In this thread about conservatism, hayleyanne had this to say:



I am inclined to agree with her assessment and thought it would bring for excellent discussion.

Questions for Debate:

1) First, what exactly is meant, in your opinion, by "legislating morality"?

2) What is the difference (if any) between enforcing laws and enforcing some form of moral ideology (such as, 'theft is wrong')?

3) Can a society be free yet be held to a moral standard?

Making religious, or personal feelings law. For example, I think that prostitution is immoral, therefore, I'll vote against a bill making it legal. Personal morals/religious beliefs are FINE, but they are just that...personal. When they become law, then we have a problem.


Well, theft is wrong because it infringes on the liberties of another and/or directly harms someone. I'll go back to my prostitution example, that really doesn't harm anyone per se, it's illegality is based on the public [or at least our representative's] distaste for it personally.


This question assumes that without gov't enforcing a moral standard, there will be none. Most people in this country have a moral standard that is very similar to everyone else's. Even without enforcement by law of this standard, each individual person will keep to it individually. Which as I said, is perfectly fine. If the government legalized all hard drugs tommorow, I wouldn't take them, I have moral problems with them. But the fact remains, those are my PERSONAL beliefs.

CP

I agree, something should be legal as long as it doesn't harm the liberties of other citizens.

For example, I would ban smoking in public places because your ruining everyone elses health around you.

I wouldn't ban smoking in a private building because its your choice and most likely your house.

1) First, what exactly is meant, in your opinion, by "legislating morality"?
Basically when a law is created to prevent behavior that only may hurt those who choose to take part in it. For example, fornication, using drugs, drinking alcohol, swimming right after you eat, suicide etc... Many people may believe that sex outside of marriage is wrong but it's unjust to outlaw fornication because it only hurts those who choose to take part in it. What business do other people have in deciding what you choose to yourself?

2) What is the difference (if any) between enforcing laws and enforcing some form of moral ideology (such as, 'theft is wrong')?
Theft is illegal but what about consensual theft, like paying 18% interest on your credit cards? If you choose to give another person your money or possessions the government doesn't get in the way. It's just like rape and sex. One is illegal and one is legal. Unless an act infringes on somebody else's freedom, the government shouldn't legislate against it, period. The fairest government is inherently self-government, a fair government realises that.

3) Can a society be free yet be held to a moral standard?
Since when is the government in charge of making people act the right way? People are held to moral standards by their families, by their communities, and other societal structures. People shouldn't expect laws to tell them how to live a moral life and laws should be intend to make people moral. That just leads down the path to totalitarianism.

First, what exactly is meant, in your opinion, by "legislating morality"?


Some have suggested that the government is “legislating morality” whenever it makes illegal conduct that does not affect others. Generally, I think this is correct. But it extends way beyond the usual examples of such things as prostitution and drug use.

The phrase has been used in a derogatory sense against Conservatives. And I disagree with such a use. When the law “legislates morality”, it is simply making a judgment about whether certain conduct is good or bad, socially desirable or not. The left has attempted to add a religious component to the meaning of “legislating morality”, to make it seem as if the religious right is the only group trying to legislate its morality. But make no mistake, the left is just as eager to root morality into our law as the religious right. Neither group has a monopoly on it.

As we can see from this thread already, many are quick to point to the right legislating morality. So, I’ll give two paramount examples of the moral values that the left seeks to have enshrined in our laws.

Inclusion over Exclusion - Diversity:

A strong moral theme that runs through positions taken by the left is that inclusion always trumps exclusion. They attach moral value to society’s acceptance and legitimization of all different groups in the name of diversity. Diversity is a banner for what is right and good in any number of instances where society regulates conduct. Racial preferences in hiring and college admissions is good because it promotes the ideal of diversity. Lack of preference is bad because it does not pro-actively seek to insure diversity in the workplace or university.

The value of diversity is promoted in our family law. The left believes that families come in many “flavors” and seek to have all configurations recognized as equally valid under the law. It advocates how the law must acknowledge the diversity that exists with respect to families today and moreover, the law should encourage and support such diversity. Hence, same sex marriage is good. But, limiting marriage to a man and a woman is bad. Same sex adoption is good. Limiting adoption to a traditional couple is bad.

Protecting the minority from the majority

Perhaps the strongest moral theme that runs through left wing positions is the belief that the majority will never do what is best for society’s minority groups (and indeed may harm them). This leads to the moral view on the left that the law must protect minorities from the majority in every possible instance.

The left has been very successful in establishing this particular moral judgment in our laws at every level. One example of regulation that furthers this goal might be campus speech codes. Another example might be the poltical correctness movement. Both seek to control the conduct of the majority so as to protect whoever the perceived minority may be.

Additionally, this moral view has found its place in our constitutional law. When a court tests a law to see if it is constitutional or not, it applies a particular level of scrutiny. The choice of which level of scrutiny is applied will usually dictate whether the law is found unconstitutional or not. If it applies a general rational basis test, the law is normally found constitutional. In contrast, if it applies an intermediate or strict scrutiny, the law is usually found unconstitutional. It is all about which level of scrutiny the court will apply in the first instance.

Well, our constitutional law now asks in the first instance, whether a “discrete and insular” minority is involved in the law at issue. If it is, the court will adopt a heightened level of scrutiny and the law will usually get struck down as unconstitutional. The legal inquiry itself hinges on the involvement of a minority group. And the premise is that the majority cannot be trusted (through its laws) to do what is best for powerless minorities. Hence, the law will step in to correct this bias.

1) First, what exactly is meant, in your opinion, by "legislating morality"?

Very easy- making laws that don't pass the "eww" test but harms no one directly- such as prostitution, gambling or drug use. I don't personally like any of those three, however, none of those items harm me directly. If someone commits a crime that directly harms another in the act of those three, punish that crime, not the sin crime- for instance, Alcohol is not illegal, it harms no one directly, however, drinking and driving is very dangerous for the public, and leads to direct harm. Punish the drunken driver, do not punish the alcohol itself. Guns are used in crimes, don't make guns illegal, make using guns in a crime a very harsh punishment.

2) What is the difference (if any) between enforcing laws and enforcing some form of moral ideology (such as, 'theft is wrong')?

Quite easy as well- harm is a universal "moral" concept if you will- unlike, say, polygamy. In Indonesia, polygamy is legal, in Indonesia, theft and murder is not. Direct harm to others is universal to human beings, not eating pork is not universal. There is also another major component to this question- the fact that enforcing laws where there is no direct victim has the practical result of wasting finite law enforcement resources, and weakens all laws, including those that demonstrate direct harm, by both the attempt to enforce an unjust law, and taking away resources from going after "real" criminals.

