paper

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Morality as a Legitimate Government Interest

Daniel F. Piar1

ABSTRACT

In recent years, the Supreme Court has taken inconsistent

approaches to the question of whether morality can be a legitimate

government interest sufficient to survive constitutional review. This

article identifies three such approaches: (1) cases where morality is not

considered as a legitimate government interest; (2) cases where morality

is a legitimate government interest; and (3) cases where the Supreme

Court has substituted its own moral judgment for those of the state actor

under review. None of these approaches is wholly satisfactory. This

article will argue that, in most cases, deferential review of morality-based

state action fosters moral diversity, which is a social good to be sought

through the law. In cases of certain minorities, however, a more

searching review is justified, and the expression of public morality

should be subordinated to the protection of minority rights.

I. INTRODUCTION

For at least the first century of American life, the validity of morals

legislation was taken for granted. Courts routinely upheld morals

legislation against constitutional challenges. Blasphemy could be

punished; prayer required of schoolchildren; sexuality regulated; and

other vices prohibited. 2 Much of this legislation was based on “public

morality,” that is, widely shared moral sentiment given the force of law.

But the deference given to these expressions of public morality was not

to last. Beginning around the early twentieth century, the courts,

1. Professor of Law and Associate Dean for Academics, Charlotte School of Law. A.B., Harvard College, J.D., Yale Law School. 2. See generally Daniel F. Piar, Majority Rights, Minority Freedoms: Protestant Culture, Personal Autonomy and Civil Liberties in Nineteenth-Century America, 14 WM. & MARY BILL RTS. J. 987 (2006); Louis Henkin, Morals and the Constitution: The Sin of Obscenity, 63 COLUM. L. REV. 391, 403-04 (1963); Christopher Wolfe, Public Morality and the Modern Supreme Court, 45 AM. J. JURIS. 65, 69-70 (2000); Kimberly A. Hendrickson, The Survival of Moral Federalism, 96 THE PUB. INT. 101 (2002).

140 PENN STATE LAW REVIEW [Vol. 117:1

particularly the Supreme Court, began to treat morals legislation

differently. In a variety of contexts, courts questioned public morality as

a basis for law: state-required displays of patriotism were forbidden; 3

laws regulating abortion and sexuality were invalidated; 4 and moral

disapprobation was said to be an insufficient basis for legislation. 5 At the

same time, vestiges of previous attitudes have remained. Although the

Court has struck down morally based laws, it has also limited the scope

of its decisions to preserve traditional mores against practices such as

polygamy, incest, and same-sex marriage. 6 In some cases, the Court has

declared that the expression of public morality remains a legitimate state

interest justifying certain laws. 7 In other cases, the Court has gone so far

as to substitute one moral view for another, striking down morals

legislation in the name of what arguably is an opposing moral view. 8

The picture that emerges from these decisions is a murky one from

the perspective of public morality. The question remains as to the extent

that public morality is a legitimate basis for law. Faced with this

question in the twentieth and twenty-first centuries, the Court seems to

have taken one of three approaches: (1) declared morality to be an

insufficient basis for law; (2) declared morality to be a permissible basis

for law; or (3) substituted one moral viewpoint for another. The result

has been jurisprudential inconsistency; a deep and lingering uncertainty

as to whether state action based on morality is permissible.

This article will argue that the Court’s inconsistency with regard to

morals legislation ill serves the goals of a pluralistic, federalist society.

To the extent that the law prohibits morals legislation, it forecloses state

experimentation and stifles expressions of community values. This

prohibition has the effect of reducing moral diversity, which is a social

good that should be encouraged. The moral diversity that a robust

federalism would make possible has important implications in the

development of an individual and collective moral sense. Thus, this

article proposes that courts should treat the expression of morality as a

legitimate state interest for purposes of rational basis review. The net

effect of such treatment would be to allow greater moral pluralism in the

law; greater fidelity to federalism and democracy; a healthy public

discourse; and, ultimately, the development of morality itself.

3. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). 4. See Lawrence v. Texas, 539 U.S. 558 (2003); Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965). 5. See Lawrence, 539 U.S. at 577-78. 6. See id. at 578. 7. See Gonzales v. Carhart, 550 U.S. 124, 156-60 (2007). 8. See Romer v. Evans, 517 U.S. 620, 636 (1997) (Scalia, J., dissenting).

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 141

II. MORALITY DEFINED

As a threshold matter, it will be useful to define morality because

this concept will be discussed throughout the article. The New Oxford

American Dictionary defines “moral” as “concerned with the principles

of right and wrong behavior.” 9 Richard Posner, writing in a legal

context, defines morality as “the set of duties to others . . . that are

designed to check our merely self-interested, emotional or sentimental

reactions to serious questions of human conduct.” 10

Michael Perry refers

to morality as “a system of normative commitments” 11

and to moral

judgment as “a judgment about how some matter ought to be dealt with,

about how it is good or right or just to deal with some matter.” 12

Drawing from these definitions, and keeping in mind that “morality” is

difficult to define with precision, one might say, then, that morality is a

set of normative principles about: (1) how humans should properly

conduct themselves; and (2) how humans should treat one another,

whether acting singly or in the aggregate.

The second part of this definition is especially important to this

article. One might think of morals as a matter of personal conduct, but it

is also appropriate to think of morals as dictating how the State should

behave toward individuals. As this article will examine, in cases where

the Court has imposed its own moral views on the law, it has effectively

taken a normative position as to how the State should treat the individual

or groups of individuals. State action is frequently constrained by moral

principles. Thus, when this article refers to “morality,” it may refer to

the normative dimension of individual behavior or to the normative

dimension of government behavior, depending on the context.

This article does not take a position on the substance or application

of any specific moral principles. Such a discussion is a matter for

democratic exploration. Nor does this article either advocate or decry the

use of law to enforce moral principles. 13

The enforcement of moral

principles is also a question for the democratic process to unravel.

Instead, this article asserts that the judiciary should permit morality

9. THE NEW OXFORD AMERICAN DICTIONARY (Erin McKean ed., 2d ed. 2005). 10. Richard Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637, 1639 (1998). 11. MICHAEL PERRY, MORALITY, POLITICS AND LAW 102 (1990). 12. Id. at 95. 13. The most famous debate to date on the enforcement of moral principles is that between H.L.A. Hart and Patrick Devlin. Compare PATRICK DEVLIN, THE ENFORCEMENT OF MORALS (1959) (arguing that law should be used to enforce morals), with H.L.A. HART, LAW LIBERTY AND MORALITY (1963) (arguing that law should not be used to enforce morals). For a more recent salvo in this debate, see ROBERT P. GEORGE, MAKING MEN MORAL: CIVIL LIBERTIES AND PUBLIC MORALITY (1995) (arguing that law should be used to enforce morals).

142 PENN STATE LAW REVIEW [Vol. 117:1

based state action, regardless of whether the particular substantive results

are ultimately advisable.

This article will now proceed in three main parts. Part III offers a

brief discussion of Lawrence v. Texas, 14

a case that purported to

eliminate morals legislation. This article will argue that such a reading

of Lawrence is not a reasonable interpretation of the case and, indeed,

that the Court probably did not mean what it said about the role of

morality in legislation. This article highlights Lawrence to demonstrate

that the end of morals legislation is not truly upon us. Part IV will

describe the Supreme Court’s three approaches toward morality as a

basis for legislation: (1) cases prohibiting it; (2) cases permitting it; and

(3) cases wherein the Court imposed its own view of morality in place of

local lawmakers’ views. Part V will offer an argument for recognizing

morality as a legitimate state interest in lawmaking, while highlighting

the dangers to moral diversity posed by the constitutionalization of moral

questions. It will also discuss both the benefits of moral diversity and

some boundaries of this potential state interest. Part VI will offer some

concluding thoughts; in particular, that the expression of morality is a

legitimate state interest and that treating it as such will ultimately

advance the moral development of citizens and society.

