Legislate Morality for Me But Not for Thee

A favorite refrain among liberal critics of the conservative right is that it is trying to legislate morality, which, they argue, is a bad thing, probably because they think it violates the separation of church and state. What many of these critics forget (or did not even know) is that Southern Whites accused the Rev. Martin Luther King, Jr. of exactly the same thing. In fact, as then Senator Barack Obama, remarked back in 2006, all legislation reflects someone's or some group's morality:

Secularists are wrong when they ask believers to leave their religion at the door before entering the public square. Frederick Douglass, Abraham Lincoln, William Jennings Bryan, Dorothy Day, Martin Luther King -- indeed, the majority of great reformers in American history -- were not only motivated by faith, but repeatedly used religious language to argue for their cause. So to say that men and women should not inject their “personal morality” into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition.

-- Barack Obama, 2006 (emphasis added) 

Keynote Speech, Call to Renewal (Sojourner’s Community)

The question, in other words, is not whether morality will be legislated but who's morality. Take the abortion debate, for instance. Some believe that abortion should be made illegal because it involves the taking of an innocent life. Others argue that the government should remain neutral on the question, that it shouldn’t take sides and allow women to decide for themselves. However, as the Harvard political philosopher Michael Sandel notes,

This argument does not succeed. For, if its true that the developing fetus is morally equivalent to a child, then abortion is morally equivalent to infanticide. And few would maintain that government should let parents decide for themselves whether to kill their children. So the “pro-choice” position in the abortion debate is not really neutral on the underlying moral and theological question; it implicitly rests on the assumption that the Catholic Church’s teaching on the moral status of the fetus -- that it is a person from the moment of conception -- is false (Sandel, Justice, 251).

Note that there is nothing in Sandel’s argument that precludes individuals from being pro-choice. However, it does hold that if they choose to be pro-choice, they should acknowledge that they are not being any more neutral than are those who choose to be pro-life:

It is not enough to say that the law should be neutral on moral and religious questions. The case for permitting abortion is no more neutral than the case for banning it. Both positions presuppose some answer to the underlying moral and religious controversy” (Sandel, 252).

The same can be argued for gay and lesbian rights. As with abortion, movements that seek to grant gay and lesbian rights are no less engaged in legislating morality than are those that seek to oppose them. Both positions presuppose some answer to the underlying moral (and religious) question of what is good.

Taking a step back, what I really think is going on is that most people have no problem with groups attempting to legislate morality as long as they agree with what the groups are trying to legislate. This is somewhat analogous to what Nat Hentoff, the former columnist for The Village Voice, once argued in his book, "Free Speech for Me But Not for Thee:" namely, that while in theory many Americans believe in the right to free speech, in practice they often only affirm it for those with whom they happen to agree. In other words, we can summarize how most folks' (unconsciously) view the legislation of morality with this play on Hentoff's book title: Legislate for Me But Not for Thee.