In liberal societies, one commonly hears that we cannot or at least should not ‘legislate morality’, especially ‘religious morality’. Generally speaking, this contention is justified with an appeal to concepts of fairness and freedom. The argument, as often presented (and as presented by a student in my college Political Science class recently), takes more or less this form:
‘We cannot legislate based on religious concepts of morality because our society is diverse and pluralistic, and everyone doesn’t follow the same religion. Thus, to legislate based on one religion in particular would be unfair to those who don’t follow that religion [and presumably would interfere with their freedom to practice some other religion, or no religion at all].’
The problem is that this statement is deeply lacking in self-awareness, and additionally, betrays a fundamental misunderstanding of the nature of state and legislation. This will be easiest to understand if we deal with the latter first.
Upon any amount of reflection, it should become self-evident that the nature of law is, fundamentally, to impose some kind of standard upon those who might dissent from it. This is why law is law, and not a book of suggestions. A law you cannot be forcibly punished for breaking is effectively no law at all. Law is always imposed. That is in its nature. Law cannot, ever, apply only to those who agree with it. There would in such a case be no need for law.
Moreover, most laws exist to impose a specific kind of standard, namely: a moral standard. Obviously, there are fairly trivial laws like traffic regulations, which exist to enforce a standard that is not per se moral, but largely practical. (One could argue that even if the concrete prescriptions of the traffic code are not individually and inherently moral, the need for some kind of ordered framework is a moral imperative when you have as many people driving as a modern country does, but that’s outside the scope of this post.) However, weightier laws are all moral in one way or another. Laws against murder, theft, rape, etc. are all made because legislators believe that these things are immoral.
‘But wait!’ the liberal might object. ‘Everyone agrees those things are immoral. It’s not like imposing your religious opinion about homosexuality or abortion or alternative sexual identity.’ But that is where the liberal is wrong. Everyone does not agree with the laws on murder, rape, and theft. At the very least, there are many, many people who would like for there to be an exception to these laws for their particular case. In a more principled way, there are people like ‘Afghan refugee’ Esmatulla Sharifi, who, according to the lawyer who defended him at his multiple-rape trial, ‘was confused about the nature of consent.’
Again: if these standards were truly universally accepted, we wouldn’t need laws to enforce them. True, the wrongness of murder and rape is broadly accepted, but the few dissenters must still have the values embodied in the law imposed upon them.
Moreover, all moral standards are rooted in a moral code. And which moral code is correct is the subject of debate and disagreement among philosophers, theologians, and ordinary people around the world and has been for thousands of years. And during those thousands of years, legislators have made laws based on their particular moral beliefs. And liberals, despite their rhetoric, dont want to change that. The classical liberals didn’t want to change it, the modern liberals dont want to change it, and the atavistic throwback liberals known as ‘libertarians’ dont want to change it. Rather, each of these groups simply wants to legislate its own particular moral code.
On its own, this would be in a sense unobjectionable. I do not agree with the liberal moral code, but of course I have to expect that like everyone else, liberals would act based on their beliefs. The problem is that they attempt to sell the idea that their moral code isn’t really a moral code, while yours is, and therefore that their moral code is a priori a superior basis for legislation, which it is not.
Libertarians are especially bad in this regard. ‘The government should not enforce morality,’ they say, ‘just property rights.’ But property rights, as conceived by libertarians, are nothing but a system of morality (even if not a complete one). And that system has no a priori privilege over other systems. The claim that libertarians do not want to impose their morality on you is absurd; of course they are going to impose their property rights, as they perceive them, on others who perceive the issue differently.
In short, it is no less ‘unfair’ to impose a moral code based on an ideology on those that dissent from that ideology than it is to impose a moral code based on a religion on those that dissent from that religion.
The problem here is one of names. Just as progressivism is a religion that brands itself as a non-religion in order to get around objections to an established church, the liberal moral code is a moral code that brands itself as something other than a moral code in order to pre-emptively disqualify its competitors. You cannot win as long as you allow the enemy to set the linguistic frame. ‘Separation of church and state’ is nothing but more progressive verbal witchraft.
