“You cannot legislate morality.” We have all heard it said at one time or another and hopefully have never said it ourselves. But in a democratic culture that is plagued by relativism, many people accept this as a given. For them morality is just a regurgitation of some outdated religious dogma and the role of government is to give the people what they want. We no longer want puritanical religious dogma in our courthouses and so we need to do away with it. Our country after all is founded on the principle of a government that is “for the people, by the people.” So common is this position, that it is instructive for us to look deeper into it so that it can finally be put to rest.
When we speak of “law” what do we mean? St. Thomas Aquinas defines a law as ““an ordinance of reason made for the common good by the one who has care of the community and is promulgated (made known).” Based on this definition, we see that law is connected to the (common) good and therefore there is an intrinsic link between law and morality. The very purpose of law is to prescribe what ought to be done (i.e. morality). Despite objections to the contrary, we cannot help but to legislate morality.
But what about Martin Luther King’s famous quote that “morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless”? While on the one hand it is true that morality has to do not just with actions, but inner dispositions, Dr. King ignores a key aspect of law. Law, because it is viewed as an ordinance of reason has a formative character. When confronted with a moral question, very often one will look to what is legal with the assumption that legality equates to moral goodness. The immediate result of the change in the segregation laws that King fought to put in place may have been restraint, but one can see in hindsight that it also changed hearts as well. In other words, as the Pro-life movement is finding out, it is very hard to change minds and hearts without also changing laws.
One might be tempted to say then, that yes you can legislate morality, but only based on majority rule. How else could we possibly agree on whose morality we would use? This eventually leads to the type of soft-despotism that Tocqueville thought a very real possibility in the democracy of the United States because it misunderstands what “self-government” means. Since the right to self-government proceeds from the Natural Law, the exercise of that right must be in accord with Natural Law. If Natural Law is sufficiently valid to give this basic right to the people then it must be valid to impose its precepts on this same right. Whatever rights the people want to exercise must be in accord with Natural Law. No matter how hard you try, you cannot run away from the natural law by invoking the right to self-government.
Despite a resistance in recent Supreme Court rulings to refer to anything above the Constitution, it is the natural law that must ultimately be the determination of whether a given action is right or wrong (for a fuller treatment of the natural law and what belongs to it, click here). In the mind of the Founders, all legislation should proceed and be judged not solely by the Constitution, but by the “the Laws of Nature and of Nature’s God” (Declaration of Independence). This is a key argument that Martin Luther King Jr. makes in his manifesto against segregation, A Letter from a Birmingham Jail—“An unjust law is a human law that is not rooted in eternal law and natural law.”
But there is a limit on the role that civil law ought to play in legislating morality. The civil law can only go so far in monitoring actions while morality goes to the inner person. St. Thomas Aquinas thought that not all vice ought to be outlawed. Instead he thought only “the more grievous vices from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others…”( ST, I-II, q.96, a.2) should be outlawed. In essence the Angelic Doctor is saying that when a law prescribes acts that are far beyond the virtue of the average person in society then there ought to be no laws against it. One of the reasons for this is that the law may become a pathway to further vice. For example, suppose you outlaw contraception and not everyone has the level of virtue to follow the law. Now you can create a situation where a black market arises and further, more serious crime occurs.
This does not mean that contraception (or some other vice) is a necessary evil and that nothing can be done. Classically understood, a good government is one that helps make the people morally good. This is especially true of a democracy which depends on a “moral and religious people” to survive as John Adams said. While laws may not seek to outlaw all vices, they certainly should not promote them. Therefore, governmental policies such as Title X that actually supply and pay for contraception should not be in place. One can tolerate certain vices, but toleration should never lead to promotion because this leads to an implied judgment that the action is good.
In his book We Hold These Truths, Fr. John Courtney Murray makes an astute observation about Americans. Because of the country’s Puritanical roots, our thinking has often been muddled in our thinking about the relationship between law and morality. This leads to a fundamental error in our thinking, namely that by beginning with the assumption that whatever is moral ought to be legislated, it is inevitable that one will think that whatever is legislated is moral. This works well when the country remains tied to its foundation in Natural Law, but once that is severed by moral relativism it leads to mob rule. Only in returning to our roots in the Natural Law will we become a morally good people.