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How Do We Decide if a Law is Moral or Neutral?

May 9, 2006

One commentator I enjoy (though only occasionally endorse) is Andrew Sullivan, an enigma of political sorts. It is rare for someone who champions Gay Rights to also be so conservative.

But recently, he has made a series of observations that have made me stop, think, and respond (two of which I don’t do that often…I’ll leave it to readers of this blog to decide which two). He has coined the phrase “Christianism”, defining it loosely as the movement to get everyone to agree with American Conservative Christian values and structures. For the time being, I’ll ignore his motivation for attacking this segment of culture and just respond to one plank in his soapbox.

In a recent blog republished by Time Magazine, he says,

In a free society, I’m quite happy to live among people who are intolerant of me, who decide not to associate with me, and generally disapprove of me, for whatever reason they decide. My point is that such intolerance not be enforced by the civil law; and that the civil law be restricted to reflect non-sectarian moral arguments that can be assessed and debated by Christian and non-Christian, Jew or Muslim, Mormon or atheist alike. If we can achieve a broad moral consensus, good. If we cannot, especially over divisive religious disagreements, then neutrality is the better option. And neutrality exists. A law that allows legal abortion or gay marriage as well as adoption and straight marriage is neutral with respect to its citizens’ choices. It is not biased in favor of any one of them. If you have a moral objection, persuade and proselytize, don’t legislate.

It is the sentence “if we can achieve a broad moral consensus, good” that I want to question Andrew about. He seems to open the door to the possibility that people may actually come to some level of agreement on moral issues. By doing this, he underscores the difficulty of this topic. How do we decide which societal issues are moral and which ones are neutral? And if we do decide that something is a moral issue, how will we define what a “broad moral consensus” is, or should be?

For instance, if 51% of the people in America felt that it would be appropriate for women to wear head coverings in public, should we enact that law? Andrew would probably say (from perusing his many writings on the subject) that this is a sectarian concept and should never be legislated. But Andrew, what if 90% of the people in the country believe in having ubiquitous head coverings? Do they then move beyond sectarian belief and magically become neutral? Saudi Arabians believe 92% in favor of Shari’a principles such as this. Does that mean they have the right to enact them over the objections of the other 8%?

My question really is, at what point do we consider a minority’s point of view when enacting laws? In our country, we do not allow children to be sexually exploited by adults. Very few people disagree with the concept of making it illegal for any adult to have sex with any child. But saying “very few people” is not the same as saying “no one”. As Dateline NBC has recently shown, there are many more pedophiles wanting sex with children than we ever thought existed in this country. By telling them they can’t do this, are we disagreeing with them on religious grounds? Sex with minors is practiced in many cultures and religions, most notably some elements of the Northern Plains tribes of Native Americans. Are we being religiously intolerant by passing legislation that disagrees with their practices?

Most laws, if not overtly moral considerations, are at least derived from moral principles. It would be difficult to find a law that at some point did not derive its credibility from an absolute moral standard held by some religious group. Does that mean we should have anarchic principles, believing in nothing as a country and espousing anything? Show me a society where that has worked.

Either we have laws which contain no moral principles or we debate every law as to its moral rightness; you cannot have both.

As to the principles behind “tolerance” I will address that subject later this week.

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One comment

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