Do laws that legislate morality violate the separation of church and state?
We have recently witnessed a rash of laws across the country aimed at making the moral positions of the majority matters of law. Some examples include laws dealing with doctor-assisted suicide and homosexual marriage. When these laws are primarily based on the religious views of a predominant church or sect, don't they violate the separation of church and state?
To adequately answer your question some important groundwork must be laid. In your question, you use two commonly uttered but rarely defined terms--"legislating morality" and the "separation of church and state." It is important to be clear on what is meant by these two terms before attempting to answer your inquiry.
When the Congress, state legislatures or popular majorities establish laws that regulate the private behavior of individuals, people often complain that a moral principle, something which ought to be matter of conscience, has inappropriately been made a matter of law. Such complaints are based on a very individualistic view of the relationship between individuals and the large communities to which they belong.
Political philosophers through the ages have attempted to define the appropriate relationship between the individual and the whole of society. It is a difficult relationship to define because there are daily examples of the conflicts that arise between what individuals believe they are free to do and the broader needs and interests of society. For example, an individual might think he or she should be free to make decisions about drug use without government interference. There is, however, a societal interest in prohibiting individuals from engaging in the use of illicit drugs. When an individual uses drugs, that individual imposes costs on the rest of the people in his or her community in the form of lost productivity, crime, increased medical expenses and the need for rehabilitation programs. In such cases the majority might choose to make drug use illegal because an individual's choice to use them has such a negative impact on the rest of society.
Such laws are directly relevant to your question when they impinge on what we might call moral behavior. Morality and moral behavior, however, are difficult terms to define, especially in the context of politics and public policy making. Should the morals of a particular group of individuals, say those that adhere to a particular set of religious beliefs, be the basis for law? Or should religious belief have nothing to do with such decisions?
A standard dictionary definition sheds some light on these questions. The Webster's Encyclopedic Dictionary defines "morality" as: "conduct or attitude judged from a moral standpoint." The word "moral" is, in turn, defined as something "concerned with right and wrong and the distinctions between them." Are laws capable of addressing issues of "right and wrong" in a socially, culturally and religiously diverse society? Clearly they do. Murder, child abuse, robbery, assault and other crimes against persons and property are widely regarded by society as "wrong." There are laws not only in this country but in virtually every country in the world that declare such actions illegal. Punishments, ranging from fines to incarceration to execution, are also attached to such provisions. Such laws are clear and authoritative statements of societal morals. They establish a clear boundary between individual rights and interests and the rights and interests of others in society, both individually and collectively.
When society deems something to be "wrong," it has cast a moral judgment. The political judgment that must then be made is whether such a judgment ought to become a matter of law. It is impossible, however, to create laws that have no moral dimension to them. The very act of coming together as a political society to establish rules of cooperation and societal order is based on fundamentally moral choices and preferences. Legislating morality is unavoidable.
The Separation of Church and State
The Framers of the Constitution recognized that a political society and its government provided the framework for the people to make collective moral judgments that were legally binding. They were, however, suspicious of efforts to impose the moral judgments of a particular group or faction on other groups or factions in society, sometimes at the expense of individual rights and liberties. They were particularly wary of efforts to use the mechanisms of the national government to impose the views of a given religious denomination on the rest of the nation as a matter of law. Indeed, the First Amendment to the Constitution states that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
The Supreme Court has consistently ruled that laws that fund, promote and compel citizens to participate in a particular religious denomination or even laws that favor one sect over another violate the First Amendment. But what are the implications of the First Amendment for society's efforts to make laws about moral issues?
Many people believe that the First Amendment requires a clear "separation of church and state" that prohibits religiously motivated laws. However, the First Amendment makes no mention of such a separation. In fact, it prohibits laws that circumscribe an individual's "free exercise" of his or her religion. The Constitution also forbids "religious oaths" for office holders. Those who are elected to make decisions in the Congress are free to bring with them whatever beliefs they may hold, be they religious, irreligious, secular, ideological or political. The law cannot touch an individual's mind or beliefs. Indeed, Thomas Jefferson, who coined the phrase "wall of separation" between church and state, declared:
The proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument unless he profess or renounce this or that religious opinion is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right.
Morals and religion are inextricably connected to the law in the United States of America. Every individual has the inalienable right to pursue happiness as he or she sees fit and to bring his or her most fundamental beliefs and opinions into the marketplace of ideas. There will never be complete consensus on even the most simple of public policies. The American system, however, guarantees each citizen--religiously inclined or otherwise--the chance to be a part of shaping them.