3) Can a society be free yet be held to a moral standard?

Tough question- because it goes to the question of some of the universal moral issues-

Don't kill or harm children

Don't steal from others

Don't commit murder (this is a hard one when dealing with war or the death penalty of course)

Don't harm others through assault for any reason other than self defense.

These far predate any Christian morality, with some of these situations found in Hamurabi's code. It was the medival times and St Augustine that truly screwed our society up, and in American history, the Puritans have really messed us up big time. We had quite a few laws that legislated sexual behavior between consenting adults that seem wierd today, some still on the books. They seem ridiculous by todays standards- such as the mandatory missionary position- however, those folks fought to keep that "morality" in legal code just as the religious right does today.

So my answer is a "no" if asked this way "can you have a free society if you legislate morals that demonstrate no direct harm"

The current majority has demonstrated that they can not, even in the most minute way, be trusted to protect the rights of anyone but themselves. The majority in this country, in fact, takes great pride in trampling the rights of the minority- trust is earned, not given.

Forcing a particular moral view on people who do not wish to live under it, usually some form of religious moralism.



A law doesn't seek to say whether a thing is good or bad, moral or immoral, just against the law. It doesn't make any moral judgements, just proscribes punishments for violating it.



No, I don't think so. Legality and morality are two different things. While you can control actions if they affect others, you cannot, and should not, control thoughts, feelings and beliefs.

In the context of legislating morality there is a particular definition of morality. Morality in this context means 'to offend the conscious of a particular group where there is no actual damages to another party'.

hayleyanne is correct that all law can be construed to have some sort of moral judgement behind it. Murder, theft, are wrong and considered immoral. They are also doing actual harm to another party.

To me, the best laws are those that protect one party (which can be one or many people) from the actions of another party. The moral part of them is not why they should be in place. They should be in place as they prohibit harming someone.

Legislating morality means to put in place a law based on ones own beliefs. It is a good example of when the majority wish to coerce a minority to do things their way.

We do not need morality in our laws. We need laws which protect the minority from the majority and those which define when one party is being harmed by another.

-------------------------

hayleanne pointed out the word diversity and how it is used. I agree the term, and it is a moral term, is not very useful in its political used context. It is used to justify situations where minority rights are being protected but also when groups are given preference over others. I do not agree all diversity issues are therefore morally based. Diversity is a good example of lumping some issues under a moral umbrella. Passing laws based on moral reasons is not a good justification. However, some issues diversity issues cloaked as such do have credence based upon protecting the minority or defining harm.

Get rid of the left label. Protecting the minority should be, and I think it is, the foundation principle of the United States. It is not a moral issue. It is base logic statement. By what principle should laws be established ? By what principle should laws be prohibited ? Protecting the rights of the minority. There is not a better unbiased reason on which to structure the laws in the United States.

Doing what the majority thinks is best is a awful basis for a law and is indeed legislating morality. hayleyanne has twisted it around with some sort of logic that opposing legislative morality is legislating morality. It is bad logic and incorrect.

Questions for Debate:



To me, it's creating public laws based on private religious interpretation. Abstinence only education and the displaying of the 10 commandments are key examples of this IMHO.



The enforcing of laws pertains to all members of society, acts that would harm them. The enforcing of a moral ideology is for the benefit of a sliver of the population at the price of another part of the population's rights.



There are universal wrongs-stealing, slavery, fairness, and equal treatment being among them. The "moral standard" line is somewhat ambiguous to me. I guess that instead of "moral standard" I see "Civil law" as being most important.

Morals are not dependent on religion. There are secular humanist values also. Both the left and right try to legislate their own moral code. In my mind (see the writings of Walter Williams) transfer payments are nothing more than legalized theft. No more moral than a mob taking your money at the point of a gun. Almost every law legislates morality.

A lot of people seem to be focusing on prostitution, gambling and drug use. In that case why does "legislating morality" come up for debate in national elections? I don't see the left pushing for legalizing vice. The fact is vice crimes are primarily state issues (as abortion should be). Legislating morality is primarily a cry of the left to issues involving their opponents attempts to stop killing a human at some stage of life between conception and natural death ( i.e. stem cell research, abortion, euthanasia) and 1st Amendment issues regarding church and state. Not going to get into the end of life issues except to say both sides are attempting to legislate their own moral values. Many of the church/state issues would disappear if we had a government limited to the enumerated powers as the authors and ratifiers of our Constitution intended.

It was the decision in Roe vs. Wade, a decision that was nothing more than a judicial power grab over what should have remained a state issue, that created the religious right that has made the difference in the last two Presidential elections. The left decided that part of their moral values was the Constitution be darned. They have paid for it.

Any reduction in liberty that does not protect the liberties of others. Legislating morality takes two forms:

1) The victimless crime - the belief that individuals have no right to harm themselves, and the State is obligated to bring further harm (usually imprisonment) to those who harm themselves. This reasoning is most common amongst conservatives.

2) The positive right - the belief that someone is entitled to use the fruits of someone else's labor against the latter's will. This reasoning is most common amongst welfare liberals and socialists nowadays, but historically it has been the right's economic position - e.g. slavery, feudalism, etc.



If there is a law against action X, people will always make the accusation that the argument behind it is merely "because action X is wrong." However, laws can have other, much stronger arguments behind them. The difference lies there.



A free society cannot be held to a moral standard, but it can follow one.

Gray Seal-- your post here makes my point exactly. In your view, "protecting the minority should be . . . the foundation principle of the United States". If that is not a moral view, I don't know what is. My point is not that this view is right or wrong, simply that it carries a moral judgment as to how the law should be written/interpreted/read etc.



Now you have lost me Gray seal. How is doing what the majority thinks is best, an "awful basis for a law"? We have a democratic form of government that by definition, is governed by majority rule.

And how is doing what the majority thinks is best -- legislating morality? Or, are you simply agreeing with my point that ALL laws contain a moral judgment of sorts?

We don't live in a democracy, we live in a republic. In a republic there are protections for individual inalienable rights. As Thomas Jefferson once said That is not a moral judgement, that is a reality of our system of limited government expressed in the Constitution and bill of rights. When a majority of people decide to legislate matters which aren't of the public interest, like personal decisions of citizens, that goes against the spirit of the Constitution.

