On legislating morality

In the run-up to tomorrow's vote, I have often been disappointed at the lack of thoughtful debate about the constitutional amendment to define marriage. On both sides, the issue is considered self-evident - civil rights on the one hand, the sanctity of marriage as a foundational building block of family and society on the other. I have waited until the day before the election for the argument to get close to the core of the issue, which is what my illustrious life partner brings up in his post. The core question is: To what extent should we try to legislate morality?

In the 21st century, most of us agree that our laws should not land people in prison for adultery or showing their ankles in public, but they should punish theft or murder. It has little meaning to say that our laws should not legislate morality at all, because they inevitably do. The laws of the modern state lay down common rules so that different people can live harmoniously in close proximity, so that the freedom of one person does not result in harm being done to another. Sometimes that does require legislating morality: Even though some people may not consider stealing to be bad, it hurts others, so the government steps in with laws to make stealing illegal (unless you're a Wall Street banker, but that is a different story).

Now, what category does marriage fall in? Does a loving union of two people hurt others? Some would say that even if a union is entered by two consenting adults, it will hurt them or society in the long run. I say that to follow this logic would also be to forbid marriages between people under 30, those with low incomes, or between Evangelical Christians - all three groups more likely than the average population to get divorced. Using the same logic, someone may come along one day and say that my practice of the Christian faith is a backward mythology that impedes progress and hurts society, so I should be forbidden from teaching it to my children.

For people like me, who find rich nourishment in the Christian roots of our civilization, history is full of stark warnings against forcing others to live by our morality. Without the transforming experience of genuine belief, a legislated morality either produces a fundamentalist response in the opposite direction, or acts as a vaccine against the very faith that gives morality its meaning.

So should we as a society make a new law about marriage tomorrow? I would argue that we should not legislate on who should be able to marry, just like we should not legislate on who can hold a job, have kids or practice their religion. To use a literary metaphor, the laws we produce should not attempt to be a dictionary that defines words just the way we like them; but a grammar book showing how different particles with different logics can form a harmonious and meaningful whole.