This post at prosthesis led me to think about an interesting irony in John Kerry's version of the opposition to legislating morality. Wink's distinction between morality and civil values amounts, as far as I can tell, to treating morality as if it's mere religious values (see the many posts on this in the last couple weeks). The prosthesis account of morality is that it's love and caring. The reason not to legislate morality, then, is not that morality can't be agreed on by all parties. It's that it's no longer morality if it's forced. I think this is one of the things people mean when they say we can't legislate morality (as opposed to saying we shouldn't, which is what Wink has been bv saying).
The irony comes in when we take a close look at the things Kerry spends a lot of time complaining about with Bush. Under the prosthesis account of what morality is, legislating morality would require legislating love and caring for people rather than just legislating actions. You can't do that. When Kerry says Bush wants to legislate morality on abortion, maybe he means something more like what Wink means, that religious values shouldn't be forced on those who don't hold them. Some things he says suggest that. [I don't think it works with abortion, of course, because there are philosophical arguments for a pro-life position, which means it's not just a religious value, and Wink has said that on his account opposition to abortion can count as a civil value because abortion causes harm, and avoiding harm is a civil value. So Kerry's justification for being pro-choice doesn't hold up here.]
The prosthesis argument is that justice can be enforced, yet love cannot. We can try to have a more fair society, but we can't force ethics. Yet Kerry spends a lot of time talking about how George Bush has failed to do things that prosthesis' account of morality would consider legislating morality. Kerry says Bush's faith doesn't lead to works, by which he means that Bush's policies aren't loving enough to demonstrate his Christian faith, and they cater to the selfish and greedy rather than moving people to do what's right. I don't happen to think that such an analysis is fair to Bush, especially because he does favor legislation that encourages moral behavior, but conservatives have typically been against laws that try to get people to do acts normally resulting from love, leaving it to individuals to do such things, and Bush is pretty much on the same page with that for the most part. John Kerry seems to be urging Bush to legislate morality in exactly this sense while at the same time complaining that Bush wants to legislate morality in the other sense. That's not an inconsistency, but it's an interesting irony.
Since the argument that Bush legislates morality in the first sense is unfair, as I explained above, that leaves us with Bush not legislating morality in either sense (though he favors legislation that encourages morality as part of what he calls compassionate conservatism) and Kerry legislating morality in the second sense. That means, of the two, Kerry is the one who wants to legislate morality in one sense while campaigning against the other sense of legislating morality, and Bush does neither of those things. It really surprises me that I haven't seen anyone talking about this, because it's the sort of thing that I would expect people to see as an inconsistency or a flip-flop, even if it isn't. I think there's some reason not to legislate morality in either of those senses, even if it's obvious that in some sense any law is legislating morality, so I think Kerry happens to be the only one of the two who any legitimate opposition to legislating morality would count against.