Evolving objective standards: a developmental approach to constitutional review of morals legislation.

• Author: Grostic, Christian J.

TABLE OF CONTENTS INTRODUCTION I. THE PATTERN: THE CONSTITUTION AS A STAGE FIVE DOCUMENT A. Race B. Gender C. Other Groups D. Adult Entertainment E. Assisted Suicide F. Sodomy and Sexuality G. The Emergence of Stage Six II. THE RESPONSE: ADVANTAGES OF A DEVELOPMENTAL APPROACH AND PARALLELS WITH OTHER REACTIONS TO LAWRENCE A. Responses to Lawrence 1. Criticism 2. Disbelief 3. Approval B. Evolving Objective Standards III. THE OUTLOOK: UNSETTLED QUESTIONS CONCERNING THE CONSTITUTIONALITY OF MORALS LEGISLATION A. Fornication B. Bestiality C. Prostitution CONCLUSION INTRODUCTION

"[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice...." (1)

With this single sweeping statement in Lawrence v. Texas, the Supreme Court threw the validity of an entire class of laws and a long line of precedents into doubt. (2) In dissent, Justice Scalia asserted that "[t]his effectively decrees the end of all morals legislation." (3) "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are ... sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision...." (4)

The responses have taken a number of forms. Some have followed Justice Scalia's lead, criticizing the Lawrence decision and warning of the social and legal upheaval to come. (5) Others have taken a more skeptical and pragmatic approach, suggesting that widespread moral disapproval may still provide a legitimate state interest, despite the Court's apparent declaration to the contrary. (6)

By far the most common response, however, has been to abandon the idea that morality alone provides a sufficient basis for law. Harkening back to or explicitly invoking John Stuart Mill's harm principle, (7) scholars argue that courts should "permit morality-inspired government action only when it is supported by reference to empirical or otherwise demonstrable harms." (8)

This response tends to minimize, if not ignore, the extent to which morality and law are intertwined. (9) At the most basic step, individuals, legislatures, and courts decide what is and is not a harm based on moral judgment. (10) Despite the best efforts of some lawmakers, judges, and scholars, "no matter how carefully we might disavow moral judgments in light of the challenges they present for adjudicators, they are inextricably bound up in our lawmaking and, as a result, inevitably present in our adjudication as well." (11)

This is not a new proposition; many scholars have attempted to describe what they see as the proper role of moral judgment in adjudication and constitutional interpretation. (12) Conspicuously missing from this discussion, however, is empirical research about moral and psychological development. (13) Courts and scholars alike have spoken of evolving or developing standards, (14) but rarely do they invoke the findings of psychologists and social researchers who make a career studying evolving and developing standards and abilities. This Note aims to begin filling that void.

Researchers in developmental studies have uncovered a series of demonstrable developmental stages. There is considerable cross-cultural evidence for the general stages of moral development, extending from childhood through adulthood. (15) Indeed, the broad outlines of most models used in developmental studies today are strikingly similar. (16) Empirical research with these models demonstrates that the stages they reflect are universal and invariant. (17)

This is not to say that models used in developmental studies are rigidly deterministic. In prevailing systems, "[d]evelopment is not a linear ladder but a fluid and flowing affair, with ... what appear to be an almost infinite number of modalities. Most of today's sophisticated developmental theories take all of that into account, and--more important--back it with substantial research." (18) Because of this "almost infinite" number of modalities, no stage is inherently good or bad. (19)

Moreover, even within this more fluid developmental framework, one's developmental stage is not completely determinative of one's moral choices. Professor Lawrence Kohlberg, for example, distinguishes between what this Note calls structure and content--between the capabilities, skills, methods, and reasoning embodied in the structure of a given stage and the specific moral decisions one makes within that stage using that structure. (20) The stages are "species-wide, shared human characteristics, but culture plays variations on these underlying similarities." (21) Thus, individuals at the same stage of development may sometimes make different moral choices, while individuals at different moral stages, using different reasoning, might arrive at the same conclusion.

