SEATTLE UNIVERSITY LAW REVIEWVolume 27, No. 1SUMMER 2003
Harm to the "Fabric of Society" as a Basis for Regulating Otherwise Harmless Conduct: Notes on a Theme from Ravin v. State
Eric A. Johnson
I. Introduction
Shepard's Citations does not do justice to the Alaska Supreme Court's 1975 decision in Ravin v. State(fn1)Other state courts consistently have rejected or ignored Ravin's central holding-that adults enjoy a constitutional right to smoke marijuana in their homes.(fn2) Indeed, that holding, like so many other artifacts of the 1970s, now gives the impression of having been too much a product of its time.(fn3)Nevertheless, Ravin represents an early and ambitious attempt to devise a method of constitutional analysis that denies independent weight to "notions of morality."(fn4) This attempt, though only partly successful, holds important lessons for courts that have come late to the same view of morality's place in judicial review.(fn5)
At the core of the Ravin decision lies the recognition that "notions of morality, propriety, or fashion" cannot by themselves justify the assertion of government control over the conduct of individuals. The justices who joined the majority opinion in Ravin expressed their personal opposition to the use of marijuana and other "psychoactive drugs."(fn6) And they said that this opposition was grounded in their personal conviction that "the duty to live responsibly, for our own sakes and for society's," could best be fulfilled "without the use of psychoactive substances."(fn7) However, they concluded that these convictions fell within the realm of "notions of morality, propriety, or fashion" and so could not justify Alaska's statutory prohibition on use of marijuana.(fn8) The "authority of the state to exert control over the individual," they said, extends only to activities that have tangible adverse effects on the actor herself,(fn9) other individuals, or society at large.(fn10)
If Ravin's core principle seems banal, it was not when it was announced. Eleven years after Ravin, the United States Supreme Court would hold, in Bowers v. Hardwick, that "the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable" provided an adequate justification for a Georgia statute criminalizing homosexual sodomy.(fn11) The Court said, "[t]he law ... is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."(fn12)
Alaska courts have not been "very busy indeed" invalidating criminal statutes, perhaps because most laws "representing essentially moral choices" also are, not coincidentally, designed to prevent individuals from inflicting tangible harm on themselves or others.(fn13) But Ravin's effort to eliminate mere "notions of morality" from judicial review-and its concomitant insistence upon evidence of tangible harm to persons-has forced the Alaska Supreme Court, in Ravin and in subsequent decisions, to explore the ill-defined boundaries between private morality and the public welfare. Among the insights borne of these efforts is the court's recognition in Ravin that the possibility of indirect harm to "the fabric of our society"(fn14) might sometimes justify the assertion of government control over individuals.
This recognition, as I will argue, reintroduces morality into judicial review, albeit in a very different role than it played in, say, Bowers v. Hardwick. The simple, habitual, moral reaction patterns that ordinarily prevent human beings from injuring one another are among the most important fibers in the "fabric of society." And though, under Ravin, these reaction patterns have no legally cognizable value in themselves, they have instrumental value insofar as they prevent tangible harm to persons. Thus, society's interest in preserving these reaction patterns could conceivably justify regulating otherwise harmless conduct.
In this article, I will explore the possibility that harm to the fabric of society provides the best justification for some statutes that prohibit otherwise harmless conduct. After some preliminary remarks about why the cognizability of harm is important, I will consider three illustrations: first, the incest statutes, which, even in progressive states like Alaska and New York, prohibit a wide array of basically harmless conduct; second, a Massachusetts statute regulating the use of human silhouettes in target practice;(fn15) and finally, legislation that would prohibit the medical procedure known as "partial-birth abortion."(fn16) After discussing these illustrations, I will undertake a close analysis of the general argument for the preservation of moral reaction patterns. Though I will conclude that the argument generally is valid, I will not offer any opinion as to whether, with respect to any particular statute, the argument ought to carry the day. The ultimate validity of the laws in question, particularly the ban on partial-birth abortions, involves considerations well beyond the scope of this article.
II. Why Questions About the Cognizability of Harm are Important
Questions about the cognizability of harm play two separate roles in constitutional privacy analysis. First, and most obviously, these questions figure in the determination of whether, in a particular instance, government intrusion upon a constitutionally protected activity is justified by a substantial or compelling government interest. In this setting, questions about the cognizability of harm succeed the identification of the constitutionally protected sphere of conduct. This was the case, for example, in Powell v. State, (fn17) where the Georgia Supreme Court struck down the very sodomy statute that had been upheld by the United States Supreme Court twelve years before in Bowers v. Hardwick.(fn18) Only after determining that sodomy "falls within the area protected by the right to privacy"(fn19) did the Georgia court undertake to determine whether the government interests asserted by the Georgia Attorney General, including the "furtherance of social morality," were legally cognizable.(fn20) They were not.(fn21)
But questions about the cognizability of harm also play a second, less obvious role in constitutional privacy analysis, at least in Alaska. From Ravin onward, Alaska's courts have frequently acknowledged that the potential consequences of a particular activity determine in part whether society is prepared to recognize it as "private" in the first place. As the court said in Ravin, "one aspect of a private matter is that it is private, that is, that it does not adversely affect persons beyond the actor, and hence is none of their business."(fn22) Under this approach, the fact that, say, sodomy does not inflict cognizable harm on the actor or others is an important factor in the threshold determination that it is "private."
This pragmatic, effects-focused approach to privacy analysis was applied, for example, in Hilbers v. Municipality of Anchorage, where the Alaska Supreme Court reviewed a municipal ordinance regulating massage parlors.(fn23) In Hilbers, the court said an activity qualifies as private only if an individual's subjective expectation of privacy in the activity is "one that society is prepared to recognize as 'reasonable.'"(fn24) Whether an expectation of privacy qualifies as "reasonable" depends, of course, on the costs and benefits of treating the activity as private.(fn25) This approach to privacy was summarized in Luedtke v. Nabors Alaska Drilling, Inc., where the Alaska Supreme Court explained that the "boundaries" of the right to privacy cannot be defined without resort to balancing of interests:[T]here is a sphere of activity in every person's life that is closed to scrutiny by others. The boundaries of that sphere are determined by balancing a person's right to privacy against other public policies, such as 'the health, safety, rights and privileges of others.'(fn26)
The Alaska courts' reliance on effects analysis in defining a protected sphere of private activity is justified, in part, by the inadequacy of the alternatives. Though historical analysis has an important role to play in privacy analysis,(fn27) heavy reliance on historical analysis would be inconsistent with the Alaska courts' flexible approach to constitutional interpretation, which is based on the assumption that "what was practical historically is not necessarily adequate to the needs of our times."(fn28) The other noteworthy alternative to balancing is a kind of navel-gazing conceptual reasoning, wherein one considers whether the activity seems "intimate" or "personal." But, as Professor Cass Sunstein has pointed out, "[t]erms such as 'intimate' and 'personal' provide little help. They tend to be conclusions masquerading as analytic devices."(fn29) Thankfully, the Alaska courts rarely seem to have concerned themselves with whether a particular activity seems "personal" or "intimate." Instead, in attempting to differentiate private conduct from non-private conduct, the courts have focused on the likely effects of foreclosing government regulation of the activity.
It is the necessity of balancing-both in defining what is "private" and in judging the legitimacy of government intrusion on this private sphere-that makes the cognizability of harm so...
