How Far Is Too Far in Legislating Morality?

Posts on Say Anything that involve legislating morality always get a lot of comments. Whether it's gay marriage, gay issues in general, smoking, or the drinking age, posts here that deal with the legislation of morality are magnets for debate.

I don't get to spend as much time on Say Anything as I might like (or Rob for that matter, as he probably thought I'd post more often than I do, but I digress) so I tend to not wade into these debates as I usually come very late to the party. That doesn't mean I don't have opinions on these matters. I do, and they're quite strong.

In cases where laws intersect with morality there are always going to be winners and losers. I can use the terms 'supporters' and 'opponents', but I think my original wording better expresses the real outcome of such laws.

People who lose the ability to perform an act they otherwise might enjoy, whether it's smoking a cigarette in a bar or having a beer at age 19 or marrying their homosexual partner feel like they've lost something when the law says they cannot engage in those acts. People who are morally offended by gay marriage or who stop going to bars because an excess of smoke triggers their asthma feel like they're on the losing side when the law says those actions are legal.

When a law is passed there is usually a moral driver behind it. Often these drivers can find their roots in religious tenets. Thou shalt not kill. Thou shalt not steal. Thou shalt not bear false witness. Certainly, there is not a one-to-one relationship between laws and religious edicts, but it would be folly to argue that there isn't a common basis in ideas espoused in religious texts (the above may share wording with Christian texts, but all religions have tenets that find commonality in the laws of the lands in which they are observed) and the law of the (secular) land. At what point does the government's desire to enforce behavior--or curb bad behavior-- cross the boundary into forcing a certain vision on morality onto a public that might not want it?

The easy answer is that laws reflect the morality of the people. The problem is that this is a very broad statement that doesn't shine much light on the boundary in question. In fact, that statement is so self evident (in a democracy anyway) as to be meaningless in the current conversation. This is because it is rare that a law represents the beliefs of 100% of a population. Theft? I'm sure I could find someone out there who believes stealing isn't always wrong. Murder? There are people who believe that killing abortion doctors shouldn't be illegal. So we're forced to say that laws reflect the morality of a majority of the people. What constitutes a majority? Unfortunately that isn't an easy question to answer. This is because laws don't always affect the totality of a population.

Take smoking laws. While Bismarck was in the middle of a fight between proponents of a smoking ban and its opponents, the idea of an exception for bars was bandied about. The people directly affected by the outcome of such an exemption would logically be those people who work or frequent those bars. The elements of the public that don't visit or work in those bars would be unaffected by the smoking that takes place in those establishments. In this case, the employees of a bar were among those who supported an exemption. It's highly unlikely that the bars' regulars were pushing for this ban en masse. That means the main driver for the bar ban were people who didn't work in the bars and wouldn't frequent them anyway. Sure, there are undoubtedly a few who would start patronizing non-smoking bars. But as someone who watched a similar fight unfold in Fargo, I can cite several instances before smoking was banned of non-smoking bars opening and then closing a short time later due to poor patronage. The truth is that when it comes to smoking in bars the main proponents of a smoking ban are people who rarely go into bars in the first place, and certainly aren't regulars. That would seem to me to be a clear cut case where the affected majority (as opposed to a clear majority) had a morality they did not share forced upon them.

The debate over the drinking age is another curious case. The standard argument for lowering the drinking age to 18 goes something like this: if they're old enough to fight in a war they're old enough to have a beer. I tend to agree with that view, if only because drinking a beer seems like such a small thing compared to, you know, fighting in a war. The argument for keeping the drinking age where it is goes something like this: drinking may not seem like a bad thing, but tell that to all the families of people killed by drunk drivers. This is an argument that sets up a strawman and does a fine job of chopping it off at the knees. Obviously drunk driving is bad thing. Certainly there should be laws against operating a motor vehicle while drunk. Hold on, let me check--yes, there they are. Framing the argument in such a way as to conflate driving drunk with the drinking age is a mistake. The argument can just as easily be applied to older people as well. Is there magic that happens when a person turns 21 that makes him or her less likely the drive drunk? Maybe. I don't know. Nobody does; at least I've never read any definitive studies that would prove this. If no magical line exists, then shouldn't drinking be outlawed completely? It's the only way to ensure that nobody has to break any bad news to the families, after all.

No, a better argument to make against lowering the drinking age would be that there are different levels of maturity and that, as odd as it may sound, it could be that a person can be deemed mature enough to enlist in the military and be sent off to a foreign land to fight, yet not be mature enough to drink responsibly. I don't personally believe that, and I don't think there's ever been any research to prove or disprove the thesis. But at least it is a thesis and not a blind appeal to emotion made by a strawman.

Regardless however, there is a strong moral sentiment in the debate on both sides. Where does it transition from "enforcing the morality of society" to "forcing the morals of one group on another"? For me, we reach that point when the argument for restricting the rights of another can only be supported by tangential arguments that don't hold up under scrutiny. "Murder is a crime" is on a solid moral foundation. A vast majority of people in this country believe that taking a life for reasons other than self-defense is a crime. If there are people out there who think that it should be legal to kill at a whim, their numbers are small. The reason it enjoys so much support is that the logic behind banning it is simple and sound: when you murder someone you take away a life that cannot be replaced. "Theft is a crime" likewise enjoys the support of a vast number of people. This again is because the logic behind it is irrefutable: when you take someone's property you are depriving them of something which they own and to which you have no claim.

The drinking age debate--18 or 21?--rests on much shakier ground. This is partly because we aren't talking about something that is banned outright. We are talking about setting an age limit at which point a prohibition becomes a right. If age-based restrictions were levied in a vacuum this would be easier. However, our society says children become adults at 18 in so many other areas--voting, age of consent, military enlistment--that setting the drinking age at 21 requires a strong logical basis to set it apart. That logic, from what I have heard, is shaky. I've already talked about drinking and driving being a strawman. Drunk driving is illegal regardless of age. That the military has a vested interest in restricting alcohol because soldiers can't be "drunk in a foxhole" is another strawman. No soldier is allowed to be drunk in a foxhole, any more that I'm allowed to be drunk at my job. The military's interest in alcohol restriction doesn't disappear at age 21.

You may not drink (no one will make you). You may not like being around people who drink (no one will force you). You may not want others to drink. There's no logical argument you can make that would convince a person who believes in personal freedom that your morality should trump theirs. You may want to set an arbitrary age when the right to drink materialized. If that age is different than the age when voting, defending the nation, and becoming a consenting adult, you need a sounder argument.

(Crossposted at Say Anything)