Over at the Public Discourse, Micah Watson argues that the “you can’t legislate morality” argument in politics is one of the most specious around:
The governing authority’s power to pass and enforce laws takes account of the beastly side of human nature while holding that some wrongs are so fundamental that they demand a robust and coercive response. If there are truly deeds that are gravely morally wrong, then it follows that there must be an authority established to command that such deeds be avoided and to punish the transgressors who commit them.
As Hadley Arkes has argued, if it is wrong to torture other human beings, then we do not content ourselves with mere tax incentives to encourage citizens to stop. We know that the wrong of torture requires that this choice be removed altogether from the domain of what is acceptable. You can enjoy the symphony, a NASCAR race, or the latest offering at the movies, but the logic of morals and law removes the option of torturing your neighbor for your weekend’s entertainment—even if your neighbor annoys you.
Watson acknowledges that not all actions have “profound moral consequences,” and so need not be legislated — but that even making that distinction shows that society still shares a collective moral sense.
The real question is not whether the political community will legislate morality; the question is which vision of morality will be enforced and by what sort of government.
Considering our nation’s recent craze for banning smoking, while abortion remains perfectly legal, I’d say it’s a good question. (H/t James Kushiner at Mere Comments)