The Relationship Between Law and

Morality
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 fool’s

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.