Yes, we know that both the phrase "legislating morality" and the concept it betokens have become somewhat stagnant from overuse. Would that we had a dollar for every time someone has said, "You can't legislate morality." Well, there's a certain hair-splitting truth to that sentence, but in a fundamental way, it goes amiss.
Of course, you can legislate morality. That's exactly what such linchpins of the American legal corpus as the Civil Rights Act of 1964 and the Voting Rights Act of 1965 did. To be sure, they were based on more abstract precedents — the 14th Amendment and the Commerce Clause of the Constitution, respectively, but at root, those two pieces of watershed legislation were aimed at the hearts and minds of American citizens, at a collective moral center that badly needed course correction.
And they worked.
Not every such attempt at legislative morality has been as successful. The Volstead Amendment, initiated in Congress and ratified by enough states to become part of the Constitution in the heady moralistic fervor that reigned at the end of World War I, was an abysmal failure. Prohibition required course correction of another kind — repeal — when the nation was required to take stock of it in 1933, at the beginning of the New Deal.
But the fact is, whether legislating morality works, and whether it works for better or for worse, it is attempted all the time. Arguably, all legislation is of that sort.
Two recent cases in point are close to home. Just this week, the Shelby County Commission voted 9-4 to contract with Christ Community Health Services as the local agent for women's health issues funded by Title X federal funds. In doing so, it completed the governing Republican establishment's official ostracism of Planned Parenthood, the agency which has traditionally performed Title X services locally.
The top-heavy GOP legislature made it a point to punish Planned Parenthood for what it saw as the moral sin of performing abortions. No disrespect to Christ Community Health Services, an estimable institution, but it got the contract essentially because, from the standpoint of the powers-that-be in Nashville, who levied mucho pressure on the local health department and local officials, CCHS was in line with the reigning official morality.
We hope things work out for the women the center is supposed to serve — rape victims, mayhap — who seek help. But as an organization whose moral standards forbid it to offer on-site emergency contraception, we have our doubts about that.
And there are times when legislative acts attempt to remove legal restraints that are essentially moral in nature. For example, there's the misfire of guns-in-bars legislation, brought in Nashville by Collierville state representative Curry Todd, arrested last week in Nashville for driving drunk with a loaded handgun. At the time his bill was passed in 2009, Todd professed absolute certainty that holders of handgun permits were too innately well-behaved and upstanding to require monitoring of any legal sort.
Do we really need to draw the moral of that one?