I've no idea who first thought up that bit of inanity, but put in direct quotes it got over 4000 hits on Google alone. Why on earth is it so popular? All law is legislated morality. We make decisions about what is or isn't acceptable in a civilized society and enact them as rules with corresponding penalties.
The most recent sightings: James A. Autry uses it in a semi-coherent rant against evangelicals in yesterday's Des Moines Register:
I don't think it's the government's business to make judgments about "sin;" the evangelicals disagree. So how do I as a Christian and a Democrat resolve this? On the one hand is a moral question Christians may appropriately debate but in which I believe the state has no role; on the other is a civil-liberties question in which I believe the state does have a role.
So the state has no role in morality, that's all "sin" that should be left for the churches? As State 29 puts it:
This is very funny and screwed up. Isn't murder a sin? Robbery? Messing around on your wife or husband and having the other spouse file for divorce on those grounds? The State has a lot of business making judgments about sin.
That's the thing. If you look at the natural world, there are no laws that things die eventually, and there are no rules except might makes right. Everything else is something we've imposed upon the natural world to maximize our safety and sanity - in other words, a moral judgment. We might have some moral judgments that stem from practical concerns, as with incest laws. Others might stem from deep prejudices, like cannibalism. But without our decision to live together in a society and decision to abide by the rules of that society, there are no such laws . . . unless, like the evangelicals, you believe in God. But whether you believe the laws of society originated in a divine higher power or a human one, they are still moral judgments proscribing sin against that higher power.
Autry makes another dangerous argument in his diatribe:
"The question is, "Even if it is, do we withhold constitutional liberties from certain sinners and not others?" According to the Scriptures, we have all sinned and fallen short of the glory of God."
So a murder equals a theft equals a rape equals a white lie equals a cussword, and the government has no right to take away consitutional liberties for one of those if they don't do it for all? I guess we'd better impose life imprisonment for saying "Jesus H Christ" then, or not punish murder at all?
Back to the first quote - Autry apparently doesn't think robbery and murder are moral issues, but "a civil-liberties question in which I believe the state does have a role." However, as Eugene Volokh points out in this post, civil liberties are moral issues:
"So people should certainly criticize the proposals of the Religious Right (or Religious Left or Secular Right or Secular Left) that they think are wrong on the merits. But they would be wrong to conclude that the proposals are illegitimate simply on the grounds that the proposals rest on religious dogma. Religious people are no less and no more entitled than secular people to enact laws based on their belief systems.
And they would be quite inconsistent to (1) say that religious people ought not enact law based on their religious views, and nonetheless (2) have no objection when religious people do precisely that as to abolition of slavery, enactment of antidiscrimination laws, abolition of the death penalty, repeal of the draft, and so on."
Professor Volokh expands on this in this post in response to a reader's email asserting that one's beliefs should only be allowed to form the basis of a law or legal policy if they can be defended 'rationally' - with no reference to God or an ephemeral belief system. An excerpt:
"But the trouble with the correspondent's broader notion -- "that it's illegitimate . . . to justify one's decisions about how society should be run based on assumptions one cannot defend reasonably" -- is that ultimately most of the moral principles that each of us has can't be defended purely reasonably. Should people be barred from abusing animals? There's no purely reasonable answer to that; at some point, it comes to down to a moral axiom, such as "people shouldn't be allowed to pointlessly inflict pain, even on animals" or "people should be free to do whatever they please with their property." And if you think this claim isn't an axiom, but can be defended reasonably through some other principle, that just means there's some other moral axiom lurking in the background. . . .
Or what about protecting endangered species? Many people want to protect them purely on moral principles -- humans shouldn't exterminate other species. That too is a moral axiom, or at least rests on moral axioms. Others argue that there's a pragmatic reason for it, for instance that protecting endangered species is needed in case the species may yield some useful biotech products some time in the future, or in case they fill an important ecological niche. But even such pragmatic reasons rest on unprovable moral judgments, such as that a small and incalculable chance that the species might prove useful in the future justifies the real costs to real people that saving the species would involve. Now these judgments may well be right -- but they aren't reasonably provable. And ultimately, the same is true, I think, for moral judgments even about matters such as the wrongfulness of murder, rape, robbery, and so on, and certainly for more contested matters such as race discrimination, breach of contract, defamation, invasion of privacy, moral rights in published works, and so on. All these moral and legal claims rest on unprovable moral assertions."
As I see it, the problem is actually one of source material. The evangelicals would call certain things, in this case homosexuality, a sin. They call it immoral because it is proscribed by their religion. They feel because these things are immoral, they are properly the subjects of bans by the law. Those who are 1) outside the evangelical religion, and 2) don't share the view that the issue is immoral, try to call that an illegitimate imposition of the evangelical religion on the rest of society. They invoke the "don't legislate morality" axiom in support of this. But to invoke that is to forget that every law - from murder convictions to endangered species acts to the very civil rights laws they would cite to support gay marriage - actually legislates morality. What they are in effect saying is 'don't legislate your morality, legislate mine.'
(And don't try to hide behind the Constitution: the Bill of Rights and the Constitution comprise one big effort to legislate a common view of morality held at the time. Even that can be amended and reinterpreted, as we've seen time and again.)
In the end, these issues will be resolved by the majority of the country adopting some balance it finds most in conformity with the morals and precepts valued by that majority, from whatever source. That will last only until the values shift again.
But, in reference to my post the other day, I still don't have an answer. Would those advocating secession today, based on a feeling that the "red" part of the country cannot impose it's backward moral values upon them, similarly concede that the 'state's rights' arguments made by the old South during the Civil War were also morally correct? In other words, that the Civil War should never have been fought?
It's been my challenge to myself to find a distinction between modern and archaic secessionists, other than the morally relative "we are right and they were wrong." I still don't see one.
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