That said, the universal and invariant aspects of developmental stages have important effects. The successive stages mark successive decreases in egocentrism. (22) Across systems, stages of moral development step from pre-conventional to conventional to postconventional, egocentric to sociocentric to worldcentric. (23)

Recognizing these similarities and links across developmental systems, this Note will draw primarily from the Spiral Dynamics developmental model in its analysis of morals legislation along developmental lines. (24) This Note uses Spiral Dynamics solely for ease of understanding, as its plain language and real-world examples make it generally accessible to nonspecialists. Importantly, one could perform a similar analysis using other major developmental models. (25)

The Spiral Dynamics model uses eight general stages; (26) the focus of this Note will be on stages four and five. The following is a brief outline of stages four and five, with further details elucidated through the analysis in this Note. (27)

Individuals operating primarily from stage four are strongly conventional and conformist, with life's meaning, direction, and purpose predetermined by an all-powerful other or order. (28) Unquestioned absolutist principles of right and wrong govern moral reasoning. (29) This stage emphasizes law and order, concrete-literal and fundamentalist beliefs, and ethnocentric or sociocentric values. (30) Thus, a person using stage four reasoning would support a ban on certain behavior if the person's ethnic or social group or long-established rules and laws supported such a ban. (31) Researches refer to this stage with such tags as "conformist," (32) and "traditional." (33)

With the emergence of stage five, individuals break away from the herd mentality of stage four and seek truth, meaning, and morality in individualistic terms. (34) Absolutist moral principles, standing alone, are no longer sufficient for moral judgment. Instead, hypothetico-deductive, experimental, objective, mechanistic, and operational modes of thinking and demonstrable facts are the primary tools of moral reasoning. (35) This stage emphasizes achievement, merit, ability, and rational and scientific inquiry and begins to recognize postconventional and worldcentric values, expanding beyond tradition and one's own ethnic or social group. (36) Thus, a person using stage five reasoning would support a ban on certain behavior if objective facts and deductive reasoning supported such a ban and it applied without regard to ethnic or social classifications. (37) Researchers have given this stage names such as "scientific achievement," (38) "modern," (39) and "materialist, secular-rational." (40)

This Note argues that the Supreme Court's recent jurisprudence regarding morals legislation (41) mirrors the findings of empirical research on moral and psychological development. Specifically, the Supreme Court upholds morals legislation only if it is justified by stage five reasoning. Part I examines significant Supreme Court cases related to morals legislation over the last 50 years and argues that the Supreme Court has consistently upheld morals legislation that is justified by stage five reasoning, while consistently striking down as unconstitutional morals legislation that is not. Part II argues that a developmental approach to constitutional review of morals legislation, while consistent with many aspects of the common responses to morality and the law after Lawrence, yields significant advantages over those approaches. Most significantly, Part II argues that a developmental approach lends reliability and determinability to the use of evolving standards in constitutional review of morals legislation, while still maintaining primary state control over public health, safety, and morals. Part III applies this framework to questions raised by Justice Scalia's dissent in Lawrence, arguing that the Court is indeed likely to strike down certain laws as unconstitutional while others appear to pass developmental and constitutional muster.

1. THE PATTERN: THE CONSTITUTION AS A STAGE FIVE DOCUMENT

   If, as described above, stages of moral development are the structures within which individuals and groups reason, make, and justify moral decisions, it would be instructive to examine which stages of development are at work in adjudication and constitutional interpretation. This Part defends the thesis that over recent decades, the Supreme Court has consistently upheld morals legislation justified by stage five reasoning and has consistently struck down as unconstitutional morals legislation justified only by stage four reasoning. Sections I.A, I.B, and I.C argue that this principle is consistent with the Court's morals legislation cases involving matters of race, gender, and other group classifications, respectively. Subsequent sections show that stage five moral development accurately describes the Court's decisions involving specific behaviors. Section I.D shows that the...