Legislating Morality


Legislating Morality

The topic of legislating morality is an issue that impinges on the ramifications of individual liberty, freedom, and values. Of course, arguably any law passed is a legislation of morality, from seat belt laws to public smoking. But whose morality are speaking about? And on what justificatory basis does one have –  or group have – to impose morality on others? Recent hot button issues have created a cultural divide with regards to rights of LGBT members, specifically people who identify as a different gender. The liberties of same-sex marriage is a continued bone of contention for many in the U.S. who feel that the liberalizing of America [e.g. abortion] is a spreading contagion that is infecting our young generation with unholy values. Undoubtedly, the current topic of legislating morality is between two camps: secular and religious people. I easily grant that there are secular groups, divided by secular reasons, who promote their secular values with regards to, for example, redistribution of capital, privacy laws, and U.S. interference in Middle Eastern affairs. However, in our colloquial way of understanding the meaning of “legislating morality,” it connotes a divide by secular and religious values.

There are four foundational questions that have arisen – within me – regarding the topic of legislating morality. First, what is the role of the citizen and the role of the elected official when discussing legislation? Second, is there a difference between public morality and private morality? How can you begin to even consider legislating a particular morality if you do not have access to that morality? Finally, is there a way to use objective methods to deliberate between morality, rather than relying on subjective religion?

The Roles of the Citizen and the Elected Official

Without getting too deep into political science, I think we can agree that we live in a representative democracy, based on the Constitution of 1787. Through the electoral process, citizens vote for candidates to represent their values on how to organize society as a whole. This is the simplest way I can put it, without parsing or debating every political term I just used. Given this process of representative democracy, the domains of the ordinary citizen and elected official are in completely different hemispheres.

When the ordinary citizen enters the voting booth, he/she is free to vote for whoever and for whatever reasons. In other words, they can draw from their own personal moral [and religious] convictions on “what society should look like” [to them] and select the candidate that best matches those convictions. The elected official, in contrast, is in a domain that is both pluralistic and non-private. Therefore, while the ordinary citizen can vote in either a sensitive pluralistic fashion or with a narrow dogmatism that benefits a certain sect, the elected official ought to view legislation from a vantage point of religious neutrality that takes into consideration the 320 million people living in their heterogeneous and pluralistic society.

On what justification, however, can I say the “elected official ought to view legislation from a vantage point of neutrality?” Well, we have a Constitution with amendments that fosters a Jeffersonian ‘wall of separation’ between the secular and religious state. The First Amendments states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (1791)

In addition, there is an Establishment of Religion Clause written into the First Amendment to prevent the federal or state governments from endorsing or supporting any specific religion in any manner. This includes endorsing any religion over a non-religion, and vice versa. This is why I say that elected officials and judges ought to act from a position of neutrality with regards to religion, by uplifting the betterment of human values over and above their personal conviction based on a particular religion. This First Amendment right is by no means clear to understand, and as you can see, it’s fairly abstract. Despite its somewhat ambiguous language, the essence of the First Amendment has provided a strong basis from which we can begin to have substantive debates on the parameters of freedom.

There is one particular court case that later provided a litmus test for religious neutrality. In the 1971 case of Lemon v. Kurtzman, the U.S. Supreme Court heard arguments as to whether the state should support a program that would provide aide to religious schools. In determining whether the government could give aid to an educational institution operated by a religious entity, the court applied a three-part test, now known as the Lemon Test. The three questions that must be answered in the Lemon Test include:

  • Does the action taken by the government, or the law established, have a legitimate secular purpose? If the answer is no, the violates the Establishment of Religion clause.
  • Is the primary goal of the government’s action, or law established, have the effect of advancing or inhibiting any religion? If the answer is yes, it violates the clause.
  • Does the action taken, or law established, allow for an intertwining of government with religion? If so, it violates the clause.

My intention is not to say that any law passed must contain absolutely no religious affiliation. The morality of love, respect, and altruism can be found in both Judeo-Christian and secular humanism ideals. The separation, however, occurs in the process regarding the justificatory reasons that takes into consideration a pluralistic United States. Written with the oppressive history of the Church of England in the back of the minds of the Framers, the First Amendment exonerates America from living under a religious or theocratic state morality, so that individual liberty can flourish.

It does not matter to me what religion you are, just know that your religion is a belief system and does not cue off of objective truths, otherwise we would call it science. And if you have a belief system, that belief system is constitutionally protected and I don’t have any problems with you holding that belief system or voting for issues that coincide with your religious values. But the moment you hold office where now you are making decisions that affect a pluralistic electorate, any laws you pass need to be based in objective reality. Otherwise you are bringing a personal truth to bare on other people who do not have a privileged access to your truth. And that is a recipe for disaster; a recipe for revolution.

