On Legislating Morality

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Over here in Oregon we have a proposed (state) constitutional amendment called "Measure 36". It is basically the state equivalent of the FMA defining marriage as being between one man and one woman. This is a voter initiative and bypasses the legislature altogether (apparently it is legal to amend the state contitution by initiate in Oregon).

I was talking to one of my profs who shares a similar political outlook with me. He was surprised that I, as well as a couple of other of his students students, am against the measure. I, in turn, was surprised that he did not see things my way. I am of the "gay marriage is immoral but should be legal" camp, he is of the "gay marriage is immoral, should be illegal, but supports civil unions" camp.

He asked why I didn't support the amendment given that we both believe that gay marriage is immoral. I gave him two reasons.

First, I noted that not all immoral things are, or should be illegal. For example, worshipping other gods is Immoral, possibly the MOST Immoral thing you can do, according to the Bible. Yet the right to do so is enshrined in the 1st amendment. Why shouldn't gay marriage also fall into the same "immoral but legal" category as worshipping other gods.

My prof was shocked by this. He had apparently never thought about things this way. The idea that something could be immoral but yet legal, that the freedom to do wrong was a good thing, was completely new to him. Which surprised me because he is really a very thoughtful guy and this line of reasoning should not have been new to him. He admitted that this was a strong arguement.

My next reason was that I didn't approve of legislating morality. He immediately jumped all over me on that one saying that I couldn't really mean that. Our discussion of this was long and tortured, but I managed to finally clarify my position to say the following: 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. 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, life, liberty, etc. which are laid out in our Founding Documents (Constitution and Dec of Ind). Note: this latter category trumps the safety/order laws.

So this is what I mean by not approving of "legislating morality": our laws here in America should have primarily a civil function, not a moral function.

I have two basic reasons for holding this view. First, we live in a secular democracy. There is a supposed wall of separation between Church and State, and I think rightly so. (Church and State should only be united in a theocracy. America is not one of those and could not become one without fundamentally changing the character of the nation. However, in a theocracy, it would be appropriate to legislate morality.) As I think that morality without Christ is ultimately empty, then to legislate true morality would be to legislate Christianity, thus violating Church/State separation.

The second reason that legislating morality is a bad idea was summed up nicely by Jeremy in a comment in this post: "Seeking to mend the religious backsliding in the United States by this sort of method is idolatry. It's trying to get the government to cover over a moral problem by redefining it through political change rather dealing with the spiritual issues first." That is to say that legislating morality is an attempt to control behavior without dealing with the spiritual roots of the problem. Coming back to the gay marraige issue, I don't want gays to not get married because it is illegal, I want them to not get married because they don't want to, because they are following Christ. The legislation doesn't deal with the underlying issues at all.

Jeremy's response to this is quick: "My support for legislating morality is simply that we can't get rid of our laws based on morality, or we wouldn't have many laws worth much. Murder, breaking contracts, stealing, tax fraud, abuse of authority, maintaining a vehicle that badly pollutes, maintaining a plant that badly pollutes, polygamy, having sex with children, and racial discrimination are all moral issues. If we have to stop legislating morality, we have to get rid of all laws related to any of them."

My response: all of those examples are laws which have as their primary purpose a civil value. If murder was legal, then there would be chaos. There would be little safety or security and it certainly violates the value of 'life'. Yes they are all moral issues, be even when you disregard the moral merits of those laws, they are still beneficial to American society. Thus they are not "legislating morality". We would not need to "get rid of all laws related to any of them".

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Listed below are links to blogs that reference this entry: On Legislating Morality.

TrackBack URL for this entry: http://movabletype.ektopos.com/cgi-bin/mt-tb.cgi/904

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

Legislating Morality? from Agnosticism/Atheism on November 4, 2004 4:37 PM

From a Christian perspective, if something is immoral should it also be illegal? Most conservative evangelical Christians seem to think so and this perspective drives much of their political or social activity. Liberal Christians tend to disagree with ... Read More

25 Comments

Interesting... I agree with your political points, but precisely because I think that we should legislate against only (but not all) immoral things, and gay marriage (etc) is not immoral.

