The idea that morality should not be legislated is pure fiction. As much as we may want to tell ourselves that we do not legislate morality, all governments do. Someone’s morality is always legislated, because the very purpose of law is to secure justice for its citizens. The only question is whose morality will be legislated.
This question arises from a Sunday column by New York Times columnist David French, who argues that culture warring from both the left and right threatens our constitutional order. French cited a litany of examples where governors from both red states and blue states are using government power to punish opponents. He then wrote: “But if a government both enacts contentious policies and diminishes the civil liberties of its current ideological opponents, then it sharply increases the stakes of political conflict. It breaks the social compact by rendering political losers, in effect, second-class citizens. A culture war waged against the civil liberties of your political opponents inflicts a double injury on dissenters: They don’t merely lose a vote; they also lose a share of their freedom.”
The better approach, French insists, is “a legal corollary to the golden rule: Defend the rights of others that you would like to exercise yourself.”
The problem with this comparison is that a corollary to the Golden Rule should never be deployed at odds with the Golden Rule itself, but that is what French does throughout the piece as he refuses to differentiate genuine moral harms from genuine moral goods.
The Golden Rule works not by eliminating moral differences—as though I want to defend body mutilation—but by identifying moral limits. As David French has become increasingly libertarian, there are seemingly few absolute moral limits that he wants to see written into the law. What he decries as “contentious policies” may, in fact, be morally good policies that people who are wrong and obstinate in their wrongfulness just do not like. So what? The question is not whether everyone agrees with the law but whether the law defends what is really good.
French’s reducing of the Constitution to proceduralism alone only works where all the members of a society inhabit the same moral universe. Unfortunately, Americans no longer do. It is doubtful that détente is possible when one side believes the other is committing actual harm, such as killing unborn children and letting them mutilate themselves under the guise of gender ideology. Throughout French’s essay, he fails to understand the cataclysmically stark distinction between the moral universes of blue America and red America. A basic naivety runs throughout French’s piece.
But this problem also explains why French’s moral calculations are wrong, which, as a result, means that he gets the government’s purpose wrong, too. Drawing a moral equivalence between Greg Abbott protecting kids from bodily mutilation and Gavin Newsom wanting to expand pharmaceutical access to kill unborn children is not a serious argument that someone who considers himself a conservative or Christian should be making. It’s reckless and wrong.
I imagine French can reply that the purpose of his column was not moral equivalence. But what we can say is that he views certain things—like gender transition (which he does not defend as morally right)—as insufficiently harmful to warrant the state intervening between parent and child. By that logic, if the only sacrosanct moral line is the bond of parent and child, we should permit parents to let their young teens get drunk with impunity—but we don’t.
The state can and should differentiate between genuine moral harms and genuine moral goods and then, in appropriate ways, restrict harms and encourage goods. To say otherwise is to undermine the purpose of government—“to punish those who do evil and to praise those who do good” (1 Peter 2:14). When no common moral goods are in view, a cynical reduction of politics to pure procedure and maximal liberty becomes a recipe for a brutalist society, one that, in the long run, collapses under the weight of relativism’s dictatorship.
When politicians and their laws threaten moral goods, they make themselves enemies to just order—and God’s creation order. In turn, they deserve political disempowerment and opposition.
Believing that the government can promote and safeguard moral good is not, contrary to the online discourse, evidence that one is part of the so-called “New Right.” The idea that government exists to secure the good is, well, at the heart of every debate about political philosophy that there ever was.
We can only let the government be value-neutral in those areas where society can be value-neutral. It cannot tolerate moral agnosticism where the common good is undermined. Lines will be drawn. The law cannot be neutral on the decision of whether to kill unborn children. Someone’s morality is going to dictate society’s moral direction. Government cannot be neutral on the question of letting children mutilate their bodies—even with parental consent. There is no “good faith” justification for letting parents—who perhaps mean well—allow their children to harm themselves. A sane society—and columnists at the New York Times—should recognize this.
