Last week a majority of Maine voters chose to preserve traditional marriage. In response, the pro-gay political movement protested that their rights had been violated and published pictures and interviews of disappointed homosexual couples. One common complaint from this movement has been that traditional marriage laws are illegitimate because they are based on majority morals. In a similar vein, two weeks ago I had an extended discussion with a professor of property law—who also happens to be a devotee of law and economics—about zoning laws based on majority morals. Frequently, communities use zoning regulations to exclude bars, distilleries, strip clubs, pornography, public nudity, and other things that the community dislikes for moral reasons. This professor insisted that morality was not a legitimate justification for zoning regulations and that cities should have to justify any laws they enact on non-moral grounds.
Arguments that laws should not be based on morals are persuasive in the United States. Many of the early immigrants to the United States were driven here by religious persecution, and, consequently, the protections for religious freedom written in the First Amendment are among the strongest in the world. History has strengthened this sentiment; state action enforcing a moral code raises the specter of atrocities like the inquisition, the Salem witch trials, and the violent expulsion of the Mormons from the United States in the middle of the nineteenth century. Another complication is that individuals examining a moral code from the outside often judge its practitioners to be irrational or worse. Individuals within a moral code often judge those who don’t abide by it to be deviant or worse. An extreme example of such a clash is the long conflict between western culture and fundamentalist Islam. These sentiments against laws based on morality are misleading because at root all legitimate laws are based on moral judgments.
For many laws, particularly criminal laws, the moral judgment is obvious: murder is bad; stealing is bad; injuring others is bad; and so on. For other laws, the connection to a moral judgment is distant and only becomes evident by asking what the end goal of the law is and then asking why society ought to pursue that goal. The private reasons of legislators and voters for supporting the law are irrelevant; the moral aspect of the law is revealed through the reasons that the public accepts as legitimate arguments.
When I presented this argument in my discussion with the property law professor, he immediately disagreed. “What about,” he asked, “laws designed solely to achieve some economic benefit?” He argued that such laws were not based on morality because they were only intended to promote the production of goods (like televisions, food, cellphones, etc) that have no moral aspect at all. This argument touches on but misapplies an important point. Clearly, an object can be good but it cannot be moral. It makes sense to describe a screwdriver as good, but it is nonsense to say that it is moral. Morality implies will—a trait that screwdrivers lack. So my property law friend was partially correct to claim that the goods that a law seeks to promote may lack a moral aspect. But his argument fails because laws are not simply assertions of fact; laws constrain human action. So, a law designed to achieve an economic benefit is not simply a non-moral judgment that economic benefits are good; it also implies the moral judgment that people should act (and government should force them to act) in ways that produce economic benefits.
Recognizing that all laws are ultimately based on moral judgments has important consequences. It means that objecting to a law because it is based on morality simply doesn’t make sense for the non-anarchist. It also means experts in economics, law, and public policy are not necessarily experts on the legitimacy of laws; experts on the legitimacy of laws are those who have a clear, deep understanding of moral truth. Perhaps most important, recognizing that all laws are ultimately based on moral judgments places moral and immoral individuals on an equal footing when discussing politics.
Political movements are successful only insofar as they appeal to popular moral justifications. Honest politicians do this by explaining the moral justifications they rely on and attempting to persuade others to adopt those justifications. Dishonest politicians hide the moral implications of their political goals and instead present widely accepted but inapplicable moral values. The gay rights movement has used this latter strategy with marked success by injecting the popular moral judgment of equality before the law into the gay marriage debate. See my previous post. The fact that the decision in Maine to deny marriage licenses to gay couples was a moral judgment in no way invalidates that judgment. It simply shows that the majority still rejects homosexuality as immoral, and that it has not fallen for the equal protection ruse.
Before ending I want to clarify two possible misunderstandings that are not directly relevant but could arise from this post. The claim that laws are unavoidably tied to morality does not contradict the existence of natural law, nor does it in any way endorse moral relativism. Moral judgments can be accurate or inaccurate just like any other kind of judgment; natural law is the articulation of accurate moral judgment.