One often hears people say, 'You can't legislate morality!' People who say this are often people who confuse the genus morality with the species sexual morality. But even upon acquiescence in this genus-species confusion, it is obvious that we can, do, and ought to legislate morality. After all, we have laws against rape, and we ought to have them. Rape is both immoral and illegal, and it is right that it be illegal. The fundamental problem, however, is the confusion of morality with sexual morality. That the two are distinct should be self-evident, hence I won’t spare the reader the pleasure of providing his own examples. But perhaps I should give one example to prime the pump of the reader's thinking. Suppose a woman poisons her husband in order to collect on a life insurance policy. The act is immoral but has nothing to do with sex in the way that committing adultery has something to do with sex.
So the next time someone says, ‘You can’t legislate morality,’ you say: ‘All legislation is the legislation of morality; therefore, if you oppose the legislation of morality, then you oppose all legislation.’ All legislation is the translation into positive law of certain moral judgments we make. The positive law is the law that is 'posited' by legislatures or is part of common law. The contrast is with natural law.
Suppose some positivist identifies morality and legality. (A separate post will show the absurdity of this identification.) Well, if morality just is legality, if the morally permissible, impermissible, and obligatory is identical to the legally permissible, impermissible, and obligatory, then a fortiori all legislation is the legislation of morality.
Of course, from the fact that all legislation is the legislation of morality, it does not follow, nor is it true, that all morality ought to be legislated. In other words, it doesn't follow, nor is it true, that everything morally impermissible should be illegal. (It is also not the case that everything morally obligatory should be legally required.) I would say that drinking oneself into a stupor is morally impermissible, but if it is done in private, the state and its laws should not get involved. (But drive on public roads in that condition, and the whole force and fury of the state and its laws ought to come down on your head.) And I would say that maintaining oneself in good health through proper diet and exercise is morally obligatory, but I don't want to see any laws to that effect. State power cannot be allowed unlimited scope. Leastways, not if you value liberty as every conservative does.
In my experience, however, what people mean by 'You can't legislate morality' is that one ought not make laws regarding sexual behavior.
Remarkable! Just this morning while showering I was thinking about the same question and giving the same answer. I was specifically recalling a discussion long ago with a liberal fellow noncom (rara avis, that!) who denounced pro-lifers for imposing their morality on others. I assured him that he did the very same thing by supporting government programs that help the poor. I said that I agreed that the state has an obligation to help some, and then added that all of us who so agree are forcing others to pay for altruistic policies that might conflict with their notions of morality, i.e. disciples of Ayn Rand. And I made the same statement--that all legislation is moral legislation.
So it is arguable that Barry Goldwater, the man many think of as a great conservative, was nothing of the kind, but a libertarian whose ideas, like those of Ayn Rand, sometimes coincided with conservative ideas. Liberals love to point out that Old Barry supported legalized abortion, but Goldwater supported abortion for the same reason that he opposed civil rights legislation; the same ultimately indefensable notion that you cannot legislate morality. You rightly point out that valuing liberty is of the very nature of conservatism. I would add, though (as you probably do, too) that liberty is a value because it enables people to do good. I think that the idea that liberty is a good thing just becuase it is liberty is a romantic concept the acceptance of which is dangerous.
When liberals ask why conservative Christians seem to care only about sexual morality and not about racism and war and low wages and the environment, etc. I point out that very few people are seriouly tempted to build factories that pollute the ervironment, underpay the wokers therein, and ensure that said workforce is of one skin color, but most people ARE tempted to make objects of others and wreck souls and families. This arguement, alas, is only effective when dealing with CHRISTIAN liberals!
You are raising an important question, but one that is tangential to what I am arguing. I am making the very simple point that all enacting and enforcing of laws is the issuing of prescribings and proscriptions that regulate human behavior, human mores, and that therefore all legislation is the legislation of morality.
It doesn't matter how you analyze 'X is morally permissible' and 'X is morally obligatory.' Perhaps there is a viable pragmatic analysis, perhaps not. Either way, my point holds.
I am simply rejecting the view of those who say that one cannot legislate morality. One does, hence one can. Further, one ought to, hence it is permissible.