I'm struggling in my mind with the notion of the legislation of morality. It seems that the answer is that morality of some source is always legislated and that it is only the source of that morality which is the question. Doesn't any society create laws based on what it perceives to be "right" and "wrong"? For example, if we create laws because of Global Warming then are we doing that because we consider there is some "right" and "wrong" choice that we can make as regards Global Warming? If the concern between right and wrong is a concern with morality then making legislation about Global Warming is legislating morality. At some level nobody is adverse to legislating morality but everyone is adverse to legislating a morality that is not their own. Consider the recent legalization of gay marriage by the courts in California. Is such a legalization a legislation of morality? Some would argue that it is the opposite of the legislation of morality because the legislation of morality enforces the morality of the individual on society at large and the legalization of gay marriage in fact enforces the civil rights of free individuals on the society. So in this view legislation of morality decreases personal freedom and "correct" legislation (legislation not of morality) either does not affect or increases personal freedom. The problem with this is that the idea that personal freedom should be increased is, in itself, a system of morality. So the source of the legalization of gay marriage is a particular system of ethics and that legalization is in fact a legislation of morality. The problem that many would seem to have with that is that there is some notion that the legislation of morality is somehow inherently wrong. It is a little like admitting that some viewpoint is not objective. The problem is that no matter what the viewpoint is, once it is admitted that it is not an objective viewpoint it seems that it must somehow be wrong, or at least it can be relegated to being "Just your opinion" and therefore ignored. So it is with admitting that some action is a legislation of morality. If the proponents of some law admit that they are trying to legislate morality then it is simple to turn public opinion against them. The alternative is to find some political wording that implies that the goal is not the legislation of morality but some other goal. It would be possible to say some other higher goal, but that is also "moral" language. The legalization of gay marriage is the legislation of a view of "civil rights." That is, marriage is a civil right and that civil right should be extended to everyone because all civil rights must be extended to everyone. But this view of marriage as a civil right and the view that all civil rights must be extended to everyone are views of a "right" and a "wrong" and are moral views, so the enforcement of them are the enforcement of morality on society.
The disagreement then is not actually over the legislation and enforcement of morality by society but rather the source of the morality that society will choose. A secular society by definition attempts to ground its morality on some non-religious source. A few questions arise from this. First is the question of whether or not there is, in fact, a morality that exists outside of a religious source. If there is not, then the laws of a secular nation would necessarily be grounded on something that doesn't really exist. If there is a morality that exists outside of a religious source then is it a desirable morality? It seems like it is possible to come up with some sort of concept of a morality outside of a religious source. Utilitarianism is an example of just such a secularly-sourced morality. Utilitarianism is the notion that the morality of a particular action is determined by how much it maximizes the "good" of the whole. Of course "good" requires a definition in this context. The definition that utilitarianism usually chooses is happiness or pleasure. So the choices that maximize society's happiness or pleasure as a whole are moral choices. If a particular choice leads to happiness for more people and doesn't decrease the happiness of others then that choice is a moral choice. In this light it can be seen that Americans who are for gay marriage are usually taking a utilitarian view of the situation. Looking at the specific instance of gay marriage, if gay people can get married it makes them happy and this does not come at the expense of the happiness of heterosexual people (the happiness of people who are angry about the situation don't really count in this equation, they should just get over it). It is possible to see this argumentation everywhere, of course and most of the arguments for gay marriage essentially reduce to such a view (the Two Consenting Adults In Private Can Do Anything argument, for example, is extremely utilitarian, as is the Your Heterosexual Marriage Isn't Affected By What Gay People Do argument). Therefore, it is possible to create a morality based on utilitarianism (or at least it is possible to create a morality based on the perception of the utility of a particular thing). However, this leads to the second question, which is whether or not a utilitarian source for morality is a desirable thing. The problem in this context is that although the definition of "good" was given previously as "happiness or pleasure" even those two derived terms are problematic. If in any society some action X is morally approved of that causes the most people in that society happiness then couldn't X be anything at all? What would bound X? It seems quite possible to imagine an X that we would quickly find abhorrent but which for a given society would cause them the most happiness and therefore would be moral for that society. Consider a society with a large number of adults and very few children. Now consider that the reason that this society has so few children is because most of the society consists of pedophiles who are completely uninterested in anyone over the age of 6. Consider again that this society is extremely utilitarian in its outlook and understands that it has a large number of people with "special needs" so it creates a system where all the children in the society are placed into special containing institutions so that the pedophiles who constitute such a large majority can have an institutionalized way of meeting their needs. Such a situation is sickening, of course, but the only people being hurt are the children and they are so small in number that their particular concerns are not of interest to the utilitarian calculation. A case could be made that this is different than the gay marriage situation because of the issue of "consent." The children in the society cannot "consent" because they are children. "Consenting adults" can do whatever they want to but they must avoid involving those who cannot "consent" (this is used to rebut the argument that after gays marry soon people will be able to marry their pets, since pets cannot give their "consent"). So now a rule has been created to bound X (although it must be admitted that the rule seems somewhat arbitrary and created to preserve a sense of propriety which could easily change in its specifics based on questions like "What is the age of consent?" and "What constitutes consent?"). Even with this somewhat artificial bounding rule, however, the utilitarian viewpoint is stressed by actual situations like that of the German Internet Cannibal, Armin Meiwes where it was conceded that consent had been given by the victim to Meiwes for his own murder. So Meiwes was put in prison even though the victim had given consent and Germany had no law against cannibalism. Utilitarianism is no help in this situation and is in fact insufficient to establish a consistent moral basis for a secular society.
The alternative to this is to use the Bible as the baseline for a system of ethics. Of course "common knowledge" would dictate that this is a ridiculous idea, but common knowledge is often wrong.
