The idea that morality should not be legislated is pure fiction. As much as we may want to tell ourselves that we do not legislate morality, all governments do. Someone’s morality is always legislated, because the very purpose of law is to secure justice for its citizens. The only question is whose morality will be legislated.
This question arises from a Sunday column by New York Times columnist David French, who argues that culture warring from both the left and right threatens our constitutional order. French cited a litany of examples where governors from both red states and blue states are using government power to punish opponents. He then wrote: “But if a government both enacts contentious policies and diminishes the civil liberties of its current ideological opponents, then it sharply increases the stakes of political conflict. It breaks the social compact by rendering political losers, in effect, second-class citizens. A culture war waged against the civil liberties of your political opponents inflicts a double injury on dissenters: They don’t merely lose a vote; they also lose a share of their freedom.”
The better approach, French insists, is “a legal corollary to the golden rule: Defend the rights of others that you would like to exercise yourself.”
