Morality Policy

Morality policy is any policy that seeks to use the coercive power of government to impose or legitimize one set of fundamental values or norms over a competing set (or sets) of values or norms. One key distinction of morality policy is the fundamental nature of the competing values; these policies represent the clash of deeply held, core beliefs rather than a simple conflict over the best or most efficient means for government to achieve its policy ends. A second key distinction is that, although morality policy most often takes the form of governmental regulation, it does not take the usual form of regulation of economic behavior but rather regulation of social relationships or interpersonal conduct. These two distinctions of morality policy ensure a third important trait of the policy type: the average citizen knows something about these policies, usually forms a strongly held opinion about these issues, and is often willing to take political action to enforce his or her view. High levels of public engagement and conflict are thus easily seen in connection with all of the major types of morality policy, including abortion, gun control, LGBTQI rights and same-sex marriage, capital punishment, school prayer, pornography, gambling, sex education, the right to die, affirmative action, and religious liberty cases.

OVERVIEW AND HISTORY

The framers of the U.S. Constitution were faced with a daunting challenge as they attempted to rectify the weaknesses inherent in America’s first attempt at self-government, the Articles of Confederation (1781). Under the Articles, the states had too much individual power, making it impossible for the Confederation to act as an effective unit and threatening the long-term stability and integrity of the new nation. While a stronger central government was thus necessary, a national government with too much power that threatened to tyrannize its people was also undesirable. Of particular concern to the framers was the challenge of crafting the 13 states with all of their diversity—in cultures, economies, and values—into one coherent whole. Their solution was the American federal system, a central facet of which is the Tenth Amendment.

The Tenth Amendment to the U.S. Constitution says simply, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, the Constitution enumerates the powers of the national government, reserving all of the rest for the states and the people. These reserve powers, as they have come to be known, give the states their own sphere of authority and, therefore, substantial power within the federal system. Specifically, the reserve powers provide states with the authority to legislate for the public health, safety, and morals of their citizens. Thus, morality policy making was reserved for the states, allowing the states to deal with the diversity of needs, interests, and values found within them. Examples of the dominance of state regulation of moral issues are numerous, from state anti-obscenity laws that date back to the founding of the republic to the state regulation of the abortion procedure that began in the 1800’s (see side bar).

Although morality policy was thus once viewed as the sole responsibility of the states, the history of morality policy making demonstrates that the national government has assumed more and more responsibility for these issues. Increased federal influence in morality policy making can be explained, in small part, by an overall trend toward greater national power and control in American federalism generally. This shift to national power at the expense of state power can be traced to a variety of influences, including Supreme Court decisions expanding the power of the national government (such as McCulloch v. Maryland in 1819 and Gibbons v. Ogden in 1824), amendments to the U.S. Constitution (in particular, the Sixteenth and Seventeenth Amendments), the passage and implementation of New Deal legislation, and the increasing dependence of the states upon federal grants-in-aid.

However, a fuller explanation for an increase of federal activity in the area of morality policy arises from a tendency by groups dissatisfied with state regulations on specific moral issues to look to the federal government for assistance. The leaders in employing this tactic were the civil rights activists of the 1950’s who, frustrated by the lack of progress in achieving racial equality in the states, looked to federal courts and the U.S. Supreme Court, in particular, for relief. They were able to bring their grievances with state regulations to the federal courts, in part, because the Supreme Court has argued since 1925 that most of the limitations on governmental action that are contained in the Bill of Rights also apply to the states. Known as the Incorporation Doctrine, this interpretation of the Constitution by the Court holds that the Due Process Clause of the Fourteenth Amendment requires that state and local governments also guarantee the rights contained in the first ten amendments to the Constitution. Although the Court has not incorporated all of the protections in the Bill of Rights, it has chosen to selectively limit the rights of states by requiring them to respect most of the other freedoms.

The Incorporation Doctrine thus opened the way for civil rights activists to turn to the federal courts with a strategy of “test cases,” or cases that are specifically chosen by an interest group to advance their policy agenda. The test case strategy was attractive for its potential ability to bring about change outside of the normal political process, an ability that springs from two distinct characteristics: first, that moral conflicts necessarily involve questions of civil liberties and civil rights; and, second, that the judicial branch is able to respond to and protect minority rights in a way that legislatures (dominated by majority rule) cannot. The triumph of the civil rights activists’ test case strategy in Brown v. Board of Education in 1954 thus quickly became a model for change that was enthusiastically adopted by other aggrieved minorities and individuals who felt that a state (or states) had violated their rights.