III. LAWRENCE V. TEXAS: NOT THE DEATH OF MORALS LEGISLATION

In Lawrence v. Texas, 15

the Supreme Court sounded what some

have described as the death knell of morals legislation. Lawrence

involved a challenge to a Texas sodomy statute that criminalized certain

sexual acts between same-sex partners. The Texas appellate court had

upheld the Texas statute based on Bowers v. Hardwick, 16

a 1986 case in

which the Supreme Court upheld a similar Georgia statute based in large

part on what it saw as the historic moral objections to sodomy. The

Supreme Court, however, reversed the appellate court’s ruling in

Lawrence. In addition, Justice Kennedy, writing for the majority in

Lawrence, overruled Bowers. He relied in part on language from Justice

Stevens’s dissent in Bowers to admonish that morality was an

insufficient basis for this legislation: “[As Justice Stevens wrote], ‘[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. . . .’ Justice Stevens’ analysis, in our view,

14. Lawrence v. Texas, 539 U.S. 558 (2003). 15. Id. 16. Bowers v. Hardwick, 478 U.S. 186 (1986).

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 143

should have been controlling in Bowers and should control here.” 17

In

response, the dissent argued that the Court seemed to decree an end to all

morals legislation:

The Texas statute undeniably seeks to further the belief of its citizens

that certain forms of sexual behavior are “immoral and

unacceptable”—the same interest furthered by criminal laws against

fornication, bigamy, adultery, adult incest, bestiality, and

obscenity. . . . [The Court] effectively decrees the end of all morals

legislation. If, as the Court asserts, the promotion of majoritarian

sexual morality is not even a legitimate state interest, none of the

above-mentioned laws can survive rational-basis review. 18

Some scholars analyzing the opinion have come to the same

conclusion. 19

But there are reasons to think that the majority’s

declaration was an overstatement and is not to be taken literally.

First, the Court itself sought to limit the scope of the Lawrence

holding. Seeming to backpedal after the passage quoted above, the

majority asserted that its opinion did not eliminate laws protecting

minors, guarding vulnerable persons, regulating “public conduct” or

prohibiting prostitution, nor did it sanction same-sex marriage:

The present case does not involve minors. It does not involve

persons who might be injured or coerced or who are situated in

relationships where consent might not easily be refused. It does not

involve public conduct or prostitution. It does not involve whether

the government must give formal recognition to any relationship that

homosexual persons seek to enter. The case does involve two adults

who, with full and mutual consent from each other, engaged in sexual

practices common to a homosexual lifestyle. The petitioners are

entitled to respect for their private lives. 20

Thus, Justice Kennedy left open for regulation a territory that would

seem to be off-limits under a sweeping injunction against morals

legislation, which suggests that a total ban was not what the Court truly

had in mind.

17. Lawrence, 539 U.S. at 577-78 (Stevens, J., dissenting) (quoting Bowers, 478 U.S. at 216); see also Lawrence, 539 U.S. at 583 (O’Connor, J., concurring) (“Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause. . . .”). 18. Lawrence, 539 U.S. at 599 (Scalia, J., dissenting) (citation omitted). 19. See Mark Cenite, Federalizing or Eliminating Online Obscenity Law as an Alternative to Contemporary Community Standards, 9 COMM. LAW & POL’Y 25, 69 (2004); see also Calvin R. Massey, The New Formalism: Requiem for Tiered Scrutiny? 6 U. PA. J. CONST. L. 945, 957-70 (2004). 20. Lawrence, 539 U.S. at 578.

144 PENN STATE LAW REVIEW [Vol. 117:1

Second, as will be discussed, 21

Justice Kennedy wrote an opinion in

Gonzales v. Carhart, 22

four years after Lawrence, in which he indicated

that Congress could ban partial-birth abortion based on the view that the

procedure was morally repugnant. 23

Justice Kennedy’s opinion on

Gonzales may seem surprising in light of his majority opinion in

Lawrence, but it is another indication that even the Justice who wrote the

opinion did not mean for his words on morals legislation to be taken

literally.

Finally, the Court’s declaration in Lawrence can be viewed as an

overstatement because it is practically impossible to divorce morality

from the law in any case. A long litany of regulation, in both criminal

and civil law, is morally grounded. In the criminal arena, proscriptions

against murder, rape, robbery, incest, bestiality and drug use, to name a

few, express society’s moral sense that certain acts are intolerable. In

civil law, rules against fraud, breach, and negligence reflect society’s

distaste for certain behaviors. Thus, when society believes that certain

behaviors should be prohibited, it uses law to bring about what it views

as morally correct or desirable actions or omissions. 24

For all these reasons, it seems like an oversimplification to say that

Lawrence requires an end to all morals legislation. Yet, it does raise the

question at the center of this article: is morality ever a legitimate state

interest sufficient to justify government action?

IV. JUDICIAL REVIEW OF MORALS LEGISLATION: WHAT COURTS DO

In examining the question of whether morality is a legitimate state

interest, it will be useful to survey how courts have treated this issue in

practice. The clear trend has been to constitutionalize the subject. That

is, courts generally analyze the legitimacy of morality-based state action

in terms of its constitutional permissibility, whether as a matter of equal

protection or substantive due process. The Supreme Court typically has

taken one of three approaches: (1) morality is rejected as a basis for state

action; (2) morality is accepted as a basis for state action; or (3) the court

substitutes its own moral views for those of the relevant state actor.

A. Cases Rejecting Morality as a Basis

A few cases have rejected morality as a basis for state action.

Illustrative of this approach is United States Department of Agriculture v.

21. See infra Part IV.B. 22. Gonzales v. Carhart, 550 U.S. 124 (2007). 23. See id. at 157-60; see also infra Part IV.B. 24. See, e.g., Posner, supra note 10, at 1694.

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 145

Moreno, 25

a 1973 case that did not rest entirely on moral grounds but

nonetheless set the stage for more explicit rejections of morality as a

basis for state action in later years. Moreno involved the Congressional

denial of federal food stamp eligibility to groups of persons living

together with at least one unrelated person. 26

The Government had

initially raised a moral justification for the law, which the district court

rejected, and which the Government subsequently abandoned on

appeal. 27

Nevertheless, the legislative history indicated that Congress

designed the law to exclude “hippies” and “hippie communes” from the

food stamp program. 28

Whether the congressional intent behind the law

at issue in Moreno may be called a moral position or something else, the

Supreme Court would have none of it. “[I]f the constitutional conception

of ‘equal protection of the laws’ means anything, it must at the very least

mean that a bare congressional desire to harm a politically unpopular

group cannot constitute a legitimate governmental interest.” 29

Regardless of the underlying reasons for Congress’s anti-hippie stance,

the principle articulated in Moreno that seemingly moral positions cannot

constitute a legitimate governmental interest would reemerge in a more

obviously moral context in later cases.

Indeed, the principle articulated in Moreno was addressed over 15

years later in Romer v. Evans. 30

In Romer, the Supreme Court addressed

the validity of Colorado’s Amendment Two, which forbade laws

protecting homosexuals against discrimination. Citing Moreno, the

Court struck down the law and held that “[l]aws of the kind now before

us raise the inevitable inference that the disadvantage imposed is born of

animosity toward the class of persons affected. . . . A State cannot so

deem a class of persons a stranger to its laws.” 31

Justice Scalia, in

dissent, thought that the Court had rejected what was apparently an

expression of the State’s moral position. “The Court has mistaken a

Kulturkampf for a fit of spite. . . . [Amendment 2 is] a modest

attempt . . . to preserve traditional sexual mores against the efforts of a

politically powerful minority to revise those mores through use of the

laws.” 32

Thus, Moreno’s prohibition of class-based animus was extended

to strike down an example of morals legislation, thereby implying that

25. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973). 26. Id. at 529. 27. Id. at 535 n.7. 28. Id. at 534. 29. Id. 30. Romer v. Evans, 517 U.S. 620 (1996). 31. Id. at 634. 32. Id. at 636.

