No, The Government Shouldn’t Legislate Morality

A gay student at Princeton University recently asked Justice Antonin Scalia to defend his comments  in the brief for Lawrence v. Texas which made sodomy laws illegal.  In his dissent in the case, Scalia compared laws against sodomy to laws against bestiality.

Scalia’s point, he claims, is that governments have an obligation to legislate morality, otherwise they also don’t have a right to have laws against murder.  This is absolute preposterous thinking.  Sure, it’s easy enough to think of murder as morally wrong, but we’re not legislating the morality of the action.  We legislate the act of taking away someone else’s right to live.  Any law that is worth a damn isn’t about defining an act as moral or immoral.  It is about preventing one individual from infringing on the rights of another individual.

If two or more people freely choose to perform acts on each other, we have no business enacting laws restricting those acts whatever they may be.  If you think that act is immoral, you’re free to think so.  You can even pass judgement on them if you so choose.  What you should never be able to do is create a law that prevents those people from performing said acts unless those acts can be substantially proven to infringe on the rights of someone who is unwilling.

And please note that being able to “freely choose” is a pretty high bar to set.  Bestiality laws exist because animals can not freely choose to participate.  (Side note, animals can’t freely choose to be killed either so it really should be legal to outlaw killing animals.)  Rape laws exist because one person did not consent to the act.  Murder laws exist because the person that was killed did not choose to die.  On the other hand, assisted suicide should be legal, but with high bars in place to prove that the individual is freely choosing to die.  And attempted suicides aren’t prosecuted as attempted murders because of that free choice.

So, Justice Scalia and all you other law makers who want to push your brand of “morality” on everyone through laws, back off.  You choose to live your life in a way that doesn’t infringe on my rights and I’ll continue to live my life in a way that doesn’t infringe on yours.