‘You Can’t Legislate Morality’: On Punishing Adults to Change Their (legally permissible) Behaviors

I’ve watched a couple episodes of Leah Remini’s exposé of Scientology that has been airing on A&E.  In the first episode, Remini interviews a woman is encouraged to cut herself off from her daughter who has left the Church of Scientology and has become a vocal critic of it.  Remini explains this process of “In Scientology you are also led to believe by disconnecting from your son or daughter or brother or divorcing your husband is because you are helping them to get back in the good graces.  By you saying, “I’m not talking to you,” we’ll straighten you out.  You will come to your senses, and come crawling back to the church to get help.”  I grew up in a church that employed this sort of “church discipline” with the same thinking that the pain of being cut off from people would compel you to change.

These same people would argue against what they called “legislating morality.”  What they mean is, you can’t make people not racist or sexist through the law, and they see laws aimed at protecting people from racism and sexism as actually aimed at changing the privately held views that some people have about others.  By calling it “legislating morality” those on the right make it seems like those laws violate individual rights or privacy in some way.  Those kinds of arguments continue to be made about whether business owners should have to serve customers whose sexuality they think is wrong or provide reproductive healthcare to women.

Through this past campaign season, I began to realize something I’ve personally experienced writ onto a larger scale.  Social conservatives actually want to make the lives of certain people–gay people, trans people, people who have sex without being married–unpleasant, difficult and unhappy following the same logic of Scientologist disconnection or Christian excommunication. Not having healthcare or visitation rights or shared parenting and inheritance rights, not being able to have your driver’s license changed to the right sex, to use public restrooms without harassment, to have your testimony believed by law enforcement will “straighten you out” or make you “come to your senses” about sex and sexuality.  I just want to point out that this approach is akin to parental discipline.  As much as conservatives bemoan the government’s involvement in making society better and call it paternalistic, this approach is more emphatically paternalistic that busing kids to produce desegregation is.  The paternalism that certain people have to have about other people’s lives where they think that by creating difficult conditions in their lives that could only be changed by changing what those certain people find wrong about other people’s lives will actually change those people, discipline them into their view of righteousness, is immense.

The initial concern of those who did not approve of the way they thought morality was being legislated seemed to be that how we think about the world should not be a matter of legislation.  Indeed, while some people think sexism is right and do so with the full protections of the First Amendment, we have decided pretty much that as a community we won’t allow for at least overt sexist policies and practices.  These same religious conservatives who criticize legislating morality want the law to make people’s lives more difficult and painful in order to get them to live otherwise.  This disciplinary strategy–not even in a Foucaultian sense but in a parental sense of disciplinary–aims to use the law to cause people to suffer with the “loving” motivation of getting them to change.  This disciplinary strategy would seem to be a means not only of changing the way that people live but of the way they think about what is good and right, about what they want.

It’s one thing to disagree with people, but another to want to discipline them into agreeing with your view of how they should live by making them miserable.