To put it more generally, I think that morality simply is what you call "civil value" (if I've understood you correctly there). The harm caused by murder is what makes it wrong; if you took all that harm away, there would be no 'wrongness' left in it.

For more detail, my take on the relation between law & morality is available here.

While I agree with the basic premise of your argument, there is a problem when because of not legislating against something that is wrong you give it the power to suppress its wrongness.

I believe that is what is happening with the homosexual situation. By refusing to legislate against it (including but not limited to "gay marriage") you give it the standing it needs to silence the critics of homosexual lifestyle and activity in the church, which is already beginning to happen. In addition, you give it the power to promote itself, even in schools and to children, which is also happening.

I think this is a case where the theoretical does not work in the actual.

One additional thought. There are very few things that God calls abominations, so I believe those special cases are to be treated with great care. Homosexuality is one of those and by resisting calling a spade a spade, if you will, and acting accordingly within the legal and political system, we open a particularly distructive door, allow an especially virulent virus, to have free run.

Actually, using your argument, prostitution, which is considerably less biblically grevious than homosexual activity, should not be legislated against, as well as all drug activity.

A lot of the "harm" to civil society arguments come from religious norms and I will emphasize again that allowing these activities to enter into normative status endangers the church's witness, since eventually it will be sued into silence, if not legislated there.

Prostitution is a good test case. It might be much easier to argue that it's in principle harmful because it, generally speaking, treats the half of the human race most traditionally harmed in sexual ways merely as a means to an end.

Wink, one issue worth clarifying is whether you think it's morally wrong to do what you call legislating morality or whether you just think it's inconsistent with the kind of government we in fact have. If you think it's the latter, then you must think the founding fathers did a lot of things inconsistent with their own principles (e.g. laws against sodomy, perhaps adultery, etc.). If you think it's the former, then it undermines your statement that a theocracy would be fine (which I assume you want to maintain on the grounds that God commanded it for Israel).

One issue where I think a wedge can be drawn into this sort of argument, which I think is on the whole a very good argument, is George Will's notion of statecraft as soulcraft, something that is very much behind the compassionate conservative ideas President Bush got from Marvin Olasky. It's one thing to make certain behavior illegal on purely moral grounds without civil value to them. It's quite another to use moral grounds to encourage certain behavior. This is behind giving welfare only to people willing to show that they will show that they are looking for a job. It's behind tax incentives for environmentally sound practices. I assume you don't necessarily have problems with those things, because they don't forbid any behavior but just encourage good behavior. In both cases, they have civil value also. Would you say the same about government policies that encourage behavior that doesn't have civil value but does have moral value? I assume you wouldn't, because that's what restricting gay marriage and civil unions to opposite-sex couples basically amounts to.

I'm confused by your distinction between "civil" and "moral" here. Are you saying that "moral" is private? Are not civil values moral ones also?

If you feel like it, check out my comments on the same issue, from a little different angle over here:

http://nowheresville.us/

Good, thoughtful, post Wink. I'm of the same general opinion that "reclaiming" America by political means(ala Pat Robertson) would actually be worse than what we have today.

And I can see your point in not legialating what doesn't have a civil value. However, I would argue that there is civil value in the traditional definition of marraige. I think that it's good for society and good for kids to be raised by one woman and one man. Are there exceptions? Sure, but in genereal it seems like the best route to go.

I agree with William's first comment that this is a point where theory won't work in the actual, even though some of wink's points have some value. (I disagree with William's point about abominations, as eating shrimp is an abomination.) :-)

I somewhat agree with Jeremy's point about "Seeking to mend the religious backsliding in the United States by this sort of method is idolatry." It would be completely true if this were the primary way Americans were trying to mend our ways. Constitutional amendments are a stopgap only. They are just a question before us. We can vote yes, vote no, or not vote.

I would ask you to go to my blog and let me know what you think of my post from this morning. I posted on "why christians cannot support gay marriage." As an ex-gay, my heart equally breaks whether one looks down in disdain at the homosexual, or whether one enables and supports the gay lifestyle.

>(I disagree with William's point about abominations, as eating shrimp is an abomination.) :-)

Ah, but God and Peter dealt with that one. No others though... ;-)

My comment on this abomination thing is turning into a post of its own. I can't finish writing it right now, but it will be up before 11pm tonight, because it will probably be my Christian Carnival entry this week.