146 PENN STATE LAW REVIEW [Vol. 117:1

morality, or at least certain types of morality, was not a permissible basis

for state action.

As previously mentioned, Lawrence v. Texas 33

is arguably the

leading case for the proposition that public morality is an insufficient

basis for lawmaking. This is especially so in light of the fact that

Lawrence overruled Bowers v. Hardwick, 34

a 1986 case with nearly

identical facts. In Bowers, the Supreme Court upheld Georgia’s sodomy

law and, in doing so, recognized morality as a legitimate state interest.

As Justice White described for the Bowers Court:

[Respondent argues that public morality is] an inadequate rationale to

support the [sodomy] law. The law, however, 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. Even respondent makes no such claim, but

insists that majority sentiments about the morality of homosexuality

should be declared inadequate. We do not agree. . . . 35

Lawrence repudiated this thinking, instead quoting and adopting Justice

Stevens’ Bowers dissent. In his Bowers dissent, Justice Stevens

declared, “[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. . . .” 36

As previously noted, Lawrence’s prohibition on the use of morality

as a legitimate government interest should not be taken too literally. 37

Nonetheless, other courts and commentators have cited the case

approvingly as a signal of the end of morals legislation. For example, in

United States v. Extreme Associates, Inc., 38

the Western District of

Pennsylvania struck down federal obscenity statutes. In Extreme

Associates, Inc., the court declared that the stated purpose of the statutes

was to “protect[] unwitting adults from exposure to obscene materials”

and was “grounded in the advancement of the public morality, which is

no longer a legitimate, let alone a compelling, state interest” after

Lawrence. 39

Similarly, in Martin v. Ziherl, 40

the Virginia Supreme Court

33. Lawrence v. Texas, 539 U.S. 558 (2003). 34. Bowers v. Hardwick, 478 U.S. 186 (1986). 35. Id. at 196. 36. Lawrence, 539 U.S. at 577-78. 37. See supra Part III. 38. United States v. Extreme Assocs., Inc., 352 F. Supp. 2d 578 (W.D. Pa. 2005). 39. Id. at 594. Note, however, that the U.S. Court of Appeals for the Third Circuit reversed the district court’s ruling, holding that the commerce power allows Congress to prevent the use of commerce as “an agency to promote immorality.” U.S. v. Extreme Assocs., Inc., 431 F.3d 150, 161 (3d. Cir. 2005) (quoting U.S. v. Orito, 413 U.S. 139, 144 n.6 (1973)). The Third Circuit essentially ignored the implications of Lawrence in favor of more specific precedent on the issue of obscenity. See id.

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 147

drew on the holding of Lawrence to declare the Virginia fornication

statute unconstitutional. The court noted that, after Lawrence, moral

disapproval of a practice is an insufficient basis for state action. 41

Some

academic commentary has been in the same vein. 42

Collectively, these cases and their progeny stand for the proposition

that the expression of morality is not a legitimate government interest.

However, other lines of cases have seemingly repudiated this stance, as

this article shall discuss next.

B. Cases Accepting Morality as a Basis

While Lawrence, Moreno, and Romer seem to reject the idea of

morality as a legitimate government interest, a number of cases signal the

opposite view. These include cases in the context of obscenity,

pornography, sexual conduct, and abortion.

Obscenity is a prime example of how the Supreme Court has

recently allowed morality to influence the law. Regulations and statutes

regarding obscenity have traditionally had a moralistic tone, 43

one that

the Supreme Court has seemingly endorsed throughout its free speech

jurisprudence. The Court directly addressed whether obscenity was

entitled to constitutional protection in the jointly decided Roth v. United

States and Alberts v. California. 44

In Roth, the Court upheld the validity

of a federal statute criminalizing the mailing of “[e]very obscene, lewd,

lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print,

or other publication of an indecent character.” 45

In Alberts, the Court

also upheld a California statute prohibiting obscenity, which was defined

as material having “a substantive tendency to deprave or corrupt its

readers by exciting lascivious thoughts or arousing lustful desire.” 46

The

moral implications of such words as “filthy,” “deprave,” and “corrupt”

seem clear; it therefore appears that the Court at least implicitly upheld

the moral position of these statutes.

In a later obscenity case, Paris Adult Theatre I v. Slaton, 47

the

Supreme Court openly endorsed the moral component of obscenity law:

40. Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005). 41. See id. at 371. 42. See sources cited supra note 19. 43. See generally Andrew Koppelman, Does Obscenity Cause Moral Harm?, 105 COLUM. L. REV. 1635 (2005); David A. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. PA. L. REV. 45 (1974-75); Henkin, supra note 2, at 391. 44. Roth v. United States, 354 U.S. 476 (1957). 45. Id. at 479 n.1. 46. Id. at 499 n.1 (Harlan, J., concurring in part and dissenting in part) (quoting People v. Wepplo, 178 P.2d 853 (Cal. App. Dep’t Super. Ct. 1947)). 47. Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).

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“In an unbroken series of cases extending over a long stretch of this

Court’s history it has been accepted as a postulate that ‘the primary

requirements of decency may be enforced against obscene

publications.’” 48

The Court’s opinion also noted with regard to

obscenity:

[There] are legitimate state interests at stake in stemming the tide of

commercialized obscenity. . . . These include the interest of the

public in the quality of life and the total community environment, the

tone of commerce in the great city centers, and, possibly, the public

safety itself. . . . As Chief Justice Warren stated, there is a “right of

the Nation and of the States to maintain a decent society.” 49

Thus, in Paris, The Court upheld regulation in the name of “decency.”

The Paris case marks a continuance in the Court’s endorsement of

morality as a basis for legislation, at least in the context of sexual mores.

In the years after Roth and Alberts, the definition of “obscenity”

remained notoriously elusive with legislators and courts following

Supreme Court Justice Potter Stewart’s notorious “I know it when I see

it” test for obscenity. 50

As a result of this difficulty, in Miller v.

California, 51

the Supreme Court adopted what remains the current test

for obscenity—one that recognizes a role, albeit a bounded one, for local

expressions of morality. The three-part Miller test for obscenity is as

follows:

(a) whether “the average person, applying contemporary community

standards” would find that the work, taken as a whole, appeals to the

prurient interest . . . (b) whether the work depicts or describes, in a

patently offensive way, sexual conduct specifically defined by the

applicable state law; and (c) whether the work, taken as a whole,

lacks serious literary, artistic, political, or scientific value. 52

The first and second prongs of the Miller test permit the possibility of

local moral variation. Community standards are relevant under the first

prong, whereas state definitions of prohibited sexual conduct are relevant

under the second prong. Furthermore, the second prong also envisions

the role that a local jury will play in determining whether the depictions

at issue are “patently offensive.” Thus, there is a role for local moral

attitudes in the regulation of obscenity; however, the author does not

intend to overstate the case. The third prong, the Court has held, is an

48. Id. at 57 (quoting Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931)). 49. Id. at 57-60 (quoting Jacobellis v. Ohio, 378 U.S. 184, 199 (1964) (Warren, J., dissenting)). 50. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964). 51. Miller v. California, 413 U.S. 15 (1973). 52. Id. at 24.

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 149

objective one; 53

moreover, verdicts under the Miller test are subject to

judicial review to ensure that overly sensitive juries do not employ some

unspecified standard of hypersensitivity in declaring material obscene. 54

But in its structure and operation, the Miller test does indicate that what

is morally repugnant in one community may not be in another, and the

test permits obscenity standards to be adjusted, albeit within limits, to

local moral reactions.

