The Relationship Between Law and Morality

By: kipling (Diary) | June 7th, 2012 at 01:55 AM | 64

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The relationship between law and morality has become increasingly relevant as social liberals advance
issues like homosexual marriage and abortion rights. Since at least Roe v. Wade, social liberalism has also
revealed a division within the Republican Party. The relationship has provoked heated discussion here at
RedState. The most recent being a discussion over homosexual marriage about a month ago Gay
Marriage: Left vs. Right. After some reflection, I would like to take the opportunity to enlarge on some
of the points raised in that discussion.
The refrain repeated by many at the time was that we cannot legislate morality. One variant of that
refrain was that no nation in the history of the world has ever been saved from moral bankruptcy by
enacting laws. Another variant was that laws are simply a lagging indicator of moral reform. The
common element in the refrain and all its variants was that laws will not lead to the moral reformation of
a society.
The refrain itself is a gross distortion of the relationship between the law and morality. Historically the
question has not been whether laws led to moral reform or simply reflected a moral reformation that
occurred within a society absent an initial legal component. It is not a chicken or egg type scenario. In
fact, the refrain itself misses the larger dynamic between law and morality and ultimately proves a
pointless distraction.
Two examples for the United States in the twentieth century will help illustrate the dynamic.
In discussing the movement toward social and political equality between blacks and whites in the United
States, the chicken or egg paradigm would lead us on a quest to determine the origin of that movement
to see whether the law led to changes in morality or whether morality led to changes in the law. While the
discussion might be interesting for a history course, the larger dynamic might be lost so let us lay aside the
origin quest and instead look at the dynamic itself. A quick perusal of United States history from
Jamestown to the present would show that sometimes laws were a lagging indicator of public morality
and sometimes laws preceded a change in public morality.
For example, the Brown v. Board of Education decision in 1954 was not a lagging indicator of public
morality. Efforts to achieve political and civil equality between blacks and whites preceded the decision
but the decision itself far exceeded the public sentiment at the time. The lagging indicator argument
would hold that the public had already decided to support the issue and the decision reflected that change
in public morality. Yet, the Brown Decision went further than the public initially wanted to go. One
prominent historian compared the decision to the Supreme Court establishing a beachhead for civil rights
but then quickly abandoning it by failing to create a mechanism for compliance. Here the Supreme Court
clearly established a position in advance of the public and it took some time for the public to catch up.
The law set a public standard of morality that the modern civil rights movement appealed to and used to
advance a new moral standard of equality. Like the Brown decision, the history of the Montgomery Bus
Boycott and the civil rights position on Separate But Equal both illustrate the use of the federal and
state laws by a group to advance their social agenda.
A converse example is the Roe v. Wade Decision of 1973. Once again the Supreme Court decision
exceeded what the public was willing to support in regards to abortion in 1973 based on the number of
anti-abortion laws at the state level. However, the decision itself led public morality toward the
acceptance of abortion. Roe v. Wade was not a lagging indicator otherwise support for abortion would
have led to the removal of state laws.
The point is that the whole chicken or egg question is a fools errand. Laws can and do shape public
morality for good or bad. Libertarians often argue that social conservatives must win the hearts and
minds of the American people before they can legislate morality. Those libertarians fail to realize that
laws are a means to winning the hearts and minds of the American people. While the laws do not
operate in a vacuum and must be supported with social efforts designed to advance public morality, they
do play a key role and can lead to moral reform.
Social liberals are currently seeking legal precedent to advance homosexual marriage. A Supreme Court
decision in support of homosexual marriage and federal and state laws in support of it will be used by the
left to advance their agenda and to normalize the practice of homosexuality just like they normalized
abortion on demand. It is not inappropriate for social conservatives and others to seek to use the law to
protect and advance their position.