Should We Legislate Morality?
Natural Law as a Legal Foundation

Family North Carolina Magazine—Fall 2009

By Will Kang

In America, a culture war has ensued over controversial issues like same-sex “marriage” and abortion. Conservatives recently scored a victory with California’s passage of Proposition 8, a state constitutional amendment defining marriage as the union between a man and a woman. Many opponents of Proposition 8 and of similar conservative legislation argue “you can’t legislate morality.” While this claim may appear to have merit—after all, who wants to be subject to someone else’s moral standard—it begs the question, “If you can’t legislate morality, then what can you legislate?”

Laws & Morality
Chuck Colson, founder of the Wilberforce Forum and Prison Fellowship, says, “The question is not whether we will legislate morality, but whose morality we will legislate.”1 Sometimes, legislating morality is easy—nobody objects to traffic lights or stop signs. Regulating the roads reinforces the belief that roads should be safe for drivers and pedestrians.

All legislation is based on some kind of moral principle. It draws upon accepted practices (mores) and a rational basis for action, which take into account individuals and the society at large. In the abortion debate, some argue “because abortion is murder of innocent babies, abortion should be illegal,” while others argue “because a woman has a right to choose what she does with her body, abortion should be allowed.” Both sides base their arguments on moral claims–claims based on social mores, many of which have been codified.

Legislating morality is unavoidable and necessary for a functioning society. Indeed, it is impossible not to legislate morality. Good laws do not allow anything and everything; rather, they protect innocent people by limiting the freedom of others to do harm.

Natural Law
In their book, Legislating Morality, Norman Geisler and Frank Turek argue that the answer to the question, “Whose morality should we legislate?” is not “Yours,” or “Mine,” but “Ours.” They point to the moral law—also called the natural law—that is given by God and written on the hearts of men.2 Thomas Jefferson referred to the natural law in the Declaration of Independence when he wrote, “We hold these Truths to be self-evident.” It is the same law to which the apostle Paul refers in Romans 2:15 as “the requirements of the law [that] are written on their hearts.”

Philosophers and writers from the earliest recorded philosophical thought espoused and explained the natural law. Geisler and Turek describe it as “the law not everyone obeys, but the law by which everyone expects to be treated.”3 C.S. Lewis wrote, “This thing which I have called for convenience the Tao, and which others may call Natural Law, is not one among a series of possible systems of value. It is the sole source of all value judgments. If it is rejected, all value is rejected. If any value is retained, it is retained.”4 Princeton professor and natural law theorist Robert George points to the writings of Cicero to define natural law as “the highest reason implanted in nature, which prescribes those things which aught to be done, and forbids the contrary.”5

J. Budziszewski, a leading contemporary natural law theorist, calls the natural law “foundation principles of right and wrong which are both right for all and at some level known to all.”6 According to Budziszewski, it is equally important to the definition of natural law to declare what it is not. He writes that natural law is:
not innate, for we are not born knowing it—a child is capable of understanding that murder is wrong once he learns what is meant by “murder” and by “wrong.”
not mere biological instinct.
not mere custom.
not just a deceptive name for moral law as known through the Bible, although biblical moral law acknowledges it, conforms to it, and extends it. George points out that “early natural law philosophers were ignorant of the revealed teachings of Sacred Scripture.”7
not a law of nature in the same sense that gravitation is a law of nature—a falling apple does not freely conform its behavior to a rule, which it knows to be right.8

Arguments for Natural Law
Is there really a natural law? If so, how do we know it exists? And why should it serve as a basis for legislating morality? These are important questions because if natural law exists and is written on the hearts of all people, any legislation derived from the natural law would have authority over all people, without controversially holding individuals subject to someone else’s moral standard.

One argument for the existence of natural law is that to deny its existence is self-defeating. Budziszewski contends that the foundational principles of right and wrong can be neither created nor destroyed by man; therefore, the only way to defeat the natural law is to make it cannibalize itself. He explains that there are no new moralities, but only new perversions of the old one.9 Similarly, Lewis asserts that there has never been, nor will there ever be, a new judgment of value in the history of the world. Whatever claims to be a new system of morality simply consists of fragments from the natural law and owes its validity to the natural law.10

Another argument for the existence of natural law is the unacceptability of a society without natural law. Lewis asserts that without an objective natural law to which we can appeal for natural rights, we are helpless to rulers who can do anything they please, based on “their own ‘natural’ impulses. Only the [natural law] provides a common human law of action which can overarch rulers and ruled alike.”11

Positive law (i.e., Human Law)
The question still remains, how the natural law relates to the law as we know it—the statutes and ordinances that we are expected to obey and are punished for disobeying. Establishing this relationship helps to show that legislation should based on a morality that stems from the natural law and therefore has authority over all people.

