Legislating Morality:

Here is another hot button culture war battle. One side remarks: "You can't legislate morality." The other counters, "every piece of legislation reflects someone's morality." We all agree that we shouldn't steal or kill, or enslave human beings; those are both basic moral sentiments and basic public laws.

My belief is that social libertarians should be cautious before they assert that public policy and morality are two completely separate concepts, because there is a big overlap between the two (even thought there is good reason to reject much of the so called "morals legislation," like now defunct sodomy laws). Rather we need to draw a distinction between public morality and private morality, and which things belong in which sphere.

That is, there are certain (many) things regarded as immoral by many folks; but such sentiments are properly consigned to the private realm, nonetheless (this is similar, I guess, to Rawls's theory of "public reason").

[Note, I use the terms "public policy" and "public morality" interchangeably. I assume that if something qualifies as "public morality" it appropriately belongs to the realm of civil governments' legitimate policy making concerns.]

My main target would be those social conservatives who might argue that all morality properly is public morality or folks who otherwise seem to argue that every word of the Bible or their Church's teachings ought to dominate public policy.

The truth is, some of the most basic and elementary moral tenets of certain religious and philosophical traditions appropriately belong to the private, not the public sphere.

Take the issue of homosexuality, for instance (where we debate which realm anti-gay sentiments properly belong). A religious conservative might argue, "my religion says it's wrong, so wrong that its practicioners should be stoned to death, therefore I'm against it and I'm against any kind of law or government action that might imply that this is okay. In fact, I want the government to reflect that this is wrong."

Would there be a way to convince this person that his or her anti-homosexual sentiments are just fine within the realm of private, but not public morality? I don't know. We could start by demonstrating that there are many other moral tenets, ones even more basic and elementary to their religious traditions than homosexuality, ones that for which the Bible proscribes the death penalty, that we exclude from the realm of public morality.

For instance, while anti-homosexual tenets are nowhere the be found within the Ten Commandments, the First Commandment holds don't worship false Gods. Elsewhere in the Old Testament, God commands his worshippers to immediately execute others for proselytizing the worship of false Gods.

As I noted before, (and will note in a forthcoming publication) some of our Colonies, which saw no distinction between Church & State, had the death penalty on the books for openly worshipping false Gods.

Therefore, when the Hari Krishnas at the airport hand out their literature with those neat and fancy pictures of all those Hindu Gods and encourage you to join, they are doing something that the Bible regards every bit as immoral and serious a transgression against God as homosexuality (if not more so). Yet, although we (ought to, in my opinion) respect as a legitimate private conviction a Christian fundamentalist's belief that the Krishnas worship and encourage others to worship false gods and therefore do something terribly sinful, we also properly exclude such a judgment from the realm of public morality.

And moreover, we grant the most fundamental constitutional and civil rights status to the rights of Hari Krishnas to violate the most basic tenets of Biblical morality.

It could be argued that Hari Krishnas have such rights because religious rights (ala the First Amendment) are special. The rights of conscience were basic according to founding philosophy. Sexual morality was not.

But there are many other basic moral tenets of Biblical morality that we exclude from the realm of public morality as well. In fact, the majority of the Ten Commandments are properly relegated to sphere of private morality, not public policy.

See this excellent post by Ed Brayton, where he notes what I've said about the First Commandment not being a proper basis for public policy, but also the Second (Thou shalt not make unto thee any graven image), Third (Thou shalt not take the name of the Lord thy God in vain), Fourth (Remember the sabbath day, to keep it holy), Fifth (Honour thy father and thy mother), and Tenth (Thou shalt not covet).

The Seventh Commandment (Thou shalt not commit adultery) is about sexual morality; therefore, it is one that, like homosexuality society, we may debate which box -- the private or public -- to place it in.

And the Sixth (Thou shalt not kill), eighth (Thou shalt not steal), and arguably -- insofar as it relates to laws like defamation and perjury -- the Ninth (Thou shalt not bear false witness) are properly put in the "public" box.

Now this isn't to say that there is something wrong with believing that the Ten Commandments represent important moral teachings (although, like Alan Dershowitz, I think we can compile a much better "Top Ten" list). But the bottom line is, a majority of the Ten Commandments, the most basic and elementary tenets of Biblical morality, are properly consigned to the realm of private morality and do not serve as legitimate bases for public laws.

And there are plenty of other moral teachings of orthodox religion as well that properly have nothing to do with public law; for instance, the Seven Deadly Sins: pride, covetousness, lust, anger, gluttony, envy, and sloth. Could you imagine attempting to legislate this morality?

Finally, the Bible condemns usury, not just at excessive interest rates, but any interest. And it does so with same seriousness that it condemns homosexuality. See this article by John Corvino:

In the Book of Exodus God says “if you lend money to my people, to the poor among you. you shall not exact interest from them” (22: 25). The fifteenth Psalm says that those who lend at interest may not abide in the Lord's tent or dwell on his holy hill (1-5). Ezekiel compares usury to adultery, robbery, idolatry, and bribery, and asks whether he who “takes advanced or accrued interest; shall he then live? He shall not. He shall surely die; his blood shall be upon him.” (18: 10-13; see also Deut. 23:19, Lev. 25: 35-37, Neh. 5: 7-10, Jer. 15:10, Ezek. 22: 12, and Luke 6:35)