Legislating Morality

Have you ever heard a conversation like this?

“You can’t legislate morality,” says one person.

“Oh yes you can! We do it all the time. Murder is immoral and we legislate against it.”

Interesting, no? For me, this gets combined with separation of church and state. I’m an advocate of separation. People will frequently ask me why I don’t want politicians to take their faith into their actions in government, and how I would be able to separate those actions if I was a politician.

Well, I can’t separate them, and I have no plans of doing so. Who I am is driven by the fact that I’m a Christian, trying to live out a life here as a follower of Jesus. If I stood for election to some office, I would remain a Christian, and Christianity would be a part of my political choices. I would hope that I would also be able to express those choices in a way that would be comprehensible to people of other faiths and of no faith at all. I would certainly regard it as my duty to try, and if I found that I was advocating legislation that was good only for Christians, to stop doing so.

Separation of church and state is sometimes read as separation of church and statesman. But the constitution says nothing about the faith of an officeholder, except to specify that there can’t be a religious test, which suggests that “separation of church and statesman” was not the intent. (I realize that “separation of church and state” as a phrase, does not occur in the constitution, but I regard this as irrelevant. As with many other legal principles, it is a name for a principle contained there, which is convenient shorthand for the words that actually are there.)

I advocate separation because of two things. First, I believe that getting the power of government is inevitably corrupting to the church. When we try to accomplish the goals of the gospel through legislation, we often forget the power of God and the value of grace. Secondly, I believe that the government is too easily led to serve only the majority, and that aligning with a particular faith or religious tradition exacerbates that problem.

None of this, however, prevents or should prevent people from taking their moral principles, however derived, into the public forum, arguing for them, and producing laws that they believe are suitable to good moral principles. And thus I get back to legislating morality.

“You can’t legislate morality” is used in two ways in my experience. First, it is used to suggest that you can’t make laws requiring people to be moral. This is most commonly used against laws regarding sexual morality. In this first sense, the statement is clearly false, as we can legislate moral actions in many spheres. Laws about sexual morality may be hard to enforce, but they certain can be legislated.

It is possible that some rejection of “legislating morality” results from the fact that it is difficult to legislate moral behavior. Apart from social context, it is no more difficult to enforce a law against adultery than against murder. There will be evidence left in both cases, witnesses in both cases, and a good investigator can probably discover these. There is obviously no great difficulty in implementing a penalty. The real problem with enforcing a law against adultery in modern society would simply be that the behavior is prevalent and widely accepted. It would be hard to enforce because of that. For example, if a police officer comes to my door looking for evidence of murder, I’m likely to be as cooperative as I can because I share a society-wide revulsion of murder and wish the murderer caught. Adultery? Well, not so much.

I don’t mean to minimize adultery as a sin. Frankly, I think churches do that way too much, to the point that there is very little moral stigma to the occasional adultery in many churches. Pastors can commit adultery and simply get some counseling and get moved in many mainline churches. But the societal view of adultery in general would not allow for an effective civil penalty. So as a practical matter, we could not legislate that particular point of morality, or better moral behvavior. But that’s not because of any inherent difficulty in legislating something moral. Rather, it’s because so many people either don’t see adultery as immoral at all, or regard it as only a minor offense.

There is a second sense, however, in which “you can’t legislate morality” is quite true–if we mean that it is not possible to pass legislation that will actually make people moral. We can legislate against adultery, or abortion, or any one of a number of other things all we want, and we can enforce that law against a varying percentage of the population, but that law will not make people at heart less adulterous, less inclined to seek an abortion, or less inclined generally to moral behavior.

That’s the thing about law–it mandates behavior; it can’t mandate character. God’s law runs into the same difficulty. Paul runs through that conflict through Galatians and Romans. I get up in the morning, look at the law, and it tells me, “Henry, you are a person with a considerable number of moral failings.” OK, that’s true, but what do I do about it? The law is pretty unhelpful. I’m already determined to overcome moral failings as much as I can. As I do so, the law is always there to remind me of where the problems lie.

That’s where the gospel comes in. The gospel is the means of changing hearts and creating moral people. Which brings me full circle to the church/state issue. I think often we, as Christians, act as though we don’t believe the gospel. We don’t believe there is grace (both prevenient and sanctifying for my fellow Wesleyans) that can change people at the core, and keep them moving toward being moral people.

It seems to me that if we Christians truly believed in the gospel, we would be so caught up in it that we would spend much less time creating laws, and much more time trying to spread Christ’s grace. Of course, when I ask that implacable law in the morning how I’m doing on this one, I can’t say that I’m always the best example. But it’s another good thing to work toward.

We can’t legislate moral people, just moral behavior. But as Christians, that should not be discouraging, but rather energizing. After all, we have the gospel!

(Note: Maverick Philosopher has a post on some definitions related to this topic, from a more philosophical point of view; it’s worth reading, HT: evangelical outpost.)

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  1. Well, when I say things like “you can’t legislate morality,” I tend to mean “you can’t take away my right to do something that doesn’t affect anyone else negatively just because you think it’s wrong.”

    Having spent way too much time reading philosophy at too early of an age, I came to the firm conclusion that the only things that should be illegal are things that permanently deprive someone of their basic rights (life, liberty, and the pursuit of property are a good place to start there, and the original non-mangled version at that). (NB, I understand that making murder illegal deprives me of my right to kill people, but I’m willing to allow for “depriving people of their right to deprive me of my rights,” if that makes any sense at all.)

    Everything beyond that is enforcing societal norms, and I’m not really convinced that that’s the place of the law. I’ll note that many societies that have strong cultural rules have managed to enforce them not only without the sanction of government law but sometimes even in the face of larger societal trends (the Amish, the Hassidim, and the Rom are some really good examples of this).

    I resent being told that I can’t do something behind closed doors just because someone else is convinced that it’s “immoral.” If I’m not hurting anyone, then it’s none of anyone else’s business. Even if I want to talk about it in public. Even if I want to *do* it in public, in some cases. If you don’t want to listen or see, just walk away, don’t try to make my life illegal.

    (All instances of “me” and “you” in the preceeding comment should be read as non-specific usages intended to avoid ugly grammar.)

  2. What you say here is largely well-taken. I would argue definitions, however, largely because that’s what I do! 🙂

    Well, when I say things like “you can’t legislate morality,” I tend to mean “you can’t take away my right to do something that doesn’t affect anyone else negatively just because you think it’s wrong.”

    I could add a third understanding of the statement “You can’t legislate morality” — You shouldn’t legislate private morality. And I would say that not only you, but many others would use it in this sense.

    But while I don’t want to get into prescriptive linguistics, that usage seems a bit confusing to me. I would say, and I do say, that the government should not be trying to regulate essentially private behavior. But it is not impossible for them to do so, which is precisely why one should work against such legislation. It is quite possible for the government to get in your bedroom. They shouldn’t but they can.

    I am myself libertarian (lower case ‘l’), and would largely agree with what you say about private morality. It’s your use of language that I would quarrel with, hopefully in a gentle manner. 🙂

  3. You’re right, that was a sloppy usage of “can’t” vs. “shouldn’t.”

    I think part of it is a deep outrage that anyone would try — the six-year-old’s “but you can’t *do* that!” Not exactly a mature and enlightened attitude, but nonetheless there for a lot of people, I think.

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