Legislating Morality and The Constitution

antonin scaliaIn a time of intense culture wars it’s too easy to get caught up in the subject matter of Lawrence
v. Texas
, a case decided by the United States Supreme Court in 2003. The particular case, after all, is about the constitutionality of a Texas same-sex anti-sodomy law, and it reversed a prior case finding such statutes permissible (Bowers v. Hardwick). Lawrence can’t be analyzed without considering that law and its core facts, but its significance goes beyond that narrow issue.

For example, is it constitutionally permissible for a state to legislate morality? Dissenting, Justice Antonin Scalia thinks so:

“[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest… citing Bowers for the proposition that “[l]egislatures are permitted to legislate with regard to morality . . . relying on Bowers in rejecting a claimed constitutional right to commit adultery. ..Indiana’s public indecency statute furthered “a substantial government interest in protecting order and morality,”…State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.

But the majority, admitting to a departure from original intent, saw a realm of privacy into which morality-based state laws cannot interfere:

The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Remember this is properly a case about the Constitution rather than about the moral bearings of the SCOTUS. To Justice Scalia, the majority lost sight of this core concern; instead, “the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.” He makes it clear that his reasoning is not personal, but constitutional:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best…. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else.

If you’re wondering whether Lawrence v. Texas tells us anything about the pending SCOTUS case on the constitutionality of California’s Proposition 8, Justice Scalia thinks it does:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. JUSTICE O’CONNOR seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. …But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in [the statute] could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence JUSTICE O’CONNOR has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).


Filed under Courts, Culture Wars

7 responses to “Legislating Morality and The Constitution

  1. Richard

    OK, MLM, make your prediction. How will SCOTUS come down on Hollingsworth v. Perry and United States v. Windsor?

  2. Richard

    OK, so you won’t play the Amazing Kresin? I predict DOMA is struck down and the 9th Circuit is upheld.

    • If I had to bet the house on it, I’d bet that way as well.
      Back to my best-case scenario, I don’t even know how they even could strike down DOMA while allowing Prop 8. But I’ll look at the Prop 8 case a little more.

  3. igasx

    It’s a culture war alright- a culture war against federalism. While they claim private personal rights in the case you cite in other cases like Obamacare, et. al., they claim compelling State interest against federalism. The Leviathan is hungery.

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