Business World, 20 March 2011

It was Cardinal Rosales who used something equivalent to this phrase earlier this year, when it was reported the administration might include the reproductive health bill pending in Congress as one of its priority bills. (The phrase itself is much older, dating from the 1850s.)

The Cardinal’s exact words were: “You don’t have to dictate on morals. Morals are guided of course by the Word of God, by the Lord Jesus Christ (but) it [sic] cannot be legislated.”

There are two issues here. First, is it true as a general proposition that morality cannot be legislated? Second, does the RH bill really legislate morality? Or is it the Catholic Church that wants to turns its own morality into a legal statute?

On the first question, it is obviously not true that morality can never or should never be legislated. Murder, rape, theft, and perjury, after all, are universally regarded as immoral and are also punishable by law. Indeed, the raison d’etre of the law is to embody and sanction what one might call secular or public morality, lest society fail to exist.

Secular morality is a minimal set of rules that allows people in society to live peacefully together without infringing each other’s rights. It needs to be a minimal set because the other function of secular morality is to expand the sphere of personal freedom. Society should regulate the conduct of its citizens only as it harms the interests of others. For this reason, masturbation, consensual sex among adults, and practising contraception are not regarded as crimes, although the church and many religions may regard them as sins. The fact is that they do not affect others, besides the persons who willingly engage in them.

All crimes are sins, but not all sins are crimes. This is not an anomaly that needs to be remedied: it is exactly how things should be in a free society. Nothing prevents individuals and groups from defining and adhering to stricter and narrower private codes as long as these do not breach the overall framework of the broader public morality. The minimal nature of secular morality is what permits the freedom of speech, belief, and worship. So, while Catholics are perfectly free to regard various forms of contraception as a sin, they are not free to define it as a crime. It is limited public morality that allows polygamy to be practised among Filipino Muslims but prevents them from legislating the eating of pork as a crime. The 18th-century statesman and economist Turgot put it aptly when he said, “I am, in matters of morality, a great enemy of indifference and a great proponent of indulgence.” That is, secular morality must be indulgent, even where private morality cannot be indifferent.

Which brings us to the RH bill itself. Does this bill legislate morality? That is, does it really define what ought to be done by citizens? Quite the contrary. It does not define what a citizen must do; it only defines what a citizen can do. The RH bill is essentially founded on the principle that family planning and the choice of contraceptive method lie outside the sphere of public morality and fall only within the sphere of private and religious morality. The choice of contraceptive method is not a res publica, since it does not infringe the rights of others, and can therefore be governed by the choice of individual citizens. The bill stipulates that health services and information about contraception should be provided to citizens so that they may make an informed decision in the light of their own interests. It is for the same reason a government doctor must offer a patient a choice between several types of equally efficacious medicine, depending on the patient’s condition, convenience, and preferences. Rather than legislating secular morality, therefore, the RH bill actually reduces its scope and by this token expands the sphere of personal freedom.

The bill leaves it to the Catholic church to proselytize the public against some types of contraception that it may regard as sinful or offensive. But that is the Church’s job, not the State’s. From this viewpoint, then, it is those persons and sectors opposed to the RH bill, especially the Catholic church, who implicitly want to legislate morality. This turns Cardinal Rosales’s criticism on its head; it is in fact he who wants to turn Catholic catechism into law, flirting with a violation of the Art. II, Sec. 6 of the Constitution.

So, in the end, we ought to agree with Cardinal Rosales’s chosen phrase, though not with his conclusion. It is true you cannot legislate (a complete) morality. For the job of the state is, in fact, to legislate the smallest scope of public behaviour. The rest is up to a person’s conscience, culture and values – and religion.

Yes, Cardinal, we cannot legislate morality; which is why we should pass the reproductive health bill.