[NOTE: In this post I discuss an article by Jonathan Turley about morality and law. In his piece, he doesn't really go into the underpinnings of his argument, but what he's dealing with is a heavy-duty issue that has plagued legal scholars and caused fierce debate for ages. I refer you to two much longer articles on the general subject, which tap into larger issues concerning post-modernist moral relativism in law: here and here.]
Jonathan Turley, a George Washington University Law School professor and the lead lawyer in the recent “Sister Wives” case in Utah, has written a celebratory piece about the verdict.
The court did not, by the way, legalize plural marriage, although in the first few paragraphs Turley seems to imply that it did (he clarifies it somewhat a bit later, but the facts could escape the casual reader). The case merely challenged, successfully, a Utah law against plural cohabitation of a quasi-plural-marriage nature (the “Sister Wives” husband is only legally married to one woman, but lives with three others in what amounts to a de facto plural marriage).
…[T]he Utah ruling is one of the latest examples of a national trend away from laws that impose a moral code. There is a difference, however, between the demise of morality laws and the demise of morality. This distinction appears to escape social conservatives nostalgic for a time when the government dictated whom you could live with or sleep with. But the rejection of moral codes is no more a rejection of morality than the rejection of speech codes is a rejection of free speech. Our morality laws are falling, and we are a better nation for it.
Turley fails to define “morality laws,” but my guess is he is referring to laws about sex between consenting adults, as well as other laws that seem to rest at first glance on a similar conventional “morality.” However, many more laws than that—and, according to some thinkers and legal scholars, all laws—have elements both large and small that involve the enforcement of moral codes both overt and covert.
Turley misrepresents the position of social conservatives and the law. Most social conservatives are not “nostalgic for a time when the government dictated whom you could live with or sleep with.” Social conservatives generally believe that such laws are not something imposed from above on an unwilling populace, but expressive of basic mores and beliefs in our culture, and that these beliefs have been steadily undermined not only by judges, but in more basic ways by the educational system and the press and entertainment industry. The law is only part of that.
Turley writes that rejection of moral codes has no relationship to the rejection of morality. But that seems absurd on the face of it. No relationship? It may not have a one-on-one, directly causative and linear relationship, but it surely has some relationship. The two feed into each other and reinforce each other, with rejection of behavioral rules once thought to be the bedrock of morality sometimes leading the way, and rejection of laws underlining and enforcing those rules sometimes taking the lead.
Turley posits that we are a better nation for the fact that “our morality laws are falling.” I suppose we just have to take that on faith, because it’s not readily apparent and Turley makes no special case for it. Turley finishes his column with a paragraph that aptly states and summarizes the basic attitude of the left and of many libertarians as well towards the issue of law and his still-undefined “morality”:
In truth, 19th-century Americans were no more moral than we are today. It simply appeared that way with the imposition of official morals, including (as Santorum recalls so fondly) being told whom we could love in our own homes. It is not a single moral voice that is heard today but a chorus of voices. Each speaks to its own values but joins around a common article of faith: the belief that morality is better left to parents than to politicians.
Again we have the idea that laws are imposed from above with no input whatsoever from the society that develops them. It’s as though space aliens dropped in to decree what would be allowed and what wouldn’t. And why is the individual morality of parents a superior standard to that of society as a whole? Do those “politicans” make the law in a vacuum, or are they not answerable to the people who elect them?
There’s much more—because this is a huge topic. But I’ll leave it at that for now—and to you.