they didn’t appear to drive the main debates.

Some doubtless see this as a welcome development. “Let’s not worry about things that have to do with personal values and such,” the thinking goes, “let’s just concentrate on practical matters. After all, you can’t legislate morality.”

Leaving aside for the moment which issues should receive the most priority at this time in our nation, a question still remains about the perspective just mentioned: do we ever, regardless of the issue, separate morality from politics? In a recent article posted over at The Public Discourse, Micah Watson* offers a much-needed corrective:

“You can’t legislate morality” has become a common turn of phrase. The truth, however, is that every law and regulation that is proposed, passed, and enforced has inherent in it some idea of the good that it seeks to promote or preserve. Indeed, no governing authority can in any way be understood to be morally neutral. Those who think such a chimerical understanding is possible could hardly be more wrong. For, in fact, the opposite is true: You cannot not legislate morality.

It is of course true that some laws will be better conceived than others, and many may fail entirely to achieve their purpose. But that they have a purpose, and that the purpose includes at least an implicit moral element, is incontrovertible. One need only ask of any law or action of government, “What is the law for?” The answer at some point will include a conception of what is good for the community in which the law holds. The inversion of the question makes the point even more clearly. What would provide a rationale for a law or governmental action apart from a moral purpose?

To spend a few moments thinking through the questions Watson poses reveals just how cogent his point really is. The reality he highlights carries with it a few important, if often unrealized or unacknowledged, implications. First, to talk of budget deficits rather than the sanctity of unborn life, for example, is not to cease talking about morality. Rather, it’s simply to address the moral ramifications of one particular issue instead of another. The second follows logically: any indignation at “injecting morality” into public debate and policy making is both inconsistent and misplaced. Watson concludes his piece this way:

One can no more avoid legislating morality than one can speak without syntax. One cannot sever morality from the law. Even partisans of the most spartan libertarian conception of the state would themselves employ state power to enforce their vision of the common good. Given this understanding, the term “morals legislation” is, strictly speaking, redundant. The real question is not whether the political community will legislate morality; the question is which vision of morality will be enforced and by what sort of government.

To the above I’ll add a few further thoughts: none of this is meant to suggest that civil law codes can effectually change the human heart (where the heart is understood as the seat of our will, emotions, values, etc.). We cannot create good men and women simply by legislative action. Ultimately, that is the work of God’s grace. To say otherwise is to ignore widespread biblical testimony to the contrary.

However, I wouldn’t go so far as to suggest that our laws and moral visions they represent are irrelevant to the process by which God changes hearts. God works graciously through means, including moral reasoning and persuasion. When laws reflect reality—e.g., that a transcendent moral law and Lawgiver exist, people are responsible for their actions, not all choices are equally valid, etc.—they help create an environment where the truth of the gospel and its implications resonate more fully and persuasively. To understand that God can certainly overcome any human obstacle to achieve his purposes is not to suggest that we don’t have a responsibility for working toward a cultural climate that is more consistent with the same.

*Watson is the William E. Simon Visiting Fellow in Religion and Public Affairs at the James Madison Program at Princeton University and the Director of the Center for Politics & Religion at Union University in Jackson, Tennessee.


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