Libertarianism and Legislating Morality

In my last post I mentioned how I am increasingly sympathetic to the libertarian point of view, although I am not quite there yet. One of the reasons I am still a little uncomfortable and unconvinced has to do with moral law. Despite the old and stupid adage that says “You can’t legislate morality” (What else are you going to legislate and why would you otherwise legislate anything?), all law has a basis in morality. Even the basic libertarian concession to the proper role of government,--to allow for the “least intrusive government consistent with the maximum freedom of each individual as long as he doesn't interfere with other individuals pursuing their own freedom”--is itself based in moral law. Does anyone remember the “Golden Rule”: “Do unto others as you would have them do unto you”?




As a Christian during most of my adult life, I have identified to a great extent with what has been derisively called the “religious right”. But I can also sympathize with the revulsion some might feel toward this movement. Though I agree with the moral concerns of “values voters” and their right to express them in the political arena, the zeal with which the message is conveyed often drowns out the mercy and compassion that are also supposed to be part of their message. I fully agree with them, for example, that abortion and homosexuality are egregious sins. But then again, so are heterosexual adultery and fornication, groundless divorce and other forms of spousal abandonment, cheating on your income tax and other forms of theft, all forms of deceit ranging from simple lies to full scale perjury, harsh words spoken in anger, and (last, but certainly not least) hypocrisy, pride or self-righteous attitudes toward those who practice any of the above. All these and countless other unlisted evils are equally effective at evoking divine displeasure.


Take another look at the litany of sins listed in the previous paragraph. You might agree that government has an obvious role in prohibiting some of them (theft, cheating on your income tax, perjury) while others belong to the realm of the church and individual relationships. Most would agree that the government has no role in controlling hypocrisy, pride, self-righteousness, etc: they are simply and generally frowned upon as a matter of common decency.


But what about some of the other items listed, which might fall in between? I can make an argument even from a libertarian point of view that abortion should be outlawed simply because I am convinced--not only by moral law but also by medical science--that abortion involves the taking of a human life. But what about some of the so-called “victimless crimes?” In particular, I am wondering what is the proper role of government in the sexual realm:

1. In the last post, I brought up the example of prostitution. Does the government have a right to prohibit “person A” from paying for the sexual favors of “person B” if it is indeed a truly voluntary transaction, between consenting adults? What if payment is in something other than cash, like a nice dinner and evening out? Is the former considered prostitution and the latter not? Again, don’t get me wrong. Even the thought of it is morally reprehensible, but do libertarians have a point in saying that the government should have no role in this matter? Why or why not?
2. It wasn’t long ago that most states in the union actually had laws proscribing homosexual behavior. Of course such laws were largely unenforceable, and most law enforcement authorities had neither the stomach nor the interest of even trying. I guess libertarians (as well as practicing homosexuals) are happy that these laws are no longer on the books, but they at least made a statement as to what constituted acceptable and unacceptable behavior in the sexual realm. Is that a proper role for government? Why or why not?
3. I often wonder what libertarians think about the government’s role in the institution of marriage. The sacredness of marriage was and is reflected by its celebration as a religious sacrament. I am guessing that the history of government’s role in the institution is probably two fold: (a) it goes back to times and societies when the line between church and state was blurred, for better or for worse (usually worse); (b) governments and societies have recognized their compelling interest in promoting and preserving marriage as a means of fostering healthy family units as part of a well ordered society. It also protected women and children from abandonment. The state’s compelling interest in preserving marriage and the family used to be reflected in how difficult it once was to obtain a divorce. Before the advent of “no-fault” divorce laws, there had to be a compelling reason to justify a divorce. If the sanctity of marriage vows was not sufficient to keep struggling couples from parting ways, the extra layers of social opprobrium and legal impediments against an easy divorce often preserved the union. Now those safety nets are largely non-existent, and marriage from a governmental point of view has been reduced to nothing more than a contract, similar to a limited partnership or an S-corporation, which is easily dissolved upon request of one or both parties. Given this sad state of affairs, why should government be involved in “licensing” marriages at all? (On a side note and referring back to item 2, if the government were no longer involved in the marriage business, it would largely pull out the rug from the absurd argument that homosexuals should have the right to marry. If the government law were indeed neutral or indifferent as to whether or not people were “married”, I suspect there would be precious few homosexuals lining up at the courthouse door for a civil union.)

Anyway, I have not yet come to a conclusion as to what I think is the proper role of government in these areas. At this point I am thinking out loud. I would welcome your thoughts and opinions.