The Morality of Legislating Morality

There has been much discussion lately as to whether the United States, a secular republic, ought to “legislate morality”. Should we permit our legislatures and high courts to codify moral obligations and commands into laws that can only be defended through appeals to religious traditions?  In the wake of the Supreme Court’s recent ruling on DOMA and California’s Proposition 8, the debate has centered on whether the federal or state governments should be allowed to enforce the Judeo-Christian conception of marriage. By imposing one religious perspective upon all persons regardless of their religious affiliation, would the government breach the separation of church and state? The same objection is raised against laws aimed at limiting a woman’s right to abort her pregnancy. How can we pass laws that originate in religious convictions when not everyone participates in those religions?

Opponents of “legislating morality” assume that we as a nation can ground the authority of our basic rights and freedoms in something other than religion, and the Constitution and Declaration are frequently cited as providing this secular foundation. While they admit that the writers of the Declaration included some vague references to a deity, those who reject religion as an acceptable basis for laws claim that the Declaration is nonetheless a sufficient safeguard of our rights as American citizens.

This sounds reasonable until one asks, “Upon what authority does the Declaration rest?” What opponents of religion fail to realize is that the Declaration itself makes moral claims without which it would lack any authority at all. In asserting “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,” the writers of the Declaration invoked explicitly religious rationale for the rights they defended. Remove the moral component and you negate the protections outlined in the Declaration.

A quick examination of other laws reveals that they too rely on moral claims. Even traffic laws that dictate the correct operation of vehicles rest upon a moral component, namely obligation. Bound up with every law, no matter how trivial or amoral it may appear, the notion of obligation introduces an unmistakably moral dimension. Laws imply an “ought,” and obligation is necessarily a moral consideration that cannot be rationalized in other, purely secular terms.

We as a society “impose” our morality upon people all the time through laws forbidding murder, rape and even traffic laws. Every law privileges one worldview at the expense of another, but we have grown so accustom to these rules that we’ve forgotten their moral, religious origin. When determining the suitability of any law, moral considerations are inescapable.

If proponents of abortion and gay rights wish to convince conservatives of the worthiness of their cause they must devise better arguments than their blanket objection to “legislating morality”. They themselves are appealing to morality in arguing for equality and choice. Perhaps they have better arguments, but they must abandon this one.