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Should We Legislate Morality?

One objection to Christian involvement in law and politics is that it is somehow wrong to “legislate morality.” Given the heat generated by the same-sex controversy, this epithet is often hurled at Christians who dissent on the Supreme Court ruling and who do not support laws of this kind. These objections, however, have no force.

Consider the nature of civil law. Through the threat of force, these laws constrain or require actions. They are not suggestions, but imperatives. Such laws are not akin to scientific laws which describe the patterns found in nature. Civil laws prescribe behaviors. Some moral standard or moral vision lies behind all civil laws. They do not appear out of nothing, and they are not morally neutral. As R. J. Rushdoony wrote in Institutes of Biblical Law, “It must be recognized that in any culture the source of law is the god of that society.” A god rewards and punishes, forbids and requires, and defines morality. Since civil law is the last word in adjudicating human affairs, the source of that law is deemed the final authority, even if it is not.

American civil law ought to be rooted in and consistent with the Constitution, which itself is based on a philosophy of natural law or natural rights. That is, there is a law above the law to which the law should conform as much as possible in a fallen world. This powerful idea is found in the Declaration of Independence.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Governments are instituted to secure rights given by the Creator. Governments do not create rights by their dicta. The American vision for law is based on the Judeo-Christian worldview—however imperfectly applied.

Some protest that religious people wrongly impose their views on others. Religion is a private and personal matter. “Get religion out of politics,” they cry. But Christians, as citizens of these United States, have just as much right and opportunity to shape law as any other citizen. This follows from the free exercise clause of the First Amendment. Richard John Neuhaus expounds this convincingly and thoroughly in his modern classic, The Naked Public Square (1984). The First Amendment insures far more than “freedom of worship”—that is, activities done at home and in a place of religious assembly. That is protected, but so is political activism and legal influence.

Civil law will not make anyone good. Moral character cannot be legislated. But laws that are just make people less likely to do what is bad for society. As Martin Luther King said, laws will not make a racist like me, but they could stop them from lynching me. That is the negative or restraining power of the law.

When law restrains virtue and encourages vice, we are in a pretty pickle. Perhaps we should legislate a better morality—one based on the founding principles of the founders of this republic, who took their standards largely from the Bible.

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