In every society, there is a fundamental ideology. To compare ideologies is meaningless, because one principle cannot be better than another without a principle and method of comparison. Therefore, any law is the legislation of morality; the only question is the basis for morality. It is possible for the ideology of good morals to be different from the ideology for good laws. That is to say that something can be deemed immoral without the desire to have it illegalized. Now, both laws and ethics are build on a variety of standards. The vast majority of liberals and a plurality, perhaps majority of conservatives wish laws to be on the harm principle. A subtle difference in what constitutes harm is the basis of many dissagreements that are called by only one side the legislation of morality. (Such as abortion and gay adoption.) However, there are sometimes true legislations of morality, such as sodomy laws. Gay marriage is not really a question, because this is not a question of prohibitive laws; this is based in different considerations of what benefits the government should give. Complaints that morality is here legislated are unfounded.

Questions for Debate:

1) First, what exactly is meant, in your opinion, by "legislating morality"?
I think the construct CP setup works for my worldview as well. Legislating morality is what takes place when we go beyond basic right and wrong principles to regulate areas that are either highly controversial (prostitution, abortion, same-sex marriage) due to a lack of concensus as to the role government should play or of an individual nature in which the singular act has a limited scope of influence or impact (ie. smoking marijuana in the comfort of your own home).

2) What is the difference (if any) between enforcing laws and enforcing some form of moral ideology (such as, 'theft is wrong')?
Your example doesn't support the contrast you're drawing, in my opinion. Very few people to my knowledge view theft as a conditional ethics equation. For the sake of the contrast, I would contend that the line most frequently is drawn in the classic liberty equation "from the end of your hand to the beginning of my face". The ability to do direct harm would be the most frequent measurement of whether legislation crosses the line of legislating morality.

3) Can a society be free yet be held to a moral standard?
This question is a tad overbroad. Anarchy would be the only "Free" society that wouldn't have some level of moral standard governing it. A base code of conduct or laws that ensures order would be sufficient in most cases. The line to measure these laws would be ensuring that citizens do no harm to another. To be honest, that is very much the foundation for my political beliefs. The core of our government is formed based on the social contract, that I'm willing to give up a small set of my personal freedoms that are needed to secure order in exchange for the fundamental right to be left alone. Sometimes I think it would be useful to remind our legislatures of this concept.


Your extension here is invalid due to the fact that both of these examples extend the premise of preventing harm to others. Inclusion typically seeks to extend legal protections to classes that are currently either persecuted due to lack of that status or are at the very least prevented from obtaining the same protections of a majority class. Diversity may very well be the umbrella reason for pursuing it, but I would argue that at its core it is consistent with the principle mentioned above. The second example you cite would fall under the same reasoning.

The reason the right gets pointed out for legislating morality is that presently it seeks to legislate areas that frequently (not always) fail the "do no harm" standard.

Doclotus, I am not understanding your point. Please clarify. You say that:



That to me says that you define "legislating morality" as the ability of the law to directly cause harm to another person. Am I reading it right?

If so, how can you assert that the moral judgments about:

(1) Diversity
and
(2) Protecting the minority from the majority

do not directly cause harm to another person? As far as I can see, they fall directly within your definition of legislating morality. For example, if the law sanctions a racial preference or quota in college admissions or in the workplace, it by definition, will harm those not benefitting from the preference.

What am I missing?


Rancid Uncle wrote:



I understand that we live in a representative republic rancid uncle. And I am not suggesting that the spirit of our constitution does not guarantee personal freedoms. What I was commenting on was that the broad statement that law enacted based on "what the majority thinks best" is an awful basis-- is an odd statement, given the democratic principles rooted in our republic.

In recent times, people tend to lose sight of the fundamental importance of democratic principles in our country. The notion that the majority cannot be trusted to do what is right is a prime example of the disregard of the most important feature of our system of government: our basic democratic principles and values.

1) First, what exactly is meant, in your opinion, by "legislating morality"?

We legislate to distinguish between what is legal, and therefore to be tolerated or encouraged, and what is illegal, and therefore to be punished or discouraged.

At the start of the legislative process, before the things to be discouraged or encouracged, tolerated or punished, can be thought of in terms of legality, we have to use ideas of right and wrong, good or bad, or else we will not know which actions are to be encouraged and which ones are to be punished.

And right and wrong are not legal judgements, but moral ones. The act of legislating, to my mind, is fundamentally an expression of a morality. It cannot happen outside some kind of moral framework, whether or not one agrees with the way that framework is constructed - I can't imagine how it would be possible to legislate "amorality", for example.

2) What is the difference (if any) between enforcing laws and enforcing some form of moral ideology (such as, 'theft is wrong')?

In the light of my answer above, I don't see that there is any difference between enforcing laws and enforcing a moral ideology of some kind, because I don't think that laws can exist outside of some kind of moral framework. If nothing is wrong, why should anything be discouraged, and therefore why should there be any laws at all?

3) Can a society be free yet be held to a moral standard?

The idea that people in a society should be free enough for the whole society to be called "free" at all is in itself a moral standard - we think it is a good thing that society should be free, and a bad thing that it should not. That is a moral position, a moral standard.

It is not a universally-shared standard, either - there are people who live in societies that we would not call free who are grateful for the disinction and think that it benefits THEM, not us. I'm thinking of some Muslim countries that operate Sharia law - Saudi Arabia, say. There are certainly people there who would prefer to have the kind of free society we in the West have, but there are probably more who look at us with pity and disgust. We are at the mercy of usurers and pornographers, and our moral standards are pathetically low, in their eyes.

Which leads me to most of the posts in this thread. Most of us don't think it would be a good idea to opt for Muslim Sharia law in our own countries, or it's un-named Christian equivalent. The majority would be quite happy for the Muslims or Christians among us to apply their own private morality, be it religious or cultural* to their own private lives, but do not want them to be applied to us.

Here I think some degree of majority consent becomes important. Perhaps the institutions like income tax, pornography, homosexuality, welfare and legal abortion are "legislated morality" that is tolerated because they still (to varying degrees) command popular support. Perhaps other ideas that rely on prohibitions of things a popular majority enjoy or just tolerate - including some of the examples above - are resisted not because they are legislated morality per se, but because they legislate a morality that most people do not agree with or believe in.

*And to be truthful, neither are completely religious. Even fundamentalists pick and choose. Honor killings are a Middle Eatern cultural tradition that literal Islam would frown upon, but they are tolerated by many fundamentalist Musliams. And when was the last time Christian fundamentalists demonstrated against the eating of shellfish? Biblically that's just as much of an abomination as homosexuality, and it isn't as if secular liberals are forcing anyone either to become gay or eat oysters, so surely the risk of damnation is just as great from watching cookery programmes as from watching The L Word

This is just as true of American liberals - America as a whole views vice crimes more dimly than most of the rest of the "free world". Prostitution is legal in many countries in Europe and Australiasia. Gambling is also legal in most other first world countries, including the dreaded "sports gambling" that is still only possible in some counties of some states over there. (An aside on this last point - I've never heard anyone use the word "degenerate" except in connection to the word "gambler" in the American media. I've never heard the word used at all in anyone else's media. There are still as many gamblers in the USA as anywhere else, but they either have to go to Vegas or AC, or to their local mobster. This seems to be one puritanical bastion not even the leftiest liberal is campaigning for. Why is that?)

