All government authority derives from our right to self-defense. Anything we authorize our government to do by force of arms must be something that can be justified as self-defense. Legislating morality, or using the force of government to control the private behavior of others, does not fall into that category. I have many calls challenging me on this, so I think it’s worth clarifying.
One point that is often made is that all laws, even those forbidding rape and murder, legislate morality, but that’s not true. Yes, rape and murder are immoral, but that is not why they are illegal. They are illegal because they violate the fundamental principle of civil society: “Don’t touch me or my stuff.” That is the basis of all valid law and violations of this law triggers the victim’s right to self-defense, that is why they are illegal and why the government is allowed to step in with force to stop them.
Other moral infractions, however, cannot be made into binding law because they cannot be enforced simply by invoking a right to self-defense. In Catholicism, divorce and birth control are considered immoral, and I understand why. Severing intimacy from family and parents from children have profound consequences on society, families and individuals. Undermining the basic social unit, the family, is a serious moral offense, but I may not outlaw divorce and birth control because to enforce those laws would be to violate the fundamental legal principle, “Don’t touch me or my stuff.” I have no right to go door-to-door confiscating birth control nor do I have a right to force two people to live in the same house against their will, therefore I have no right to charge my agents in government to do such things. Legislating morality undermines our basic law because it initiates violence without the justification of self-defense, whether it be to outlaw divorce and birth control, or to ban drugs, extramarital sex or anything else even widely considered immoral.
Social power is tremendous and social pressure to do the right thing from marrying the mother of your child to caring for your own mother in old age is a vital aspect of a healthy culture, but as our culture sickens, it’s a mistake to think that opening the door to legislating morality is a way to heal it. In reality, that legitimizes the use of force in controlling private behavior in a way that will be perverted in a sick society. Passing DOMA made a federal issue of gay marriage leading to a Supreme Court decision that wrongly took this matter out of the hands of the states where it belonged under the Tenth Amendment. By the same token, banning birth control could easily be flipped to requiring birth control a la China.
Don’t fall for the trap that the government can solve our moral problems…and it is a trap. The “religious” were intentionally co-opted by a ruling faction for cynical political purposes, and the result has been to negate the crucial moral tenet of free will.