Legislating Morality, Religious or Otherwise:

Some thought provoking articles and posts on legislating morality.

Two from Eugene Volokh. Volokh's bottom line:

Your moral views may come from your understanding of human dignity; another's view may come from utilitarianism; another's may come from libertarianism; another's may come from fundamentalist Christianity. None of these bases are somehow provable; none is constitutionally superior to the others....For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms. The Constitution doesn't consign those whose moral beliefs rest on unproven and unprovable religious axioms to a lesser citizenship, under which they may not enact their views into law, while others with the same views that rest on unproven and unprovable secular axioms are free to do so.

And who said postmodern relativism (philosophical nihilism) is no friend to religious conservatism?

A similar article by Ed Feser who objects to the claim that "you can't legislate morality" and asserts that such claim is almost always directed against social conservatives by liberals and libertarians:

For as we've seen, liberals and libertarians themselves appeal to certain moral principles in defending their favored policies. So how can they consistently criticize conservatives for doing the same? Isn't the liberal trying to "legislate morality" when he advocates redistributing wealth in the name of fairness? Isn't he thereby "imposing his moral views" on the wealthy? Aren't libertarians also "imposing their moral views" on liberals by trying to stop such redistribution? If libertarians who think that redistributive taxation amounts to theft could enact a law forbidding it, wouldn't this too amount to "legislating morality"? And if a liberal or libertarian responded by saying "Well, my moral views are the right ones!" why wouldn't this be just another instance of the same sort of dogmatic intolerance that conservatives are so often accused of?..."[W]e shouldn't impose our personal moral views on other people" sounds itself like an absolute moral imperative. So what exactly is going on here?

Also, keep this very brief point that Feser made in mind, I'm going to come back to it [it's quite important and bears more examination than Feser gives]. "Not all moral principles ought to be enforced by the power of government, but almost everything government does is based on some moral principle or other."

And finally, Geof Stone, against whom Eugene Volokh argued:

May law or government policy be based on faith? Given our nation's secular tradition, we would rightly protest a law prohibiting any person to eat pork merely because pork consumption is forbidden by some interpretations of the Bible. Any law based solely on sectarian religious belief should be rejected out-of-hand in a democratic society.

The objection is not that this law abridges the free exercise of religion. To the best of my knowledge, not eating pork does not violate anyone's religion. Rather, it must be rejected because it serves no legitimate public purpose and simply imposes one group's religious faith on the nation as a whole. Whether or not such a law violates the First Amendment's Establishment Clause ("Congress shall make no law respecting an establishment of religion"), it certainly undermines a fundamental precept of American democracy -- one person's freedom should not be infringed merely to satisfy another's religious faith.

Now both Feser and Volokh give good arguments against Stone's assertion, but the reason why I quoted Stone's point last was because I want to focus on his example. Volokh and Feser give us no good reason for objecting to a democratically enacted statute (in say a predominantly Muslim-American community) that would indeed outlaw the consumption of pork for "religious reasons." How would they respond if such were to happen in the real world?

I don't have an easy explanation for asserting that "my religion tells me this is wrong, therefore it should be law," or "I think this is immoral, therefore it should be outlawed" are not good political arguments. But let me try:

More often than not, either of these rationales will be trumped by overriding political concerns. If the moral or religious conviction is consistent with the overriding political principles that justify public policy, then so be it -- we have "religious" or "moral" reasons for policy X, and policy X is a legitimate public norm (for instance, laws against murder and theft). However, more often than not overriding political principles will consign certain religious or moral judgments to the private sphere of society (see my argument below).

Feser and Volokh both correctly note that 1) many legitimate laws are based on not just moral principles, but fundamental moral principles and 2) these fundamental moral issues that are also legitimate public norms are often basic religious principles as well.

For instance, laws against murder and theft are: 1) unquestionably proper civil issues; 2) also moral issues (it's not just illegal to steal and murder innocents it's also gravely wrong), and 3) also issues that are part of the basic teachings of various religions (part of The Ten Commandments, and other world religions as well).

Or take slavery. Obviously this is against the law (see the 13th Amendment). And also obviously slavery is a gravely immoral practice. Regarding slavery and religious morality, the answer is more complicated than you might think. Sure today most Jews and Christians, whether fundamentalist or not, will tell you that their faith holds that slavery violates the religion, but throughout history this was often not so, and the Bible is...well let's just say at best ambiguous on the issue, at worst, pro-slavery.

But you get the point, when we make laws against murder, theft and slavery, we are 1) legislating morality, and 2) arguably legislating what many consider to be "religious morality." But does the inquiry end there? So why isn't it then okay for a Muslim controlled legislature to outlaw the consumption of pork within their community (as Stone pointed out, no common religion can argue that they have a religious obligation to eat pork, with which the Muslim law would interfere. Hence no "Free Exercise" claim could be made). Or why would it not be okay for a Catholic controlled legislature to outlaw eating Red Meat on Fridays (again, who has a religious obligation to eat Red Meat on Fridays?).

What if a Christian controlled legislature wanted to outlaw the proselytizing of false Gods, which the Bible considers to be a grave moral issue (it demands execution for it). Well that's easy, Hindus, Muslims, Krishnas etc. have constitutional free exercise rights. This is an elementary constitutional principle. But wait? They have a "right" to violate fundamental Biblical morality. Yes. And that's a problem for those who blithely argue, "I want to legislate my moral system."

Feser doesn't adequately deal with all of those circumstances where a particular issue is both fundamental to religious morality, but also wholly inappropriate for civil legislation. He does write, "Not all moral principles ought to be enforced by the power of government...." Not exactly, in fact MOST moral principles are not and ought not be enforced by the power of government in any way whatsoever. The Free Exercise example is an easy case, but it also illustrates the rule, not the exception in the following sense: We make countless moral choices every day over which government has no proper jurisdiction and in which government does not [thank God!] involve itself.

The Free Exercise of Religion is just one of many overriding political norms that trumps the notion that "X should be legislated because my religion says it's immoral." We also have fundamental political concerns of liberty, equality, privacy, promotion of commerce, and others which invariably consign most moral judgments to the private sphere of society.

For instance, let's say Feser gets engaged to woman and for no good reason, he decides to break it off. That is fundamentally a moral issue, isn't it? Why doesn't government get involved there? Consider the Seven Deadly sins of the Bible: pride, covetousness, lust, anger, gluttony, envy, and sloth. Could you imagine attempting to legislate this morality?

Or what about lying to your parents? Or your significant other? Or what about business/commerce? Should government(s) have a "morals" council that will examine whether the plan of anyone seeking a business license has a proper moral purpose or that their business activities will foster public morality (that would go down real nice with our capitalist, market-oriented system).

So back to the pork example (or the Catholic "red meat on Friday"). Doesn't this interfere with elementary notions of "liberty" and "privacy" -- the right to feed yourself and your family whatever you'd like in the privacy of your own home? Or what about commerce? Doesn't the pork industry -- the farmers and producers -- have the right to market its product?

In a previous post I drew the distinction between what I called "public morality" (those public policy issues, which are also moral issues over which government may properly legislate, like murder, slavery, and theft) and "private morality" (those moral issues over which government has no legitimate basis legislating). I concluded that overwhelmingly most moral issues properly belong to the realm of "private morality."

So in the end, those who would argue, "you can't legislate morality" are technically wrong, but we could rightly say something similar: "You cannot legislate most moral issues" or "most moral issues are presumptively not the concern of the civil law." True, there are some moral issues that are "public" issues; but they are the exception. Most moral issues are properly consigned to the realm of "private morality."