Judging Morality

Still and again, people, and by people I mean federal judges, are confused about morality.

The reason people, and not just the ones in black robes, are confused about morality is because of a certain kind of intellectual cowardice, under which one either has to believe that morality is synonymous with traditional norms of behavior, a universal gift from God, or is situationally relative, open to every interpretative whim the weak can use to justify wickedness.

But clearly morality is not universal in the simplest sense, or our jails would not be so crowded, nor our divorce court dockets so full. Morality would not be debated by political and spiritual allies were it so easily accepted. Neither would our enemies draw hometown cheers for blowing themselves up, and nods of approval for beheading family members who stray too far from a moral purity in some direction we would not even notice.

But morality is universal. We all have it, from the least to the greatest. For morality is not a set of rules, but a belief.

Morality is a belief about what everyone should do.

The specifics differ from person to person, but we all believe that others ought to behave in certain ways. It appears to be wired into us, perhaps a means of anticipating the behavior of our fellow man.

The same people who declare morality to be the repressive patriarchal construct of a bygone era quickly step in to declare that everyone should be against racism or for universal health coverage, missing the larger point that they are declaring a belief in what others should do.

“You can’t legislate morality!” we’re often scolded. But that merely means that a law never gave a person a set of moral beliefs to guide his actions in areas where the law is silent. It is most certainly inaccurate to suggest that morality cannot or should not be codified.

So what has this to do with judges?

A federal judge has ruled that same-sex marriage is a constitutional right, arguing that

A state’s interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose.

As dpayton points out, this runs directly counter to the admonition of our nation’s founders that it is of a form proper only for a religious and moral people.

And yet the fact that most people draw their moral convictions in this area from their religious beliefs does not delegitimize those convictions. People are entitled to arrive at their moral convictions — their beliefs about how everyone should behave — by whatever route they choose. And it is impossible to separate a person’s religious beliefs from how they believe others should behave.

Disregarding the considered opinion of the majority of California voters because the judge did not like the source of that opinion is nothing short of judicial malpractice.

Interestingly, the judge cites Antonin Scalia’s dissent in Lawrence v. Texas, in which Scalia argued that if homosexual activity were found to be a constitutional right, then there is no logical reason to deny gay marriage:

If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct […] what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

There is a certain irony here. Scalia’s own warning is used as argument in the very decision against which he warned.

Yet in the specifics, Scalia was wrong. Just because there is found to be a Constitutional right to engage in certain activity, it does not follow that the state must bless that activity. The analogy to gun rights is imperfect, but the government doesn’t have to buy everyone a rifle to allow the right to own arms, and neither does it have to provide the benefits of marriage to allow free sex.

Judge Walker extended government blessing to marriages the people of California rejected, casting aside their moral judgement in favor of his own.

We all have beliefs about how everyone should behave. When enough of us gather together and agree on some article of belief, if it is in the proper purview of government, we put that belief into law. If not enough of us agree, then no matter how strongly we hold to those beliefs we are not likely to get a law enacted.

All of that depends on the structure of government, whether a simple majority, a super-majority, or a complex set of procedures is required to enact a law, and whether the law itself is proper.

Like that of many states, California’s constitution requires the collection of hundreds of thousands of signatures for a ballot initiative. A simple majority passes a proposition, when then becomes part of the state’s constitution.

Judge Walker’s ruling calls into question the authority of Californians to govern by plebiscite, lest somehow the beliefs they draw from some illegitimate source color their voting decisions. But even more, it substitutes one man’s morality for that of the electorate.

“You can’t legislate morality,” the judge might say, “but I can.”