How often do we hear it said that we "can't legislate morality"? That we can't "impose our values"? Most Americans take these statements for truisms. They are uncritically assumed to be true. Of course, Catholics are seen as the major violators of this unwritten rule. Again, the idea that we can't legislate morality is uncritically assumed to be true. Let's be a little more critical today and see if such an assumption is really worth making.
What is "law"?
First, we might do well to ask, what is the law for? Why have law at all? What is it meant to do? St. Thomas Aquinas, in the Summa Theologiae, defines law as "an ordinance of reason made for the common good by him who has charge of the community, and promulgated." Thomas see's a good definition as containing all four of the "causes" - material (what something is made of), formal (the shape, concept, or idea of a thing), efficient (the maker of a thing), and final (the purpose of a thing, it's why). His definition of "law" follows this pattern, it breaks down thus:
Material Cause of Law - promulgated
Formal Cause of Law - an ordinance of reason
Efficient Cause of Law - by him who has charge of the community
Final Cause of Law - for the common good
According to this definition, can we legislate morality? Well, as long as such legislation is issued by a legitimate authority, is published for public knowledge, is reasonable, and is directed to the common good it would appear we could. In other words, there is nothing contradictory about legislating morality, there is nothing in the essence of what we mean by "law" that would prevent morals from being legislated.
At this point, an objector might say, "okay, we can legislate morality, but we shouldn't." Which brings us to the question, should we?
If we shouldn't legislate morality, what should we legislate?
Or, in other words, can we legislate anything other than morality? Everyone agrees that premeditated murder should be illegal. Why? Because willfully planning and killing an innocent person is... immoral. Everyone agrees that rape should be illegal, that rapists should be imprisoned. Why? Again, because raping someone is... immoral. It's wrong. It's an evil thing to do. In fact, all laws are grounded in some morality. Speeding is against the law. Why? Because speeding needlessly endangers the lives and property of innocent people and endangering the lives and property of others is... immoral. Examples can be multiplied almost endlessly. In fact, if we can't (or shouldn't) legislate "morals" or "values" then we can't have any law at all! Only the most radical of anarchists (a very tiny percentage of the population) would condone getting rid of the law entirely.
Does anyone really believe that we can't legislate morality?
No, at least not anyone I've ever met or spoken to. What people really mean when they say "you can't legislate morality" or "you can't impose your values on someone else" is almost always, "you can't impose your (sexual) morality on someone else" and "you can't legislate (sexual) morality." No one ever says we can't legislate against other morally objectionable things. When have you heard someone throw up their hands and declare, "oh well, you can't legislate morality" when discussing murder? Or child abuse? Or even air pollution? When have you heard someone claim that we must not "impose our morality" on a thief? No, it's only when it comes to sex that suddenly morality must not be legislated. Dr. Peter Kreeft once asked rhetorically, "If babies came from storks instead of from sex, how many abortions do you think there would be?"
The next time someone tells you that we "can't legislate morality" or to not try to "impose your values" ask them if they are against punishing thieves, rapists, and murders. When they say no, ask them if they really are only talking about "sex" when they say "morality" and "values", then ask them why sexual morality ought to be treated differently than every other type of morality. If they answer that such acts should be treated differently, a real conversation can proceed without "you can't legislate morality" slogan being used to end discussion.
I answer an objection from the combox HERE.