During Andrew Scheer’s leadership of the Conservative Party, and especially during the last election campaign, concerns about his moral convictions on abortion and same-sex marriage – and his attempt to walk a political tightrope in response – hindered his political momentum. Much ink has been spilled on the extent to which his moral convictions impeded a Conservative victory at the polls. Some have opined that a person with moral objections on these issues cannot be prime minister, even if the person vows not to legislate based on those objections.

The fact that most Canadians support a woman’s right to choose and same-sex marriage might explain the negative reaction by many to Scheer’s moral compass. But public opinion might also be shaped by the notion that morality and politics should not mix. This notion has merit, but lacks nuance and fails to appreciate the distinction between moral principles and theological teaching. Not only do law and morality belong in the same conversation, they often converse with one another.

Some might say that Scheer’s moral commitments stem from his Catholicism, and that church and state must remain separate. It is true that the guarantee of freedom of conscience and religion in the Charter obliges the state to be neutral in matters of faith. Beyond this Charter legal issue, it is intuitively unjust for the state to coerce citizens to profess a particular faith. Such a society resembles a theocracy, not a liberal democracy.

There is a key distinction, however, between legislating theology and legislating moral conclusions that belong to no particular faith and are accessible by reason. Few of us deny that murder, sexual assault, and theft implicate moral right and wrong. There is also broad agreement that these acts are harmful regardless of the law saying so. The criminal law punishes these acts because they are intrinsically wrong and sufficiently disruptive of social cohesion. The state endorses a moral worldview by criminalizing these acts.

Other areas of law, from employment standards to the law of negligence to human rights codes, also reflect moral considerations. The Charter, to which all legislation must conform, is inspired by commitments to moral principles and ideals such as freedom, equality, and human dignity.

Even so, the position that morality should not inform the content of legislation appears to be widely held. Questions around this issue came up decades ago as former prime minister Pierre Trudeau launched a major reform of the Criminal Code that included the decriminalization of sexual activity between persons of the same sex. Trudeau famously defended the reform by saying there is “no place for the state in the bedrooms of the nation.”

The idea that the state must steer clear of morality altogether goes too far. The harm caused by our misdeeds pays no attention to the boundary between public and private affairs.

There are compelling reasons, in a free and open society, for the state to largely stay out of our personal lives. Most of us instinctively think lying is bad, but arresting every liar smacks of state overreach. Yet the idea that the state must steer clear of morality altogether goes too far. The harm caused by our misdeeds pays no attention to the boundary between public and private affairs. Were the state not to take a moral stand on certain issues, adverse social effects would follow. Imagining Canadian society without the Criminal Code is a frightening thought experiment.

The view that governments can or should be morally neutral ignores the fact that human beings are not angels. Drawing the line between when the state should and should not take a moral stand is fraught with complexity, but there is no question that, at times, a stand must be taken to protect human dignity, the common good, and other vital interests that sustain civil society.

Closely related to the view that governments should not legislate morality is the idea that we should not impose our moral beliefs on each other. To advance this idea is to forget that nearly every person believes in moral norms that are universal, absolute, and should be enforced by law due to our less than angelic tendencies. If you think that murder or sexual assault is wrong and that the law should punish these acts, you believe in imposing your moral code on others.

As for what counts as a moral issue, a perfect consensus does not exist. But there is substantial agreement that morality is engaged by concepts like harm, justice, rights, equality, and dignity. The entire political spectrum cares about these matters, so it is fair to say that parties of every stripe care about morality – even if certain parties use that word more often than others.

If a law has no nexus to building a better society in a moral or ethical sense, we should pause to consider the wisdom of enacting such a law in the first place.

It is true that many laws do not deal with moral issues. The rules of the road and income tax laws are not intimately concerned with good and evil. Yet all laws aim – or at least should aim – to cultivate conditions that position individuals to reach their full potential. The rules of the road allow us to get on with our lives in a safe and orderly manner. Taxes pay for building and maintaining the roads and infrastructure that facilitate our daily routines, along with various essential social services. If a law has no nexus to building a better society in a moral or ethical sense, we should pause to consider the wisdom of enacting such a law in the first place.

There is no shortage of polarization in our political discourse today. To facilitate meaningful debate and even the discovery of common ground, we should avoid imaginary divisions. Though disagreements abound over the ingredients of morality, it seems fair to say that virtually all Canadians endorse the pursuit of a moral society – a society free from harm, ruled by justice, and protective of dignity – and believe that the state has a role to play in its pursuit.

It could be that mixing of law and morality is inevitable. Being committed to the rule of law isn’t just shielding us from the perils of human weakness. The law, in saying what is and is not allowed, also shapes our values, behaviour, and culture – or, as Robert George puts it, our “moral ecology.” To say either that there is or that there should be no relationship between law and morality, then, is to miss the forest for the trees. Law, where it rules a society that wants to be moral, cannot avoid that relationship.

Photo: Shutterstock/By Friend of a Friend Films

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Brian Bird is an assistant professor at the Peter A. Allard School of Law at the University of British Columbia and is a research fellow at the Religious Freedom Institute in Washington, DC.

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