Public Morality and Private Morality

When discussing the legislation of morality, I think we need to draw a distinction between public morality and private morality. And then, as a follow up, ask if any morality is actually really private? Growing up, I was indoctrinated with a morality, courtesy of my parents, that emphasized no cussing (moral speech), doing daily chores (work as morally good), and respecting those around me. Now this was a private morality under the roof of my parent’s house. My parents had no vested interest in making their morality public by, say, advocating that every child in the U.S. should do daily chores.

Public morality, in contrast, is concerned about the moral impact upon an entire society. For example, the Republican congress policy of cutting $210 million dollars for low-income women that grant mothers and their children access to healthcare highlights a morality that is public. This is based on the innate human ethic of care for those who need their basic needs met. Concern for public morality says it’s wrong for the Republican congress to reduce Medicare and give massive tax breaks to corporations. This too is based on the principle that exploiting the poor to increase the wealth of the elite is wrong. As you can see, public morality is concerned about the vast population’s ability to flourish and thrive in a heterogeneous America. Since Roe V. Wade, America can and will continue to move towards moral progress as women possess more rights to make decisions about their own body. Furthermore, fighting to take rights and/or minimize rights of the LGBT is a prime example of taking a private morality – based on values of a religious sect – and limit the flourishing of individuals who are simply trying to pursue love and a create their own loving families. Public morality is based on Enlightenment values that seek to minimize pain and increase freedom. These are values that elevate the ethics freedom, liberty, and justice so that people can, as the Declaration of Independence states, “pursue happiness.”

Insidiously lying dormant within this point is a distinction that I cannot leave unattended: the difference between social conventions and moral rules. Social conventions (e.g. daily chores) are contingent, local, and facilitate social coordination through shared understandings of etiquette and legal codes. Psychologist Elliot Turiel proposed a set of features that sharply distinguished moral from conventional transgressions. Moral transgressions are (1) more wrong, (2) more punishable, (3) independent of structures of authority and (4) universally applicable. For instance, rape, genocide, and pedophilia carry an almost universal moral repugnancy that transcends cultural norms. History as shown us that in order to normalize these types of moral transgressions [within groups], it takes religion or a macabre ideology in the remotest and uncivilized parts of the world. Thus, we can claim – objectively – that the holocaust, female genital mutilation and southern segregation in the 50s has crossed the threshold into moral rules that are wrong whether you are in Mississippi or Uganda.

Social conventions however, are likely to lie along a continuum, stretching from transgressions of norms that are little more than matters of personal preference (e.g. getting tattoos or wearing black shoes with a brown belt) to normative transgressions that are more likely to be matters for legitimate social sanction (e.g., violating traffic laws or not paying your taxes). A vast majority of psychologists and anthropologists would also add discrimination of homosexuals and abortion to the category of a social convention. This claim is supported by the fact that these are “moral mores” that are customs within a particular group. The same in-group morality is found in (most) Jehovah Witnesses refusal of blood transfusions, (most) Buddhist’s refusal to eat meat, and (most) Jewish people eating kosher foods. For these groups to take their private in-group morality into the public sphere – which they have not – would be insulting and egregious to a pluralistic society. My point is this, we as citizens in a pluralistic society, need to proceed with a calibrated caution when thinking about legislation because what is private morality to you may be an act of oppression to another.

A common rebuttal is to claim that not all private morality is private. In a recent group discussion with people from different backgrounds, several Christians pointed out to me that what two men do in the privacy of their own home, does in fact spread to laws that impact the whole community concerning “family values.” I can understand their point. I can also add that, likewise, the private acts of a dad beating his son or a majority of southern states endorsing this form of punishment, ought to be a public concern. Here is the problem with these contrasting points. Spanking or beating a child is a violent form of punishment that has empirical evidence to back the negative and harmful effects. Such that, the American Academy of Pediatrics is against this form of punishment. This stance against corporeal punishment is not based on ideology, religion, or a sect of doctors wanting a utopian society. Rather, it’s based on the empirical facts of the potential grave consequences [based on morals of care and harm] that spanking has on young minds.

The religious argument, that homosexuality involves public morality, is based solely on fear and doctrine-driven-ideology.  Anyone can comb through the database of their arguments and paltry justifications and you will find that a reasonable justification based on objectivity is completely missing.  Reasons such as the “Bible says it’s wrong,” or “it’s not natural,” or that “it’s a slippery slope and soon women will be marrying their dogs” has absolutely no substantive value. Whether it’s homosexuality, abortion, or racism, we can look at history and the consequences and benefits of accepting a progressive outlook and conclude that granting rights rather than oppressing civil liberties has moved America into a more compassionate and understanding domain. Even though we still have a long way to go.

