'You can't legislate morality' is wrong on its face, and here is why

"You can't legislate morality." Say it at a dinner party and watch the heads nod like a row of bobbleheads on a dashboard in a pothole. It sounds so reasonable. It sounds so tolerant. It has the satisfying ring of a sentence that ends the conversation, which is exactly why it is so useful to the people who say it. They have not made an argument. They have announced that none is needed.

Here is the trouble. The person who says it, three minutes later, will tell you that the law must forbid a landlord from turning away a tenant for his race, that an employer who cheats his workers should be punished, and that a company that dumps poison in a river should pay for it. Ask why, and the answer will be some version of "because it's wrong." Congratulations. You have just met a person who thinks you can legislate morality and is enthusiastic about it.

So let me make the case plainly. The slogan is false. It is false as a matter of logic, false as a matter of history, and false as a description of what the very people who repeat it want government to do. The interesting questions are not whether law enforces morality, but whose morality, on what reasons, within what limits, and answerable to whom. I'll take the objection seriously, state it at its strongest, and answer it in numbered points.

The objection at its strongest

Here is what a thoughtful person means when he says it. He does not mean that murder should be legal. He means something narrower and more defensible: that in a free and diverse country, the government should not use the criminal law to force one group's private religious convictions on everybody else, particularly on matters of personal conduct that harm no one.

He can cite serious authority. John Stuart Mill argued in On Liberty in 1859 that the only legitimate purpose of using power against a member of a civilized community, against his will, is to prevent harm to others. Mill added that a man's own good, physical or moral, is not warrant enough. In the 1950s and 1960s British jurists argued over the same question after the Wolfenden Report of 1957: Lord Devlin defended the idea that a society may legislate to preserve its shared morality, and H.L.A. Hart answered in Law, Liberty and Morality in 1963 that the law should stay out of private conduct absent harm.

And the objector can point to our own history, where majorities have used the law to enforce their moral views on minorities in ways we now regret. Some of those majorities were religious. That is a fair point, and any conservative who waves it off has not read much history.

Now the answer.

Point one: every law is a moral judgment

Take any statute you like.

The law against theft says that taking what belongs to someone else is wrong. A Martian could not derive that from the physical facts. The prohibition on murder says human life must be protected. Laws against fraud say that lying to get someone's money is wrong. Child labor laws say that children should not work in mines. The speed limit says my convenience does not outweigh your life.

None of these is a "neutral" rule. Each embodies a judgment about right and wrong, enforced with the state's power. There is no such thing as a law that floats above morality like a referee with no opinion about the game. A law that says "do this, don't do that" is, by its structure, a claim about what ought to be done.

That is why the slogan fails on its face. If it were true, all law would be impossible. What the slogan's defenders actually mean is "you can't legislate the morality I disagree with." That is a different claim and a perfectly respectable one, but it needs reasons, not a bumper sticker.

Point two: the Civil Rights Act legislated morality, and thank God it did

The best single proof is the one that stings the most. In the early 1960s, one of the standard arguments against federal civil rights legislation was that you cannot legislate morality, that attitudes would change in time, and that the law would do no good until hearts did. The Civil Rights Act of 1964, signed by President Johnson on July 2 of that year, was a moral judgment enforced by law: that a person may not be refused service at a lunch counter or a hotel because of his race.

Dr. King made versions of the reply in speeches in those years: the law may not be able to make a man love me, but it can restrain him from mistreating me, and behavior shapes habit over time. History bears him out. The statute did not wait for hearts. Behavior changed first, and attitudes followed.

Republicans supplied the votes that broke the filibuster against that law, a story told in The Civil Rights Act of 1964 and the Republican Votes That Broke the Filibuster and in Everett Dirksen and the Republican votes that broke the 1964 filibuster. If you believe that law was right, you believe in legislating morality. There is no way around it.

Point three: King himself invoked Augustine and Aquinas

Now consider where the moral argument came from. On April 16, 1963, Dr. Martin Luther King Jr. wrote his Letter from Birmingham Jail, answering eight white Alabama clergymen who had called his demonstrations unwise and untimely. A central question of the letter is how a citizen can break one law and obey another. King's answer is that there are two kinds of laws, just and unjust, and that a just law is one that squares with the moral law, the law of God.

He did not invent that idea. He cited Saint Augustine, for the point that an unjust law is no law at all. And he cited Saint Thomas Aquinas, for the definition that an unjust law is a human law not rooted in eternal law and natural law.

Read that again, because it is the whole ballgame. The most admired moral argument in modern American politics rests on the claim that human law has to be tested against a higher moral standard. The movement was run out of churches. Its leaders were ministers. It carried hymns into the courthouse square. If "you can't legislate morality" were the rule, it would condemn the civil rights movement along with everything else. Nobody who admires King can consistently use that slogan against religious believers who bring moral arguments into public life.

