Legal Brief: Legislating Morality and Ethics


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“Morality cannot be legislated, but behavior can be regulated. The law may not change the heart, but it can restrain the heartless.” 

— Martin Luther King Jr.

Can it be done? Which behavior should be legislated? Whose moral and ethical values should be codified? 

The United States was founded on two, often conflicting, traditions. In the religious tradition, government and religion were inseparably intertwined. In the secular tradition, government respected the individual’s right to make moral choices and remained neutral regarding how people chose to define their own vision of society.

Religious tradition accepts the view that the government can be used to impose the moral values of some onto all. But with the signing of the Constitution and Bill of Rights, our Founding Fathers declared that even a majority within society cannot impose its moral values on others, thereby harming the individual rights of others. In other words, majority rule is tempered by minority rights.

Prohibition (1920-33) is often cited as an example of legislating morality gone wrong. Organized crime proliferated and overwhelmed courts and prisons, and corruption of public officials became rampant. An average 1,000 people died annually from drinking tainted alcohol, and alcohol consumption actually rose, according to a 1991 Cato Institute policy analysis. 

The Catholic Church supported Prohibition, but 30 years after it ended, I was a child in the 1960s who was required to pick dandelions on the church property so the nuns could make dandelion wine. I didn’t know any Catholics who supported Prohibition, including my grandparents. Clearly, what the hierarchy supported wasn’t what the average Catholic embraced.

The Constitution gives the government the right to legislate for the “general welfare” under its police power, but the exercise of that power requires restraint. When laws attempt to compel or prevent some action that is not a matter of general belief, the law is attempting to force upon the public values that belong to select individuals or groups of individuals. The danger of this kind of legislation to individual liberty and freedom is tremendous. 

I fear federal and state governments attempting to enforce the will of the few upon the masses through laws that create standards of morality and ethics that are not accepted by the majority. I fear legislators enacting laws that arbitrate moral choices concerning science, medicine and ethics; or on issues that require thoughtful deliberations by individuals who must make personal decisions to undergo a medical procedure, for example.

In “The Ethical Trouble with Legislating Morality,” David Trillo writes that when religious believers have difficulty convincing others about traditional beliefs by reason alone, political force is sought to enforce those beliefs, which then have the threat of physical force against nonbelievers. Trillo argues that legislation of “opinion morals” is ethically wrong.

Conversely, others argue that legislators traditionally enact public-interest legislation on social and moral grounds. Child labor, prostitution, gambling and minimum wages are just a few examples. 

These proponents of legislating morality say it is needed to protect people’s rights from being infringed on by others. And indeed, legislation has done great good in protecting society’s most vulnerable from exploitation. But that is not what many are attempting to do when legislating morality today.

Although the Bill of Rights protects individual speech, assembly and religious freedoms, it does not allow the government or others to dictate morality or ethics. Legislation cannot tell someone how to live their life if they’re not harming anyone else. Today, many individuals and groups are attempting to use legislation and the courts to shape purely moral or ethical beliefs of often dubious religious origin.

Neither Christian nor Jewish nor Buddhist nor Islamic tradition should invade an individual’s ability to live their life in a moral and ethical way.  Religious beliefs cannot substitute for scientific or medical knowledge.

Legislating for everyone based upon an individual’s or group’s beliefs is illegitimate and subverts the will of our Founding Fathers. 

Joan Korb is a former Door County district attorney and assistant district attorney. She lives in Egg Harbor.