Jeremy, will be interested in your view on the "abomination thing." I was going to further comment here but thought better of it. I didn't want to hijack the thread and take it in a direction that it was not intended to go to from the start. I had a post on an old blog about this topic and may have to dust it off and repost to my current blog. Of course, I may agree with you 100% on what you post, and then I can just post a link. :-)

William said "By refusing to legislate against it (including but not limited to "gay marriage") you give it the standing it needs to silence the critics of homosexual lifestyle and activity in the church, which is already beginning to happen. In addition, you give it the power to promote itself, even in schools and to children, which is also happening."

There are no federal laws prohibiting, say, pre-marital sex in the US. While this does allow people to engage in it cavalierly, the lack of such laws in no way prevents the Church from doing its job. The Church has not been silenced. If the Church has not spoken, it is because it has chosen not to speak, not becuase it has been censored.

There are very few things that God calls abominations, so I believe those special cases are to be treated with great care.

I'll let Jeremy's post on abominations handle this point. I was working on a post about it too, but I'll just probably save the info for comments

Actually, using your argument, prostitution, which is considerably less biblically grevious than homosexual activity, should not be legislated against, as well as all drug activity.

There are actually some rather good arguements for the legalization of prostitution as a civil issue. I could be pursuaded without too much effort that prostitution should be legal but immoral just like gay marriage. I'd have to do more study on the objectification issues, but my gut tells me that consensual sex between adults (even if it involves the exchange of money) should be legal under my assumtions.

As for drug use...that is already a purely civil issue. Is there any major religion or moral system that teaches that cocaine use is inherently immoral? Or that heroin is an abonination? This is already a civil issue and drug use laws would not have to be repealed under my arguement.

Lots of people think drug use is prohibited as an extension of the intent of "do not get drunk with wine but be filled with the Holy Spirit". I know it doesn't say anything about cocaine, but doesn't the principle taught by that verse also apply to cocaine (and really even moreso)?

Still, on your account of what it is to be a civil issue, I think this one counts. It's also one religions say something about, but so is murder.

Jeremy said: " one issue worth clarifying is whether you think it's morally wrong to do what you call legislating morality or whether you just think it's inconsistent with the kind of government we in fact have. If you think it's the latter, then you must think the founding fathers did a lot of things inconsistent with their own principles"

I think that it is inconsistent with the kind of government that we now have. I do indeed think that the founding fathers did quite a bit that was inconsistent with their principles. They weren't perfect after all.

As for the idea of statecraft as soulcraft...I'm not sure where I am on that. That was where my prof and I left off our discussion. I'm still trying to work out what I think the government's role in shaping spiritual issues should be and what responsibility the state has to the eternal realm.

I assume you don't necessarily have problems with those things, because they don't forbid any behavior but just encourage good behavior. In both cases, they have civil value also.

Indeed I have no problems with these.

Would you say the same about government policies that encourage behavior that doesn't have civil value but does have moral value? I assume you wouldn't

Again you assume correctly. Imagine a law that cuts all taxes in half for all who are Christians or who convert to Christianity. Bad news!

Paul said: "I'm confused by your distinction between "civil" and "moral" here. Are you saying that "moral" is private? Are not civil values moral ones also?"

I am not saying that moral = private.

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.

There is clearly some overlap between the two (e.g. murder), but they are definite non-overlapping areas too. Not all civil laws are moral ones. For example, zoning laws: there is not inherent evil in building a shopping center in certain areas, yet civil issues (i.e. rules for the orderly running of society) make it illegal to build shopping centers in certain areas.

Similarly, not all moral issues are civil ones. For example, taking the LORD's name in vain. Society will not break down if people do this, even if it is immoral.

So I deny the public/private civic/moral mapping. That was never where I meant to take it.

Sozo says: "And I can see your point in not legialating what doesn't have a civil value. However, I would argue that there is civil value in the traditional definition of marraige. I think that it's good for society and good for kids to be raised by one woman and one man. Are there exceptions? Sure, but in genereal it seems like the best route to go."