Not really. Basically I'm setting up a test for legislation as to whether it would constitute legislating morality. The first prong of that test simply asks: Are we regulating an activity that would do no harm to others. If the answer is yes, then you are effectively legislating a moral stance governing individual behaviour.

The second prong asks: Are we regulating an activity to prevent harm to others? A good example of this would be drinking laws. You do no harm to others by tying one on in a bar. However, if you should decide to get behind the wheel, you now have an innate ability to do harm in that state and thus drunk driving laws would not constitute legislating morality.


If Diversity is what you're calling the inclusion example you referenced before, I would find it entirely consistent. There is no harm done by including a class under an umbrella of legal protection, provided the class or activity does not cause harm.

In the case of affirmative action, I would agree this is by example legislating morality as it does fail the harm test. No argument there. Also, please don't misconstrue this position to imply that all legislating of morality is bad. In this example, we are legislating morality to correct or provide redress for wrongs or harm done under previous laws. However, legislating morality should be exceptions based, as opposed to being the norm.

The voting rights act is an example of protecting the minority from the majority (arguably a minority today, however) in the sense that you are by law preventing harm from occuring.

Doc

1) First, what exactly is meant, in your opinion, by "legislating morality"?

This is the legality v. morality debate. Morality is the distinction between right and wrong. That which is right is moral, that which is wrong is immoral. Legality is the distinction among reward, neutrality and punishment under law. That which is not punished is legal, that which is punished is illegal. (Rehabilitation is a nice ideal, but people receive punishment for violating the law whether or not that punishment results in rehabilitation, so punishment remains the operative concept here).

Some morality is personal, and some is shared. Personal morality is that which the individual considers right or wrong. Shared morality (or "social morality") is that which an overwhelming majority of society agrees is right or wrong-- like murder, theft, assault, etc.

Morality and legality are not the same concept, but they are related to one another in that law usually attempts to make sure that what is moral (right) does not become illegal (punished)-- or in other words, that nothing is illegal (punished) unless it is also immoral (wrong). But note that logically, this construct is not saying that everything immoral should also be illegal.

One definition of "legislating morality" is an attempt to assert that everything immoral should also be illegal. However, that's not the historical context of the phrase "you can't legislate morality." As Ben Franklin (alias Richard Saunders) wrote, "laws do not make men good"-- in other words, you can't solve society's problems by passing a law and assuming everyone is going to abide by it. Making murder illegal does not end all murder, it merely gives society a rational way of dealing with murderers and encouraging people not to murder each other. Where the historical and modern definitions of "legislating morality" merge is their shared assertion that it is futile to attempt to use the law as a means of social engineering-- to force uniform behavior. Where they diverge is the modern extension that morality (right and wrong) should never influence legality when formulating legislation-- a stark contrast to it original meaning, when the role of the legislative branch was to codify social morality into law, with a judicial branch limited to determining legality under legislated law rather than a judge's moral disagreement with the law.

2) What is the difference (if any) between enforcing laws and enforcing some form of moral ideology (such as, 'theft is wrong')?

Few, if any, would still attempt to merge morality and legality into a single concept. However, legislation always flows from some form of morality-- in a dictatorship, legislation flows from the personal morality of the dictator. In a democracy, legislation is rooted in shared social morality as negotiated by the elected representatives of the People. In fact, the legislative determination of to what degree wrong things "should be" illegal is an inherently moral determination (the operative word being "should be"), and only after legislation is enacted does applying that law become a matter of pure legality. It is thus impossible to divorce morality from the legislative process-- it only makes sense to discuss removing moral predispositions from a judicial process, in which existing legislated law (which was based on the shared moral beliefs of the People as settled by the legislative branch) must be dominant over any moral beliefs of courts (including case law and the personal morality of judges).

The tension between morality and legality arises from the moral "gray areas"-- that which might be wrong, but perhaps not wrong enough that legislating against it would result in good social policy. For example, it might be wrong for me to lie about "the fish that got away," but so long as I'm not testifying under oath, telling fish stories shouldn't be illegal, at least not at the federal or state level.

The default position of the highest laws should be neutrality-- not everything immoral should be made illegal. Furthermore, not everything should be equally illegal ("let the punishment fit the crime"-- a parking ticket won't land you on death row). Actions should be illegal only when society has applied its social morality, through its legislative process, to determine that it is in the society's interest to make the activity generally illegal, along with the reasonable degree of punsihment and rehabilitation.

After a bill becomes law, the role of the judicial process is to determine whether a specific allegation might constitute a violation of legislated law; and if so, whether the allegations are indeed true; and if so, which prescribed punishments best fit the particular crime. If a judicial process results in striking down the original intent of legislated law, it is nothing less than judicial usurpation of legislative power. According to Marbury v. Madison, the same ruling that asserts the authority of the judiciary to resolve conflicts in legislation, judicial usurpation of legislative power is an impeachable offense tantamount to treason. It is only by tradition that judges are not usually impeached for legislating from the bench, as actually doing so would be politically thorny for legislative branches.

3) Can a society be free yet be held to a moral standard?

Absolutely-- if the moral code is sufficiently localized. There is nothing libertarian about preventing local communities from passing their own laws about drug abuse, abortion or gay marriage-- the founding fathers made clear distinctions between liberty (libertarianism) and libertinism. Being that I have my Poor Richard's open, another convenient Ben Franklin quotation is "Nothing brings more pain than too much pleasure; nothing more bondage than too much liberty, (or libertinism.)", the parentheses being his. Franklin wrote about two forms of liberty-- the good form being political freedom (libertarianism) and the bad form being libertinism (central government preventing local communities from regulating behavior as each community sees fit). Those who want to force drug abuse, abortion and gay marriage to be legal in every community are promoting libertinism; while those who want local communities to be free to make their own laws concerning recreational drugs, abortion and gay marriage (without interference by a central government in one direction or the other) are promoting Franklin's brand of good liberty, which we call libertarianism today.

