Eugene Volokh and Ed Feser both elaborate at some length—rather more than one would think necessary—the point that complaints about some group (usually conservative Christians) “legislating morality” don’t make sense if read literally, since just about any policy advocacy—whether it’s banning murder or mandating daily prayers—entails taking some moral stand or other.
They’re right in a sense, of course. But the point is so obviously right that a modicum of interpretive charity might lead one to wonder whether such an elementary point could really have escaped people who use the phrases like “legislating morality”—many of whom seem to be adults capable of tying their shoes and feeding themselves.
I’ve never been a huge fan of the phrase—partly, I suppose, for that very reason— but I’m fairly sympathetic to what I take to be its clear meaning, if we assume those who deploy it aren’t attempting to identify their own positions with amorality or immorality. Rather, the phrase and its cognates seem to typically get used as a sort of shorthand for two related claims about the proper scope of either government action or public-reason justification.
The first claim is something along the lines of Mill’s Harm Principle, or, more broadly, the familiar distinction in political philosophy between morality or justice construed as “what we owe to each other” (in Scanlon’s phrase) and the broader realm of ethics, in the sense of what makes a good life. I think this is often what people mean when they attack attempts to regulate private sexual behavior: They’re saying that even if certain conduct may be morally objectionable in the broadest sense, it is a matter of private morality—between a person and his conscience or favorite deity—rather than public justice. One can quibble about where that boundary lies, but I think most folks in a liberal society will concede that there exist all sorts of obligations that are ethical or moral in a broad sense that aren’t fit subjects of regulation.
The other deployment you’ll often see—though it’s often linked to the first—has to do with what sorts of justifications should be admissible in discourse governed by norms of public reason. Liberal democracies tend not to accept arguments founded solely on sectarian claims that will be persuasive only to members of some particular religious group. Volokh’s certainly right that the fact-value gap remains, and that there’s no purely logical deductive proof that assault is bad while gay sex is OK. But if he wants us to conclude from this that, so far as public justification is concerned, the claim that we should ban X because it will cause lots of unnecessary deaths is on all fours with the claim that we should ban X because the Sacred Lemur appeared in a vision and said so… well, it becomes hard to take him terribly seriously.
Not just, mind you, because I’m personally out of sympathy with religious claims generally, but because there’s a fairly robust “overlapping consensus” about killing people in a way that there isn’t about visions from the Sacred Lemur. Volokh appears to think its unsporting to try to rule certain arguments out of court as some sort of “procedural violation” rather than grappling with them on the merits. Sometimes, perhaps, that’s unavoidable. Sometimes the consensus breaks down and it seems like there’s no getting around delving below political principles to the contentious metaphysical underpinnings of the various comprehensive conceptions that supports them. Perhaps, as he suggests, abortion is one such case. But in general, I want to say of liberal societies what Nietzsche, in different context, said of the Greeks:
They knew how to live. What is required for that is to stop courageously at the surface, the fold, the skin, to adore appearance, to believe in forms, tones, words, in the whole Olympus of appearance. Those Greeks were superficial—out of profundity.
The great genius of liberal societies is to be profoundly superficial on normative questions. Volokh, a First Amendment scholar, almost certainly doesn’t think it’s desirable to argue the “merits” of various kinds of speech, excepting perhaps a few extraordinary cases, before deciding whether to permit them. It’s surely even less productive to become tangled in an irresolvable contest between competing religious doctrine, as though contested points of theology need to be resolved before making any policy decisions. Those debates will, of course, continue in the broader public culture, but the bracketing of those debates for policy purposes is a cornerstone of pluralism I’m surprised to see someone as well read in the history of liberalism as Volokh appearing to take so lightly.
Feser, taking a slightly different tack, suggests that it’s presumptuous to ascribe opposition to your favored policy as the expression of mere preference or gut reaction, when, after all, there might be some perfectly admissible public reason to go along with that gut reaction. That’s fine insofar as it goes, but rather disingenuous when it comes to something like gay rights, where it seems very clear indeedthat the arguments against are so strikingly thin that they’d be vanishingly marginal absent a large constituency with a visceral aversion to homosexuality providing a market for respectable-sounding fig-leaf arguments. One still ought to dispense with the public reason arguments that are offered on their own terms also, of course, as if they were offered in good faith. But to the extent that actual opposition has little to do with those arguments, it seems perfectly reasonable to open up a second front, so to speak, and attempt to persuade people that they should resist turning such gut reactions into policy. Feser’s clearly right that it doesn’t follow logically that someone who finds behavior X viscerally repulsive and seeks to ban it does so only because of that visceral reaction—it just happens to very often be the case empirically. There are, after all, those like Leon Kass, who seem all too ready to admit they’ve got no more than a gut reaction—though they seem to think that reaction itself is a perfectly valid public reason, which at least Feser will admit that it isn’t. In short, Feser goes to some lengths inventing silly claims that nobody ever has made or would make—that disgust at something entails, as a matter of deductive logic, that only disgust could ground opposition to it—and patting himself on the back for discovering a “fallacy.” Feser seems to think that, so long as there exists some public reason argument, however specious, that could justify the attitude in question, it’s impolite to observe that in fact it’s motivated by nothing more lofty than raw disgust. I see little point in concentrating all one’s fire on a decoy.