Morals legislation after Lawrence: can states criminalize the sale of sexual devices?

• Author: Possolo, Manuel

INTRODUCTION I. WHERE DID LAWRENCE COME FROM, AND WHAT DID IT SAY? A. Defining "Morals Legislation" B. Morals Legislation Before Lawrence 1. Enforcing morality 2. Changing attitude of the Court C. What Did Lawrence Decide? II. SEXUAL DEVICES AND THE CONTINUING BATTLE OVER LAWRENCE A. Split Between the Circuits 1. Eleventh Circuit 2. Fifth Circuit B. State Courts Divided C. Why the Fifth Circuit Got It Right III. LEARNING FROM LAWRENCE: WHERE DO WE GO FROM HERE? A. Substantive Due Process Versus Equal Protection B. Promoting Morality by Other Means CONCLUSION INTRODUCTION

Dissatisfied with the outcome in Lawrence v. Texas, Justice Scalia warned in his dissent that the Court had "effectively decree[d] the end of all morals legislation." (1) For him, this was a result to be feared rather than celebrated. It meant the end of all criminal prohibitions against deviant sexual behavior, including "fornication, bigamy, adultery, adult incest, bestiality, and obscenity." (2) Worse still, the decision was a product not of democratic deliberation but rather of imposition by a select set of judges committed to the "homosexual agenda." (3) No longer could the people determine the content of the criminal law by mere reference to their moral code.

Despite these dire predictions, recent decisions by state and lower federal courts have adopted conflicting interpretations of Lawrence. In Williams v. Morgan, the Eleventh Circuit upheld an Alabama law prohibiting sales of devices used for sexual stimulation, finding that "public morality remains a legitimate rational basis for the challenged legislation even after Lawrence." (4) The Fifth Circuit reached the opposite conclusion when reviewing a similar statute in Texas, concluding that "[t]o uphold the statute would be to ignore the holding in Lawrence and allow the government to burden consensual private intimate conduct simply by deeming it morally offensive." (5) The supreme courts of five states are similarly divided. (6)

The debate over laws regulating the sale of sexual devices--what some call "sex toys" (7)--may at first glance seem insignificant, but it gets at the heart of an important question that was raised in Lawrence and is still hotly contested: to what extent can morality serve as a legitimate basis for laws that place a significant burden upon individual liberty interests? The Court has yet to provide an answer to this question, but its decision could significantly impact future determinations about the validity of a whole host of laws, including laws prohibiting certain sexual behavior, disallowing same-sex marriage, and criminalizing drug possession. The Court may be reluctant to take Lawrence quite so far, but it will at least need to establish meaningful limiting principles for the rule established in that case.

In this Note, I argue that it is unconstitutional for states to criminalize the sale of sexual devices on the basis of mere moral disapproval. (8) In other words, I argue that the Fifth Circuit made the right decision in holding such laws invalid. In Lawrence, the Court adopted a new, much more restrictive approach to morals legislation. It made clear that a law burdening a fundamental liberty interest cannot withstand scrutiny if supported by moral disapproval alone. Although a similar principle had been applied in the context of equal protection, the Court expanded it in Lawrence to the realm of substantive due process. In so doing, it indicated that prohibitions on certain kinds of conduct are tantamount to an attack on an entire class of persons. It also suggested that morality-based criminal prohibitions are particularly problematic when they target underlying conduct that is sexually intimate, consensual, and private.

Part I examines where Lawrence came from and what exactly it said. Only by understanding the context of the decision will it be possible to determine its underlying motivations and binding effect. A major challenge in writing about morals legislation, however, is that the term has no easy or widely accepted definition. In hopes of avoiding confusion, therefore, I start by exploring what exactly "morals legislation" means. After offering a working definition of the term, I then provide an overview of Supreme Court cases decided before Lawrence examining the validity of laws based on moral judgment. There has been a marked shift in the Court's jurisprudence on this point, starting with equal protection cases, and making its way into those involving substantive due process. In both contexts, the Court has become increasingly suspicious of laws that it considers to be based on nothing more than moral disapproval.