Point four: the "neutral state" is a myth

The strongest form of the objection says: fine, every law has a moral basis, but in a free society the state should stick to a thin morality, protecting people from harm, and leave the thick morality to private life. This is Mill's position, and it deserves a real answer.

The answer is that "harm" is not a neutral term. Whether something counts as harm depends on whom you count, what you count as an injury, and how you weigh competing interests. Is a child before birth someone who can be harmed? Is a worker paid less than a living wage harmed? Is a community harmed when its common standards are eroded? Each of these is a moral question dressed up in a technical word. The harm principle does not escape moral judgment. It moves it into the definition.

And notice who uses the language of morality in politics today. Almost every cause, left or right, is argued in moral terms: fairness, justice, dignity, equality, responsibility, stewardship. The person who says the government should raise the minimum wage is making a moral claim about what workers deserve. The person who wants stricter environmental rules is making a moral claim about what we owe future generations. I do not object to either; they are legitimate arguments and I may disagree with the conclusions. But when they come from the left, no one says "you can't legislate morality." The objection appears only when the moral claim comes from a religious conservative. That is not a principle. That is a preference.

Point five: conservatives do not say every sin should be a crime

Now I want to correct something on my own side, because the slogan lives partly on the strength of a caricature.

No serious conservative thinks every vice should be illegal. Thomas Aquinas himself, whose work King cited, argued in the Summa Theologiae that human law should not forbid all vices, only the more serious ones, chiefly those that harm others, and that a law demanding too much virtue would be broken by most people and breed contempt for law. That is not libertarian rhetoric. It is the classical tradition.

The founders held the same view in their own way. Madison's Memorial and Remonstrance of 1785 argued that religion must be directed by reason and conviction, not by force or violence, and that the civil magistrate has no authority over it. You can read the Baptist side of that story in Baptists, Madison and the Virginia fight that put religious liberty first. John Locke, in his Letter Concerning Toleration, published in 1689, argued that the magistrate's job is to protect civil interests such as life, liberty, health and property, and that the care of souls is not committed to him. Notice what Locke does. He does not say that morality has no place in law. He says the law has a limited purpose, and he gives reasons.

So the real debate is not "morality or no morality." It is about the proper scope of law. That is a debate conservatives should be glad to have.

A fair test

Here, then, is a test for any law that rests on a moral judgment. I think it is fair to both sides.

1. Public reasons. Can the law be defended with reasons that any citizen can weigh, whether or not he shares the lawmaker's faith? Harm to others, protection of rights, public safety, justice to the vulnerable: these are public reasons. "My church teaches it" is a reason to hold a belief; it is not by itself a reason to bind your neighbor. This does not exclude religious citizens. Many abolitionists were driven by faith and argued their case in terms of human liberty. What it requires is that a law be justified in a way that lets the other side answer.

1. Protected rights. Does the law stay inside the lines the Constitution draws? Free exercise, free speech, due process, equal protection: the Bill of Rights and the Fourteenth Amendment fence off areas where majorities may not go. The First Amendment forbids Congress from establishing a religion. It does not forbid a religious citizen from voting his conscience. If you want the deeper history, see where 'a wall of separation' really comes from and what it was built for and Seven claims about God and the founding, tested against the record.

1. Answerable lawmakers. Who decides, and can they be voted out? A law passed by an elected legislature can be debated, amended and repealed. A moral rule imposed by a judge or an agency can only be endured. If we are going to legislate morality, and we are, then legislate it in the open, where the people can argue and the voters can respond. That, incidentally, is the heart of the conservative objection to government by unelected authority. See A Five-Question Constitutional Test You Can Run on Any Federal Law for a practical way to ask the question.

The last objection: "But your morality is religious"

Some of the time it is, and some of the time it is not. Many people who oppose abortion, for example, do so on grounds of human rights and science, not scripture, and many religious people reason from the Golden Rule the same way their secular neighbors do. Either way, a motive is not a refutation. If a moral argument is wrong, show why it is wrong. If it is right, it does not become wrong because it was first taught in a church. The person who says that a view "comes from religion" and stops there has committed the genetic fallacy and called it tolerance.

And religious conservatives have to hold up their end. If you want to bring your convictions into the public square, you owe your neighbors reasons, patience and an honest willingness to lose a vote without losing your temper. That is how the abolitionists did it, that is how King did it, and it is the only way that works in a republic.

The bottom line

• Every law enforces a moral judgment. The question is never whether, only which one, on what reasons, with what limits and answerable to whom.
• The Civil Rights Act of 1964 legislated morality, and so does every statute against theft, fraud or violence. Anyone who admires Dr. King's letter has already accepted that human law is tested against a higher standard.
• Use the three-part test: public reasons, protected rights, answerable lawmakers. Apply it to your own side's proposals first.
• When someone says "you can't legislate morality," ask which law he would repeal. Then ask which law he would pass. You will have your answer.
• Argue in the open, accept the result of the vote, and keep arguing. That is what citizens do.