The constraint of dignity: Lawrence v. Texas and public morality.

Author:Mukoski, Kristian R.


The modern American political arena has sometimes resembled a battlefield in which rival factions perennially war over so-called "social issues." These conflicts typically arise over activities viewed as innately immoral by a portion of the population, encompassing issues like abortion, homosexual acts, prostitution, polygamy, gambling, pornography, drug use, euthanasia, and even animal cruelty. (1) Often, the very legitimacy of prohibiting those activities is in question. One side of the conflict asserts that morality cannot and should not be legislated, while the other side contends that the enforcement of morality is a democratic prerogative. Such disputes are framed in terms of enforcing "public morality" or of championing "legal moralism." Public morality is defined as "an ethic of decency or civility (not simply rights and liberties) which is public in the sense that it is generally acknowledged as a requisite to the well-being of the community as such--and is therefore recognized in public policy, and (periodically at least) supported by the law." (2) Legal moralism is the belief that it is "morally legitimate to prohibit conduct on the ground that it is inherently immoral, even though it causes neither harm nor offense to the actor or to others." (3) As such, legal moralism is the jurisprudential mechanism through which public morality is enforced.

The Supreme Court seemingly resolved this dispute in Lawrence v. Texas, (4) a case adjudicating the constitutionality of a Texas statute criminalizing consensual homosexual sodomy. (5) Many commentators interpreted the opinion as adopting a libertarian approach to morals legislation, essentially extending the constitutional rights of privacy and liberty to encompass all "victimless" crimes. (6) In his dissent, Justice Scalia echoed this belief, asserting that precluding states from legislating on the basis of morality would potentially invalidate "laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." (7)

For the most part, Justice Scalia's vision of hedonistic bliss did not become a reality, (8) However, as the tenth anniversary of Lawrence passes, it is important to examine the case's impact on the enforcement of morality in order to discern its true meaning. This Note will proceed in four parts. Part I will catalogue the jurisprudential and philosophical conflict over the legitimacy of morals legislation. Part II will examine the Supreme Court's jurisprudence regarding reproductive and sexual liberty, noting the trend towards conflating liberty with autonomy that culminated in Lawrence v. Texas. Part III will closely scrutinize the characterization of liberty in Lawrence, demonstrating that it is restricted by associational and spatial limitations. Part IV will connect those limitations to the description of dignity Justice Kennedy employed in Lawrence and in other cases. This conception of dignity embodies substantive values concerning the appropriate context of sexual liberty. Indeed, though not a doctrinally perfect match, Justice Kennedy's depiction of dignity resembles the Catholic conception of sexual dignity: one that recognizes the worth of sexual relations in advancing love and intimacy, but one that does not embrace total autonomy. Consequently, the liberty interest Justice Kennedy identifies should not be interpreted as a rejection of public morality, because his conception of liberty is premised on a substantive dignity that refuses to divorce itself from morality.


    Although such early thinkers as Aristotle and Saint Thomas Aquinas advocated the idea that the law could be used to create a social environment conducive to human virtue, (9) scholarly consensus suggests that the modern debate over legal moralism began in the mid-nineteenth century. This debate was sparked by the publication of On Liberty, a defense of liberalism written by the utilitarian philosopher John Stuart Mill. Mill's argument against legal moralism was shaped by a guiding ethic known as the "harm principle":

    [T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. (10) The harm principle precluded state interference with individual action unless the interests of others were impacted by that action, (11) In the absence of harm, this perspective elevated human autonomy over attenuated social interests or paternalistic interests. (12) As a result, implementation of the harm principle would necessarily prevent the criminalization of activities deemed harmful solely because they violated prevailing moral norms.

    In the era of strict Victorian morality, Mill's argument was controversial, to say the least. Consequently, the English jurist Sir James Fitzjames Stephen challenged the harm principle in Liberty, Equality, Fraternity. Stephen exclaimed that Mill's theory "would condemn every existing theory of morals." (13) For Stephen, it was a society's prerogative to criminalize immoral behavior simply because it was immoral. (14) He indicated that various assumptions regarding morality undergirded everything from contract to inheritance law. (15) Additionally, Stephen noted that even the criminalization of activities that caused harm to others, such as the unwarranted use of force or fraud, did not merely serve the sole purpose of protecting the public. Instead, such behavior was prohibited "also for the sake of gratifying the feeling of hatred--call it revenge, resentment, or what you will which the contemplation of such conduct excites in healthily constituted minds." (16) The goal of prohibiting harm to others served the purpose of reflecting a moral consensus that such behavior was intrinsically repugnant. This perspective was largely shaped by Stephen's penchant for retributive justice. He asserted that the criminal law did not merely exist for deterrence, but also to "giv[e] distinct shape to the feeling of anger, and a distinct satisfaction to the desire of vengeance." (17) It was through this expressive condemnation and punishment that society deterred behavior it deemed wrongful, preventing individuals from further indulging in degrading activities, as well as educating the public as to prevailing social norms, thus reinforcing those norms. (18)

    Stephen ultimately questioned Mill's perception of society as a collection of individuals exhibiting total separation from one another. (19) Likening vice to an infectious disease or to pollution, he recognized society's interest in maintaining high moral standards that were conducive to virtue. (20) It was through the criminal law that society could most emphatically condemn or curb the spread of vice. At the same time, Stephen believed that this need to defend morality had to yield to privacy in some instances. (21) In particular, he cited "the internal affairs of a family" or "the relations of love or friendship" as intimate associations for which state interference would potentially do more harm than good. (22) However, this limitation merely restrained the scope of legal moralism--it did not negate its central premise.

    The debate over legal moralism reemerged nearly a century later, when the Committee on Homosexual Offences and Prostitution released a report in 1954, evaluating the state of laws criminalizing homosexual conduct and prostitution in the United Kingdom. The report, which became generally known as the Wolfenden Report, also suggested potential reforms to the criminal code. Most notably, the Committee determined that the criminal law should play no role in the enforcement of morality:

    [I]ts function, as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence. It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined. (23) In proposing that consensual homosexual activity in private be decriminalized, the Committee asserted that "[u]nless a deliberate attempt is to be made by society ... to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business." (24) Similarly, with regard to prostitution, the Committee proposed that criminal sanctions be reserved for public street solicitation in order to drive it from public view, rather than focusing resources on prosecuting private acts of prostitution. (25)

    The Wolfenden Report sparked an intellectual battle that would rage throughout the remainder of the twentieth century. Baron Patrick Devlin fired the first shots in this battle with his 1959 Maccabaean Lecture in Jurisprudence to the British Academy, the arguments of which were later refined in The Enforcement of Morals. Devlin premised his thesis on the belief that "it is clear that the criminal law ... is based upon moral principle." (26) He cited the fact that murder and assault were illegal, regardless of the victim's consent, to support his proposition that the criminal law reflected certain values beyond merely protecting individuals from unwanted coercion. (27) For Devlin, morality could not be solely private because society was comprised of a "community of ideas, not only political ideas...

To continue reading