[Note: the date stamp on this post has been changed from the original, so as to keep it on the main page and further enable the argument that has been taking place in the comments.]
There’s one thing we separate in our public consciousness here in the U. S. (and industrialized West more generally): the law and morality. We bristle at the suggestion that someone or some group “legislate their morality” on us. The law is simply a conventional code, in many peoples minds, that is agreed upon through the terms of a representative democracy, containing many items we can change, omit, and revise at the demonstrated will of the people and/or their elected representatives. A legal code is merely a convention for getting along.
This understanding, however, is sheer fantasy.
The law is not mere convention–though clearly there are conventional aspects to the law. The law is much more powerful than that, as Plato, Aristotle and many important thinkers have recognized throughout history. No, in point of fact, the law is a paedegogus, a tutor, instructing us in morality, inculcating in us notions of right and wrong, virtue and vice.
So the current understanding in the U. S. of the separation of Church and State is both philosophically unsound, and, ultimately, unworkable. And as the culture wars continue to flame, this is becoming more and more obvious.
We’ll start first with Aristotle:
[T]he law also orders one to do the deeds of a courageous person, such as not to leave one’s assigned place or run away or throw down one’s arms, and the deeds of a temperate person, such as not to commit adultery or be wildly extravagant, and those of a gentle person, such as not to hit people or slander them, and similarly with the things that are in accord with the other virtues and vices, commanding the one sort and forbidding the other, rightly when the law is laid down rightly, but in a worse way when it is tossed off carelessly. (Nicomachean Ethics V.1/1129b20ff)
Aristotle’s assertions have direct application and implication to our own time and place. Not only does the law tell us that murder is illegal, it inscribes within us the notion that it is a moral wrong to do murder. The law conventionally distinguishes between different types of killing (exonerating, for example, those who kill in self-defense or in the rightful and lawful engagement in military battle; while condemning, often to death, those who willfully commit premeditated killing of the innocent). But even those conventions reinforce and provide important moral distinctions in terms of the virtue of not taking another life and the vice of killing with malice aforethought.
Similarly, many states have “Good Samaritan” laws, demarcating the moral (as well as legal) necessity to aid those in distress. One could make similar cases about laws dealing with fraud, slander and libel, and so on.
Now I readily admit that our notions of morality do not only, indeed not even primarily (for many), come from the laws enacted in our communities and our nation. In fact, that is, ultimately, my point. The laws we enact come from the moral presuppositions we already hold. We do not, for example, gather together and review the statistics on death and killing, hear congressional testimony, conduct polling surveys, and then decide: killing with malice aforethought should be made illegal so that our citizens will form the moral notion that it is wrong to kill with willful premeditation. Rather, we already come to the legislative process with the understanding that killing with willful premeditation is a grave moral wrong, it is, indeed, murder, and we make laws reflecting that moral understanding. In this way the law reinforces, and also educates, the conscience of a people.
The moral imagination always already shapes and delimits our legislative activities. In short, the law codifies and embodies a community’s morality. So it isn’t a question of legislating morality. Any time we engage in legislative activity we are doing that: legislating morality.
The question, then, is: whose morality are we legislating? And here is where the dilemma of Church and State enters in.
Let’s take the social hot button: abortion. Whenever those opposed to the practice of abortion attempt to legislate a moral understanding that gives social, political and legal recognition to the fetus (unborn child), abortion advocates raise the specter of Church and State–as did John Kerry in his recent comments about how, though he believes human life begins at conception, he would not legislate his Catholic beliefs on the rest of the nation. While this is a red herring–because the belief that the fetus is, indeed, an unborn human child, is not restricted to a specific religion or Christian denomination can easily be demonstrated, thus invalidating the claim that enacting legislation limiting abortion practices somehow establishes a religion or church–it is nonetheless true that such attempts do in fact legislate a particular morality. Namely, one that believes it is a moral wrong to abort (kill) a fetus (unborn child).
And what abortion advocates fail to admit–and many of us fail to realize–is that the laws that were passed granting the legal recognition of the practice of abortion themselves legislated a particular moral understanding. Namely, that the wishes, desires, and feelings of a mother were of more moral worth than the life of the unborn person in her womb. Indeed, the law also legislated an understanding that the life in her womb was subhuman, if human at all, and not worthy of the same legal rights she herself possessed. The law also enshrined the understanding that the father of the unborn baby held no moral status in terms of the decision to abort. The law shaped our conscience in such a way that we understand the father to be not, indeed, a father, but a sperm donor who has no legal or moral standing in relation to the product of his insemination, should the mother decide to “terminate her pregnancy.” Even if the father wants the unborn child to live, the law implies he has no standing; he’s just a sperm donor.
And we wonder that we hear stories of newborns abandoned to die in trash cans, or stabbed with scissors and thrown out a window to lie lifeless on a cement walkway. We wonder that we have “deadbeat dads” who refuse to provide financial support for the living products of their insemination.
As Aristotle noted: the laws legislate morality, sometimes well and rightly, and other times not. Laws can legislate vice instead of virtue. And those laws can and do shape or misform our moral understanding.
So now the question is not whether the laws legislate morality, but, whose morality will they legislate? There are two ways, in a representative democracy, to answer this question.
One can simply rely on the majority will of the people. And in America that will be a majority morally educated and informed by Christianity. So one can argue that the morality we should enshrine in law is that of Christian faith. Of course, because of the plurality of Christian groups in the U. S., we will be protected from establishing a single church as a state religion, because there will be differences in some particulars among Christians as to what is the proper moral belief to legislate. But this is the nature of political discourse in a representative democracy. And, in fact, in the U. S., this is has been the case for the first two centuries (or so). Minority religions have had their interests protected while at the same time the majority Christian faith shaped and formed our laws.
But the other argument can be made in a more general sense. What is the best source of moral understanding? Religion, broadly speaking. Therefore, religion ought to be the resource utilized for all legislation. Now, granted, this is only going to have a slightly different outcome than the above, because, once again, in religious terms, Christianity is clearly the most widely claimed religious faith. But Christians, Sikhs, Muslims, Hindus, Buddhists, Jews, and other faiths, share important broad principles and values. There are, for example, Hindus who oppose abortion on the terms of their faith. But once again, we are safeguarded against the establishment of a particular church or religion by the very plurality of religious belief.
But mostly what those who want a separation of religion from law want is a secular state. They want, however, a utopia, a no-place. Because secularism itself is a form of religion providing ultimate first principles and a life-guiding orientation–things that religions provide their adherents. And in any case, they would still be legislating morality, it would simply be a secular one.