The so-called “secondary effects” cases also display a permissive

attitude toward regulation based on local morality. The “secondary

effects” cases involve the Supreme Court upholding laws regulating

adult entertainment—typically theaters and bookstores purveying

pornographic material. Such laws sometimes restrict adult entertainment

venues to certain areas of town, or zone them away from residential

areas, bars, and hotels. The standard theory behind such ordinances is

that an adult entertainment establishment “tends to attract an undesirable

quantity and quality of transients, adversely affects property values,

causes an increase in crime, especially prostitution, and encourages

residents and businesses to move elsewhere.” 55

Accordingly, the

Supreme Court has upheld municipal statutes and regulations seeking to

prevent such “secondary effects,” so long as these statutes or regulations

are content-neutral, meaning they do not directly regulate the content of

the underlying speech. 56

Although the secondary-effects doctrine is

supposedly content-neutral, at least one Supreme Court Justice has

recognized such an application of the “content-neutral” label is

“something of a fiction.” 57

At bottom, such laws surely proceed from

moral objections to the business of pandering sex. The judicial

allowance of morality-influenced zoning decisions, albeit under the guise

of content-neutrality, represents a tacit endorsement of the enactment of

local moral standards into law.

The presence of morality in the context of “secondary effects” laws

was highlighted in Barnes v. Glen Theater, 58

in which a plurality of three

Supreme Court Justices applied intermediate scrutiny to uphold a state

ban on public nudity as applied to nude dancing. Central to the

plurality’s reasoning was its view that the law legitimately expressed a

moral position: “[T]he public indecency statute furthers a substantial

53. See Smith v. U.S., 431 U.S. 291 (1977); Pope v. Illinois, 481 U.S. 497 (1987). 54. See Jenkins v. Georgia, 418 U.S. 153 (1974). 55. Young v. Am. Mini Theatres, 427 U.S. 50, 55 (1976); see also City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). 56. Young, 427 U.S. at 62-63. 57. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448 (2002) (Kennedy, J., concurring). 58. Barnes v. Glen Theater, 501 U.S. 560 (1991).

150 PENN STATE LAW REVIEW [Vol. 117:1

government interest in protecting order and morality.” 59

Justice Scalia,

concurring, took a slightly more radical position, applying the lower

standard of rational basis review—analyzing whether the law was

rationally related to a legitimate government interest—and opining that

“[m]oral opposition to nudity supplies a rational basis for its

prohibition.” 60

Notably, the four dissenters did not entirely dismiss the

possibility of morals legislation. Instead, they would have applied strict

scrutiny—analyzing whether the law serves a compelling government

interest—and overturned the statute because it targeted expressive

activity in particular, rather than nudity more generally. 61

Thus, in the

dissenters’ view, “the plurality and Justice Scalia’s simple references to

the State’s general interest in promoting societal order and morality are

not sufficient justification for a statute which concededly reaches a

significant amount of protected expressive activity.” 62

Although Barnes

did not generate a majority opinion, it is instructive for its recognition,

among all the Justices, that laws of this type do have a moral basis.

In Washington v. Glucksberg, 63

the Supreme Court was more

explicit in its endorsement of morality as a basis for state action. In

Glucksberg, the Court upheld Washington’s ban on the rendering of

assistance in committing suicide. The ruling was, in part, based on what

the Court perceived as society’s moral disapproval of the act:

In almost every State—indeed, in almost every western democracy—

it is a crime to assist a suicide. The States’ assisted-suicide bans [are]

longstanding expressions of the States’ commitment to the protection

and preservation of all human life. Indeed, opposition to and

condemnation of suicide—and, therefore, of assisting suicide—are

consistent and enduring themes of our philosophical, legal and

cultural heritages. 64

Later in the opinion, the Court referred to the State’s “unqualified

interest in the preservation of human life.” 65

Thus, the Court did not use

the term “moral,” but it clearly considered the State’s moral concerns

59. Id. at 569 (opinion of Rehnquist, J.). The wording of the statute at issue was not particularly moralistic: “A person who knowingly or intentionally, in a public place: . . . (3) appears in a state of nudity . . . commits public indecency, a Class A misdemeanor.” The term “nudity” was clinically defined as “the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state.” Id. at 569 n.2. 60. Id. at 580. 61. See id. at 587-96. 62. Id. at 590. 63. Washington v. Glucksberg, 521 U.S. 702 (1997). 64. Id. at 710-11. 65. Id. at 728 (quoting Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 282 (1989)).

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 151

when evaluating the ban’s validity. The Court’s references to the

preservation of life, and its invocation of culture and philosophy, merely

skirted what seems apparent: the Court was permitting a moral stance

against suicide to stand as state law.

Finally, the Supreme Court’s most recent abortion case also

demonstrates an approval of morals legislation. In Gonzales v.

Carhart, 66

the Court upheld a Congressional ban on so-called “partial

birth” abortions. In an opinion laced with moral language, Justice

Kennedy expressed the majority’s approval of Congress’s disapproval of

the abortion techniques at issue. After a detailed and gruesome account

of the relevant medical procedures—which itself seemed designed to

reinforce the Court’s negative moral attitude towards such procedures—

the Court addressed Congress’s intent in prohibiting the procedures:

A description of the prohibited abortion procedure demonstrates the

rationale for the congressional enactment. The Act proscribes a

method of abortion in which a fetus is killed just inches before

completion of the birth process. Congress stated as follows:

“Implicitly approving such a brutal and inhumane procedure by

choosing not to prohibit it will further coarsen society to the

humanity of not only newborns, but all vulnerable and innocent

human life, making it increasingly difficult to protect such life.” The

Act expresses respect for the dignity of human life. 67

The Court then wrote, “[T]he government may use its voice and its

regulatory authority to show its profound respect for the life within the

woman.” 68

Aside from preventing the “coarsening” of attitudes toward

humanity and “respecting” the “dignity” of human life—two moral

positions if there ever were any—the law permissibly invoked a third

moral concern:

Congress could nonetheless conclude that the type of abortion

proscribed by the Act requires specific regulation because it

implicates additional ethical and moral concerns that justify a special

prohibition. Congress determined that the abortion methods it

proscribed had a “disturbing similarity to the killing of a newborn

infant,” and thus it was concerned with “draw[ing] a bright line that

clearly distinguishes abortion and infanticide.” 69

The prevention of infanticide, or at least procedures resembling

infanticide, was another overtly moral position that the law permissibly

furthered.

66. Gonzales v. Carhart, 550 U.S. 124 (2007). 67. Id. at 156. 68. Id. at 157. 69. Id. at 158.

152 PENN STATE LAW REVIEW [Vol. 117:1

Finally, the Court held that the law served the moral purpose of

protecting a woman from trauma that could ensue if she were to learn

how her fetuses had been aborted:

The State has an interest in ensuring so grave a choice [as abortion] is

well informed. It is self-evident that a mother who comes to regret

her choice to abort must struggle with grief more anguished and

sorrow more profound when she learns, only after the event, what she

once did not know: that she allowed a doctor to pierce the skull and

vacuum the fast-developing brain of her unborn child, a child

assuming the human form. 70

Gonzales thus acknowledged the permissibility of codifying several

moral judgments: the inhumanity of partial-birth abortions, the dignity

of human life, the prevention of infanticide or its look-alikes, and the

need to protect aborting mothers from emotional distress. The fact that

the Court upheld morals legislation only four years after its polar

decision in Lawrence, and that the same Justice authored the two

opinions, indicates that morals legislation is not so passé as some

observers might think.

C. The Judicial Substitution of Morality

At times, the Supreme Court has concluded that morality is a

sufficient basis for legislation, and, at other times, it has said just the

opposite. A third option occasionally used by the Court is the

substitution of the Court’s own moral position for that of the state action

under review. This approach can be seen in a variety of individual rights

contexts, including privacy rights, First Amendment rights, and equal

protection rights. In these situations, the Court has taken its own stance

on what is right and wrong with respect to a particular state action. That

is, the Court has seemingly dictating how governments must behave

based on its own implicit or explicit notions of what is normatively right

or wrong for government to do.

