A Requiem for Morality: A Response to Peter M. Cicchino

• Author: Christopher J. Gawley
• Position: Law clerk for The Honorable Alan C. Kay in the United States District Court for the District of Hawaii
• Pages: 711-764

Law clerk for The Honorable Alan C. Kay in the United States District Court for the District of Hawaii, and on leave from the law firm of Cleary, Gottlieb, Steen & Hamilton. I would like to thank: Professors Ira Lupu, Jerome Barron and Jeffery Rosen, all of whom I greatly admire and owe a debt of gratitude. I also thank the staff at the Capital University Law Review for their hard work. And lastly, I would like to thank Anna Gawley.

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I Introduction

Analogizing our age to that of the Roman Empire's collapse under the barbarian's weight, Professor Alisdair MacIntyre observes that:

men and women of good will . . . construct[ed] new forms of community within which the moral life could be sustained so that both morality and civility might survive the coming ages of barbarism and darkness. If my account of our moral condition is correct, we ought also to conclude that for some time now we have reached that turning point. What matters at this stage is the construction of local forms of community within which civility and the intellectual and moral life can be sustained throughout the new dark ages, which are already upon us.¹

This accurately expresses the sentiments of a number of observers of the United States. People may express this notion in terms of anecdotal evidence, such as a seeming growing coarseness among their fellow citizens. Others point to a collective culture that seems to exponentially degrade into blunter and baser images of sex, violence, and meaninglessness. Still others demonstrate the decline of the moral life in America through recitations of ample social science indicators, such as divorce, illegitimacy, crime, or violence.² However, this article joins not the legions of both legal and non-legal writings that debate the claim of America's impending moral collapse. This article instead focuses upon what Americans may do about this sentiment in the context of law-and what forces exist to stop them.Page 712

This topic is addressed discretely in response to a compelling article written by the late Professor Peter M. Cicchino.³ Often, Americans try to stem the tide of this alleged moral erosion by enacting laws requiring the greater community to conform to certain moral standards. Cicchino argues these efforts face considerable constraints imposed by the Equal Protection Clause of the United States Constitution.⁴ This article evaluates Cicchino's arguments from a legal, philosophical, and practical perspective.

Part II recites in detail the arguments advanced by Cicchino. Part III reveals serious constitutional criticisms of his legal arguments. This Part illustrates that Cicchino's position is not required by Equal Protection analysis. Indeed, his arguments counsel a radical departure from conventional Equal Protection jurisprudence. Further, this Part reveals Cicchino's arguments as little more than garden-variety substantive due process arguments disguised as a novel Equal Protection theory.⁵

Part IV reveals the philosophical concerns implicit in Cicchino's article. This Part juxtaposes his arguments and their philosophical foundations with competing philosophical notions. This Part offers that Cicchino's position seeks to enshrine a particular moral philosophy as a constitutional command; thus, negating the efficacy of a myriad of competing moral philosophies.

Part V reviews the practical implications of implementing his thesis. This Part highlights the paradoxical nature of Cicchino's thesis-namely that Cicchino's arguments in fact impose their own moral commands-namely a moral relativism throughout the democratic process. Cicchino's counter-majoritarian theory is shown to be internally self-contradictoryPage 713 with his thesis-meaning that he is imposing a particular amorality on all others to avoid having moral views imposed on him.

Part VI highlights some of the reasons that animate why positive morality ought to be a source of law. This Part examines notions of autonomy from a community perspective. Also considered is the necessity of fostering virtue in a republican form of government.

II Professor Peter M. Cicchino's Argument

Professor Cicchino's provocative article, Reason and the Rule of Law: Should Bare Assertions of "Public Morality" Qualify as Legitimate Governmental Interests for the Purposes of Equal Protection Review?, poses a single question: "[s]hould a 'bare' assertion of public morality-an assertion of public morality without any observable, empirical connection to the public welfare-serve as a legitimate government interest for the purpose of Equal Protection review."⁶

Cicchino's starting point is the array of arguments offered in Romer v. Evans.⁷ Cicchino agrees with the result in Romer, but he advocates a thesis that far exceeds any Equal Protection theory articulated by Romer. Romer held an amendment to Colorado's constitution which barred homosexuals from receiving any legal recognition as a protected class unconstitutional on Equal Protection grounds.⁸ Cicchino challenges the public morality arguments made by dissenting Justice Scalia who favored upholding Colorado's amendment.⁹ Cicchino's aspiration is thus to further limit government attempts to legislate "morality." His article has been cited often for the proposition that government cannot legitimately enshrine moral notions into the law.¹⁰

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Cicchino's argument proceeds in three manners. First, he debunks the so-called "eight justifying rationales" of public welfare arguments that are offered for laws that discriminate based on homosexuality.¹¹ Second, he attacks the bare assertion, devoid of any empiricism, that homosexuality is wrong.¹² Here, Cicchino's arguments against bare assertions of morality¹³ (or what I will refer to as "moral assertions") are subdivided into three parts.¹⁴ Third, Cicchino preemptively addresses some of the arguments of those would-be critics of his position.¹⁵

The crux of this critique focuses on Cicchino's position that moral assertions cannot serve as legitimate governmental objectives. Accordingly, his second argument is examined in detail. In doing so, responses to Cicchino's assertions will not be addressed until Parts III andPage 715 IV. This article attempts to present Cicchino's arguments as persuasively as the author does.

A Moral Interests Unrelated to Any Secondary Effects Are Indistinguishable from Irrational Prejudices and Private Bias

Cicchino's first criticism of allowing moral assertions to serve as a legitimate governmental interest for Equal Protection review is that such assertions are in fact no different from irrational prejudices and private bias.¹⁶ To illustrate his argument, Cicchino juxtaposes bias against homosexuals with the Supreme Court's holding in Loving v. Virginia.¹⁷

In Loving, the Supreme Court, relying on the Equal Protection Clause, unanimously struck down Virginia's miscegenation law, which barred interracial marriage.¹⁸ Cicchino asserts that despite the fact that miscegenation laws reflected deeply held beliefs of the immorality of interracial marriages, the Supreme Court ruled that Virginia's classification presented no legitimate overriding purpose.¹⁹ Cicchino argues that those who advocate that moral assertions can and should suffice for Equal Protection review cannot distinguish, in a principled fashion, irrational bias embodied in miscegenation laws and so-called "rational" bias against homosexuals.²⁰ He maintains that those advocates can only fall back on circular logic that holds one rational and not the other. He stated:

The instinctive response of defenders of the public morality argument may be that discrimination on the basis of race is irrational while discrimination on the basis of sexual orientation is not. That response, however, begs the question. The point at issue is why racial discrimination is irrational, even when supported by centuries of the strongest and most intensely felt moral convictions of a large majority of the public, but discrimination on the basis of sexual orientation is rational.²¹

Cicchino argues that so-called defenders of these types of rationales, particularly Justice Scalia,²² deprive courts of the ability to invalidate the most invidious forms of prejudice.²³ To illustrate, he argues that acceptingPage 716 bare assertions of moral interests would reverse the principle announced by the Supreme Court in Palmore v. Sidoti,²⁴ which held state officials could not deprive a white mother of custody because of the perceived harm to the child by community prejudice against the mother's interracial marriage.²⁵ He argues that Palmore's maxim which states "[p]rivate biases may be outside the reach...