The claim that we should not legislate morality does not mean that we should not legislate anything for which there might be a moral argument what is meant is that if there is only a religious or moral argument on behalf of the law, then it should not be passed. There should be consideration on whether there is also some other secular or civil reason for the law, then maybe the law is a good idea. Many people feel that moral laws are a black and white matter; if there is anything they regard as immoral that is illegal, then it must be legitimate for them to make anything immoral also illegal. If it is ever wrong for them to make illegal something they think is immoral, then it must always be wrong, even with things like murder. They completely fail to see the nuance that additional secular or civil reasons for a law need to exist
Rather than basing morality on what is legal, it seems more reasonable to try to make the law accord with what is moral. We do not want to have laws that would require us to do something immoral, but it is not clear that we want laws always requiring us to act morally. This is because there may be some areas of life which we regard as private, which are simply none of the government's business. For example, we may regard lying as immoral, but that does not mean that we would want there to be a law to enforce honesty and to punish us for lying. Of course there are many immoral things that we do want punished by law, such as killing, stealing, and raping.
The above states the two extremes; areas like killing where we clearly do want the law involved and actions like lying where we do not. Here are a few proposals for laws that fall into a more difficult "gray" area: laws banning books and magazines, laws prohibiting written expression, ideas, or pictures, laws prohibiting homosexual or polygamous marriage even with consent from all parties involved, laws prohibiting certain kinds of sexual acts even between consenting partners, or laws restricting the use of certain drugs. The question we need to address in thinking about the examples is not whether we think the act is immoral and not even whether we think it should be illegal; rather, question is whether it is the kind of issue about which the government may even consider making a law. If it is, then we and others can debate the desirability of the law in the democratic process, but if it is not the kind of issue government should consider, then no person should ever have his or her freedom restricted in this area. For example John Stuart Mill thought that a person's freedom of speech should never be limited by governmental laws (1).
Our question, then, is which areas of life are appropriate subjects for law and which areas are private where the government and its laws have absolutely no business. What we need is a principle for deciding this. In my opinion here are some possible principles one might use: laws appropriate only to regulate actions that harm others which is Mill's harm principle (2) and laws are appropriate to regulate actions which offend a majority of the population. Which leads us to the question of whether the laws proper purpose is to protect individuals or to protect society as a whole and whether the existence of society requires that there be some shared understanding about basic moral ideas?"
There is ineffectiveness in trying to legislate and enforce arbitrary laws which do not represent an agreement of the majority of the people. Consider the U.S. Prohibition Law of the past. The law against the sale and manufacture of liquor was severely written and tabulated. Yet it did not meet with the approval of the majority of people. Even non-drinkers fought it because it was inconsistent with the fundamental laws and deprived man of certain rights. So the law did not have universal support of the citizens.
Things like murder, rape, or stealing are morally wrong and support the existence of legislation prohibiting those activities. So how is that not legislating morality? It would seem that legislating morality is somewhat selective and that some morality is neutral while some is religious. Also are moral laws that can be successfully legislated, such as, murder because everyone agrees that the taking of life for no reason is considered evil. The real division comes when you have one side perpetuating an issue as evil, and another side defending the issue as a non-evil one. To successfully legislate morality based laws, both sides must conform to the same view.
I feel that we have no right to legislate morality, unless, it has common civil functions as well. A person's concept of morality is dependent upon their own moral and religious beliefs and the United States was founded on principles of freedom and liberty for all, regardless of religion. The foundation of liberty is that we all have the right to do whatever we want, provided what we do affects no one without his or her consent. Man has a mind in order that he may understand and make choices. Man's survival results from moral integrity not from counseling obedience set up by an external agent. He must have his freedoms because knowledge comes not from obedience from authority but from reason.