This approach has not gone unnoticed. In a book-length treatment

of the issue, Stephen E. Gottlieb advances the idea that the Rehnquist

Court imposed an essentially right-wing morality on the nation. 71

Rejecting the principles of individual moral autonomy and the avoidance

of harm as grounds for review, the Justices, in Gottlieb’s view, have

“substituted more personal views of a just world” by deciding cases in

70. Id. at 159-60. 71. STEPHEN E. GOTTLIEB, MORALITY IMPOSED: THE REHNQUIST COURT AND LIBERTY IN AMERICA, 29, 34, 62 (2000).

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 153

accordance with “conservative morality.” 72

Similarly, Wojciech

Sadurski has identified the process of moral substitution at work on the

“liberal” side of the Court, particularly in the opinions of Justices

Thurgood Marshall and William Brennan in Furman v. Georgia. 73

Nevertheless, this article is focused less on the imposition of a particular

strain of morality and is instead concerned with the imposition of moral

standards generally, whether labeled as “liberal,” “conservative,” or

something else. It is the process of moral substitution itself that the

author hopes to emphasize, not the particular camp from which the

substitution originates.

Indeed, Gottlieb focuses on the imposition of “conservative

morality,” but the practice of moral imposition is evident in some of the

Supreme Court’s landmark “liberal” opinions. In privacy cases, one of

the early examples is Griswold v. Connecticut, 74

in which the Court

struck down a Connecticut statute prohibiting the use of contraceptives

as applied to married couples. The statute, which dated back to 1879, 75

was defended by the state as “a legitimate exercise of the state’s police

power to regulate public morals” by preventing extramarital sex. 76

The

Court rejected this argument in part by substituting its own moral stance

for that of the Connecticut legislature. Although much of the opinion

concerned the infamous “penumbras” and “emanations” of the Bill of

Rights, 77

the Court’s conclusion centered on the sanctity of marriage. In

a passage with distinct moral overtones, Justice Douglas wrote:

Marriage is a coming together for better or for worse, hopefully

enduring, and intimate to the degree of being sacred. It is an

association that promotes a way of life, not causes; a harmony in

living, not political faiths; a bilateral loyalty, not commercial or

social projects. Yet it is an association for as noble a purpose as any

involved in our prior decisions. 78

In overturning the statute, the Court thus implicitly found that its moral

view of the sanctity of marriage overrode Connecticut’s moral view that

fornication and adultery should be prevented.

72. Id. 73. Wojciech Sadurski, Conventional Morality and Judicial Standards, 73 VA. L. REV. 339 (1987) (“Justice Marshall’s appeal to popular sentiment must, therefore, be seen as a disguise for his own substantive morality.”). 74. Griswold v. Connecticut, 381 U.S. 479 (1965). 75. Id. at 527 (Stewart, J., dissenting); Brief for Appellee at 7-8, Griswold v. Connecticut, 381 U.S. 479 (1965), 1965 WL 92620. 76. Brief for Appellee at 13, 15, Griswold v. Connecticut, 381 U.S. 479 (1965), 1965 WL 92620. 77. Griswold, 381 U.S. at 484. 78. Id. at 486.

154 PENN STATE LAW REVIEW [Vol. 117:1

A similar dynamic influenced the Supreme Court eight years later in

Roe v. Wade. 79

In Roe, the Court made a moral choice among the

conflicting claims of the unborn, the State, and the woman regarding an

abortion law. The Court expressly rejected the State’s moral position

that life begins at conception and should be protected except to save the

life of the mother. “[W]e do not agree that, by adopting one theory of

life, Texas may override the rights of the pregnant woman that are at

stake.” 80

Opposed to Texas’s view was another moral position: that the

woman’s right to control her body precluded state intervention in the

abortion decision. 81

The Court generally sided with the woman’s

position, holding that the interests of the woman, at least for the first two

trimesters, outweighed the State’s interest in fetal life. The Court also

held that a fetus was without rights in the matter because it was not a

legal “person.” 82

Thus, the Court made a moral choice by throwing its

weight behind the moral position advanced by the plaintiffs. In other

words, the Court substituted its own moral views for those of the Texas

legislature.

This process of moral imposition continued in Planned Parenthood

v. Casey, 83

another Supreme Court abortion case. In Casey, the

Pennsylvania legislature had passed a set of five abortion restrictions,

some of which the Court upheld and others of which the Court struck

down. In its opinion, the Court began by reiterating the moral judgment

contained in Roe: “[The] essential holding [in Roe includes] a

recognition of the right of the woman to choose to have an abortion

before viability and to obtain it without undue interference from the

State.” 84

The Court went on to examine the concept of “liberty,” which it

addressed in moral terms: “At the heart of liberty is the right to define

one’s own concept of existence, of meaning, of the universe, and of the

mystery of human life. . . . The destiny of the woman must be shaped to

a large extent on her spiritual imperatives and her place in society.” 85

The statement appears to be a moral proposition, denying the State the

ability to influence a woman’s freedom to make choices about her mode

of living and her metaphysical obligations. This moral philosophizing

highlights the Court’s willingness to deploy its own moral reasoning in

support of its judgments. 86

79. Roe v. Wade, 410 U.S. 113 (1973). 80. Id. at 162. 81. Id. at 129, 153. 82. Id. at 162. 83. Planned Parenthood v. Casey, 505 U.S. 833 (1992). 84. Id. at 846. 85. Id. at 851-52. 86. It is significant in this context to note the erosion of the abortion right. Beginning with Roe, which placed the first trimester off-limits to state regulation, the

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 155

The Supreme Court has not limited its morality-based approach to

decisions to abortion cases. In West Virginia State Board of Education v.

Barnette, 87

the Court addressed whether a state school board could

compel a student to salute the flag. Although the law at issue was not

necessarily morals-based, the Court’s response set a moralizing tone for

adjudication that would resurface in later cases. In declining to uphold

the law, the Court relied on its own judgment that one’s spiritual and

mental sanctity were more important than the instillation of patriotism.

“[N]o official, high or petty, can prescribe what shall be orthodox in

politics, nationalism, religion or other matters of opinion, or force

citizens to confess by word or act their faith therein . . . [this law] invades

the sphere of intellect and spirit. . . .” 88

By setting up a spiritual barrier

to state action, the Court endorsed the essentially moral position that

certain realms of personal autonomy were off-limits to the State.

Fifty years later, in Lee v. Weisman, 89

the Supreme Court struck

down the practice of non-sectarian prayer offered at a middle-school

graduation ceremony. Central to the Court’s reasoning was its view that

the offering of the prayers put “subtle coercive pressure” on the students

either to stand in apparent assent or to sit in conspicuous disagreement. 90

Forcing schoolchildren to make this choice, the Court wrote, was an

“unacceptable constraint” in favor of state-enforced “orthodoxy.” 91

In

line with this reasoning, the Court recalled Barnette’s admonition against

compelled displays of obeisance. The Court seemed concerned about the

potential imposition of state-sponsored morality, though it failed to see

that it had also taken a moral position: that individual freedom of mind,

cast as freedom from embarrassment or difficult choices, is a good to be

valued more highly than the widely shared mores of a community. This

is also a moral “orthodoxy,” although the Court would probably not

admit it.

Court next decided Casey, which said that the state could regulate from conception so long as it did not impose an “undue burden” on the abortion decision. See Planned Parenthood v. Casey, 505 U.S. 833, 837 (1992). Then, in Gonzales, the Court for the first time upheld a ban on a particular abortion procedure, in the process lowering the standard of review from Roe’s (ostensibly) strict scrutiny to rational basis plus undue burden. See Gonzales v. Carhart, 550 U.S. 124, 158 (2007). Therefore, one might wonder whether abortion is truly a fundamental right any longer. If it is not, and given the moral freight borne by Casey and Gonzales, one might well see this as a retrenchment of the abortion right and a consequence of increasing moral unease on the Court, coupled with increasing adjudicatory opportunities with respect to abortion. 87. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). 88. Id. at 642. 89. Lee v. Weisman, 505 U.S. 577 (1991). 90. Id. at 592. 91. Id. at 594.