Imposing Morality: Double-Talk

Before I move on to my next point, I would be remised not to address a common phrase that is shouted across the moral lines from both religious and secular people which is: “It’s not right to impose your morality on me.” I’ll take this one step further and see if you can notice the double-talk:

 “It’s not right to impose your morality on me, but let me tell you how society ought to be like.”

Imposing morality, or saying aloud “this is how society ought to be” is unavoidable and should be expressed in a country of free speech. However, when the religious express their moral ‘thou shalt’ and ‘shalt nots’, they are speaking from the side of a subjective sectarian ideology. While it is protected and a Constitutional right, this type of talk is not helpful in the public domain. On the other hand, the secular perspective can engage in a substantive debate based on tangible notions of moral foundations as was done by John Stuart Mill, John Locke, James Madison and Thomas Paine, to name just a few. When deliberating how society ought to flourish and thrive in a pluralistic fashion, there is absolutely no need for the injection of theologies of Christians, Mormons, Catholics, or Islam.

So in order to avoid double-talk, we should ask: is there a type of morality that should be imposed? I say yes. It is a type of morality that the Constitution speaks of when stating our individual right to life, liberty, and the pursuit of happiness. It’s a morality that, as I said earlier, seeks the flourishing of all people, where individuals can have ample opportunities to thrive. This, I believe, is not necessarily a salient answer, rather, it’s a good foundation to start with as laws and legislation come into the scope of public policy. It’s an answer the elevates human well-being over what a particular religious sect thinks. I do, in fact, want to impose a morality that seeks the flourishing of human beings. And I am more than happy to speak from a sensitive and pluralistic viewpoint that draws from verifiable empirical evidence rather than revelation from a deity in the sky or that lives in my heart. So when it comes to imposing a morality that has its basis and justificatory foundation in religion, that is when you have a recipe for tyranny and revolution. No theocratic or religious state in the history of civilization has thrived or has provided the blueprint for human flourishing. So in order to avoid double-talk, the type of morality that shouldn’t be imposed is one from a subjective, unverifiable, Utopian ideal.

 Making Morality That is Accessible to All

When we are discussing the justificatory reasons for such-in-such law, the moral fibers of that policy need to be accessible. Religious sects have claims that are not accessible to everyone because millions of people in America don’t have a Holy Spirit inside of them, they cannot comprehend the Bible, and they use reason to reject access to a salvation based on a gruesome human sacrifice. In contrast, the justification for the moral wrongness of 1st degree murder, Ponzi schemes, and drunk driving are rooted in a shared logic and agreement that those actions cause a tremendous amount of harm and should be stopped. After all, we don’t see any protests on the steps of the Capital from people advocating the right to drive drunk behind the wheel. Furthermore, we have data and evidence that show the harm caused by these actions. I don’t need a deity to speak to my heart, in order to realize that I should not plan the murder of the next guy that cuts me off on the highway. Since the Enlightenment, we have done quite well with moral progress by using empirical reason rather than the Word of God, revelation, or conviction.

Can you imagine what it would be like if America became a theocratic Mormon state? Both the Judeo-Christian and the Atheist would be in complete agreement as to their shared confusion and incomprehension. Why? This is because laws would be legislated based on the Mormon scriptures which are God-breathed. Revelation would come from God or the current Mormon prophet who is in charge. Modifications to law would be made based on a felt conviction. The reason this would be so incomprehensible for the both the Judeo-Christian and the Atheist is because they have no access to these Mormon world-views. They simply don’t share in the Mormon belief. The Christian cannot relate to the Mormon scriptures and a living Prophet that speaks for God. The twist, however, is that the Christian is no different than the Mormon. Both world-views take their cues from subjective beliefs that have no basis in objective reality. If It’s not accessible, then it shouldn’t be imposed upon a pluralistic society.

Lastly, I want to anticipate a rebuttal and state that while the secular person does not have access to the privileged Enlightenment of the religious person, the religious person does in fact have accessibility to secular notions. Ethics is built on universal tangible foundations with regards to (1) care/harm, (2) liberty/oppression, (3) sanctity/degradation, (4) authority/subversion, (5) fairness/cheating and (6) loyalty/betrayal. All six of the moral foundations show up in every society around the globe. They form the scaffolding and provide the moral architecture of legislation, property rights, contracts, economic policy, and social relations. Allow me to reiterate that these six foundations are accessible to all people. The religious person or group has a lot to contribute to any moral discussion or act of legislation because of the universality of these six foundations of morality.

