"You can't legislate morality."
Of all the inane, witless, and tedious clichés that pepper our modern political dialogue, perhaps this one annoys me the most (although that whole "right side of history" thing really frosts my rhubarb too).
What makes it particularly awful is that no one actually believes it, even though we pretend to when it benefits us. If what is meant by the phrase is that the changing of a law doesn't change someone's heart, there is certainly some truth to that. Anecdotally, we can quickly point to the explosion of speakeasies, bootlegging, and even organized crime that came as the result of the teetotalers' triumph, a national prohibition on alcohol.
Clearly, the enactment of the 18th Amendment – built upon the premise that alcohol consumption was immoral – did not instantaneously change the hearts of those who wanted to drink. But of course, isn't it also true that the enactment of the so-called Civil War Amendments (13, 14, 15) did not instantaneously change the hearts of former slaveholders in the South? Was the persistence of racism in America an indication that those amendments were improper and useless attempts to "legislate morality" on the country? Should they have been repealed?
Let's ask the same thing of every piece of civil rights legislation we have seen over the course of the last century. We are still encountering racism today – is that evidence that those acts, like prohibition, were foolish moral crusading that had no business passing through Congress?
Or might we recognize the truth spoken by the late Martin Luther King, Jr.:
"It may be true that the law can't make a man love me, religion and education will have to do that, but it can restrain him from lynching me. And I think that's pretty important."
In other words, say what you will about legislating morality, there is no question that in a civilized society, we must ensure we are legislating morally.
A superficial, non-scientific observation of political rhetoric over the course of the last several decades reveals that this admonition to not legislate morality surfaces most often in debates over conservative efforts to resist the LGBT social agenda or to turn back judicial imposition of abortion-on-demand. The cries become distinctly anti-majoritarian, suggesting that "just because a plurality of the country may be Christian, they can't legislate their morality on the rest of us."
Given that "morality" in this case is merely the legal pronouncement that something is wrong, the lie in their position is revealed simply by turning their question around. Who entitled them to impose their "morality" on the rest of us? One side says abortion is right, the other says it is wrong – both of those are moral viewpoints.
The same can be said for marriage law, healthcare policy, or any other piece of legislation that tells society that one action is "right" and the other is "wrong." Even something as seemingly amoral as building codes ultimately hinge upon this same premise. Those who enact them do so because of their moral determination that it is "wrong" to allow architects and their construction teams to recklessly endanger the lives of those who will use the facility.
Take Nancy Pelosi's recent speech at the COP 26 United Nations Climate Change Conference in Glasgow, Scotland, where she intoned, "This planet is God's creation and we have a moral responsibility to be good stewards of it."
To be sure, Pelosi was not suggesting that citizens take personal responsibility to abstain from littering and commit to a more disciplined use of recycling opportunities. She was advocating for globally enforced climate policy. And her motivation for this new legislation?
Our "moral responsibility" to God.
Are we to believe that Pelosi would accept as proper and binding the argument of those who say we have a "moral responsibility to God" to protect the unborn and welcome every one of "God's creations" into the world? Of course not. Instead, we would hear warnings about the dangerous rise of Christian nationalism, the threats of a Christian Taliban, and the Religious Right's wanton assault on the wall of separation between church and state.
The hypocrisy may be expected, but the sophistry we continue to abide regarding the legislation of morality needs to stop. Where public policy is concerned, two or more sides are at war not over whether morality should be legislated, but over what version of morality will be legislated.
Maybe if we began engaging the question of what our society should embrace as a fixed, reliable moral framework for our thinking, we'd end up with better laws.
