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Don't accept the old axiom about legislating morality

In the midst of Tuesday’s candidates forum, while discussing a proposed anti-discrimination ordinance, Butler council candidate Jeff Smith offered the axiom that “you can’t legislate morality.”

Smith is a highly qualified council candidate. And he’s right, to a certain extent. Our purpose here is not to single him out, but rather to focus on the comment, which has been disseminated for decades by multitudes of high school civics instructors. The thesis is both broadly familiar and widely accepted. But does it help explain our community’s options in a contentious issue? Is it even a valid assumption?

John Adams didn’t think so. Our second president and a principal architect of the United States Constitution, Adams wrote that “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

Adams’ point is that there’s a moral element — or should be — in all legislation crafted by a free and self-governing society. “This being true, any and all just laws must be based on moral considerations,” he wrote. “If this republic is to endure, our elected representatives are ever bound to legislate morality. To fail that responsibility is to ensure we will be ruled by immorality.”

But what specifically is moral or immoral about an anti-discrimination ordinance? The question, while rhetorical, is fraught with significance, according to the proposed ordinance’s opponents. They envision transgender adults sharing public restrooms and showers with their children, and businesses being forced to perform services that go against their core religious beliefs, like the Colorado baker who stopped making wedding cakes rather than make one for a gay couple because he believes marriage is between one man and one woman. The U.S. Supreme Court is expected to rule on that case any day now.

Conversely, those in favor of the anti-discrimination proposal say it’s immoral to let discrimination continue against individuals for any reason including their gender, gender identity or sexuality. Sexuality is not a moral issue, they say; that’s just who they are.

The opponents retort: Sexuality is not a problem, but sometimes the public display or expression of sexuality can be a problem.

The way council is going about it, adopting an anti-discrimination ordinance would be legislating one kind of morality; rejecting it would be another kind of morality.

When someone says, “You can’t legislate morality,” what they’re really saying is, “Don’t legislatively impose your morality on the rest of us.” And according to John Adams, co-creator of the Constitution, upholding morality is pretty much what every legislative effort should do.

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