Franklin's American formulation of liberty includes the liberty of willing communities to adopt their own moral codes as legal codes. The Puritans escaped Europe for religious liberty-- which in their mind was the liberty for their communities to be self-governing by establishing a different set of laws than mandated by the central governments in Europe. Many of the Puritans' laws were far more restrictive than the laws they were escaping (for example, laws against swearing, witchcraft and other "sins"). But in America, those like-minded individuals who defined freedom as "the freedom from hearing obscene language" could form a community in which such a freedom from profanity was enshrined in law. The key to this kind of moral liberty is the decentralization of moral codes-- preventing the highest levels of government from passing laws that would interfere with a local community's right to decree the laws it deems most protective of its freedoms and happiness, without imposing uniform moral codes on other communities.

Since 1960, the hard left has systematically purged the original form of liberty from America-- to the extent that leftist courts routinely strike down local ordinances of the Pennsylvania Dutch against swearing, sexual deviance, abortion, etc.-- thereby preventing them from being a self-governing society. I'd never voluntarily live under Amish restrictions, but so long as federal and state governments don't interfere with the rights of local communities to make ordiances as restrictive or permissive as they see fit, I'm free to live wherever the local behavioral ordinances are to my liking, and to actively persuade representatives to agree with me.

Sometimes it seems I am alone in decrying the fact that the sun Franklin once found to be rising on American liberty is now setting-- that if the pilgrims were in a ship today searching for freedom, they would find modern America even more hostile to their religious liberties than Europe, and would be forced to either look elsewhere or accept some degree of left-wing oppression instead of self-government.

Yes, this modern oppression of liberty certainly comes more from the left than the right. There may still be a few right-wing falangists or prohibitionists around, but there are relatively few in the mainstream right who want the national government to force a uniform moral code, while the left is almost homogenous in its desire to force a uniform code of conduct from which no American can escape. When local communities no longer have the freedom to regulate what they may reasonably believe to be the murder of unborn children or the spread of deviant behavior, then freedom is either dead or dying, and at the hands of the hard left, not the hard right.

If the Religious Right were promoting the universal criminalization of abortion and homosexuality, they too would be threatening liberty-- but that's not what most of the right is proposing. Most of the right learned its lesson from prohibition, and thus seems content to simply decentralize the contentious social issues. Such a policy would result in big cities (and densely populated states) continuing to force unrestricted access to abortion, alcohol and marriage; while those regions which prefer higher moral standards would have the liberty to discourage destructive behavior under local law. That sounds reasonable to originalist libertarians like me.

Libertarianism requires that federal and state governments should guarantee individual freedoms while staying out of disputable social issues that could be resolved differently in different locales-- the current resolution to the sale and consumption of alcohol is a good example. The libertine argument that the individual is the ultimate local government is not universally applicable-- it would make no sense to allow a thief to choose for himself whether his theft is illegal.

So in the case of affirmative action, legislating morality is acceptable because it is an exception? How is that fair? What if we repealed affirmative action but outlawed abortion? Would that be ok since now there is still only an exception as opposed to the norm? It probably wouldnt be because now my morality replaces yours and in all likelihood you would not find that acceptable.

I think the conclusions that we should come to and as Julian eloquenty stated in his post...that all judgement and arguments are rooted in some form of moral code. That our own personal morality dictates all of our world and societal views (i.e. environment, crime, foreign policy, exc...).

Furthermore, we can assert that people on both sides are guilty of wanting to legislate morality. But thats only natural because everyone would prefer if society was run by their standards and ideas. Of course i believe the Left labels the Right with 'legislating their morality' on others more than vice versa...but the truth is both groups do it. Affirmative action IS a moral decision, redistribution of wealth for the poor IS a moral decision.

But Doc, aren't you making my point here, i.e. that all laws have a moral judgment behind them? You say that some legislating of morality is ok if it falls within an acceptable "exception". Personal, political, philosophical and religious viewpoints on what is a good moral result will define what these exceptions are.





Isn't the definition of what causes "harm" dictated again, by one's own personal, political, philosophical and religious viewpoints?

For example, take the ideal of "diversity" in family law:

One person's view might be that including a particular class of family, such as a family with 3 moms and 1 dad, under an umbrella of legal protection will do no harm and can only do good by providing that particular class of family with legal protection. Another person's view may be that including such a class of family under an umbrella of legal protection will cause harm to society in general by redefining and undermining what "family" means in any number of ways. In both instances, there is a moral judgment made as to whether something is beneficial to society. Both views should be thrashed out and examined thoroughly, but ultimately, the law will make a judgment about whether inclusion of that class of family is a good thing or a bad thing for society.

Leder, the reasoning for the exception I presented was given, which you chose not to address. Affirmative action programs had a very specific (and hopefully time limited) role in legislating morality. My reasoning was consistent, your analogy of switching to abortion as an exception is not.


Hayleyanne, you are presupposing my worldview to desire black and white answers in matters of philosophy, in my opinion they are most definitely shades of grey. In this particular matter, I am advocating a standard that can be applied in most cases to determine if we are, in fact, legislating morality. If they fail the two standards I have mentioned, then caution should be the guide as to whether the specific activity should be regulated. Presumption should be against doing so, if possible.


In some instances, yes, and those cases need greater scrutiny than those of direct harm. The example you provided would fail that test due to inability to prove harm to something as amorphous as "society". Though I pity the child with 3 mothers simultanously telling him or her to eat their beets

Exceptions in this matter do not disprove the standard as being useful. I don't pretend it is perfect in measuring legislation, but it would be an excellent starting point.


edit: missed Hayleyanne's responses

Simply put, I do not use morals as a justifications for laws. My statement on minority rights being a basic principle of the United States is based on ethics, logic if you will. It is not based on values nor beliefs.

For more detail in my personal deliberations: I have thought about many things in life. One of them is ethics. It seems useful to me to simplify which rules one follows in order to get along with others. Looking for common denominators in rules/laws is the basic goal. I also employ the logic use of contradiction. Not to go into to much detail and in summary, via testing of laws and their contradictions I came to the conclusion that laws based upon defining harm to others and protecting the minority work well.I am not sure how I lost you. Legislating morality is equivalent to a legal requirement to do what the majority thinks is best. We may have a democratic form of government but is one where the majority are given limitations. Those limitations on the majority are critical.

From my point of view, it is a shame our society does not operate on the basis of logic and critical thinking. There are legislators and judiciary, including those on the Supreme Court, who base their opinion upon morality more than ethics. A majority of the populace think on morality basis. Thankfully, there is much crossover between morality and ethics. The best decision can be found via morality based thinking but it can and will fail at what I consider an unacceptable rate.

Doc-- I wasn't presupposing that your worldview desired black and white answers. I was just making the point that the gray area of "exceptions" make for justifications based on different moral views.