In his work Summa Theologica, Aquinas gives an overview of the “architecture” of universal law—the way in which the law finds its origin in God and reaches down to man. Natural law stems from what Aquinas called the eternal law, which is the law as it is in the mind of God Himself. This forms a three-tiered structure that begins with the eternal law, which splits into the natural law—the reflection of eternal law in the created rational mind—and the divine law—the reflection of eternal law in special revelation (i.e. the Holy Scripture). The natural law and divine law come together and create the human law, otherwise known as positive law.12 Positive law is the application of the natural law, by public authority, to the circumstances of particular human societies—laws passed by governments.13

In order for positive law to be valid, it must derive from natural law. If at any point it deviates from the natural law, it is no longer a law, but a perversion of law.14

Relativism and Natural Law
In today’s postmodern society, the “vogue” mindset of moral relativism is at the heart of the sentiment that “You can’t legislate morality.” Moral relativists claim that because there is no absolute truth, there can be no absolute morals and therefore no natural law. However, when examined closely, moral relativism fails as a philosophy. Two arguments are often used to defend moral relativism; first, cultural and individual differences reinforce relativism, and second, tolerance forces us to accept relativism.15

Baylor professor Francis Beckwith points out that disagreement about something does not mean that there is no truth to the matter. If disagreement were sufficient to conclude that objective norms do not exist, we would have to believe that there is no objectively correct position on issues like slavery, genocide, and child molestation, for the slave owner, genocidal maniac, and pedophile have an opinion that differs from the one held by the general public.16

In fact, disagreement not only fails to prove relativism, it disproves relativism. According to the relativist’s own principle—disagreement means there is no truth—because there is disagreement about the principle of relativism, it cannot be true.17 The argument destroys itself.

Moral relativists claim that relativism is necessary for promoting tolerance: they say that those who believe their moral position is correct and others’ incorrect are intolerant. Beckwith shows that tolerance and relativism are actually incompatible with each other. If everyone should be tolerant, then tolerance is an objective moral norm, which relativists should reject because they reject objective moral norms. The tolerance argument also presupposes the objective moral values that knowledge and wisdom are good things.18 The claim that there is no objective moral truth is, to the relativist, an objectively true statement.

The natural outworkings of moral relativism could be catastrophic. If relativism were true, it would not be wrong, in principle, to have an abortion, but neither would it be wrong for people who abhor abortion to attempt to legislate against it or to actively interfere with someone else’s abortion. The self-defeating nature of moral relativism strengthens the case for natural law. Objective truth must exist; otherwise the logic ultimately contradicts itself.19

Natural Law: Abortion as a Case Study
It is important to understand how the natural law applies to specific issues, such as the controversial issue of abortion. Beckwith lays out a four-part argument for the pro-life position. He explains:

  • First, the unborn, from the moment of conception, is a full-fledged member of the human community.
  • Second, it is prima facie morally wrong to kill any member of that community.
  • Third, every successful abortion kills a full-fledged member of the human community.
  • Fourth, every successful abortion is therefore prima facie morally wrong.20

Most disagreement arises over the first point. While some may disagree that the unborn is fully human from the moment of conception, almost everyone agrees that taking innocent human life is morally wrong—the natural law affirms this. The ultimate question on the abortion issue is when does a new human being come into existence?

In its 1973 decision in Roe v. Wade, the U.S. Supreme Court ruled that abortion was a constitutional right and any state law banning abortion infringed on a woman’s right to reproductive freedom. Justice Harry Blackmun’s majority opinion in Roe specifically avoided the base question of when life begins when he wrote, “We need not resolve the difficult question of when life begins.”21 Instead, the court claimed that a state has a compelling interest in protecting prenatal life only after that life is viable—that is, when the fetus is capable of living outside the womb.22 The Court’s reasoning is a prime example of a moral judgment.

George writes that modern science shows that human embryos are whole, living members of the human species who, unless prevented from doing so, are actively developing to the next more mature stage in the process of human development through the fetal, infant, child, and adolescent stages of life, and ultimately into adulthood as determinate, enduring whole human beings.23

The Roe Court described the unborn child as “potential life.”24 What the Court failed to realize is that a human embryo does not merely have the potential to “become a life” or “become a human being.” He or she (for sex is determined at the beginning of life) is already a living human being.

Natural Law: Same-Sex “Marriage” as a Case Study
We will examine two of the many arguments against same-sex “marriage” that address the following natural law principles: first, we should not harm ourselves or others; second, children should be raised in the best possible environment.

The Harms of Homosexuality
Homosexuals promote the idea that there are no real differences between homosexual and heterosexual sex. However, statistics suggest that homosexual sex has extremely harmful effects on those who practice it. Simply put, the human body was not designed for homosexual activity.

In 1994, the Omega Journal of Death and Dying published a study that compared 6,737 obituaries/death notices from eighteen U.S. homosexual journals with obituaries from two conventional newspapers.25 The study intended to compare the effect of the homosexual lifestyle to the heterosexual lifestyle with regards to lifespan.

