FAQ: My Position on Legislating Morality.

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This discussion has gotton somewhat out of control and I now find myself repeating myself over and over again in different comment threads. So I'm compiling the most common stuff and reposting it here so that I can point a link at this post instead of retyping everything yet again. I'll update this post as necessary to include new frequently reposted stuff.

1) What is your basic position? in America, we should not pass laws where the primary concern is morality; we should only pass laws which have civil values as their primary concern.

Important caveat: I do think that morality can and should inform our laws. But still the primary motivation of our laws must remain civil value. As a result, morality is usually present in our laws, and as such some argue that we legislate morality all the time. But I still insist that most of our laws can be said to have civil values as their primary purpose and morality as a secondary purpose. Certainly, if there are two versions of a law available and they are equal in civil value, but one version is moral and the other not, then we should without a doubt go with the moral version.

Jeremy notes that when I say "we should not legislate morality", I am using the word 'morality' in a quirky way--that I use it to mean something more like 'merely religious' and as such I don't categorize something as moral (i.e. merely religious) if it has civic value. Also, he points out that I'm using the terms 'morality' and 'civil value' in a mutually exclusive manner. While I'm not sure I would have put it exactly this way, I can't currently think of a better way of putting it, so I'll let it stand.

2) What counts as civil value? Civil values in this case are values which either ensure the safety/order of society (think traffic laws and zoning laws) or the more important values of freedom, democracy, equality, life, liberty, pursuit of happiness, etc. which are laid out in our Founding Documents (Constitution and Dec of Ind). Note: this latter category trumps the safety/order laws.

3) If we rely only on civil values, won't we have to get rid of [insert example law here]? Generally no. The following is a list of laws that would remain unscathed and why they have civil value:

a) Murder: Life is a primary civil value laid out in our Founding documents.

b) Rape: Consent in sex is a civil vaule based on safety and orderly society as well as liberty and pursuit of happiness.

c) Pedophilia: Minors are unable to give consent to sex.

d) Bestiality: Non-humans are unable to give consent to sex.

e) Illegal drugs: Safety and orderliness of society give ample reason to restrict most illegal drug use. For those illegal drugs where those are not issues, I think those restrictions should be rethought and/or repealed. Also, I'm not sure how you even make a purely moral arguement for restriction of illegal drugs. Why does this one keep coming up?

f) Prostitution: Actually, this one has many merits on why it should be legal. Why shouldn't consenting adults engage in sex with the exchange of money and/or goods? Affairs are legal. Premarital sex is legal. Why should they become illegal when economics is thrown in. But if you want a civil value that would retain this restriction, then you could argue that prostitution is demeaning or objectifying to women and thus violates equality, a basic civil virtue.

g) Gambling: Ummm...this one is already legal.

h) Polygamy/Polyandry: There is a simple order-of-society issue here. If everyone were free to have multiple spouses, then by the six-degrees principle we'd soon end up with much of the population as one familial unit. This would wreak havok on any sort of census taking or benefits giving.

i) Abortion: Abotion is easily restricted by the civic value of life for persons, presuming that you believe that fetuses and embryos are both alive and persons. Inasmuch as those beliefs are in debate, the legality of abortion should be in debate. Abortion laws need not rely on morality as their prime motivator.

j) Sodomy: Ummmm...also already legal in most juristictions.

z) Incest: Incest is a grayer area in my philosophy, but laws restricting them are far from untenable. Again, it comes back to consent. With parent/child incest, where both are adults and willing, it would appear that there is consent. But that is not necessairly the case. Just as it is unethical (illegal in some places?) for a psychologists or lawyers or teachers or doctors or commanding officers to sleep with their patients/clients/students/soldiers because the power balance makes the consent/coersion line too blurry, so the power imbalance between a parent and child makes consent iffy. This also goes for uncle/niece and aunt/nephew (and uncle/nephew and aunt/niece) relationships. This does not hold so well for cousin/cousin relationships. Nor for sibling relationships. Admittedly this is an area that needs work in my philosophy. But I do not think that it is a fatal flaw.

This is the weakest point in my political philosophy, and thus I expect some hammering away at this point. But please do not dismiss my entire philosophy based on one (what I see as minor) weakness. Especially as incest in not the primary point of these posts, homosexual marriage is. You can hammer me some other time on this point.

4) Do you see the Bible the ultimate source of authority? Also: Can you show from the Bible that we should base our laws on civil virtue and not on morality? Yes, I see the Bible as the ultimate source of authority. And no I cannot directly show that the Bible supports the idea that nations should base their laws on civil values.

However, I also think that the Bible shows no evidence that God expects nations other than Israel to base its laws on Scripture. When Christ says "Render unto Caesar..." he legitimizes the Roman government and, by extention, laws that that are in no way based on Scripture. As such that stands as indirect proof that nations other than Israel can and should have a non-Biblical basis for their legal systems.