The "harm" to society in my example is no more amorphous than the "justification" that you assert for affirmative action. In any case, as you acknowledge, this is all a gray area. And the point is that most laws make specific presumptions about what is good or bad for society. Therein lies the moral judgment.



I am not saying the standard is not useful.

The founding principle of the United States is to protect the rights of everyone, both majority and minority, by limiting the power of government. Protection of the minority from the majority is only the lesser half the equasion-- by far, the more important principle is protecting the majority (the People) from the minority (despots, tyrants, etc.).

The Declaration and Constitution (the organic law of the United States) are better. These set up a system in which the legislative branch takes shared morality into consideration in formulating every law, and the judicial branch attempts to uphold the law as legislated rather than inserting their own moral judgments. That's the originalist position, soon to be the majority opinion of the Supreme Court. Until then, the activist view is dominant-- that the original intent of law is meaningless whenever the moral judgement of the Court disagrees with the original intent of the law.



Morality is the distinction between right and wrong-- any time I distinguish right from wrong, I am making a moral judgment whether I know it or not. Ethics is merely a system of helping distinquish right from wrong-- as such, ethics is just another form of morality. Logic can help extend ethical principles and test ethical arguments, but logic applied to ethics remains rooted in morality so long as it is used to discern right from wrong.


If you value ethics, that is a value. If you believe a system of ethics produces valid results, that is a belief. Perhaps you mean that you don't use values or beliefs that you believe to be unjustified, but few use values or beliefs they know to be unjustified.


Enacting what the majority thinks is best is legislation. Period. Legislation is the process of applying shared morality/eithics/logic (as expressed by majority rule) in making law. This is the job of the legislative branch of government, but many courts routinely legislate from the bench, which violates the separation of powers. Courts were intended to protect minority rights by making specific exceptions to general rules on a case-by-case basis, not by overruling legislation when it could be avoided.


Yes, but it is also critical not to forget the limitations on the minority (despotism/tyranny) in the process, thus giving Absolute Power to a small group of unaccountable officials. Maintaining a balance between these two principles is the only way to keep everyone from infringing on the rights of everyone else. If you protect the minority from the majority without protecting the majority from the minority, you can end up with an anti-democratic judicial oligarchy that can turn against you when justices retire. Best to make sure that all the protections are in place, rather than focus too much on one side or the other.



I agree. But I would say that the legislature exists to take morality (ethics, right and wrong) into account when establishing law, while the judiciary should restrict itself to applying the law (including the Constitution) as legislated to the extent that it is possible, rather than ignoring original intent (shared morality) in favor of the judge's own personal morality, as often hidden behind convoluted rationalizations that conveniently draw conclusion opposite that of the law.


I would agree only if the flavor of morality we are talking about involves blindly following an unjustified or inherently defective system of morality without any ethical justification. However, most of the popular moral bases have been fully corroborated under traditional ethical considerations, and are only objectionable when misunderstood, or when confronted with relatively new systems of ethics designed specifically to promote an agenda contrary to well-established moral/ethical principles.

In my own estimation, this newly contrived system of ethics/morality (which attempts to deny traditional morality), being mostly untested and unproven, should be rejected, and the old system of ethics maintained, which tend to uphold traditional morality-- challenges to traditional morality should be seriously considered only when such challenges rely on traditional ethics and logic rather than requiring a new (and possibly faulty) system of ethics be applied.

But make no mistake, whenever a distinction is made between right and wrong, morality is being considered, even if the moral basis is a modern system of ethics. Legislatures usually attempt not to oulaw that which is right; to make nothing illegal but that which is wrong; not to reward that which is possibly wrong; and to remain neutral whenever possible on gray areas, leaving them to more local levels of government to decide. Whether these determinations of right and wrong are based on traditional ethics or modern ethics does not change the fact that a right/wrong determination is made, and as such, moralization is taking place.

I realize in the interest of brevity I left out any diatribes detailing the morality behind affirmative action. While I acknowledge its existence as an exception to the rule, equating your example of polygamy's potential harm to something as loosely defined as society with the specific reasons behind AA misses the mark entirely. I'm not going to rehash the AA debate here but there were centuries of well documented and specific harms to redress in this example versus a potential indirect harm from a polygamous family's existence. Can you honestly tell me those two are even remotely equal under any standard?

I read through your post, Jack22. In your critic of my comments you seem to be blurring the line between the terms morality and ethics. Perhaps you have better terms to use to discriminate between the two ways of approaching the implementation and interpretation of law. I think it is important for discussion purposes and to get people to think about the topic is to emphasis the differences in the terms morality and ethics.

Morality is an evaluation based on values or beliefs. Ethics is a logical evaluation.

If you read my comments with the these differences in mind as opposed to considering them to be words meaning essentially the same thing, you may possibly see the perspective I was attempting to present. To me, the idea is most important. You may not agree with the idea. Hopefully, parsing my use of terms will not get in the way of seeing the idea. I will gladly accept suggests for better terms than morality or ethics.

With your definition of morality and ethics I was uncertain what you were meaning when you used the terms in the later half of you post.

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On the issue of protecting the minority against the majority versus the majority from the minority. I do not see these as separate. If the smallest minority is protected under the laws, by definition any group larger than that will also be protected. Majority is protected from the minority just as the minority is protect from the majority by the same principles. It is one and the same.

The intent of my post was to express that I understood what you were trying to say, but I disagree with the premise that ethics can be legislated without a value judgment happening. Your own definitions demonstrate this--

You say "morality is an evaluation based on values or beliefs." An evaluation based on values and beliefs can use logic, so a "logical evaluation based on values or beliefs" would also qualify as morality. You say "ethics is a logical evaluation." A logical evaluation of what? Values or beliefs about what should or should not be legal. So a "logical evaluation of values or beliefs" would also qualify as ethics, or at least something very near ethics. It's not that I'm blurring the lines, it is that the lines are inherently blurred.



Let's test this with a little logic...

Premise 1: "Majority rule protects the majority from the minority." --Democracy
Premise 2: "Majority is protected from the minority just as the minority is protect from the majority by the same principles." --Gray Seal
Premise 3: Majority rule does not protect the minority from the majority (from an earlier post)

Step 1: Premise 2 allows substitution into premise 1 such that we can assert "majority rule protects the minority from the majority."
Step 2: But step 1 contradicts premise 3.
Conclusion: Contradiction.

So there is a flaw. The logic we applied is simple substitution of concepts claiming to be identical, so logic is not the problem. All that remains is that at least one of our premises must be faulty. Majority rule is the fundamental principle of "pure" democracy, whose purpose is explicitly to protect the majority from the whims of a small but powerful minority, so unless democracy is wrong, premise number 1 is probably not the problem. We are left with premises 2 and/or 3 being the culprit.

