In the previous post I summarized Murphy's recent arguments on a weak Devlin-type argument against the principle of government neutrality. It presented two basic reasons to think that principles of government neutrality are problematic, which I'd summarize in the following ways:
(1) A liberal or free society is one that, at least in part, recognizes basic rights. It's not possible to treat all our possible rights as equal; we have to select and choose, and, even if only for practical purposes, it is necessary to privilege some over others. This set of privileged basic rights is not something that can be delivered from on high; it's something that the free society must work out together over time. However, to do so we need to be able to argue and reason about the relative merits of these rights, and it appears we cannot do so without appeal to what makes life good, meaningful, etc. And this is as much as to concede that the state cannot be neutral on the good life. To take a stand in favor of basic rights is to take a stand on the good life; and in a free society that's exactly what we want and need our government to do: take a stand in favor of basic rights.
(2) Our sense of the rightness or goodness of our nation's laws seems to depend in part on regard for certain virtues and repugnance to certain vices. Thus, we tend to think repentant criminals should be treated more leniently than unrepentant ones, and that criminals who committed the crime in a way suggesting malice should be more severely punished than criminals who committed much the same crime but without the malice. It would appear, then, that law cannot be blind to personal character, even if it turns out that character (as it seems it does) that personal character is only one of many, many things that must be considered in the making and applying of laws.
I think both of these arguments are quite right; they might need development in places, but they seem to me to be on the right track. The state cannot ignore the problem of the good life; and it cannot be blind to personal character. The problem with legal moralism, I take it, is its failure to make an adequate distinction between means and ends. To regard our government as being invested with any sort of authority, we have to regard it as having some sort of moral right to exercise the authority, or, at least, we have to regard it as not being in irreparable violation of the moral conditions for that authority. This means that moral considerations are at the very heart of government life. And since the government of a free society does not exist independently of the people, the sort of moral considerations that are relevant to the existence of government are those that enable society to continue and that make it possible for people to act morally. To put it in other terms: there are real moral ends that government must subserve. These moral ends -- things like justice, domestic tranquillity, and more -- cannot be ignored; and when we ask why they can't be ignored, our primary response will always have to be that they are at least the rudiments of the good life. Where legal moralism goes astray is not making a distinction between these ends and purported means to them. One might try to argue that the government should be conservative about slavery in a slave-based society because that favors the national object of domestic tranquillity; that at least would be an argument (short-sighted, since there are even stronger arguments from domestic tranquillity in the other direction; but, at least, worth addressing and, if sincere, worth addressing civilly). But if someone tried to argue that the government should be conservative about slavery because a lot of people think slavery is OK, that would hardly be worth taking seriously. Similarly, even if you think it completely wrong-headed, based on inadequate grasp of facts or inadequate understanding of moral ends and what counts as a family, you can see how a sincere argument that gay marriage should be illegal because the preservation of the family is a moral end of society might be worth the trouble of a careful response. An argument that gay marriage should be illegal because a lot of people think homosexuality is wrong seems, on the other hand, to be missing the point of government completely. Even in a democratic society, perhaps especially in a democratic society, not every commonly held belief can be given the force of law, because that would not subserve the moral ends in view of which we regard governments as having the right, or at least permission, to act authoritatively. To put it in other terms: legal moralism just as quickly runs afoul of basic rights as government neutrality, and perhaps more obviously. To adapt the phrase made famous by Devlin, the rights of 'the man on the Clapham bus' have to be preserved -- whichever man he may be, and regardless the beliefs of the other men on the Clapham bus.
Legal moralism, then, considered as the view that there is no area of morality into which the state may not (under at least some circumstances) enter, still needs to be rejected; and one way to characterize this need to reject it is that it requires a state that concerns itself with morality in society but is itself wholly amoral. Once we concede the existence of basic rights -- even if we do not always agree on everything about them, and even if each society chooses different things to privilege as basic rights -- the state clearly is barred from certain areas of morality. If people have the right to speak freely in ways that don't directly endanger others, the government cannot enter the area of morality of speech (where the speech in question doesn't directly endanger others). If people have the basic right to have their homes preserved inviolate whenever warrants are not issued and reasonable procedures are not followed, the state cannot enter the area of morality in the home when the matter does not practically admit of warrants and reasonable procedures. There are areas of morality the state cannot enter; and in every free society there will be such areas, even if the precise boundaries of those areas shift a bit from society to society.
At the same time, however, government neutrality is impossible: not only does the government of a free society have to take some stand on the good life, its very authority for the people -- surely a key element of government in a free society -- depends crucially on its doing so. One of things that perhaps makes the principle plausible is our tendency to think of a 'conception of the good life' as a unified thing. But it never is, except at a very abstract level. Of course, today and tomorrow there are certain very general features that are necessary for the good life -- being unoppressed, not oppressing others, being relatively safe, doing something to make the lives of others better -- but the specific form that these features take will vary incredibly according to what I'm actually doing. Further, the values or ends exemplified by the good life are a very diverse multitude; I may have a great life if certain of these values or ends are considered, but this might require qualification in light of other values or ends. And since the good life with which the government is concerned is not its own, but that of the people, and, what is more, not that of any one person but of (at least ideally) all the people, it seems clear that the government's contribution to the good life will necessarily be piecemeal and that the government will not and cannot be the only contributing factor to any of these ends. When this is recognized, much of the implausibility of a government concerned with the good life disappears: it's a government that encourages the health, prosperity, and virtue of its citizens, but does so in a way that recognizes that it is not omnicompetent, that it cannot give the citizens the good life but only facilitate their having it, that it cannot even do that except in ways that don't infringe their rights (for the obvious reason that you can't facilitate the good life by eliminating key elements of it).
And that, perhaps, is not an unrecognizable ideal.