The constant or determined repetition of an error does not make it true. Errors are errors regardless of either their prevalence or the persistence of those who advance them. Indeed, given the egregious foolishness of some of our most widespread beliefs in the recent past, the great popularity or predominance of a notion sometimes is enough to raise suspicions about its truthfulness. We moderns too eagerly and too often live our lives on the basis of insupportable, indefensible, half-true truisms that cannot stand up to close analysis. The assertion that you cannot legislate morality is just such a notion. No matter how often one hears that you cannot legislate morality, the truth is that you can legislate nothing else.
All laws, whether prescriptive or prohibitive, legislate morality. All laws, regardless of their content or their intent, arise from a system of values, from a belief that some things are right and others wrong, that some things are good and others bad, that some things are better and others worse. In the formulation and enforcement of law, the question is never whether or not morality will be legislated, but which one. That question is fundamentally important because not all systems of morality are created equal. Some are wise, others foolish. Few are still in their first incarnation, nearly all having been enshrined as law at some time or place, often with predictable results. For better or worse, every piece of legislation touches directly or indirectly on moral issues, or is based on moral judgments and evaluations concerning what it is we want or ought to be, what it is we want or ought to produce and preserve.
When, for example, the founding fathers drafted our original Constitution, they did so on the basis of competing belief systems, on the basis of competing assertions of right and wrong, which they endeavored to build into the Constitution. One or more of those belief systems permitted slavery, others did not. No side in the slavery debate at the Constitutional convention argued that you could not legislate morality. That notion they all recognized as balderdash. They knew that indeed you could legislate morality, and they intended for that legislated morality to be theirs.
Nor did any side in the struggle to legislate morality at our nation’s founding say to its opponents that trying to legislate morality was a breach of the wall of separation between church and state. Morality, after all, is not a church. They would have laughed at the confusion of mind revealed in one who thought that separating church from state meant separating morality from law. They wanted the nation to be moral. They wanted its laws to be just. But they did not want to give any one church a national legal advantage over the others. They did not want the nation to be Presbyterian, Baptist or Roman Catholic, which is a far different issue from whether or not to have ethics-driven law. Under the Constitution the founders drafted, all persons are free to follow and to worship God. The founders enshrined freedom of religion, not freedom from religion. In seeking to avoid a state-established church, they were not thereby establishing secularism or separating law from morality.
More fundamentally, the very fact that the founders were creating a new Constitution for their fledgling nation arose from the fact that they understood the actions of King George to be morally evil, to be politically unjust. They all knew quite well that morality belonged in politics, in fact that politics was simply morality applied to the public square, to the public’s business.
The founders sought to establish what they called an “ordered liberty.” The order they sought was provided in part by the morality they intended to enshrine in law. By seeking ordered liberty, the founders were not seeking anything new or unprecedented in political thought or in political history. They well knew from reading the ancient works of Aristotle, for example, that morality encoded in civil law helped to provide order because law inescapably has a teaching function, or pedagogical effect: Law teaches the citizens what is right and good, and it punishes those who cannot or will not learn that lesson, or at least act as if they had.
To make the point from a different angle, when we pass laws that require drivers to drive their vehicles at 20 mph or less in school zones, we do so because we have a value system that rightly puts greater worth in human life than in vehicular speed. That valuation is a moral judgment. That moral valuation we properly and wisely seek to translate into binding and enforceable law. We propose and pass such laws because we think it wrong for drivers recklessly to endanger the lives of defenseless children, who lack the experience, foresight and physical dexterity to keep themselves out of harm’s way on the streets. Drivers who do not do as the law requires, we punish. No one, in the face of such proposed legislation, says to the local authorities that those authorities have no right to impose their morality on others, even though that is precisely what such laws do. Much less does anyone seriously argue that to propose such values-laden laws is an effort to tear down the wall of separation between church and state.
Those objections are not raised because the laws in question are laws with which all serious-minded citizens are in agreement. That these laws are morals-based, or values-driven, creates no problem for those who find the laws agreeable. Rather, people tend to complain that laws are morals-based only when the law in question is based upon a moral valuation with which they disagree. But to be consistent, those who object to morals-based laws would have to raise the same objection to all laws whatever, including the laws they support. But they do not. They never do. When their own morals are encoded in law, they raise not even the faintest whimper of protest. Yet when laws are passed that they dislike, they say almost nothing else. They seem to want a sword that will cut only others, never themselves. But any sword of objection sharp enough to cut Jack is sharp enough to cut John as well, even though John might not like it.
Legislating morality, in other words, is not an option; it is a necessity, an inevitability. Justice, equity, fairness -- those characteristics that all thoughtful citizens want from their government and upon which they think government and its laws ought to be predicated -- these are all moral categories. We outlawed slavery, theft, murder, fraud, deceit, rape, etc., precisely becausethey are immoral and we wanted them stopped, or at least radically curtailed. We proposed, passed and enforced these morals-based laws specifically toward that end, and in so doing we were right.