Striking the proper balance: articulating the role of morality in the legislative and judicial processes.

• Author: Kozell, Rick

1. INTRODUCTION

   Despite the vast differences that have existed between civilizations throughout human history, nearly all have shared one thing in common: they have all relied upon moral judgments as the foundation for their most important and most fundamental governing principles. Undoubtedly, the guise of morality has been used to mask some great atrocities over the years. But morality has also provided a basis for some of the most vital and necessary legislation in history. (1)

   In 2003, the Supreme Court established a new jurisprudential doctrine limiting the use of morals as a legitimate basis for government action when it decided Lawrence v. Texas. (2) In Lawrence, the Court considered the constitutionality of a Texas law criminalizing homosexual sodomy. Although a concurrence by Justice O'Connor deemed the law violative of the Equal Protection Clause of the Fourteenth Amendment, a five-justice majority noted that holding the law violative of Equal Protection would provide the Texas legislature with an opportunity to rewrite the law to apply to homosexuals and heterosexuals alike, thereby rendering it constitutionally permissible. (3) To avoid such a result, the Lawrence majority relied on a line of cases beginning with Griswold v Connecticut, (4) and including Eisenstadt v. Baird, (5) Roe v. Wade, (6) and Planned Parenthood of Southeastern Pennsylvania v. Casey, (7) to find that the activity regulated by the Texas law was a liberty interest protected by the Due Process Clause. (8) Accordingly, the Lawrence Court found that the law violated the Fourteenth Amendment and could not be upheld. (9)

   The Lawrence Court's holding rendered all sodomy prohibitions unconstitutional. More interesting than the holding, however, is the reasoning that the Lawrence Court applied in arriving at that holding. Specifically, the Court based its decision on a comment from a dissenting opinion written nearly two decades earlier in Bowers v. Hardwick. (10)

   In Bowers, the Supreme Court upheld a Georgia sodomy ban by finding that sodomy was not entitled to protection under the Due Process Clause of the Fourteenth Amendment. (11) In doing so, the Court determined that the conduct was unprotected (and thus the law was not objectionable), in part because the law is "constantly based on notions of morality." (12) But in a dissenting opinion, Justice Stevens offered a contrary assertion: the conduct at issue was, in fact, encompassed by the right of privacy protected by the Due Process Clause. Even more notably, he offered a controversial and broadly applicable justification for his conclusion: "[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...." (13)

   When the Supreme Court decided Lawrence nearly twenty years later, it struck down the Texas law before it by explicitly reversing the Bowers majority, (14) and adopting the reasoning set forth in Justice Stevens' Bowers dissent. (15) The Court then held that "Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here." (16) The Lawrence Court failed to provide much additional guidance to assist courts and legislatures in complying with its decision, or to aid them in understanding it. Rather, the Court simply noted that "[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." (17)

   Attempts to determine the scope and breadth of the Court's holding began immediately. Justice Scalia's dissenting opinion in Lawrence raised questions about what precisely Lawrence required of courts and legislatures. (18) Namely, Justice Scalia asserted that the Court's adoption of Justice Stevens' language from Bowers "decrees the end of all morals legislation," (19) and that every law based on notions of morality, including, for instance, prohibitions on bestiality, prostitution, or the sale of sex toys, was now at risk of being overturned. (20) Moreover, Justice Scalia asserted that the application of the Stevens language to sexual activity, combined with the Court's failure to "cabin the scope of its decision," necessarily precluded regulation of "matters pertaining to sex." (21) And because the Court's rationale was not limited to cases involving sexual activity, the decision may have equally broad implications in other areas of law.

   Notably, few courts or scholars have rigorously analyzed the precise scope of Justice Stevens' Bowers dissent, the Lawrence Court's decision to adopt it, or the correctness of Justice Scalia's asserted interpretation. Several courts and scholars that have done so, however, have accepted Justice Scalia's interpretation. (22) Thus, they have rejected the Bowers Court's determination that because "[t]he law ... is constantly based on notions of morality," (23) reliance upon moral justifications is and should be permissible. (24) Otherwise stated, morals alone cannot support a legislature's decision to enact legislation. Instead, legislation can only stand if it prevents some explicit harm not grounded in morality. This Note will refer to this commonly accepted interpretation of the Stevens language, as adopted in Lawrence, as the "Moral Insufficiency Doctrine."

