Justice Scalia is rightfully catching a lot of flack for this
While speaking at Princeton University on Monday, Antonin Scalia provided a reminder of why some gay rights proponents are nervous about the Supreme Court's decision to take on Prop. 8 and the Defense of Marriage Act next year. During the question and answer session, freshman Duncan Hosie asked Scalia why he's equated laws that ban homosexuality with those that outlaw bestiality and murder in his legal writings. "It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd,'" snapped Scalia. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"
Thus far, much of the
criticism has focused on the assertion that it is offensive to widely shared current moral norms to compare murder to homosexuality.
However, I think these criticisms, while undoubtedly correct, are too narrow and miss the bigger and more obvious retort to Scalia's argument from absurdity: which is that legislatures proscribing any act based on the perceived immorality of the act is a bad idea. A bad idea which, ironically, is almost guaranteed to lead to immoral results that serve no public utility. A better approach is a utilitarian approach to legislation that focuses on limiting societal harms and starts from the basic premise that life and liberty and prosperity should be maximized. While this approach is open to criticism and also leads to immoral outcomes, those outcomes are not advanced in the name of some false notion of morality, but instead advanced in order to better society.
1. Moral Standards Evolve
The first, and perhaps easiest way to see why legislating morality leads to immoral results is by examining history. Slavery is now clearly seen as an immoral institution that all decent people must surely oppose. However, this was not the case at our nation's founding, and has not been the case throughout history. The point is morality evolves, and many things that any given generation accepts as moral, or necessary, will be seen as immoral or perhaps abhorrent in future generations. Thus, even if a legislature were able to perfectly codify the prevailing moral norms of our country at any given time, there would be any number of immoral results from that system of laws.
2. Morality is too Situational to be Codified by Prohibiting Certain Acts.
The point here is that prohibiting "immoral acts" is an inherently flawed prospect because there are an infinite number of moral calculations at play and no legislative code could ever anticipate them all. Certainly with murder, the justification threshold is rather high, but the point is rather clear. Suppose for instance you could be certain that a man was on his way to murder three children. Would it be immoral to murder him first? Suppose a man has just murdered your mother. Is it an immoral act to take his life, even if it is not technically self defense? The point is that the situations and subtleties are endless, but a legislative code is finite and limited. Thus if we are attempting to legislate moral outcomes by proscribing immoral acts, we are going down a fruitless path.
3. Morality may not exist.
Oh by the way, there is a split between philosophers as to whether morality even exists. While most philosophers still adhere to moral realism, a sizable minority contend that all morality is relative and that moral judgments are therefore not justified. I happen to be a moral realist, with anti-realist sympathies, and so I often gloss over this point. For the purposes of this discussion however it's worth keeping in the back of your mind. Even if morality is real, it is certainly very complicated and the discussion of endless debates amongst the academics on this subject. Legislatures therefore are likely to be very poor arbiters of what is moral or not.
Legislate instead against concrete harms to society.
A better way to legislate is to take a utilitarian approach and legislate against concrete harms to society. Murder for instance can, and should, be outlawed not because it is an immoral act, but because it resulted in the death of a productive member of society. There should be strict punishments against murder to disincentive this activity, not because it is immoral, but because it harms society. Reduced or eliminated culpability in certain situations should be examined by the way in which the unique circumstances of the murder indicate the threat that a person poses to cause more productive members of society to be murdered in the future. Thus if a murder is by and large a freak accident, or self defense the justification for stringent punishments diminishes because the future risk is minimal and the deterrent value of heavy punishment of behavior that is unintentional is also minimal.
Homosexuality, of course causes no concrete harm to society. Sexual frustration however does.
This approach of course will also lead to immoral outcomes. For instance, individuals will sometimes receive stricter punishment for the same crime, just because they pose a greater risk to society moving forward. However, this theory of legislating and punishment isn't so much about achieving moral outcomes as it is promoting the greater societal good. And to the extent there are immoral outcomes they are advanced not in the name of some phony and flawed notion of our collective morality, but to better society.
The rub here is that you have to be careful with how you define a concrete harm so as not to end up legislating morality in a different way. I'd prefer it to be based on some empirically verified economic loss, or loss of life or liberty.
You could also argue that this is tantamount to a moral preference for avoiding loss of life, liberty or property. That's a discussion for another day. Suffice it to say I think the utilitarian and moral approach to legislating are sufficiently distinct in their practical application.