My belief (moral judgment) based on this (incomplete) exercise in logic is that premise 2 is incorrect-- the majority and the minority are not protected by the same principles. Instead, different principles protect the majority from the minority and the minority from the majority.

Note that applied logic must always proceed from premises, even in ethics. At some point, someone claimed the premises of a system of ethics are right and not wrong, and insodoing, they made a value judgment based on a belief system-- perhaps not a traditional belief system, but a belief system nonetheless.

Traditional morality stands up to logic. It's been tested by the best minds in logic for thousands of years. We can certainly disagree with its premises, but the logic applied to those premises is sound. Furthermore, if you show me a premise in a system of legislative ethics, I can show you how to trace it back to a value judgment-- an assumption that something is right or wrong (morality).

Various tools of ethics are useful, but they do not eliminate moral considerations-- they only expound upon moral considerations. A system of morality might be buried very deeply under a convoluted spaghetti bowl of ethical logic, but it's there.

At the root of all legislation is the question, "is this activity wrong enough to be illegal?" Such is a fundamentally moral question because it deals with right and wrong. Ethics might give us a good insight into a valid answer to that question, but the question remains moral in nature, and therefore the answer is meaningless unless it results in a value judgment, a distinction between right and wrong.

Doclotus wrote:




Doc, I am making no judgment as to the value of the policies behind affirmative action or polygamy. Let me clarify my thought process here, as to how I see the legal justifications for sanctioning affirmative action and banning polygamy, to be equally “amorphous”, or tenuous, or indirect.


Affirmative Action: What is the specific moral judgment underlying it? You say:




The Supreme Court has specifically rejected such a justification under the law. The Court has specifically held that the justification for affirmative action that you have articulated, is not a compelling state interest and therefore does not justify discrimination based on race. (Bakke). Such a justification for affirmative action is, in fact, unconstitutional.

The Court recently clarified in Groetz v. Bollinger, that the required “compelling state interest” that justifies affirmative action in college admissions is diversity on campus. I would argue that the benefits of diversity are neither quantifiable nor directly provable. The benefit of diversity on campus is based on speculation that positive attitudes about race and a better understanding between the races will become apparent in society as a result of it. Diversity (as a justification) anticipates a potential benefit to society generally down the road.

Polygamy: What is the specific moral judgment underlying its prohibition? I said:



I think my statement is a fair presentation of what society believes is the harm that may ensue if we legalize polygamy. The justification for banning polygamy is the anticipation that polygamy will potentially harm society down the road.

In both instances (aa and polygamy) we have justifications that are rooted in the potential harm or benefit to something as loosely defined as society.

As Hayleyanne correctly pointed out, all legislation effectively defines "morality". It's the formalization of our society's vision of what's right, wrong, acceptable, and unacceptable. In other words, our society's "morality". The left take a different view. They selectively refer to "legislating morality" only when laws are contrary to their personal moral beliefs.




There is no difference. Again, the indignation of the left is highly selective. When the left refer to "morality", the subject is 99.95% sex. However, morality is a very wide topic that covers nearly all aspects of human behavior.



Of course. If fact, I would argue that the failure to hold to moral standards guarantees that the society is NOT free. When moral standards (i.e, laws and social behavioral norms) are rejected by large segments of the society, the rule of law collapses and so does our civilization. What normally steps into the power vacuum when such a thing occurs is a totalitarian state which eliminates personal freedom in order to maintain power.

Just because a movement labels itself "progressive" does not make it such. Moral relativism is a just start down the slippery slope to anarchy and the resulting totalitarian state. What the "left" do in their highly selective, and in some cases contradictory view of personal freedom and "morality" is take us further and further down that slope.

Minority rights protect groups of one and larger.
The majority is a larger group than the minority.
Therefore, the majority is protected by minority rights.

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To me there is a difference between morals and ethics. There is a difference between value or declaration of right and wrong versus figuring out what works. I have the minority view that laws should be based upon figuring out rules which work for orderly interaction of people while maintaining as much freedom as possible for individuals.

Jack22, I also know you are well representing how most people think on the subject. I also recognize your opinion is held by many that my means of rationalization is not possible or does not exist. People think in morality terms much more often than in ethical terms and many can not think on a totally ethical basis.

But, there is a hint of recognition of ethical thinking with the response to the phrase 'legislating morality'. Instinctively in the populace, a chord of perception exist which recognizes basing laws solely upon morals is a poor idea. That gives me hope. It is something which should be encouraged.

hayleyanne and Jack22 have put forth that laws are always based upon morals and it is impossible to do otherwise. I contend they do not have to be. I also acknowledge that laws are, for the most part, based upon morals as that the level of thinking for most people. It would be an improvement if it were otherwise. Being critical of legislating morality is a step in the right direction.

Wrong. There are two kinds of laws - those that protect liberty and those that don't. The former prevents people from imposing their morals on others - the latter imposes morality.

I agree with you about the left's legislating morality, though. Anti-discrimination laws, insane taxation, and the crusade against risk are their totalitarian morals.

What you call "liberty" is a component of American "morality". All laws "legislate morality". Individual liberty does not give one the right to act outside of the moral boundaries set by our system of laws.

In the same way that "freedom of speech" does not mean "consequence free speech", "liberty" doesn't mean, "I can do anything I please in spite of what society at large views of it.".

"Freedom of speech" does not mean complete consequence-free speech, but it does mean that force cannot be a consequence of speech. Such applies to all freedom.

Ah, yes. More swipes across the political bow. I think your blackberry is ringing, Lord Helmet. Its kettle calling, I think you know why. Both parties have their hands dirty in this area, so reducing this to partisan bile accomplishes very little. In the case of discussing philosophy it would arguably be useful to shed such efforts to label and focus on the matter at hand.


There is plenty of difference, as I have argued before. As for your repeated bait on the left, would you consider the voting rights act to be about sex? How about de-segregation? Is the environment about sex? Poverty? Or is that all lumped into the .05% you generalize above?


This is a pretty broad brush you paint with here. Are you advocating that the only way for moral standards to exist is from state enforcement?


You are making an assumption here that the opposite of legislating morality is a persistent state of moral relativism. There's enough holes in that assumption to resemble a fine vintage of cheese. And again, you persist in the Coulter-esque effort to label anything those left of center believe to be personal freedom to be part of some nefarious agenda to moral anarchy. This is a pretty heavy abuse of the slippery slope argument, and just as credible.

I found an interesting symposium on legislating morality that I thought I would share and close with a quote from one of its contributors, Thomas A. Spragens, Jr. (link)

Doc

I was focused on the matter at hand. The topic is labeled "legislating morality" and the question was very specific. It asked what that phrase meant to me. I answered.