Using Objective Data to Inform the Legislation of Morality

It is often said that science, unlike religion, has nothing to say about meaning and values. Another way to put it is that science may discuss the “how” (i.e. causes) but it doesn’t have anything to contribute to the “why” (i.e. meaning). If this were true, then it would render this essay completely useless since I have devoted much time minimizing religion’s impact in legislating morals and elevating the need to use objectivity. Fortunately, we have sufficient evidence to support the claim that science can help lead us towards moral progress with regards to legislating morality. Allow me to quickly weave through several quick points to buttress my claim within this tapestry of thought.

We can begin with the individual organism as the primary unit of biology and society because the organism is the principal target of natural selection and social evolution. Thus, the survival and flourishing of the individual organism—people in this context—is the basis of establishing values and morals, and so determining the conditions by which humans best flourish ought to be the goal of a science of morality. The constitutions of human societies ought to be built on the constitution of human nature, and science is the best tool we have for understanding our nature. For example:

  • We know from behavior genetics that 40 to 50 percent of the variance among people in temperament, personality, and many political, economic, and social preferences are inherited.
  • We know from evolutionary theory that the principle of reciprocal altruism—I’ll scratch your back if you’ll scratch mine—is universal; people do not by nature give generously unless they receive something in return.
  • We know from evolutionary psychology that the principle of moralistic punishment—I’ll punish you if you do not scratch my back after I have scratched yours—is universal; people do not long tolerate free riders who continually take but never give.
  • We know from behavioral game theory about within-group amity and between-group enmity, wherein the rule-of-thumb heuristic is to trust in-group members until they prove otherwise to be distrustful, and to distrust out-group members until they prove otherwise to be trustful.
  • We know from behavioral economics about the almost universal desire of people to trade with one another, and that trade establishes trust between strangers and lowers between-group enmity, as well as produces greater prosperity for both trading partners.

These are just a few lines of evidence from many different fields of science that help us establish the best way for humans to flourish. We can ground human values and morals not just in philosophical principles such as Aristotle’s virtue ethics, Kant’s categorical imperative, Mill’s utilitarianism, or Rawls’ fairness ethics, but in science as well. But let’s move to a specific example that helps us move from what science says is descriptively so, to what is prescriptively right.

Take homosexuality and same-sex marriage, the latest of the Rights Revolutions that are unfolding in our time. Descriptively, science tells us that human beings have an evolved, innate drive to survive and to flourish, and that one of the most necessary and primal requirements among the many preconditions for life, health, and happiness for most people is a loving bond with another human being. Prescriptively, we can say that granting only a select group of privileged people the right to fulfill this evolved need – while simultaneously depriving others of the same basic right – is immoral because it robs them of the opportunity to fulfill their essence as evolved sentient beings. This is true even if the case could be made (as it has been by those who oppose same-sex marriage) that such discriminatory practices are better for the group (in a type of utilitarian calculus where the sacrifice of the few is justified if it leads to the greater happiness for the greater number). It is still wrong because the individual is the moral agent, not the group. It is the individual who feels the sharp pain of discrimination the sting of being excluded, and the insult of being treated differently under the law. Science tells us why they feel this way and reason instructs us what to do about it if we want to continue the moral progress of the Rights Revolution.


The divide that engulfs the subject of ‘legislating morality’ does in fact involve secular vs religious camps. On the surface it looks like an impasse: no matter what camp is talking, the other is going to not be able to relate. But this ignores the universality of morality. As a natural right, the personal autonomy of the individual gives us criteria by which can judge actions as right or wrong: do they increase or decrease the survival and flourishing of individual sentient beings? Morality is not arbitrary, relative, or completely culture-bound. Morality is universal. We are all born with a moral sense, with moral emotions that guide us in our interactions with other people, and that are influenced by local culture, customs, and upbringing. Nature endowed us with the capacity to feel guilt for the violation of promises and social obligations, for example, but nurture can tweak the guilt dial up or down. Thus morality is real, discoverable, “out there” in nature, and “in here” as part of our human nature. From these facts we can build a science of morality – a means of determining the best conditions to expand the moral sphere and increase moral progress through the tools of reason and science. This is what we have been doing since the Enlightenment, after the idea of Divine Right of Kings fell on its head. My hope is that when it comes to legislating morality, we can keep expanding our moral sphere.

-Wes Fornes




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