156 PENN STATE LAW REVIEW [Vol. 117:1

Finally, in Romer v. Evans, 92

the Court struck down a Colorado

constitutional amendment that would have denied special protections to

anyone based on sexual orientation. As Justice Scalia noted in his

dissent, the amendment was likely an expression of popular morality, an

attempt by Coloradoans to “preserve traditional sexual mores.” 93

However, the majority of the Court, again led by Justice Kennedy,

refused to accede to that moral choice. Citing Moreno, 94

the Court

concluded that the amendment was “born of animosity toward the class

of persons affected.” 95

The amendment would have deprived gays and

lesbians of “protections against . . . an almost limitless number of

transactions and endeavors that constitute ordinary civic life in a free

society.” 96

Such laws, the Court wrote, are “not within our constitutional

tradition.” 97

In striking down the amendment, the Court made its own

moral choice. Running throughout the opinion is the assumption that our

“free society” and “constitutional tradition” should be construed to

prevent the hurtful exclusion of people based on sexual orientation. This

assumption is an essentially moral position that inverts the one taken by

Colorado’s voters. 98

Thus, this article shows that the Supreme Court has taken varying

and conflicting positions on the role of morality as a legitimate state

interest. Next, this article will focus on the question of how courts

should approach the issue of morals legislation.

V. JUDICIAL REVIEW OF MORALS LEGISLATION: WHAT COURTS

SHOULD DO

Having examined the Supreme Court’s inconsistent treatment of

morality as a basis for state action, this part will consider an alternative

approach. Standing on their own, each of Court’s three approaches

seems to be unsatisfactory. The Court’s blanket acceptance of morality

as a basis for state action raises the risk of enabling oppressive results

92. Romer v. Evans, 517 U.S. 620 (1996). 93. Id. at 636. Indeed, the leading proponents of the Colorado amendment have been documented as supporting the law as an effort to preserve sexual mores. See Romer v. Evans, DUKE UNIV. SCH. OF LAW, http://www.law.duke.edu/voices/romer# (last visited Aug. 12, 2012). 94. U. S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). 95. Romer, 517 U.S. at 634. 96. Id. at 631. 97. Id. at 633. 98. In this sense, the Court’s ruminations on “free society” and “our constitutional tradition” in Romer serve as a cover for substantive moral choice. See, e.g., Sadurski, supra note 73, at 395 (“Those who tell us what ‘the teaching of our tradition is’ appeal usually to a teaching of our tradition (not necessarily the prevailing one) which they happen to endorse.”).

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 157

and the possibility of tyranny of the majority. The substitution of

morality makes the Court a moral arbiter, a role for which it is ill

suited. 99

Furthermore, the rejection of morality as a basis for lawmaking

seems potentially undemocratic and unduly dismissive, at least for a

democratic society, of the desires of communities to assert their

collective standards of behavior.

For these reasons, some alternative, or middle ground, among these

three approaches should exist. This article will argue that the best

approach gives communities free rein to express their moral beliefs in

legal terms, but only to a certain point. In brief, this next part proposes

that courts should treat morality as a legitimate state interest, applying

rational basis review to morality-based state action except when it

threatens a “discrete and insular minority” or the political process

itself. 100

A. In Praise of Moral Diversity

Why should courts treat morality as a legitimate basis for state

action? One answer is that enabling morals legislation will yield

particular moral results that are of substantive benefit to individuals and

society. 101

Another answer is that judicial restraint in this area will

support democracy by allowing majorities to have their way. Scholars

have also argued that legislatures are inherently more competent to

discern and implement public morality than judges, at least where the

judges are unelected. 102

Notwithstanding these are legitimate arguments,

this article will explore a different justification for the state interest in

morality: it fosters moral pluralism, or what the author calls “moral

diversity.” Central to this article is the idea that moral diversity is a

benefit to be pursued in society and in law.

The existence of differing moral views is one of the essential traits

of modern American society. As stated by Andrei Marmor, pluralism is

“the most significant moral aspect of the social-political world we live

in.” 103

The reasons for honoring pluralism are many, and any

constitutional regime that does not facilitate pluralism is seriously

99. For an exposition of this charge, see ANDREI MARMOR, LAW IN THE AGE OF PLURALISM 109-10 (2007); see also Posner, supra note 10, at 1709. 100. Footnote four in United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938), gave rise to the possibility of various levels of review for laws and their purported underlying state interests. For more on footnote four from Carolene Products, see infra Part V.C. 101. See, e.g., GEORGE, supra note 13. 102. See, e.g., Sadurski, supra note 73, at 350 (“[T]he presumption that, by and large, legislators are responsive to the moral sentiments in the community seems well founded.”). 103. MARMOR, supra note 99, at vii.

158 PENN STATE LAW REVIEW [Vol. 117:1

flawed, if not illegitimate. 104

In reviewing the reasons for encouraging

moral diversity, we can better understand some of the consequences of

this social good for the judicial review of morality-based state action.

One reason to respect moral diversity is the basic commitment of

liberalism to a robust pluralism. “[I]t has been the benchmark of

liberalism for centuries that there is a sense in which value pluralism, and

not just plurality, is reasonable.” 105

If, under the influence of liberalism,

we recognize the equality of individuals, freedom of thought, and

freedom of speech, it is inevitable that moral disagreement will arise.

Indeed, “moral and practical disagreement seems endemic to the human

condition.” 106

Given the inevitability of such pluralism, liberalism seeks

to foster, not impede, moral disagreement. This is especially true in a

system where consent governs citizens rather than fiat, where citizens

seek to operate by reason rather than by revelation. “Founded on consent

rather than on a content-full account of moral rationality, limited

democracies are morally constrained, not to be committed to all-

encompassing, content-full accounts of justice, fairness, and/or

equality.” 107

Thus, “rightly understood, liberalism is about the protection

of diversity.” 108

Liberalism is not about the promotion of homogeneity in

matters so squarely touching human independence and dignity.

Aside from honoring our liberal commitments, moral diversity can

benefit society and individuals. Moral diversity can contribute to the

solution of social problems, giving society a kind of hybrid vigor that is

practically useful in overcoming obstacles. Warning against what he

calls “the perils of uniformity,” Judge Richard Posner writes:

[G]iven the variety of necessary roles in a complex society, it is not a

safe idea to have a morally uniform population. . . . We need kind,

gentle and sensitive people, but we also need people who are willing

to employ force, to lie, to posture, to break rules, to enforce rules, to

fire people, to rank people. . . . A uniform judiciary would not be a

national disaster; moral uniformity might well be. 109

Amelie Rorty echoes Judge Posner’s point: “Lacking the kind of variety

on focus and in action-guiding priorities that most problem solving

104. See generally id. ch. 4. 105. Id. at 45. 106. Larry Alexander & Frederick Schauer, Law’s Limited Domain Confronts Morality’s Universal Empire, 48 WM. & MARY L. REV. 1579, 1583 (2007). 107. H. Tristram Engelhardt, Jr., The Injustice of Enforced Equal Access to Transplant Operations: Rethinking Reckless Claims of Fairness, 35 J.L. MED. & ETHICS 256, 262 (2007). 108. William A. Galston, The Legal and Political Implications of Moral Pluralism, 57 MD. L. REV. 236 (1998). 109. Posner, supra note 10, at 1681-82.

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 159

requires, a homogeneous culture would have great difficulty managing

its practical affairs.” 110

In other words, a society made exclusively of

saints could not thrive any more than one made exclusively of sinners.

The entire spectrum of human proclivities must be tapped to meet the

demands of a complex world.