5) Why do you keep talking about Theocracy? Because I think that that is the logical end of legislating morality. I think that there can be no true morality seperate from Christ. Thus to require a nation to act morally is to first require them to follow Christ. To insist that all immoral things should be illegal is to insist on Theocracy as the quintisential immoral act is to worship other gods.

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It's a relatively common view (even within Christian circles) that we can't or shouldn't legislate morality. While I don't think we can force people to be moral, I think the Bible shows that our government should, generally speaking, have laws which ... Read More

Wink just posted a summation of his thoughts on legislating morality . I'm glad for the discussion, but I'm a little bit baffled as to any meaningful distinction between 'civil values' and 'moral values'. (More entities solely in existence through th... Read More

Wink at Parablemania has written a post where he argues that we shouldn't legislate morality. Although I don't exactly follow his reasoning, I do agree with his basic conclusion that we shouldn't legislate morality. Read More

End of Week Roundup from the evangelical outpost on October 24, 2004 1:40 AM

Vote Worldview �It is not about issues,� says Jeff Clinton, �it is about worldview.� (Be sure to also check out his excellent five part series, �Presupp-o-what?�) Monkey Love Nick Troester says this blog is �so adorable that it will make... Read More

I had some thoughts myself the other night on these lines: Here's my question: If one were starting from first principles, what sort of government would one derive, based on Christian scripture and tradition? ..... Read More

17 Comments

On #4, I'm not sure "Render unto Caesar", Romans 13, or the passages in the OT talking about God having placed evil rulers where they are to achieve his own purposes show that "nations other than Israel ... should have a non-Biblical basis for their legal systems". All it shows is that they can do so and that not doing so does not remove their divine appointment or their obligation to be just. It doesn't show that the laws the particular nations had were right, and therefore it also doesn't show that the basis of those legal systems was ok.

Wink,
I still heartily disagree with you. I especially think that you're completely wrong when you think that "legislating morality" -- that is, making laws which are based on the Christian view of right and wrong -- will lead to theocracy (or totalitarianism, as some have called it). I've argued previously on my blog that history shows that it won't necessarily lead to theocracy.

Additionally, I point out that a number of the founders thought that the Bible was the proper basis for making our laws.

At this point I'm more or less giving up on convincing you, but I did want to add a couple of things in closing.

1) No one is suggesting that we legislate Christianity; as I argued at my blog, we know (even from the Bible) that won't work. However, it is possible to make laws which make illegal those things which the Bible says are especially sinful (i.e. adultery, others). These laws can be imposed without "legislating Christianity"; we did have laws like this in the past without establishing a state religion.
2) The Bible teaches that it is better for a society to obey God's commands (see proverbs, for example). So, it seems to me that if you definition of "civil virtue" is "what's best for society", it's best for society that it obey as much of Biblical morality as possible (even IF most of that society still doesn't worship the true God, I would add).
3) A fundamental flaw in your system is how to assess relative value. Is it better for me to be free, for example, to choose who I hire (so, as a Christian, I don't want to hire openly practicing homosexuals -- or for that matter, people openly committing adultery, or...), or for society to be free from "discrimination" against homosexuals? The Bible teaches those things are wrong; I should be able to choose not to hire or spend time with those engaged in them. But it seems from a civil virtues point of view, their freedom will trump mine.

Thanks for the interesting discussion.
David

Wink has already said that he thinks the founders were inconsistent in following their own views, so showing that they did this doesn't affect what he's said.

I think the second point in your second comment misses his point. He's not saying that we should legislated what in fact is best for society. He's saying we should legislate what we can come to agree is best for society. That's what these civil virtues are.

I don't think the Bible gives us any freedom not to associate with sinners, particularly those whose sins are Christians' pet sins of our day. In fact, the Bible makes it clear that we're to follow Jesus' example, and he spent more time with them than he did with the religious leaders.

I arrived here from a link of a link of a link and have studiously nibbled on each of the former posts.

With relation to incest, it is clearly in the civil value category. It is for the betterment of society that incest not occur for simple fact of the resulting genetic outcomes of such relationships. Additionally, it promotes social insularism.

Cousin to cousin relationships dilute this, but I think the argument is strong enough to stand with first cousins. Risks, and therefore, social taboo, decrease as the relations become thinner. You can marry in most places once you hit the second cousin mark, yes? Perhaps not, I'm not sure.

With polygamy, I read an excellent article how the difference between permitting gay marriage and polygamy was the promotion of concrete social institutions. It was brought up that polygamy inherently promotes the idea of continued looking, continued shaking up of the social structure, whereas a two-person union promotes permanence.

