Ethics 101 – They are still confusing legality and morality

The recent controversy over a leaked Supreme Court opinion perhaps overturning the 1973 Roe v. Wade abortion decision highlights how even Supreme Court justices, when blinded by sectarian religious fervor, can get Ethics 101 wrong. In a pluralistic society, issues of public morality may overlap with issues of legal practice, but only in places like Taliban-controlled Afghanistan do judges make the circles one and the same — where religious law and civil law become inseparable. THAT is a failing grade in Ethics 101.

Taliban-like thinking says, “If I think it is immoral, it ought to be illegal.” I first wrote about this “overlapping Venn diagram” of the conflict between morality and legality four years ago in this blog. It is time for a re-visit.

Here is the Venn diagram:

Legality vs. Morality

Don’t interpret these circles as so much depicting “legal versus illegal,” or “moral versus immoral.” Rather it is whether the language of legality, or instead the language of morality, is most appropriate as the language of discussion for a particular ethical dilemma. The overlapping shaded slice represents those less common cases where both are appropriate, and often necessary, languages.

Legality and morality are two separate, yet overlapping, languages through which our brains interpret ethical challenges, and these languages have evolved separately over the last two thousand years. Most of the legal codes in the world’s civilized countries, including the United States (and contrary to those who think our laws have an overtly “Christian” basis) have little to do with morality. Rather, they are the rules, indeed they form the language, for social expediency and applied political philosophy, usually without any of the supernatural assumption necessarily attached to theological language. You do not need “God language” to convict a person of murder in a court of law.

Murder, rape, and incest fall into the very limited category of offenses where both religious dogma and secular legal traditions in almost every society around the world have enacted punishment. This is the shaded overlap of the circles shown above. However, since the Bible has its own stories of murder, rape, and incest that do go unpunished, the non-theistic language of secular law is likely much more effective in determining guilt and meting out punishment than is a fundamentalist reliance in inerrant scripture.

Most of our laws fall into the larger Legality circle segment outside of the overlap. Tax law, for instance, has very little useful overlap with religious tradition. Even Jesus notably said, “Keep me out of this tax stuff.” Traffic laws are regularly meted out with no moral judgement. It is not a “sin” to get ticketed for going five miles per hour over the speed limit, unless your violation becomes as egregious as endangering other people, at which point your reckless driving moves you into the shaded overlap above.

Similarly, you can usually lie to other people all you want without legal consequence if you can live with the language and consequences of moral disapproval, placing you conceptually inside the red circle above. But if you start lying about money, you are now drifting leftward toward the shaded overlapping slice, and the legal language of fraud comes into the picture. In other words, the law of the United States just does not care about whether you lie in most of life’s circumstances. It is typically only when you lie in the context of other things already illegal that the lie itself becomes illegal.

Note that lying to law enforcement authorities in the U.S. can be a separate crime, but only in the authorities’ pursuit of an active investigation. This is more social expediency than morality. If the lie itself were not an enforceable offense, then the ability of the state to investigate injustice would be severely impeded, if not impossible. Republican Senator Susan Collins has hinted very strongly that Justices Kavanaugh and Gorsuch lied to her in their confirmation hearings, although in typical Collins wishy-washy fashion, she calls their false statements simply “inconsistent.” Lying to Congress without consequence has become an art form.

Ethics 102 – Legal professional ethics (a contradiction in terms?)

That confirmation deceit by both Justices Kavanaugh and Gorsuch, by the way, takes us to a course that every law student has likely had to pass, which is perhaps called “Professional Ethics,” a third overlapping circle:

Legality Morality & Professional Ethics

Lawyers have their own internal set of rules that are designed to allow them to represent the most reprehensible criminals in trial, and yet place enforceable constraints on their tactics in and outside of court. The problem here is that the Supreme Court apparently exempted itself from all rules of legal ethics, and it has no mechanism for enforcing what would be clear violations of conflict of interest in other legal spheres, such as the political activities of Justice Thomas’s spouse that have impacted cases before the court.

So, where does abortion properly fit?

This is an easier question to answer than most people (including Supreme Court justices) think. The major religions disagree significantly on both when life begins and at what point the termination of a pregnancy is more “wrong” than forcing a woman to give birth involuntarily. And, of course, science has an even different view. Fertilized zygotes are “spontaneously” aborted (i.e., “God did it”) as much as 40% the time.

“Personhood” theology falls mostly on the fundamentalist-to-modernist spectrum that characterizes many other key theological interpretations in the three Abrahamic faiths — Judaism, Islam, and Christianity. In short, none of these faiths encompass a consensus agreement mathematically close to that of murder, rape, or incest. There is not one “Christian” view on the subject, and so unless there is a compelling interest in civil law, one that is supported by the reality of science and popular consensus, the decision should clearly fall in favor of the woman who is most impacted.

Historically, fundamentalist Christians have had little to say on abortion until it became a proxy issue for anti-civil rights fervor for the “Religious Right” during the Reagan years. I have written about prominent religious Republicans in the 1970s, such as Mitt Romney’s parents George and Lenore, devoted Mormons, and their pro-choice (and pro-ERA) stances in political races. That position was common among even very conservative and religious Republicans.

The more longstanding religious assertion that “life begins at conception” comes from the most conservative track of the Catholic church, and so it is no coincidence that it took a Supreme Court intentionally stacked with six of nine Catholic justices (seven if you include Catholic-turned-Anglican Justice Gorsuch) in order to overturn Roe v. Wade. This is the very opposite of Civil Justice representing a pluralistic democracy. And it is not anti-Catholic bigotry to say this; I have a graduate diploma from a Jesuit university, and I treasure my experience there. A narrow sectarian-majority Supreme Court makes narrow sectarian decisions.

Abortion is in the moral domain of your preferred church flavor, not the civil courts. When Justice become narrowly and religiously sect-driven, then we as a country are in deep trouble.


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