Part II analyzes state and lower federal court decisions that have adopted conflicting interpretations of Lawrence's prohibition against morals legislation. (9) Specifically, I examine the split between the Fifth and Eleventh Circuits over the constitutional validity of laws criminalizing the sale of devices used for sexual stimulation. I also examine decisions of the supreme courts of Alabama, Mississippi, Louisiana, Kansas, and Colorado. Several of these courts have looked to the Eleventh and Fifth Circuits for guidance, finding only disagreement. Ultimately, I argue that the Fifth Circuit got it right. Although the prohibition at issue in Lawrence implicated a serious equal protection question, the Court did not decide the case on those grounds, and its primary concern about state regulation under moral pretenses of behavior that is intimate, consensual, and private applies with full force to laws criminalizing the sale of sexual devices.

Finally, Part III explores the consequences that Lawrence might have for morals legislation going forward. I begin by discussing a series of doctrinal ambiguities left open in Lawrence. Perhaps most importantly: is Lawrence about substantive due process or equal protection? I suggest that it might aim at undermining, or at least calling into question, the strict separation that exists between these doctrinal areas. In addition, I argue that Lawrence's holding should draw attention to the important distinction between state involvement in moral discourse and state coercion on the basis of moral disapproval. The state might have a role to play in shaping moral debate, but it must be much more circumspect in its efforts to impose moral viewpoints upon individuals who disagree. I conclude by considering, albeit briefly, how various issues of contemporary debate--including controversies over laws against prostitution, polygamy, and gay marriage--may be affected by Lawrence.

Ultimately, this Note has two primary aims. Most narrowly, it seeks to determine the constitutional validity of state laws criminalizing the sale of sexual devices. This issue alone merits review. Foolish though such laws may seem, they are real laws with real consequences. They have been enforced by undercover police operations, and people have been prosecuted and imprisoned for violating their terms. Courts, moreover, have disagreed as to their constitutional validity. More broadly, however, this Note aims to examine the Supreme Court's evolving approach to morals legislation. The Court's views are far from clear, and they are certainly not yet fully determined. For this reason, it is necessary to think carefully about what role morality should play in law, and whether moral disapproval alone may serve as a legitimate basis for legislation.

1. WHERE DID LAWRENCE COME FROM, AND WHAT DID IT SAY?

   Before embarking on a discussion of the cases leading up to Lawrence, it is important to examine what exactly "morals legislation" means. The purpose here is not to argue for one proper definition, but rather to suggest a range of plausible meanings. Simply understanding the fault lines of the debate will enable discussion of the constitutional questions at stake. Nevertheless, I offer a working definition of the term for the purposes of this Note.

   1. Defining "Morals Legislation"

      The Supreme Court has never itself provided a clear definition of "morals legislation." In fact, it has avoided those words altogether. The term "morals legislation" has made appearances in only two Supreme Court opinions. First, Justice Brennan used it in a footnote of his opinion in Ginsberg v. New York, quoting an article discussing the constitutional validity of legislation protecting children from obscene materials. (10) Second, Justice Scalia made mention of the term when he predicted in his dissent in Lawrence that the Court had decreed "the end of all morals legislation." (11)

      Despite the Court's infrequent use of the term, morals legislation has been at the center of many important controversies over equal protection of the laws and the regulation of sexual and private conduct. The Court has on multiple occasions struck down legislation based on moral disapproval, (12) animosity, (13) "mere negative attitudes," (14) or a "bare ... desire to harm" an unpopular group. (15) In other cases, it has suggested that morality actually can serve as a legitimate basis for legislation. (16) Despite these seemingly contradictory conclusions, there is no doubt that the Court has been speaking about morals legislation for some time. It has simply done so under different labels and with different words.

      Both on and off the Court, there has been significant and continuing debate over the validity of morals legislation. (17) Part of that debate stems from a fundamental disagreement over what it means for legislation to be moral in the first place. On the one hand, the term "morals legislation" could include basically any law motivated, even partially, by moral judgment. In Bowers v. Hardwick, for example, when considering whether a Georgia law prohibiting sodomy was supported by a rational basis, the Court affirmed that states have the authority to enact "laws representing essentially moral choices." (18) The Court ultimately concluded that moral...