Moral diversity is also a relatively safe option in a world where we

have learned that ideology can be dangerous. The pluralism offered by

moral diversity may reduce the risk of moral or social error. Simply put,

the more moral views there are, the less likely an all-encompassing

morality might overtake society that is erroneous or unworkable. As

Robert Cover explains, “If there were a unitary source for norm

articulation over a given domain, the costs of error or lack of wisdom in

any norm articulation would be suffered throughout the domain.” 111

That

is, the more we centralize morality, the more entrenched and far-reaching

our mistakes will be. A morally diverse environment can minimize this

risk and maintain a balance between the proponents and opponents of

any controversial moral principle. “The multiplicity of centers means an

innovation is more likely to be tried and correspondingly less likely to be

wholly embraced. The two effects dampen both momentum and

inertia.” 112

Society, therefore, can keep a relatively even keel while

simultaneously searching for generally acceptable truths.

Moral diversity can likewise stabilize society by allowing the

expression, rather than the suppression or repression, of inevitably

divergent moral views. Justice Scalia has recognized this phenomenon

in case law concerning the abortion debate. In a prominent dissenting

opinion, Justice Scalia notes that the federalization of the abortion debate

fanned the flames of conflict by polarizing the population, rather than by

leaving people to work out their differences through the democratic

processes of compromise and conciliation. 113

Moral diversity can ease

such conflicts by enabling all to be heard and to feel that they have had a

hand in public decision-making. Thus, as Kimberly Hendrickson states,

“We should be grateful to moral federalism as a vent for frustration.” 114

Failure to provide such a vent can escalate conflict, leading to division or

worse. “If . . . reasonable citizens are routinely thwarted in public

decisions on matters deeply important to them, they may adopt

110. Amelie Oksenberg Rorty, The Advantages of Moral Diversity, 9 SOC. PHIL. & POL’Y 38, 43 (1992). 111. Robert Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology and Innovation, 22 WM. & MARY L. REV. 639, 673 (1981). 112. Id. at 674. 113. See Planned Parenthood v. Casey, 505 U.S. 833, 995-96 (Scalia, J., concurring in part and dissenting in part). 114. Hendrickson, supra note 2, at 109.

160 PENN STATE LAW REVIEW [Vol. 117:1

increasingly unreasonable strategies of resistance, or simply opt for exit,

forging instead their own just polity in which their political conception of

justice is authoritative.” 115

Alternatively, instead of making a peaceful

exit, frustrated people may decide that other, more harmful forms of

action are required. The official centralization of morality “cuts off

deliberation and debate . . . makes compromise impossible, and . . .

eliminates political solutions and thereby drives opponents of the

decision to non-political ‘direct action.’” 116

One must only think of

violence at abortion clinics or clashes between police and demonstrators

in the Occupy movement to realize the perils of this course. Better to

tolerate what William Galston calls “the messiness of politics,” thereby

avoiding “a pernicious legalism that absolutizes competing claims and

creates winner-take-all outcomes.” 117

In addition to tempering frustrations, moral diversity can stave off

conflict by moderating our expectations of society and its constituent

groups. Those who accept that moral difference is a reality are less

likely to become upset or alienated when their views fail to carry the day.

Instead, this outcome can be accepted as an incident of a morally diverse

populace. “[A]t least some principles are best left ambiguous, and some

crucial moral and ethical conflicts are best understood, and best

arbitrated, as failures of practical cooperation rather than as

disagreements about the truth of certain general propositions or

theories.” 118

Indeed, the acceptance of moral diversity provides a

realistic basis on which to found society:

The quest for agreement on a conception of the good (the aim, e.g., of

some communitarian theories) underestimates the significance and

legitimate persistence of fundamental moral disagreement. In a

pluralist society, comprehensive moral theories neither can nor

should win the agreement of all citizens. A public philosophy for

such societies must reject the unqualified quest for agreement

because it must renounce the claim to comprehensiveness. 119

115. Loren A. King, The Federal Structure of a Republic of Reasons, 33 POL. THEORY 629, 649 (2005); see also Michael W. McConnell, The Role of Democratic Politics in Transforming Moral Convictions into Law, 98 YALE L.J. 1501, 1540 (1989) (book review) (describing Roe v. Wade as a decision “that cuts off deliberation and debate, that makes compromise impossible, and that eliminates political solutions and thereby drives opponents of the decision to non-political ‘direct action’”). 116. McConnell, supra note 115, at 1540. 117. Galston, supra note 108, at 244. 118. Rorty, supra note 110, at 38. 119. Amy Gutmann and Dennis Thompson, Moral Conflict and Political Consensus, 101 ETHICS 64, 86 (1990).

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 161

A “public philosophy” that anticipates and embraces disagreement is

likely to be more durable and flexible than one that seeks to achieve an

unrealistic uniformity.

Moral diversity can also enhance interpersonal and inter-group

relationships by encouraging respect for others. The continued

encountering of moral perspectives different from one’s own can force a

reevaluation of one’s position, thereby fostering an increased regard for

those who differ from oneself. “[O]pen discussion of differences of

opinion . . . is the best cure for the fallibility of narrow dogmatism; it

presses for the refinement of crude and imprecise beliefs.” 120

For this

reason, “enhanced interpersonal respect . . . tends to result from exposure

to moral complexities.” 121

Such respect is more than mere toleration: “It

requires a favorable attitude toward, and constructive interaction with,

the persons with whom one disagrees.” 122

These kinds of “constructive interactions” can be of benefit in

seeking and deciding on a shared course of action in a society. “[T]he

very nature of reasonable disagreement . . . encourages vigorous debate

that will likely challenge settled convictions about rights and the

character of the public sphere within each distinctive community of

reasonable beliefs.” 123

Such debate does a great deal to temper opposing

views and to bring about support for the practical decisions that society

must make about how citizens will govern themselves. “It is not only

possible for various moral positions to co-exist, it is preferable. Without

such friction, social reform would be impossible.” 124

Morally tolerant

interaction can therefore guide society toward making the substantive

moral choices that are necessary in a polity. “Mutual respect makes

possible, at the level of political decision, the deliberate choice of

substantive moral values for the society as a whole.” 125

At the same time that moral diversity promotes social goods, it can

also enhance individual moral development. Contact with other moral

beliefs in an atmosphere of mutual respect breeds moral insight. As

explained by Amy Gutmann and Dennis Thompson, “[M]utual respect

supports a political process that promotes moral learning. Citizens put

their moral beliefs to the test of public deliberation and strengthen their

convictions or change their minds in response to the arguments in which

120. Rorty, supra note 110, at 52. 121. Reed Elizabeth Loder, Integrity and Epistemic Passion, 77 NOTRE DAME L. REV. 841, 854 (2002). 122. Gutmann and Thompson, supra note 119, at 76. 123. King, supra note 115, at 646. 124. Linda Fitts Mischler, Personal Morals Masquerading as Professional Ethics: Regulations Banning Sex Between Domestic Relations Attorneys and Their Clients, 23 HARV. WOMEN’S L.J. 1, 33 (2000). 125. Id. at 77.

162 PENN STATE LAW REVIEW [Vol. 117:1

they engage under conditions governed by the principles of

accommodation.” 126

This process of moral learning in turn promotes

individual moral virtue:

[M]utual respect can contribute not only to social good but also to

individual virtue. Persons who practice mutual respect are disposed

against the premature moral skepticism, and the concomitant ennui

and indecision, that afflict those who treat the existence of conflicting

opinions as proof of the arbitrariness of all moral judgments. . . .