This is the topic of my next post. Watch out for it. For now, suffice it to say that while every moral principle has some civic benefit (after all, society runs best in a sinless envoronment), I do not see Measure 36 clearing the "primarily civic purpose" that I have as a requirement. My reasons to follow in my next post.

Rocky said: " Constitutional amendments are a stopgap only."

Constitutional amendments are stopgaps??!! In what sense? Legally they are the end-all. And if you mean morally, then should we repeal them when the moral issue is dealt with?

Constitutional amendments are not meant to be stopgaps, they are meant to change the constitition. That is to say that the constitution itself has a fundamental flaw that needs fixing. Amendments are meant to deal with constitutional problems, not moral ones.

I left a comment on your blog. It was a bit shorter than I wanted but your comment system has a size limitation. As a result it was a bit less developed than I would have liked.

Stopgaps--as in, this is only a temporary stopgap for the nation as it slides further into moral decay. If I understand you right, you believe what the bible says about homosexual sex, you believe that gay marriage would be immoral (and I am assuming that this belief comes because you are a christian)...but, that if a government gave you the opportunity to let your voice be heard, in a cut and dry question, you would come down in favor of gay marriage? Is it fair to say that your "civic duty" and your Christianity are in conflict, and that you feel, on this matter, that your civic duty trumps your faith? (trying to ask this in meekness, Not discord)

Comments, comments...I didn't know I had a limit on the amount of words allowed per comment. Hmmm, I have Haloscan and went to my account to see if I could expand that but couldn't find anywhere to do so. ??? I don't want to limit the amt of words people can use, advice anyone.

Rocky said: "If I understand you right, you believe what the bible says about homosexual sex, you believe that gay marriage would be immoral (and I am assuming that this belief comes because you are a christian)"

All true.

but, that if a government gave you the opportunity to let your voice be heard, in a cut and dry question, you would come down in favor of gay marriage?

Yup.

Is it fair to say that your "civic duty" and your Christianity are in conflict, and that you feel, on this matter, that your civic duty trumps your faith?

Nope. Let me frame it in a more traditional manner. It's kinda like free speech. As Voltaire (is said to have) said "I may not agree with what you have to say, but I will defend to the death your right to say it." In this case it is more like "I may not agree with who you want to marry, but I will defend to the death your right to do it." Though the death bit may be going a bit farther than I'm really willing to commit myself.

Basically, it is a matter of how you view freedom. I think that freedom entails the freedom to do the wrong thing. If you are only free to do what is right, then it isn't much of a freedom. I highly value freedom and will thus resist Measure 36 which curtails it, even though I think that gay marriage is immoral.

Haloscan limits comments to 1000 characters, but it might still be the best third-party comment engine. That's why I switched to an MT blog, but I was only able to do it because of a gracious offer of free hosting from the owner of this site. I have no good advice for you if you don't want to spend money. Spending money allows you to move to Typepad or something else with built-in comments, or it could allow you to upgrade Haloscan to allow 2000 characters.

There are always ways around the character limit. I've been known to leave as many as five comments in a row in Haloscan comments because of the limit. Usually if I care enough about it now, I'll just write my own post and trackback, perhaps leaving a comment indicating that I've done that.

For those only checking back on this page and not on the main blog, Abominations
is now up. I was truly surprised myself where it ended up by the end.

I don't think it's true that all of the laws that we really need are based in civic virtue. What about, for example, laws against incest (which would be harmless, from a civic perspective, if pregnancy can be prevented), or against illegal drug use?

David - my take on illegal drugs is given earlier in this comment thread. Basically, I feel that as things currently stand, laws restricting drug use are already about legislating civil virtue and they are not an instance of legislating morality. The safety of the citizens and the order of society are the primary motivations. It is not always clear that these considereations should outweigh the values of liberty and privacy and as such, some of these laws are in debate. But I do not think that the primary purpose of any of the drug laws is morality.

As for the incest issue, I discuss it the comments of this post. I don't feel like retyping it, so I'll just direct you to go read it there.

Here I am per your request that I review the issue as stated in this blog.

I have these things to say... and one final thing afterwards:

"our laws here in America should have primarily a civil function, not a moral function."

