Al Mohler: The End of Legislating Morality

The Rev (Dr.) Albert Mohler wrote an interesting article responding to comments by Jonathan Turley, the lawyer for the successful Utah “sister wives” legal challenge and law professor at George Washington University [emphasis added]:

Turley’s article is an example of a concerted, very sophisticated, libertarian argument that is fast gaining ground in American life. Just last year the state of Colorado decriminalized adultery. The president of the Independence Institute testified for the decriminalization, stating that “it is a conservative value to get rid of bills that are useless.”…

The original statute was hardly useless. It was a profound moral statement about the sanctity of marriage and the crime of violating the marriage vows, thus subverting marriage and the family and endangering children and weakening the larger community.

Mohler also revisits the argument that the state should not “legislate morality,” which he accurately rebuts by noting that every law legislates morality — even in omission, a law is ultimately for or against a particular moral proposition.

More directly, Rev Mohler also highlights the awkward — and intellectually inconsistent — position these kinds of advocates against “moral laws” place themselves in when even they acknowledge the need for some kind of “legislated morality.”

Turley wants the law to continue to have sanctions against bestiality and incest. Why bestiality? Well, he says, there are obvious consent issues and very real harm. What about incest? He says laws against incest are not morality laws, but rather matters of health…

Turley obviously misses the social irony of using issues of “procreation” as a moral argument about morality and sexuality. Mohler notes that Turley doesn’t really want the end of moral codes:

Mr. Turley is not advocating the striking down of laws against incest. Why? It is because what he’s actually promoting is the progressive striking down of one set of laws and then another: first the laws against same-sex marriage; then the laws against plural marriage.

In other words, he doesn’t advocate abolishing moral legislation; he only wants the line moved far enough that the “morality” he advocates is permitted. This is not unlike the positions of some homosexual advocates who demanded sexual liberty for consenting adults — but drew the moral line at two consenting adults.

The conversation will continue: A Federal judge just ruled that Oklahoma’s state constitutional definition of marriage as one man and one women is “unconstitutional” because it deprives homosexuals of equal protection. Everyone naturally focuses on the “man/woman” part of the statement — and misses the adjective “one.”  Consistent with Rev Mohler’s theme: does it deprive only homosexuals of equal protection — or everyone who chooses to define “marriage” in their own way?

(Those celebrating that ruling — and its ultimate journey to the US Supreme Court — apparently haven’t read the text of United States v Windsor, which overturned one part of the Defense of Marriage Act. The ruling based a substantial part of its argument on the fact that regulating marriage was the purview of the states.)

Notably, Rev Mohler makes the entire argument without raising an issue of religion.  Only at the end of the article does Mohler note the departure from

the Christian moral system that undergirded Western law for more than a thousand years.

Ultimately, despite claims by critics to the contrary, Mohler’s discussion is not inherently religious.  Proponents of each position have their moral arguments, and each is trying to enshrine their morality in law. For those defending traditional marriage, Mohler conveys they are trying to protect the most fundamental unit of a stable society from becoming little more than a mirage.

Rev Mohler is fighting an unpopular battle in an attempt to remind people that society benefits from the sanctity of marriage — and suffers when it is “subverted.”