   This Note does not challenge the Lawrence Court's decision to strike down the Texas law at issue. Rather, it seeks to examine the Moral Insufficiency Doctrine's assertion that laws grounded in morality violate the Constitution. Specifically, and largely due to the body of case law that developed after Lawrence, it proposes that the Court's decision to apply language from Justice Stevens' Bowers dissent was never intended to distinguish laws grounded in morality from laws founded on some independent, harm-based justification. Thus, the Moral Insufficiency Doctrine should be rejected as an improper reading of Lawrence.

   Part II demonstrates that the Moral Insufficiency Doctrine contradicts three centuries of case law embracing the use of majoritarian morals in the lawmaking process. It examines cases in the years prior to Lawrence, which relied upon morals-based rationales, and which Lawrence would have needed to explicitly overrule to render unconstitutional all legislation based on majoritarian morals. Further, it demonstrates that the Supreme Court has continued to rely upon moral justifications in upholding legislation, even after Lawrence, in violation of the Moral Insufficiency Doctrine. Lastly, it asserts that the Moral Insufficiency Doctrine is analytically unsound because moral reasoning often underlies harm-based reasoning, thereby precluding any attempt to distinguish the two as separate or distinct. Thus, Part II concludes that the Moral Insufficiency Doctrine is incorrect: legislative justifications are not constitutionally impermissible merely because they are grounded in moral reasoning.

   Part III argues that a mandate for the removal of majoritarian morals from the legislative process would not be successful in removing moral judgments from the legal system. Instead, such a mandate would merely shift moral authority from the legislature to the Court, thus violating the separation of powers mandated by the Constitution. Part III then considers past instances in which the Court's attempts to avoid moral judgments have failed, and analyzes the implications of those failed attempts. Accordingly, Part III concludes that the Lawrence Court's adoption of the Stevens language from Bowers could not have been intended to prohibit all morals-based legislation, and should not be so construed.

   Finally, Part IV proposes alternative understandings of the Lawrence Court's adoption of the Stevens language. It then considers whether any of these understandings may be more consistent with Supreme Court jurisprudence, the philosophy underlying the American legal system, and thus, the Lawrence Court's true intention.

2. THE MORAL INSUFFICIENCY DOCTRINE: ANALYTICALLY SUSPECT

   The Moral Insufficiency Doctrine's assertion that morality cannot provide a legitimate legislative purpose contradicts a great body of case law arising pre- and post-Lawrence. These cases all suggest that the Moral Insufficiency Doctrine does not accurately reflect the Lawrence Court's intent in adopting Justice Stevens' language from Bowers. Moreover, even in the absence of conflicting case law, the assertion that morality cannot justify a restriction on conduct is analytically unsupportable.

   1. The Moral Insufficiency Doctrine Conflicts with a Wealth of Precedent

      Since the nineteenth century, the Supreme Court has relied upon moral justifications in deciding whether to uphold or strike down laws restricting various forms of conduct. For instance, in Murphy v. Rarasey, (25) the Supreme Court upheld a prohibition on polygamy by relying explicitly on morality-based justifications, namely that the legislature's goal was legitimate because it sought "to establish ... the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." (26)

      The Murphy Court's decision is not unique. Nor is the context in which the Court applied its morals-based reasoning. In the early twentieth century, the Court in Champion v. Ames (27) applied morals-based reasoning to the Commerce Clause by upholding a federal law that restricted the transportation of lottery tickets and finding that "it will not be said to be a part of any one's liberty ... that he shall be allowed to introduce into commerce among the States an element that will be confessedly injurious to public morals." (28) Ten years later, the Court reaffirmed that principle in Hoke v. United States (29) when it upheld a law prohibiting the transportation of women or girls for any "immoral purpose." Although Murphy...