David Rodeback's Blog

Thursday, August 8, 2013

On Legislating Morality (Yours, Mine, and Ours), Part Two

Our American civic morality, its content and sources, and a difficult contemporary test case. The second post in a two-part series.

This is the second part of a two-part series; Part One is here. It defined some crucial terms, explained how I am not a moral relativist, and showed the roots of a non-sectarian civic morality in America among the Mayflower Pilgrims.

Our Civic Morality

More than a century after the Pilgrims established built Plymouth, Thomas Jefferson wrote, and the Continental Congress amended, adopted, and issued, the Declaration of Independence, advising the British Crown and the world that we were henceforth a new nation. About half of the Declaration is a long list of grievances against the Crown, a few of which sound eerily familiar now, because they are timeless symptoms of tyranny. Much of the rest of the Declaration explains the colonies' attempts to obtain redress of grievances in less draconian ways, before declaring independence. The part of the Declaration which changed the world is just a few familiar lines, perhaps even fewer lines than I'm about to quote:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

This is the foundation of American civic morality: Americans are equal before the law. They have God-given (not government-given) rights to life, liberty, and the pursuit of  happiness. Governments derive their just power from the consent of the governed.

Much of the moral ground we have won in our history involves extending this morality to places and people whom it did not previously embrace. Abolishing slavery was such an advance, as has been our willingness to defend the freedom of people in other nations.

Our civic morality is not a static thing. For example, it has expanded to embrace the notion that it is immoral -- that is, wrong -- to discriminate in many of the essential functions of life, such as housing, education, and employment, on the basis of race, skin color, national or ethnic background, religion, or certain other categories. In such matters, the relationship of law and morality can be complicated; sometimes law seems to lead morality, but at least as often morality seems to lead the law. In this case, while there are long-standing debates about how this facet of our morality should affect the law, there are very few voices in America defending the principle of discrimination on the basis of these categories.

There are times when legislation on controversial subjects neither reflects nor produces a moral consensus, even decades after a law is passed. For example, abortion has been legal in the United States for 40 years, but there is nothing resembling a moral consensus as to whether (or to what degrees) it is good or evil. Notably, in this case we might see the conflict as pitting two of the fundamental pillars of our civic morality against each other: the baby's life and the mother's liberty.

A Very Delicate Balance

Freedom, self-government, and the rule of law, central pillars of our American civic morality, are guarded by our system of constitutional government. For example, our concern for others' freedom properly restrains us from using government to impose any specific religious sect's morality on others. Constitutional prohibitions on imposing a religious test for political office and establishing a state religion, as well as the constitutional protection of the free exercise of religion, are the basic laws which institutionalize this portion of our civic morality.

Except in the cases of churches and philosophies which advocate freedom of religion (such as my own church and philosophy), the conflict between this part of our civic morality and other moral codes is inevitable. This is because our civic morality affirms one person's freedom to do things which another person believes to be immoral.

A certain degree of political maturity is necessary to remain committed to others' freedom to do things one considers immoral. At the same time, please note that the commitment to avoid infringing on others' choices by force of law deprives the citizen with moral convictions of just one tool for advocating his or her morality. Powerful tools such as preaching, teaching, explaining, and persuading are still available and may, indeed, be more effective than compulsion in the long run.

For my part, despite believing that abortion is almost always wrong (that is, immoral), I doubt the wisdom and justice of laws generally prohibiting abortion. I wonder if persuasion and education might be more appropriate and more effective means to the same end.

A Timely Illustration

One of the more complex collisions of American moralities is in the realm of gay marriage and homosexuality generally. Certainly, it can no longer be said that there is general agreement among Americans that these are immoral. In fact, tenets of our civic morality are routinely invoked on the other side of the argument. Whether or not gay marriage should be permitted -- indeed, whether or not it is even a coherent concept -- is a larger topic for another day. For the moment, consider four hypothetical Americans, whom I will call A, B, C, and D.

A and B believe that homosexual behavior and gay marriage are evil. A believes that the law should forbid, and punish any who engage in, either of these offenses. B believes that the force of law is not -- or at least is no longer -- an appropriate weapon against the offenses. He engages in preaching and persuading against them, rather than legislating. A thinks B is violating God's morality by failing to use all available means -- notably, legislation -- to oppose evil. B thinks A is violating American civic morality by advocating the force of law to impose sectarian morality on civil society.

C and D are comfortable with homosexual behavior and advocate gay marriage. C is content that gay marriage is now available in his state and hopes it soon will be nationwide. D is more militant, and desires to force any government official or member of the clergy who officiates at any weddings to perform gay marriages upon request. He wants to make it illegal for churches and private businesses, such as photographers and caterers, to refuse to provide their facilities or services for gay weddings, if they provide them for any weddings at all. And he wants to make it a hate crime for anyone to write or preach that homosexuality is evil.

My own views do not exactly match any of these positions, but all four exist in contemporary American society. B and C seem more compatible with our civic morality than A and D. Alas, in the larger picture, law and government seem to be moving from A to D, stopping only briefly, if at all, at the positions of B and C.

Therefore, What?

If I were to reduce this post and the last to a couple of sentences, they might read something like the following.

Even if God's law and our American founding principles do not evolve, our understanding of them does, and so does our civic morality. Whether a given change in our civic morality is good or bad in my view is immaterial to this point: A decent respect for the freedom and moral sensibilities of others requires some reluctance on my part to resort to the force of law to address matters of significant moral disagreement among us. It will be better for my society and my soul if I often prefer persuasion to compulsion in these things.

Further . . .

I don't pretend to have exhausted my subject, and I hope I haven't exhausted your interest in it. In case I haven't, here are four short things to read:

• Michael Brown's "You Can (Not) Legislate Morality?" , a column which is no less relevant for being a year old.
• Richard Cohen's June 2012 article about religion in politics, especially Mitt Romney's. This is also still relevant, and it has some good lines like "Religion, like sex, cannot be parsed," and one about not scaring the horses.
• Trevor Thomas, "The Truth about Legislating Morality", a March 2013 piece in the American Thinker.
• Gordon Runyan, "Why Would We Want to Legislate Something Other than Morality?" Reasoning from a particular Christian perspective but mostly with general application, Runyan writes, "What they're really saying when they say, 'You can't legislate morality!' is, 'My own, personal morality should be legislated, not yours'."

What are your thoughts?

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