Ask a pro-life activist if they would like to see a Constitutional ban on abortion and most would say yes. Ask a pro-choice activist the same question and one might hear a version of, “You can’t legislate morality” (even if it’s legal, women will still get abortions, they will just be unsafe, and so on)
Ask opponents of gay marriage if they would like to see a Constitutional amendment defining marriage as only being between a man and a woman and, again, most would say yes. Ask gay marriage proponents the same question and one could hear a version of “You can’t legislate morality.” (denying gay people the right of marriage won’t keep gay people from being gay, entering into relationships and so on – the ban just hurts real people)
Ask gun control advocates if they support stricter laws regulating gun ownership and most would say yes. Ask gun rights advocates the same question and one could hear, “You can’t legislate morality.” (guns don’t kill people, people kill people, and so on)
These are just three examples. Yet, whenever you have a contentious public issue the mix between personal liberties, moral values and the law creates conflicting positions. Somewhere in all of these debates, however, is the phrase “You can’t legislate morality.” I’m not sure who first said it or why, but it has sunken deep into our collective conscious.
What is the right relationship between personal freedom, morality and laws?
One one level, the statement you “can’t legislate morality” is illogical on its face.
Some simple definitions:
morality: principles concerning the distinction between right and wrong or good and bad behavior.
law: the system of rules that a particular country or community recognizes as regulating the actions of its members and may enforce by the imposition of penalties.
legislate: to make or enact laws
So, actually, to legislate is to make laws that regulate the behaviors of a community’s members within a particular moral framework that defines good vs. bad behavior. The act of creating laws is a moral act intended to support moral behaviors and deter immoral ones through the codification of what is moral and immoral.
I think most people would agree with that basic understanding. Of course we legislate morality, that’s what laws are for. So what do people mean when they say “you can’t legislate morality.”? In my experience they mean one of three things.
(1.) Some people mean that laws, in and of themselves, can’t make a person moral. This is true. If a person is determined to break the law, the law itself can’t stop them. It can only stipulate penalties under the law after the fact. Laws are good, but they are weak in that they don’t change the human heart. This is similar to Paul’s conclusion in the New Testament about the Old Testament law. The law was good, in that it revealed the character and expectations of God. Yet, the law was weak because it could not change the human heart. For people to act rightly, they needed new hearts. Within a Christian framework, both Jesus and Paul said, this would come through the work of the Holy Spirit which transforms people from the inside out. At a societal level, we simply acknowledge that there are other factors at play in people’s lives that cannot be adequately dealt with through laws alone.
(2) Some people mean just that – that laws should not be enacted that promote a particular moral framework. They believe in the absolute freedom of the individual without being subject to governmental authority. We call this anarchy (an admittedly simplistic definition). I know some principled Christian anarchists. In a perfect world, what they say makes sense. In the real world, I can’t see how evil can be effectively restrained without some governmental structure that also has the authority to penalize acts deemed unacceptable by the community. For Christians, Paul’s writing in Romans 13 is one voice in the discussion.
(3) And, some people use the phrase selectively to indicate that certain types of morality shouldn’t be legislated. They are not anarchists. There are certain laws that they like because those laws are consistent with their own moral framework. There are others that they dislike because they are inconsistent with their own moral framework. For example, Pro-life advocates want to see the overturning of Roe vs. Wade through legislative means. Pro-choice folks have legislation on their side, so they see no need to legislate new or different moralities. Under this meaning, there isn’t a principled view of how legislation and morality go hand in hand, as with anarchists. There can also be a denial of the real limits of the law in terms of shaping moral behavior and preventing grossly immoral behavior. This leads to a selective application of the law, supporting legislation that underscores their beliefs and values and denying the legitimacy of legislation that does not.
So what do people really mean when they say “You can’t legislate morality”? They mean one of three things (perhaps more). The first meaning, I support and agree with. The second meaning calls for further reflection, but I’m suspicious of the efficacy of it in a society such as ours. The third meaning I reject, but it is what comes most naturally to me. Laws I like are good. Laws I don’t like are overreaching, intrusive, government meddling in the affairs of free people, and so on. In this third space, I try to remember a bit of the bible’s wisdom that calls for being quick to listen, slow to speak and slow to anger.
When you say, “You can’t legislate morality” what do you mean?