Beginning with the Brown decision and then with a 1957 ruling that state laws regulating pornography were unconstitutional infringements on freedom of the press, the Supreme Court has intervened in the area of morality policy innumerable times. In three cases spanning from 1962 to 1963, for example, the Court ruled that school prayer was a violation of the Establishment Clause of the First Amendment, striking down the practices of 37 states that required or condoned the reading of the Bible in their public schools. In 1973, the Court legalized abortion during the first trimester of pregnancy, effectively nullifying abortions statues in 46 states, and in June 2015, the Supreme Court found that the Constitution guarantees a right to same-sex marriage. Indeed, cases concerning affirmative action and race relations, church/state relations, obscenity and child pornography, gun control, appropriate methods for executing prisoners on death row,, birth control and abortion, and religious liberty continue to fill federal court dockets. Thus, the history of morality policy in the United States is the story of the nationalization of decision making over moral issues as federal courts have shifted legal jurisdiction and policy responsibility from the states to the federal government.

AFFECTS OF MORALITY POLICY NATIONALIZATION

One of the advantages of American federalism, as described above, is the ability of the states to tailor public policy to suit the needs, interests, and values of the public in each state and local community. This important function of federalism is particularly critical in the area of morality policy, where core values are at stake and a large amount of variation in those values exists. States can thus be seen as “moral communities” that differentiate their policy response to moral issues based on local values and beliefs. As long as morality policy remains in the domain of state governments, congruence can likely be achieved between majority public opinion and morality policy making, minimizing conflict. Once morality policy is nationalized, however, it is no longer possible for government to tailor its policy choices to local values, with the result that a single policy (and therefore one set of values) is forced upon all states and communities.

One effect of morality policy centralization is therefore that national morality policies often do not reflect the preferences of subnational communities, causing a significant number of citizens to be profoundly unhappy with the policy. Since many citizens are highly engaged on moral issues, the obvious result is political conflict and fractious, extended debate. As this debate is over intensely held beliefs, neither side is willing to compromise and true policy resolution is unlikely if not impossible. The abortion issue represents an excellent example of this affect; the 1973 Roe v. Wade decision pushed the issue onto the national agenda, where supporters on both sides of the issue find themselves locked in a bitter battle that defies resolution (see the side bar). In short, the centralization of morality policy can destroy the power of federalism to stabilize morality policy making, ensuring continuous and bitter policy conflict.

The disjunction between national morality policy and the preferences of subnational communities also gives rise to a second effect of nationalization: noncompliance. When national morality policy and local public opinion do not match up, states and communities may simply choose to ignore national policy. Noncompliance with school prayer bans in areas of the South with high levels of cultural conservatism and religiosity (the “Bible Belt”) suggests how this effect can be felt. For example, a nationwide study of 464 schools conducted by H. Frank Way two years after the Supreme Court ruled school prayer unconstitutional found that a majority of teachers in the South continued to conduct Bible reading, prayers, and grace in school. And in 2001, the chief justice of the Alabama Supreme Court erected a 2.5-ton monument to the Ten Commandments in the rotunda of the State Supreme Court building. Chief Justice Roy Moore’s refusal to remove the monument, even in the face of a federal court order to do so, was telling. This same Chief Justice Moore made history in September of 2016 when he was again suspended, this time for ordering Alabama’s state probate judges to refuse to issue marriage licenses to same-sex couples in defiance of the U.S. Supreme Court’s ruling in Obergefell v. Hodges.

Thus, morality policy making under federalism ensures governmental responsiveness to local values, more congruence between public opinion and morality policy making, and greater compliance with government policy. When morality policy making becomes nationalized, however, compliance is often lessened and divisive political conflict becomes the norm. The negative consequences of these outcomes are potentially quite severe: divisiveness and noncompliance undermine the integrity of the federal system as well as the overall legitimacy and stability of American government. Of particular concern is the blow to federalism’s ability to unite 50 diverse states under one banner. Furthermore, any centralization of power at the national level restricts the ability of states to check the power of the national government within the federal system, raising the very threat of tyranny that the framers so assiduously fought to prevent.

SEE ALSO: Abortion; Affirmative Action; Articles of Confederation; Bill of Rights; Brown v. Board of Education; Capital Punishment; Civil War; Education; Enumerated Powers of the U.S. Constitution; Executive Orders; Federal Courts; Fourteenth Amendment; Gibbons v. Ogden; Grants-in-Aid; New Deal; Roe v. Wade; Seventeenth Amendment; Sixteenth Amendment; Tenth Amendment; Webster, Daniel; Women’s Rights