Saturday, December 13, 2008

Legislating morality?

This is a phrase that gets thrown around a lot. What does it mean?

Ultimately, I must conclude: nothing.

There are really two ways to interpret it:

The first is that the law can't tell you what is right and what is wrong.
Good news: it doesn't. No one is trying to pass a law that says "Gay marriage is bad, "Abortion is wrong," or "Believing in God is stupid." That isn't a law. Law governs behavior, not thoughts, opinions and morality. It may (and does) influence these things--but a law that said "Consider others before yourself" would be legally meaningless and unenforceable besides. Law tells us whether or not something is legal, but not whether it is moral. If a law were passed that made abortion illegal, people would still be free to think it was morally acceptable. If the law were changed to say that one man could marry another man, people would still be free to believe that action was wrong.
If one interprets "legislating morality" this way, no law does.

The second way of interpreting this statement is that the law, or lawmakers, can't make laws based on morality. I am not the first to make this point, of course, but--all laws come out of a moral system. All laws "judge" an action as good or not good. Why do we have laws against murder, theft, and abuse? We believe these things to be bad. Wrong. Immoral. Social evils. All law legislates morality. It seems like people use this phrase for issues like abortion and gay marriage, but don't realize or care how it applies to the laws they want made. For example, they want government to take care of the poor. But they forget that the money the government uses for this comes from somewhere. It's not that all this money appears in the coffers and they have to find a way to use it all up. When money is taken from one person and given to another, those doing the taking and the giving are certainly making moral judgments--that everyone deserves the money, or food, or whatever. That some people have too much money. That everyone should share. That charity is good. Take your pick--but forced charity certainly legislates morality as much as "forced gestation." Certainly requiring doctors to take the lives of children, clergy to declare two women "wife and wife," or taxpayers to fund the destruction of small, frozen children forces a certain morality upon them. All legislation legislates morality.

Of course, that leads to another discussion: what does law do? What should law do? When I first considered this question, due to a book my husband had to read for Sunday school, it took me a while to formulate my philosophy of law. I had one, but I couldn't verbalize it. After thinking on it for a while, I decided that I was a libertarian. I used to think that I was the opposite of a libertarian, but that's just because most libertarians seem to have a different worldview than I. Basically, I believe that Congress should only legislate what the constitution allows it to control, and that personal liberty should allow people to do as they wish when it does not harm others.

Of course, there is a lot of disagreement on what this entails. Can an adult make a decision that harms himself or herself? Can another person help him or her carry this out? Can two adults do something together which will harm them both but no one else? What constitutes harm? What if the harm is smaller or larger in comparison to the restriction on personal freedom?

Abortion is an easy one here--abortion kills a child, who has no choice.

Gay marriage is complicated. I'm in the "why on Earth is the government deciding who can get married?" camp. Civil unions for tex purposes for whoever wants them. Marriage is a religious issue, so leave it to churches. This has the neat bonus of making sure that anyone who wants to get "really married" has to find a church, and will probably have to go through a premarital program that includes the presentation of the gospel. At least, it would at my church.

Adultery is another difficult one. Should two unmarried people be allowed to do what they want together? In an ideal world, no. And there is some justification for that view; the spread of disease is a public health concern. What if one of the people is married? What if children are involved? I don't know. I don't think that stoning should be the punishment if it is illegal. No one seems to, even those who think it's okay for the government to compel giving because the Bible commands it.

It gets complicated, no matter what. Granted, my view as a stay-at-home mom not old enough to run for Congress is a little irrelevant.

But it seems like we should all be able to agree that it comes down to more than "legislating morality" or "not legislating morality."

This post was inspired by the discussion of praying for Obama and his family (a good idea for both sides of the aisle) at Seeking Faithfulness.

Today's sign of pregnancy: constipation

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