The relationship between law and morality has become increasingly relevant as social liberals advance issues like homosexual marriage and abortion rights. Since at least Roe v. Wade, social liberalism has also revealed a division within the Republican Party. The relationship has provoked heated discussion here at RedState. The most recent being a discussion over homosexual marriage about a month ago – Gay Marriage: Left vs. Right. After some reflection, I would like to take the opportunity to enlarge on some of the points raised in that discussion.
The refrain repeated by many at the time was that “we cannot legislate morality.” One variant of that refrain was that “no nation in the history of the world has ever been saved from moral bankruptcy by enacting laws.” Another variant was that laws are simply a “lagging indicator” of moral reform. The common element in the refrain and all its variants was that laws will not lead to the moral reformation of a society.
The refrain itself is a gross distortion of the relationship between the law and morality. Historically the question has not been whether laws led to moral reform or simply reflected a moral reformation that occurred within a society absent an initial legal component. It is not a chicken or egg type scenario. In fact, the refrain itself misses the larger dynamic between law and morality and ultimately proves a pointless distraction.
Two examples for the United States in the twentieth century will help illustrate the dynamic.
In discussing the movement toward social and political equality between blacks and whites in the United States, the “chicken or egg” paradigm would lead us on a quest to determine the origin of that movement to see whether the law led to changes in morality or whether morality led to changes in the law. While the discussion might be interesting for a history course, the larger dynamic might be lost so let us lay aside the origin quest and instead look at the dynamic itself. A quick perusal of United States history from Jamestown to the present would show that sometimes laws were a lagging indicator of public morality and sometimes laws preceded a change in public morality.
For example, the Brown v. Board of Education decision in 1954 was not a lagging indicator of public morality. Efforts to achieve political and civil equality between blacks and whites preceded the decision but the decision itself far exceeded the public sentiment at the time. The “lagging indicator” argument would hold that the public had already decided to support the issue and the decision reflected that change in public morality. Yet, the Brown Decision went further than the public initially wanted to go. One prominent historian compared the decision to the Supreme Court establishing a beachhead for civil rights but then quickly abandoning it by failing to create a mechanism for compliance. Here the Supreme Court clearly established a position in advance of the public and it took some time for the public to catch up. The law set a public standard of morality that the modern civil rights movement appealed to and used to advance a new moral standard of equality. Like the Brown decision, the history of the Montgomery Bus Boycott and the civil rights position on “Separate But Equal” both illustrate the use of the federal and state laws by a group to advance their social agenda.
A converse example is the Roe v. Wade Decision of 1973. Once again the Supreme Court decision exceeded what the public was willing to support in regards to abortion in 1973 – based on the number of anti-abortion laws at the state level. However, the decision itself led public morality toward the acceptance of abortion. Roe v. Wade was not a lagging indicator otherwise support for abortion would have led to the removal of state laws.
The point is that the whole “chicken or egg” question is a fool’s errand. Laws can and do shape public morality – for good or bad. Libertarians often argue that social conservatives must win the “hearts and minds” of the American people before they can legislate morality. Those libertarians fail to realize that laws are a means to winning the “hearts and minds” of the American people. While the laws do not operate in a vacuum and must be supported with social efforts designed to advance public morality, they do play a key role and can lead to moral reform.
Social liberals are currently seeking legal precedent to advance homosexual marriage. A Supreme Court decision in support of homosexual marriage and federal and state laws in support of it will be used by the left to advance their agenda and to normalize the practice of homosexuality – just like they normalized abortion on demand. It is not inappropriate for social conservatives and others to seek to use the law to protect and advance their position.