Does this mean that the prohibition against polygamy is wrong? Polygamy being far more acceptable in different cultures and religions, but which would have large impact on our institutions as they pertain to marriage ( health benefits, divorce law, survivors rights, etc)

"First, we live in a secular democracy. There is a supposed wall of separation between Church and State, and I think rightly so."

How strict is this separation? An unassailable wall with no sharing of influence? Can religions do whatever they want regardless of government disapproval? Does this them mean that government has priority over religion? How far are you willing to go with this? Let's face it, this idea of separation is drawn from Jeffersons letters and viewpoint and is not clear and concrete, it is a guidance of principle which is applied to the first amendment.

"As I think that morality without Christ is ultimately empty, then to legislate true morality would be to legislate Christianity, thus violating Church/State separation."

This is your viewpoint and you are entitled to it, but it is naive to say that we do not legislate morality whether it is true to our particular conviction of what is true morality or not. Our priviledge is to vote for our idea of what best expresses true morality.

But we are voting for a moral view.

"Coming back to the gay marraige issue, I don't want gays to not get married because it is illegal, I want them to not get married because they don't want to, because they are following Christ. "

I think this best shows the weakness of what is being argued here. Your goal for a gay person is that they not practice homosexuality and that they accept Christ. You fault legislation for not changing this? I am asking.

My contention is that it would fundamentally change what we understand marriage to be and what its purpose is. Do you have a secular answer for this need of definition?

That is my point.

=======final matter
"even when you disregard the moral merits of those laws, they are still beneficial to American society. Thus they are not "legislating morality". "

You would be hard put to say anything is legislated beneficial to society solely on utiliarian means and isolated from a moral construct of some sort. IOW, why do we veiw something as "beneficial"?

I think the submission that "civil virtue" is somehow different from " moral virtue" is false. Where does ones civil virtue derive from? Who or what conceptualizes that?

I think the basic issue at hand is dividing the fundamentals from the peripherals. What is fundamentally needed for the good of a society, and what is peripheral?

Can you make your case that it is fundamental for society to legalize homosexual marriage regardless of the fallout ( legally, financially, social unrest)? Or are you taking the view that it doesn't appear to matter, so let it go forward on that account?

btw, I answered your comment on my blog.

Banning polygamy has clear civic value. Polygamy as it's been practiced in this country is incredibly abusive to women.

Ilona, keep in mind that Wink doesn't include something as moral if it has civic value. He's defined the terms so as to be mutually exclusive. Anything with civic value is thus not moral, in his usage here. I think a number of your statements rely on the fact that some civic values have moral value as well. That's not how he's using the term 'moral'. Civic virtue for him is one kind of what many people, including presumably you, call moral virtue. It's the part of moral virtue that has to do with a well-ordered society, not relying on any religious elements that people might not agree on.

ilona - I think Jeremy clears up a lot by coming to my defense. I think he adresses most of your concerns. Please also see the FAQ I just posted, especially the caveat to my answer of questions #1. Here are my responses to what I think that Jeremy and my FAQ don't cover:

Your goal for a gay person is that they not practice homosexuality and that they accept Christ. You fault legislation for not changing this? I am asking.

I don't fault legislation so much as I acknowledge that legislation is helpless to accomplish these goals. Since that is the case, laws to that effect are at best useless and at worst conter-productive to those goals.

My contention is that it would fundamentally change what we understand marriage to be and what its purpose is. Do you have a secular answer for this need of definition?

Where I live (Multnomah County, Oregon), it is already legal for gays to marry. Our current circumstance is that legislation is being proposed (Measure 36) to redefine marriage to exclude the currently legal gay marriages. I cannot find a civil value for this redefinition. It would rip apart already existing marriages. As I noted above, I think that it would be helpless or even counter-productive in helping homosexuals to stop practicing homosexuality and to become Christians. It would run afoul of the civil values of equality and liberty. As such, I cannot support the legislation to redefine marriage.

Can you make your case that it is fundamental for society to legalize homosexual marriage regardless of the fallout (legally, financially, social unrest)?

I think you misunderstood my situation. As I noted above, homosexual marriage is already legal. The fallout has already happened. Now I think that the burden of proof is back on you: can you make the case that we should un-legalize gay marriage? Can you justify using the state to forcibly divorce legally married couples?

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