“You can’t legislate morality” is yet another cultural aphorism that both makes a sound point and makes no sense. The sound point is this. While laws, and attendant criminal penalties for breaking said laws might be something of a restraint on many people, passing a law doesn’t mean the law will never be broken. Laws do not have complete power to ensure compliance. For instance if we made it illegal to think stupid things, it wouldn’t keep us from thinking stupid things.
The nonsensical point is that some people think this means that any law touching on morality is out of bounds, or to put it another way, immoral and should be illegal. My father used to ask this question, “If we don’t legislate morality, what is there left to legislate?” Laws against murder are legislation of morality. Laws against child abuse are laws against morality. Laws against polluting the environment are laws of morality. You can’t get around it.
That said, there’s a third issue. Do we really want to say that EVERYTHING immoral should be illegal? I trust we can agree that feeding our children nothing but ice cream is immoral. But do we want to have food police scanning our groceries? All of which leads us to this easy to understand but difficult to answer question- what moral issues should be legal issues?
The historic battles and ongoing battles in the church over theonomy flow right out of this conundrum. On the one hand, we have in Old Testament Israel the one nation in all history wherein God wrote the law code. Score a point for the theonomists. On the other hand, Israel was a distinct nation with a unique purpose. God has not said of the United States as a nation, “You are My people.” Score a point for the non-theonomists. To which the theonomists reply, “What’s it going to be, God’s law or self-law, theonomy or autonomy?” That makes it 2-1.
Any Christian should agree that the civil law of any nation ought to be the civil law that God commands. The question is, does God want the law He gave to Israel to be that law? If our only other option were legal chaos, man’s law, autonomy, then of course He must want us to adopt Israel’s law. What if though, there were another law of God? What if we can at least begin to discern that law which God intended for all nations everywhere? What if said law were more clear than the quicksilver law we call natural law?
God gave Moses His law for Israel, His set apart people. God gave His law for all people to those who represented all people, Adam and Noah. The laws God gave them we can rightly call “creation” law. I would argue that civil government itself is established when Noah gets off the ark, when God says that if a man sheds another man’s blood then by man his blood shall be shed. Marriage isn’t something God gave only to believers, but to all mankind in Adam. A case could be made for sabbath keeping and tithing as well. The long and the short of it is we are left with God’s law, not man’s, with that morality which ought to carry criminal penalties, and I’m happy to report, minimal government, minarchism.
My hope is that this admittedly brief framework would allow us to first, be faithful to the will of God and second, forge a path that evades theocracy in its worst sense without denying God’s authority and evades autonomy without destroying liberty in its best sense.