Wolfram, the stipulation was that this was incest without the possibility of reproduction. If a brother and sister have had their reproductive capability completely removed, and they are adults who consent to sexual activity, there doesn't seem to be a civil value to prohibit them from doing so. I don't think Wink is going to accept the fact that something leads to social insularism as a reason to make something illegal. Racially segregated churches do that, and he doesn't want that to be illegal.

Recent studies have shown that the risk of genetic problems with cousin-cousin relationships is more than diluted. It's almost nil.

I don't think you can marry your second cousin in most states in the U.S. Some states do allow it, but the limit is usually against anything second cousin or closer. Third cousin marriages are legal.

Hey Dave!

I thought I'd reply to your first point.

Legislating specifically Biblical morals (let's say sodomy here) has no positive effect with regard to making people Christians. Why then, would you wish to legislate it? The only people who would really be concerned about following the law would be Christians. For the other people, if anything, it would make them further hardened against both Christianity and the State. It would be de facto totalitarianism. Essentially, it might as well be State Religion if it has all the trappings of it except for the forced worship.

If Judiasm were the majority religion in America, and a law was passed against the eating of non-Kosher foods, would you not feel violated against (a hypothetical here, I am assuming that you do eat non-Kosher foods)? It would not "feel" totalitarian and oppressive to the Orthodox Jew who opts to not eat those foods on religious grounds, but what about you, a citizen who has no such concerns? It would certainly feel that both the Jewish religion and the State are policing your private life for something which has no social benefit to all peoples.

Jeremy,

Hi! Thanks for your reply.

I did not see any stipulation about non-procreative incestuous unions, so I thought I would bring up the procreation issue. Honestly, I still can't see a stipulation, but, knowing me, I'm probably staring right at it and simply skipping over it.

Still, I don't think you could remove the procreation portion of the incest argument. Logistically, it would be impossible for the country to ensure that the ability to procreate is removed. You'd eventually come across a brother and sister (rather soon, I would imagine, actually) that wanted to have a child, and so would skip the current (entirely conceptual) legal requirement of having to nullify procreative abilities prior to hooking up. Granted, it would be illegal, but I would posit that the eventual social taboos would be faded to the point where it would be just no big deal.

Wink mentions there not being the same level of power play between brother and sister as there could be between mother and son or uncle and niece, and I don't think that's so. As an only child, looking from the outside in, so to speak, I think there is a definite type of sibling power struggle, it just carries a modified dynamic. The emotional blackmail that could be present in such a relationship could be enormously oppressive.

Wink,

After having read your posts I think I'm with you on the social policy issues for the most part -- but I'm just not getting your distinction between 'moral values' and 'civil values', or how you've managed to keep them separate. Sure, you can define your terms as you like, and that's legitimate, as Jeremy has pointed out. But your use seems, at least so far (and to me), to be highly idiosyncratic. The strength of some of your arguments (perhaps given a misunderstanding of what you are claiming) seems to rest on the ambiguity that comes from your specialized terminology. I even authored a trackback in hopes to draw you out in response.

Here's what you said in a previous post:

"Civil, in my view means that which pertains to the orderly running of society and the basic principles which guide the society. Moral, in my view, pertains to what God would and would not have us do."

Is this a distinction between natural law and moral commands enshrined through revelation in a covenantal context? If so, I can see how you maintain your distinctions, and might insist that the basis for civil law should not be the Bible.

However, the statement above is too vague. From my standpoint, I believe God created man with a specific teleology, and that that end governs how he should shape his social state in order to meet his ends. Judgments concerning civil law, as well as the structure of the social order, must be rendered according to whether the aforementioned elements of social life adequately further man's end. Does God wish us to achieve our end? I think so, even when that end is grasped dimly, and not as "to glorify God and enjoy Him forever."

I believe (wrongly?) that those who shaped our founding documents, and those who legislate our laws now (across all political spectrums) by and large either agree in the main with the paragraph above, or have some sort of ethic devolved from the principles above. If this is so, how can 'moral values' not be concerned with the "orderly running of society?" Why wouldn't natural law speak to "the basic principles which guide the society?" And isn't God the author of natural law?

I think I've read through your pertinent posts, but maybe I just missed the one that explicated how the distinction between moral values and civil values can be made given your definitions above.

Regards,

Josh Braun

I think the distinction comes right out of the definitions. Moral values are merely religious. Civic ones don't necessarily involve religious considerations but might involve religious values in addition to ones independent of religion. That's a pretty straightforward distinction, and it's based directly on the definitions.

I'm not sure where you're pulling this natural law stuff. He said nothing about that sort of thing. He was talking about civil principles that are independent of the various systems that people will disagree on, which I thought didn't involve just religions but also involves different moral theories, such as utilitarianism, deontological theories, or natural law ethics. Those are all controversial views. The civl values aren't supposed to be controversial. That's the point.

Jeremy - yup. Precicely right.

