Government by morality alone


As the newly ensconced Republican majority in the state legislature looks for ever-expanding ways to assert its dominion, the people of Arkansas face a number of perils. Pandering to the extremes of local fundamentalist conservatism, the state stands at a philosophical crossroads. Unfortunately, the new majority has chosen a path that is counter to mainstream American values, at odds with the canons of basic human rights and inevitably doomed to exact a high price.

Lawmakers of this ilk would have us believe that their extremist predilection is justified by the moral content of their laws. The exemplar of this thinking is the pair of anti-abortion laws recently passed by both houses.

Fortunately, the U.S. Supreme Court provides useful admonishment with regard to the current course. In Bowers v. Hardwick, dissenting Justice John Paul Stevens wrote: “[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice…”

In Lawrence v. Texas — the decision which struck down Bowers — Anthony Kennedy draws the circle more clearly: “[T]o the extent Bowers relied on values shared with a wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right(s)… There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.”

Of course, Lawrence itself was drawn on decades of ever-refined judicial reasoning. As the Court held in the 1992 case, Planned Parenthood v. Casey: “Our obligation is … not to mandate our own moral code.”

Somehow, though, Arkansas’ part-time legislators think they know better. Emboldened with moral certainty, they forge headlong into these outmoded abortion laws and the inevitable and expensive legal challenges incumbent to them.

Legislators seem blind to the fact that the modern Supreme Court has almost never used morality as the unitary hinge pin of government. Writing about Lawrence for the Minnesota Law Review, Suzanne Goldberg observes: “[I]t turns out that the Court has almost never relied exclusively and overtly on morality to justify government action. Indeed, since the middle of the twentieth century, the Court has never relied exclusively on an explicit morals-based justification in a majority opinion that is still good law.”

As Goldberg suggests, this begs an important question: Is it possible to reconcile the entangling of moral judgments and lawmaking with courts’ inability to distinguish credibly between moral judgments and impermissible bias masquerading as morality?

As long as we position — and justify — all public policy with explicit reference to some constituency’s interpretation of morality, we will never have sound public policy.

All this gets back to a poem Carl Sandburg wrote in 1916, To a Contemporary Bunkshooter. At times such as these, a few lines from that poem bear remembering: “You come along squirting words at us, shaking your fist and calling us all dam fools so fierce the froth slobbers over your lips… always blabbing we’re all going to hell straight off and you know all about it… I don’t want a lot of gab from a bunkshooter in my religion. I won’t take my religion from any man who never works except with his mouth and never cherishes any memory except the face of the woman on the American silver dollar. I ask you to come through and show me where you’re pouring out the blood of your life.”

Morality as the sole criterion is insufficient as a compass for government. Rather, we must have government that is informed by moral and ethical sentiment, but equally guided by empirical and rational evidence. Until we have that, we’ll endure the gab and the bunk. We’ll also suffer the slings and arrows of the imminent lawsuits and the scorn of our countrymen. It doesn’t have to be this way.

Gov. Mike Beebe has vetoed the latest abortion bill, this one barring the procedure after 12 weeks, because he believes strongly that it is unconstutional and that it will result in an expensive legal fight for Arkansas. Very quickly, the state Senate voted Tuesday to override the governor’s veto, and the House was poised to do the same. Perhaps enough state representatives will rethink their vote.