When it comes to prohibiting sexual harassment or sexual discrimination in the marketplace, feminists do not complain that the proposed legislation attempts to enshrine morality in the civil or penal code, even though it most definitely does. No serious feminist has ever sought to undo or to oppose such legislation because it was based upon a system of morals. They complain about legislating morality only when it comes to outlawing abortion. They object to legislating morality only when the morality in question is one from which they dissent. When the law in question encodes a morality they support, their objection to morals-driven law disappears.
By the same token, when a civil rights leader supports affirmative action laws and opposes the Jim Crow legislation of the old South, both that leader’s support and opposition are based upon the moral judgment that all persons are created equal and ought therefore to be treated equally under the law. That civil rights leader cannot then turn around and say to someone else, pro-life advocates for instance, that they are imposing their morality on others because the pro-life advocates are doing exactly what the civil rights advocate is doing, and on precisely the same basis, namely upholding the dignity and worth of every human being. Like the civil rights advocate, the pro-life advocates are affirming the obligation of a just nation to insure that all persons enjoy equal protection under the law.
Sometimes those who resist legislating morality do so not because they object to the morality being legislated, but because they value freedom and wish to defend it. They seem not to understand, however, that their allegedly morals-free proposals will be the death of the freedom they value, not its protection. Without the guidance and constraint of morally-informed law, liberty degenerates into mere license, which is not the same as political freedom. One simply cannot reject moral authority and yet live in an orderly world. When you banish morality from the public square, you give birth to an outlaw culture, not to freedom. To live outside the moral law, to live without the wisdom of the ages and of God, is to court slavery and death. Because human nature is what it is, without great volumes of enforceable law political freedom is short-lived, and finally impossible. Indeed, without great volumes of enforceable law chaos -- not freedom -- always results. Authentic political freedom, if it is to remain true to itself and avoid the excesses of license, must be exercised according to the dictates of truth and virtue, never the other way round. Freedom must be limited by the demands of justice, of morality. The most important consideration regarding any action is not “Is it free?” but “Is it good?”
Make no mistake, legislating morality is not only inescapable, it works. The proof that laws change behavior is widely known and not far to find: Almost no one in the South today argues that slavery is moral, even though many of their grandparents and great-grandparents thought it was and, as a result, owned other human beings as property. What stands between today’s southern Americans and their slave-owning ancestors is morals-based law, specifically the thirteenth amendment and the Civil Rights laws of the 1960s and later, all of which helped radically to reshape the behavior and beliefs of those who grew up in their wake. Similarly, before prohibition the average annual consumption of alcohol in America was nearly three gallons per person. After prohibition that number fell to slightly less than one gallon. In fact, alcohol consumption did not return to pre-prohibition levels in America for nearly forty years. By the same token, before the Supreme Court legalized abortion in 1973, about 100,000 abortions were performed in the US annually. After Roe v. Wade, however, the number rose to between 1.2 and 1.5 million a year. In short, whether the laws in question are good or bad, law has an effect. The morality in the law, whatever it might be, tends to become the morality of the people. Law is always a tutor to morals and a shaper of national character, both for good and ill.
To digress: While legislating morality is an inevitability, I am not saying anything so silly as that all sins ought to be made crimes. No government could effectively enforce laws against lustful thoughts, gluttony, or so-called white lies, even though such activities are sinful. And if somehow the impossibility of enforcing such laws were overcome, the immediate result would not be less lust, for instance, but rather the overcrowding of penal facilities on an unimaginable scale.
Back to the point: When people object to legislating morality, they fail to recognize or to remember that their own understanding of morality is the impulse behind the laws they themselves propose and defend. It is also the impulse behind their opposition to other laws. Yet, despite their inescapable dependence upon their own moral code when designing, proposing or opposing laws, they seek to deny that same moral impulse to others who wish to be heard, who wish to have their own ideas taken seriously, who wish to have their own beliefs and values prevail. But you must not withhold from others in the public square what you wish to make use of yourself. If you would banish the moral basis of the laws proposed by your political opponents, you must banish it from your own. But no one does and no one can.