If you object to legislating morality, you could not, for that very reason, raise any effective moral objection to execution as a punishment for jaywalking, or decapitation for tax evasion or speeding. Your objection to such penal atrocities and to the laws that permit or require them is a moral objection, which you say ought to be banished from law.
Because law is not a substitute for parental authority, but is a complement to it, one must not argue (as some do) that moral education is the function of parents only and not therefore of the state. Because parents teach morality does not mean that law does not or must not. Parents and law share at least this: They function inescapably as moral educators, whether for good or evil. In cases where parents fail to perform this task wisely or well -- a not uncommon occurrence -- law must function in this capacity all the more. Similarly, the fact that morality is meant to be implemented by individuals does not mean that there must be no public morality, no civil, social or legal standards of conduct, as if because morality has a personal dimension, it can have no social or political dimension, or as if the existence of personal morality meant that there ought to be no public morality.
But the case for morals-based law rests on a wider and more profound basis than the internal contradictions of those who oppose legislating morality and the impossibility of doing as they insist. Those who wish to banish ethical considerations from legal affairs forget that civilizations are not founded on considerations of mere personal comfort and pleasure, or on science and technology, or even on self-gratification and self-preservation, but on virtue -- both public and private. The good society, in other words, depends for its preservation and well-being on the character of its people, on the virtues that accompany, perhaps even define, good citizenship. Only on the foundation of courage, of self-control and self-denial can a good society be founded, protected, and continued. But these civic virtues are not natural to us. We are not born into the world as good and competent citizens. The civic virtues and public responsibilities that define good citizenship must be acquired; they must be learned. In that sense, we all enter this world unequipped by natural endowment for effective citizenship and for self-government, which is why one of the oldest political insights available to us is that which insists that we are always only one generation from barbarism, that every newly-born generation needs to be civilized, or culturally housebroken, as it were. Those necessary but unnatural social skills and civic virtues require nurture and guidance for their growth, even for their existence. Consequently, moral education is a prerequisite for a sound and flourishing civil society. This moral nurture, this aid to character formation, the laws of a nation help to provide by setting before the citizenry examples of acceptable behavior and incentives toward adopting that behavior as one’s own. But law divorced from morality, law that poses as morally agnostic, cannot accomplish that task. Instead, morally-evacuated law teaches the citizens that moral conduct is not necessary, either for their own happiness or for the establishment and continuation of a good society and civil order.
In short, the rule of law is necessary to a civil society, and a just rule of law requires adherence to a strict moral code. Perhaps an analogy will serve to clarify the point: Computer programmers often employ the acronym “gigo,” derived from the first letter of the words “garbage in, garbage out,” a phrase warning those programmers that no bad program yields good results. You get back from the computer results that reflect the worth of the program it employs. Farmers likewise understand that you could not reasonably expect to gather a harvest of corn from a field planted in beans. You reap what you sow; you harvest what you plant -- a principle that applies to law and to culture as well as to farmers and programmers. Only a legal code counseled by virtue and rooted in goodness can yield civil justice. Justice is not the harvest of a legal system into which it was never planted. Moral outcomes are not to be expected from a legal system into which it was never programmed, never cultivated. Except by the happiest of chances, moral results -- in other words, just results -- do not grow from the legal field in which those seeds were never planted. If you neglect to plant morality in the legal code, you must not expect to harvest it in court, or in the character of those citizens whose moral nurture is shaped partly by the laws of the society in which they are raised.
One of the most the distressing facts about us today, therefore, is that we are now undergoing a deliberate deflation of traditional American ideals and values, both in the culture in general and in the law in particular. We are enduring what Gertrude Himmelfarb called the de-moralization of society, or what George Will described as the slow-motion barbarization of America, in the wake of which politics and life have become impoverished, coarsened and tawdry. This disaster we deliberately and foolishly inflict upon ourselves by insisting, in the face of history and of clear thinking, that we ought not legislate morality, and that governing and government have no effect upon the character of the nation and the persons who constitute it.
Given the penchant we all have for self-seeking and for personal satisfaction, things for which we are sometimes sorely tempted to sacrifice almost anything, in our moments of honest self-reflection we know that we would alter both the government and the law to suit our whims and desires, however perverted they might be, had we the opportunity to do so. Only enforceable laws based on unchanging morality can obviate this threat. Civil society requires morality from its legal code for its very existence and continuance because our natural character does not suffice to constrain us. We must never forget what thinkers as divergent as Burke and Rousseau knew: The act of establishing a civil society is identical with that of establishing a binding morality, something a morally agnostic legal code is impotent to produce.
Government does not exist simply to make possible whatever delights and advantages its citizens might happen to prefer at any given moment, whether privately or collectively. If some types of pleasure are better and more socially and morally suitable than others, then one of the purposes of government is to help educate the citizenry to pursue the higher pleasures rather than their lower or more base alternatives. Moral education, one of the functions of law, helps make those right thinking and right choosing citizens -- and the culture they desire and seek to preserve -- more likely. Good societies, in other words, depend for their existence upon good and decent people. Good and decent people do not simply happen. They are nurtured, and one institution that helps to nurture them best is well-formed, morally-responsible law. Public institutions, like law and law enforcement, need to be concerned with the bridling of egoistic motives and actions. If they are not, something worse than chaos ensues, namely cultural perversity and moral decay.
Put differently, political questions are moral questions. Every government asks and answers, whether knowingly or not, “What things in life are worth having and preserving, and at what price to the nation, to the community, to the people?” Public policy issues are simply the political and economic application in the present of the enduring moral questions. In the public square and in the marketplace, our public policies are our appropriation of, and approximation of, the permanent things. To form wise public policy, and the system of laws under which it is best pursued and applied, requires not a flight from morality, but a resort to it, a resort to prudence, which is by no means the same thing as a legally encoded moral agnosticism.
Law and morality share this burden: Both serve the function of governor -- morality for those with self-control and self-restraint, law for those without it. That is, morality and law are like the two banks of a river, the river in this case being human action and the passions and desires that drive it. The banks of a river run roughly parallel: Where one turns left or right the other tends to do the same. If they did not, the river would become a swamp -- putrid, fetid and stagnant. Law and morality, like the banks of a river, ought to move in roughly the same direction in order to help curb the defects in human nature. If they do not, human action and human society quickly become a swamp, a morass of polymorphic perversity, something that always occurs in the absence of public virtue and the enforceable law that upholds and nurtures it. To protect us from the moral and cultural swamp that threatens to engulf us, law must take its cue from morality.
Well-framed law helps us make the best use of our freedom by teaching us to avoid both excess and deficiency. Without the pedagogy of law, we are deprived of one of our best and potentially wisest instructors and are thereby vastly impoverished, both individually and corporately. Those who are frightened by the moral pedagogy of law seem not to understand that human beings can be oppressed by an excess of freedom, which is another name for licentiousness. Good law leaves room for liberty, not for license. Good law helps curb human excess, while morality helps curb the law. What a bridle is to the horse, law is to human nature. And what law is to human nature, morality is to law. Law helps regulate the people; morality helps regulate the law. In that light, some of those who object to morals-based law seem not to appreciate the great cultural and moral value of shame, of guilt, and of the proper fear of just punishment.