I'll reiterate. ALL legislation is "legislating morality". You can either agree or disagree with my point.

With respect to partisan bile.... I agree. The democrats have accomplished very little.



I'm not sure what your point is and whether you disagree with me or actually agree with me? So, as a member of the left, what does "legislating morality" mean to you? Is it acceptable? Can a society be free and held to "moral standards"?



Well, yes. That's what our system of laws IS. It's a formalized system of moral standards that are enforced by the state.




I'm again not sure what point you're making here. I said that "all laws" are legislating morality. The opposite of "legislating morality", therefore, is a lawless society. And that isn't a matter of holes in cheese.... that's all holes.

With respect to Ann Coulter, she can speak for herself (quite well if you ask me). I'm all for personal freedom. The difference between those on the left and me, however, is that I am for personal freedom, with accountability, and freedom in areas that our society has decided, through the representative democratic process, SHOULD be free. Thus, my attack on moral relativism which usually translates to individuals deciding for themselves which laws (i.e, legislated morality) they want to bother obeying and what other laws they wish to ignore or flaunt.

We can't have that and the rule of law. If we don't have the rule of law, all heck will break loose and we'll lose this wonderful thing called.... civilization.

The emphasis below is mine...



I agree with this quote. However, it seems to contradict what Doc and Gray Seal have been saying. It says that civil morality is a legitimate basis for law, and that forcing people to be "good utilitarians" (based on utilitarian ethics) is not.

If Doc and Gray Seal also agree with this quote, then perhaps we have been talking at cross purposes. Do Doc and Gray Seal object to all morality as a basis for law, including civil morality (which I have called shared or social morality)-- or are your objections limited to systems of morality based exclusively on religion even when no form of civil morality can be demonstrated?

As an example, consider adultery, which was illegal for a long time. Both religious and civil morality made a distinction between fornication (consensual sex between unmarried adults) and adultery (extramarital sex in which at least one of the consenting adults is married to someone else). Adultery was illegal based on the civil principle of harm-- harm to the offended spouse-- as well as a civil violation of a vow or contract.

Adultery was eventually decriminalized, not because it was purely religious and without basis in civil ethics, but because it was difficult to prove or disprove in court, and the consequenses were often severe-- loss of custody rights, alimony, and property in civil divorce settlements-- with the benefit of any doubt too often given to the husband, leaving the former wife in poverty and without opportunity for recovery. In other words, adultery was decriminalized because it was too frequently abused in court, not because it was based on unreasonable morality. Adultery allegations can still figure into civil settlements as a moral wrong (based on civil morality), but as a non-crime, adultery does not have the same weight it once had, so unprovable allegations of adultery can be more easily ignored.

As courts become more gender-equitable and society allows economic advancement to adulterers, it would not surprise me if we see adultery become illegal again given a high enough burden of proof-- circumstantial evidence would not be sufficient, only hard evidence like the video or audio tapes of the kind collected by that insidious reality TV show, Cheaters. The offending spouse would be fined a few hundred dollars, and the judgement could factor more significantly into divorce. None of this based directly on religious morality, but a shared civil morality-- as negotiated through legislation, not dictated from the bench as preferred by antidemocratic judicial supremacists.

I do not agree with the quote by Thomas A. Spragens.

For communication purposes, speaking in morality terms seems to be the best means to communicating to the masses as most people will understand what is being said. For being sound law, it should not be based on morality. If there is no ethical basis for the law, it is not going to be a good law. There is where I would disagree with Spragens. Imposing laws to encourage or coerce (what is the difference, he never gave an example) good behavior should not be a function of government.

An example that comes to my mind would be seat belt laws. Some wanted to have the law as they think it is smart to wear seatbelts for safety reasons and since they think so, everyone should have to do it. Myself, I think wearing a seatbelt is a good idea. But, it should not be law because I think it is a good idea. Take this other argument that having such a law will decrease the cost to society as it has to pay for the poor decisions not to wear a seatbelt. Medical costs can end up being borne by society and not the individual. This argument is a good reason for the law as it is ethically based instead of morally based. The better solution would be to not have society responsible for these costs.

The seat belt law should not be made to encourage people to have good behavior. It should be made to reduce the tax burden on others.

My personal philosophy of what moral issues should be addressed by government and what moral issues should not be is best expressed by J.S. Mill in "On Liberty".

1) First, what exactly is meant, in your opinion, by "legislating morality"?

2) What is the difference (if any) between enforcing laws and enforcing some form of moral ideology (such as, 'theft is wrong')?

Much of this question boils down to whether or not you believe a society should be able to determine what form its culture takes.

Do we disparage other countries that "legislate morality" or is it only Western countries that are shackled by this quandary?

To me, "morality" in terms of society is synonymous with culture. And of course a society should have the ability to determine its culture and hence, its morality.

Morality evolves and so do the laws which govern it. When the laws governing morality get too far ahead of where society is comfortable, then society has every right to change those laws to conform with its current vision of how society should function.

All laws are based in morality: in the concepts of fairness and equality and good faith. This is morality because they are value based. Other societies can (and do) interpret these same values in different ways. We decide these issues as we decide all laws: majority rules with the checks and balances provided by the Constitution.

Morality laws are exactly the same as every other law: they dictate behavior. They are no different than patent laws, or environmental standards or laws against stealing. Society has taken a stance on these issues and it is up to the minority groups to convince others to change them (if that is what they desire).

3) Can a society be free yet be held to a moral standard?

Freedom always has limits. Freedom and morality can certainly exist simultaneously. It is up to society as a whole to determine what those limits are (with Constitutional limits). We currently have such a balance. There will always be such a balance.

Disagree with the limits? Work to change the laws.

Feel strongly enough and unable to affect change? Then move or organize protests or (in the extreme case) revolt.

For the record, I did not offer the quote as a verbatim representation of my philosophy, rather as a note of interest on the discussion.

The construct of civil morality that Spragens speaks to isn't much different than what I posit does not constitute legislating morality. He and I differ on whether all law is legislating morality (as I do with Hayleyanne and Lordhelmet). If you'd like a ground of agreement, I'm willing to state such endeavours to be the essence of the rule of law. Its what defines an ordered society from that of anarchy.

I believe separating the rule of law from legislating morality to be useful because it helps create some measurement of where law can go to far in curtailing individual liberty. Without it, we are left with some subjective sliding scale which can be abused by any party that happens to be in power at the time. If we are prejudiced against crossing that line, and only do so in a judicious fashion, I believe we maintain that sense of order while preserving the freedom each is entitled to.