Jeremy and Wink,
I thought about all this some more, and came up with another compelling reason based on the Bible that I think limiting things at "civil virtue" is unnecessary. I go into detail on this on the post on "legislating morality" over on my blog (http://dmobley.blogspot.com/2004/10/is-it-biblical-to-legislate-morality.html -- see the very end of the post), but to briefly summarize: Romans 1 and 2 teach us (among other things) that everyone has a conscience which tells them that what they do is wrong, when they sin. This applies even to unbelievers (Gentiles, in the context). They disobey this knowledge, and do wrong anyway -- but they know, deep down inside. If this is so, then it isn't imposing OUR morals on them if we make certain things (for example, adultery or homosexuality) illegal, since people already know these things are wrong.
If you want to argue that they don't know they're wrong, you have to reject the teaching of Romans 1 and 2 (see the specific verses I reference on my blog).
Interested in hearing what your thoughts are.
David

Some people take Romans to be talking about what people know before God gives them over to their desires, which is enough to say it's just to hold them accountable for their sins. If you want to make that enough knowledge to be able to enforce every item in the list, then you have to start with the first one that gets the whole thing rolling, which is their denial of God and worship of the creation. So your argument requires allowing laws against other religions, which was what Wink's original point was. I don't think Romans 1-2 gives any grounds for political laws, but if you think it does then you have to explain why that kind of moral behavior and not ones having to do with belief in God vs. idols.

I do agree with that understanding of Romans 1, but it still shows everyone knows.
But, I am not suggesting we make laws against other religions, and I think that's unbiblical: The Bible teaches it won't work. What's necessary for someone to be saved is them being "born again", which is a work of God. No governmental law can force that to happen. See John 3 for example. In other words, the government simply cannot make someone be a Christian. Only God can make people be Christians. In contrast, the government CAN enforce penalties against (for example) adultery, etc.
Do you now understand my point? I don't expect I'll convince you, but at least if you can understand why I think what I do, and where I'm drawing the line, I'll be happy.

You know that Bush supports same-sex civil unions, right? He announced it on "Good Morning America" last week. Both presidential candidates now support the right of everyone to form a legal union with anyone of their choice, regardless of gender.

I wasn't aware that there was ever a time when Bush opposed civil unions. As far as I knew, his position all along is that he is opposed to gay marriages but not opposed to civil unions. What has changed is that he preferred such decisions to be made by state legislatures until judges started making them, which led him to support the constitutional amendment against gay marriage. None of that had anything to do with civil unions, except due to an unfortunate ambiguity in the FMA wording that Andrew Sullivan insisted had to mean one thing that it didn't have to mean. No one's endorsement of the FMA required being against civil unions. So this is not new.

I'm not sure who you're talking to anyway. This post isn't about Bush, the author plans to vote for Kerry regardless of this issue, and the main blogger of the site plans to vote for Bush independent of this issue but knowing full well what he thinks about it. Since the post is not about this issue, it's technically election spam, but I'll let it pass as a good opportunity to correct the misimpression you seem to have of Bush.

David - Let me know if this take on your view is accurate: you believe that legislating morality is just fine with certain exceptions. Those immoral things which should be excepted are those which the law is unable to change. Thus banning idolatry is a bad idea. Same with anything which requires a change of heart. However, the law can effectively regulate behavior, so all morality regarding behavior may be legislated.

Is this correct?

If this is the case, I have two responses:

1) You say "I am not suggesting we make laws against other religions, and I think that's unbiblical". This is an odd stance for you to take as it clearly is biblical to make laws against other religions. The first of the 10 commandments is precicely that, and it is the foundation of the remainder of Jewish law.

2) You bring up Romans 1-2. Say, for the sake of argument, that I take idolatry off the table. Now I look at the list of sins that all know in their heart to be immoral. (I'll even limit the list to behaviors, not heart conditions, and I'll even cut out the really vague ones.) These are sins which deserve death (Rom 1:32). In addition to homosexual sex, we have: murder, strife, deceit, malice, gossip, slander, insolence, arrogance, boasting, disobeying parents (Rom 1:30-32). Admitedly, murder and slander are already illegal. But should the rest be also? They are behaviors which the government can regulate. And by your reasoning, they are behaviors that the governement should regulate. These are not minor issues--after all "those who practice such things are worthy of death" (Rom 1:32).

So again, it comes down to: Why restrict gay marriage and not these other things? Why not get rid of free speech? After all it allows for blasphemy (without a doubt a very serious offence). Why not outlaw disobeying your parents? Or gossip? These are moral issues. Serious moral issues. Ones that deserve death! Why some but not others?

My Civil Values solution is my best attempt to show why some should and others shouldn't--the ones that should have a clear secular purpose over and above the moral purpose, the ones that shouldn't, don't.

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