The expression
legislating morality is commonly used in the
United States by
libertarians,
social liberals, and others who oppose
sectarian,
authoritarian, and/or
unjust laws. The argument is that "morality" is private, and that government has no business "legislating morality". However, this has never been a particularly useful or productive piece of
rhetoric, for one simple reason:
To legislate is to legislate morality.
Every act of legislation — in particular, every act of legislation which deals with crime or tort — addresses moral matters. Consider a law which states that murder shall be punished with life imprisonment in the state penitentiary. This law condemns murder as an act worthy of punishment. It also states moral acceptance of the act of imprisonment, and the state as the agent of punishment. These are not morally neutral claims, and (other than the first) they are not without significant controversy in history and in modern society.
Nevertheless, many libertarian and liberal Americans do not think of a law against murder as "legislating morality". Rather, we use the expression to refer to laws against things like recreational drug use, homosexuality, heresy, or nudity — victimless acts our authoritarian opposition regards as immoral. We use this expression because we do not consider these things immoral — or (in some cases) because we consider the use of government violence more immoral.
Morality refers to the standards by which members of a society judge the conduct of other members of that society. In a democratic society, everyone participates in the creation and promulgation of moral standards. To put it bluntly: Morality is not the exclusive purview of conservatives and authoritarians. If liberals and libertarians wish to oppose the writing of authoritarian moral standpoints into law, we need to quit sounding like we oppose "morality", and start pointing out why authoritarianism and the prosecution of victimless crimes — not homosexual sex or marijuana smoking — are immoral.