While the obituaries from the non-homosexual newspapers indicated longevity similar to U.S. averages—the median age of death for married men was 75, and for married women, 79—the median age of death for homosexual men who did not have AIDS was 42. For homosexual men who did have AIDS, the median age of death was 39. The median age of death for the 163 lesbians in the study was 44.26

The Omega study distinguished between married men and single or divorced heterosexual men; it also distinguished homosexual men without AIDS who had a “long-term sexual partner” (LTSP) and homosexual men with AIDS with an LTSP. Married heterosexual men live a full 18 years longer than their single or divorced counterparts (75 years versus 57 years). However, homosexual men with a LTSP, regardless of whether or not they have AIDS, only have lifespans equal to or shorter than the entire matching subset of homosexual men, including singles. This information suggests that having a long-term partner does not have the same positive effect on lifespan for homosexuals as it does for heterosexuals. So while homosexuals contend that “marriage” would help them increase their significantly shortened lifespans, the statistics show otherwise.27

Two conclusions from the data seem inescapable: first, from a public health perspective condoning same-sex “marriage” or homosexual activity is a bad idea, and second, homosexual sex is inherently dangerous, regardless of promiscuity.28

Effects on Children
One of the main purposes of marriage is to raise children. Turek argues that same-sex “marriage” would nullify parenthood and hurt children because once the government endorses the idea that marriage is just a legal contract between consenting adults of any gender, marriage will no longer be seen as a prerequisite for children. People will see marriage simply as coupling and more will choose to forego marriage and have children out of wedlock. Children will be negatively impacted by the decline in marriages since single parents often never form a family, and those who cohabitate are two to three times more likely to break up than married parents are.29

The effects of legalizing same-sex “marriage” can be observed in other countries. In Norway, illegitimacy rose from 39 to 50 percent in the first decade of same-sex “marriage.” In Nordland and Nord-Troendelag—the Vermont and Massachusetts of Norway—same-sex “marriage” is almost totally accepted. Marriage has almost disappeared in these places.30 Blackenhorn reports the same trend in other countries. Natural marriage is weakest and illegitimacy is strongest wherever same-sex “marriage” is legal, and though correlation does not always indicate causation, it often does.31 Whenever marriage laws are liberalized, families are destroyed.

Statistics show the harmful effects of broken homes on children. With the increased illegitimacy that accompanies same-sex “marriage,” these harmful effects will become more widespread. Children from fatherless homes are seven times more likely to live in poverty, six times more likely to commit suicide, more than twice as likely to commit crime, and more than twice as likely to become pregnant out of wedlock than those in homes with a mother and father. Also, fatherless children account for 70 percent of America’s long-term prison inmates, 85 percent of America’s youth prisoners, and 90 percent of America’s runaways.32 Common sense and history show that children do best in a home with a mother and a father.

It is crucial that we rebuke the claim that “you can’t legislate morality.” Not only can we legislate morality, it is the primary basis for all legislation. We can and should legislate based on a morality that is written on the hearts of each and every person. If we continue to deviate from the natural law, America will suffer grave consequences. This country must go back to the roots on which it was founded—the roots of the natural law.

1 William C. Dodson, Legislating Morality: Traditional Values and the Constitution, North Carolina Citizen, August 1995, 2.

2 Norman Geisler and Frank Turek, Legislating Morality, (Minneapolis, MN: Bethany House Publishers, 1998), 109.

3 Id. at 20.

4 Id. at 43.

5 Robert P. George, The Clash of Orthodoxies, 1st edition (Wilmington, DE: ISI Books, 2001), 160-161.

6 J. Budziszewski, Natural Law for Lawyers, (Eugene, OR: ACW Press, 2006), 22.

7 George, Orthodoxies, 161.

8 J. Budziszewski, What We Can’t Not Know, 1st edition (Dallas, TX: Spence Publishing Company, 2004), 13-15.

9 Budziszewski, What We Can’t Not Know, 186-187.

10 Lewis, Abolition of Man, 43-44.

11 Id. at 73.

12 Budziszewski, Natural Law for Lawyers, 70.

13 Id. at 81.

14 J. Budziszewski, Written on the Heart, (Downers Grove, IL: InterVarsity Press, 1997), 76.

15 Francis J. Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice, (New York, NY: Cambridge University Press, 2007), 5.

16 Id. at 6.

17 Id. at 6-7.

18 Id. at 12.

19 George, Orthodoxies, 19.

20 Beckwith, Defending Life, xii (Introduction).

21 Roe v. Wade 410 US 113, 159 (1973).

22 Id. At 160.

23 George, Orthodoxies, 319.

24 Id. At 150, 154, 156, 163.

25 Id. at 131.

26 Id. at 132.

27 Id. at 132-133.

28 Id. at 135.

29 Frank Turek, Correct, Not Politically Correct: How Same-Sex Marriage Hurts Everyone (Charlotte, NC: CrossExamined, 2008), 47-48.

30 Id. at 48.

31 Id. at 49.

32 Id. at 20-21.

Will Kang served as an Alliance Defense Fund Blackstone Fellow legal intern at the North Carolina Family Policy Council.

Copyright © 2009. North Carolina Family Policy Council. All rights reserved.