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You Can (Not) Legislate Morality?

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It’s one of the perennial debates in America, especially when we’re faced with socially divisive issues: Can you legislate morality?

If we mean by that question, “Can you make people moral through laws?” the answer is plainly no. If we mean, “Are laws put in place to govern people’s moral behavior?” the answer is plainly yes.


Morality is actually one of the main things that we must legislate, and my suspicion is that even those who bristle at this statement actually agree. As Frank Turek observed, “It never fails. Whenever some conservative takes a stand on a moral issue, some liberal somewhere will indignantly claim, ‘You can’t legislate morality!’ How many times have you heard that worn-out phrase? Incredibly, it’s not even true.” (From the book Legislating Morality: Is it Wise? Is it Legal? Is it Possible? by Frank Turek and Norman Geisler.)

To be sure, virtually all of us recognize that the attempt at Prohibition was a failure and that it did not help to improve American morals. And this failed policy is commonly pointed to as proof that morality cannot be legislated.

But do we really believe that the law has no place in restraining immoral or illicit or socially destructive behaviors? Don’t we actually welcome such laws? Or would anyone suggest that we should not have laws against things like human trafficking?

Jeff Jacoby recently reported that, “By a vote of 183-50, town meeting members in Middleborough, Mass., last week approved a bylaw making public cursing a civil offense and authorizing police to enforce the ban by fining offenders $20.”


Whatever your opinion is of this particular bylaw, do you believe that there should be some kind of laws against profane speech in public, at least in some settings?

Can you imagine walking through a grocery store with your children and hearing a public service announcement laced with all kinds of profanity, or taking your family to a ballgame only to hear the announcer repeatedly use the F word, or switching to a news station on the radio only to be greeted with every kind of vile sexual description? Yet when the government (or a local company) regulates speech in any of these settings, it is legislating morality. Should there be no such laws?

What about laws prohibiting public nudity or pornographic displays? Let’s go back to the grocery store where you’re shopping with your kids. Should there be open pornographic displays at the checkout counters, as there are in some European countries? Should there be no restrictions on the amount of flesh these magazines can show? And what about the workers in the store? Should they not be required to keep their clothes on?

Obviously, we’re not talking about laws prohibiting murder or rape, which every sane person recognizes as necessary. (Yes, these legislate morality too.) But even when it comes to laws prohibiting something like public nudity, most everyone (save the nudists and most extreme libertarians among us) recognizes that it’s right to require people to cover up in public. This too is legislating morality.


When it comes to the marriage debate, advocates of same-sex “marriage” often tell us that the government has no right to decide which relationships are moral and which are not, but do these advocates really believe what they are saying?

This past Father’s Day, Ronan Farrow, the 24-year-old son of Mia Farrow and Woody Allen, tweeted, “Happy father’s day — or as they call it in my family, happy brother-in-law’s day.” As he previously expressed, “He’s my father married to my sister [Soon Yi]. That makes me his son and his brother-in-law. That is such a moral transgression.” Soon Yi, for her part, “never considered Allen her father or even a father figure, noting that Andrew Previn, Farrow’s former husband was her adoptive father.”

But let’s put this convoluted family feud aside and ask a more simple question: Should there be laws against incest? To give a specific, recent example, was Columbia University professor David Epstein guilty of a crime when he had a three-year consensual affair with his grown daughter? Was this only “a moral transgression,” or was it also a legal transgression?

If you agree that there should be laws against incest (on any level), that means that you agree that morality can and must be legislated. (Advocates of same-sex “marriage” who oppose polygamy and incestuous unions also agree that the government should make certain moral judgments when it comes to marriage.)


As Turek explained, “Morality is about right and wrong, and that’s what laws put into legal form. Can you think of one law which doesn’t declare one behavior right and its opposite wrong? The truth is all laws legislate morality (even speed limits imply a moral right to life). And everyone in politics — conservatives, libertarians and liberals — is trying to legislate morality. The only question is: ‘Whose morality should be legislated?’”

Isn’t that the real question?

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