They are also less inclined toward moral dogmatism, and its

accompanying anger and arrogance, that is common among those

who treat moral disagreement as a sure sign of the ignorance or

depravity of their opponents. 127

In addition to making people less dogmatic, moral diversity can help

them achieve self-actualization. Reed Elizabeth Loder explains: “Moral

diversity is a potential pathway to personal betterment. This

developmental stake helps to ensure that changes in attitudes are not easy

or arbitrary fluctuations, but well-examined steps toward a higher image

of self. A personal search for moral wisdom drives the ideal process.” 128

In other words, exposure to other moral ideas, with an accompanying

introspection, can aid the search for personal growth.

Moral diversity therefore offers the benefits of realism, toleration,

political stability, and individual development. For all of these reasons,

“Moral cultivation in a liberal state cannot insist on a uniform

morality.” 129

This sentiment should caution against the process of

judicial moralizing as opposed to judicial deference.

One might argue that, if moral diversity is such an important good,

citizens should not tolerate any codification of morality. Surely, a local

legislative enactment can have the same totalizing effect as a judicial

decision, thereby squelching moral diversity just as effectively. Several

responses to this point exist. First, insofar as judicial decisions in this

area are constitutional ones, they are very difficult to overturn if courts

get them wrong. Legislative enactments have the virtue of quicker

reversibility, which allows for greater moral flexibility and for moral

growth over time. Second, there are reasons to suggest that legislatures

would more accurately reflect the moral positions of communities than

would courts, thereby making legislation a truer channel through which

moral diversity can flow. While electoral politics are assuredly flawed—

126. Gutmann and Thompson, supra note 119, at 86-87. 127. Id. at 77. 128. Loder, supra note 121, at 854. 129. Mark Hager, Why the Boy Scout Case Was Rightly (But Wrongly) Decided, 35 CONN. L. REV. 129, 150 (2002).

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 163

compromised as they may be by lobbyists, interest groups, campaign

money and problems of scale—they are nonetheless more democratic

and more accountable to the electorate than are unelected federal judges.

As Sadurski notes, “[A]ssuming a well-functioning democracy, the

presumption that, by and large, legislators are responsive to the moral

sentiments in the community seems well founded.” 130

Third, differences

exist between local legislators codifying morals and judges imposing

moral views on the population. Especially in regards to the Supreme

Court’s jurisprudence, judicial moralizing has a widespread effect, which

may be regional or national in scope. Local legislatures, by contrast,

affect only smaller political units, thus ensuring that mistakes are

confined. Finally, laws that are the product of smaller political units

offer a greater hope of assent than those embracing a more widespread

population. As Andrei Marmor observes, “At least from the vantage

point of respect for value pluralism, a regular democratic process, that is,

basically a majority vote, has this moral advantage: It is importantly

egalitarian.” 131

If morality is virtually unavoidable in the law, then it

makes sense to leave this codification to the most flexible, localized

government units possible, which are local legislatures rather than

centralized courts.

B. The Perils of Constitutionalism

The Constitution, wrote Oliver Wendell Holmes, “is made for

people of fundamentally differing views.” 132

It is also “a means for

peaceable collaboration in the face of intractable moral difference.” 133

However, as discussed above, constitutional decisions often attempt to

impose a uniform morality, resting legal decisions on moral grounds that

may not allow moral diversity to express itself sufficiently through law.

This outcome occurs whenever the Supreme Court or some lower federal

court either rejects local morality as a basis for state action or substitutes

its own moral views for those of the legislature or electorate. The

constitutionalization of morality in such cases is inimical to moral

diversity and is therefore morally and politically suspect. Understanding

the perils of constitutionalism can help to assess more clearly “the threat

that unmediated state power poses to moral diversity.” 134

130. Sadurski, supra note 73, at 350. 131. MARMOR, supra note 99, at 101. 132. Lochner v. New York, 198 U.S. 45, 76 (Holmes, J., dissenting). 133. Engelhardt, supra note 107, at 262. 134. Anne C. Dailey, Constitutional Privacy and the Just Family, 67 TUL. L REV. 955, 959 (1993).

164 PENN STATE LAW REVIEW [Vol. 117:1

Over the course of the last century, constitutional adjudication has

had a homogenizing influence on American life, particularly regarding

questions of civil rights, which often invoke moral issues. The rules

proclaimed by the courts have regional or national application, which

tends to push all local governments in the same direction with respect to

what they may or must do in promulgating laws in areas of moral

dimension. By entrenching a judicially desired moral response in

constitutional law, the courts solidify their preferred moral regime at the

expense of local expressions of morality. Andrei Marmor observes,

“Constitutional entrenchment of values, or of conceptions of the right

and the good, necessarily favors certain conceptions over others by

essentially shielding some favored moral-political conceptions from the

democratic decision-making process. It is very difficult to see how this

shielding is compatible with respect for pluralism.” 135

Kimberly

Hendrickson makes the point more succinctly: “Federal courts have

been active in stamping out moral diversity in the pursuit of national

ideals, at least since Reconstruction.” 136

Consequently, many of the benefits of moral diversity are being

eroded or lost. Michael Perry expresses a sentiment typical of those who

support this trend toward uniformity:

As a practical matter, the public welfare limit calls for a national and

not a local standard for determining the scope of the public morals.

Of course, the constitutional basis of the limit, the fourteenth

amendment, is national in its operation. But beyond that, it simply

would not do to have one constitutional rule for abortion legislation

in California and another in, say, Rhode Island. 137

Perry does not explain why this “simply would not do,” nor do most

other proponents of national uniformity. Is variation really so distasteful

in a federal system? After all, society tolerates a wide variety of laws in

the commercial realm and in civil areas such as tort law. Why should

laws with moral dimension be any different? In light of the various

benefits of moral diversity, why should society be subject to a unifying

morality based on a perceived constitutional mandate?

To the contrary, there are several reasons why society should not

tolerate any tendency toward moral homogeneity. First, as noted

above, 138

there are various benefits of moral diversity. The more

morality is centralized, the more society will lose the social flexibility,

135. MARMOR, supra note 99, at 100. 136. Hendrickson, supra note 2, at 106. 137. Michael J. Perry, Abortion, the Public Morals and the Police Power: The Ethical Function of Substantive Due Process, 23 UCLA L. REV. 689, 732 n.201 (1976). 138. See discussion supra Part V.A.

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 165

political stability, and individual moral opportunity that moral diversity

can provide. Lacking these ideals, society will drift farther from classic

liberalism toward a sort of moral totalitarianism.

Further, the centralization—that is, the constitutionalization of

morals—may actively discourage the kinds of moral growth that moral

diversity can bring, both in the individual and within political units. To

the extent that courts dictate moral positions of law, there is little reason

for the populace to grapple with the relevant moral questions. Simply

put, why should society engage in moral thought and dialogue if the

courts are going to do the thinking for it? “[N]ot only do Supreme Court

opinions contain little serious moral reflection, but they serve as an

excuse for dispensing with moral reflection at other levels of

government. . . . Constitutional adjudication is not a supplement to

moral-political deliberation; it is often a substitute.” 139

As discussed

above, the loss of localized moral deliberation exacts costs in political

conflict and a stultifying of individual moral sense.

This point is not a full-scale attack on judicial review, a matter well

outside the scope of this article. With respect to moral diversity,

however, it is uncertain whether judges are better suited than the people

or their elected representatives to make moral decisions. Judges are

rarely appointed or elected for their moral wisdom; more often, judges

are chosen for their political connections, practical acceptability to some

Senate members, or legal acumen. To find this process acceptable as a

source of moral rights and principles makes it necessary “to assume

that . . . we can be sufficiently confident that a judicial determination of

those rights and principles is going to yield better results than its

democratic alternative.” 140

Evidence for such an assumption is sparse.

In fact, it requires a degree of prescience not normally associated with

human nature to think that people can know in advance when democracy

will get it wrong and judges will get it right. 141

According to Marmor, a

presumption in favor of democratic action is “importantly egalitarian,” 142

and it is more consistent with liberalism and a “moral concern about the

need to respect value pluralism.” 143

If the author may to dare dream a

democratic dream, “it is . . . possible that citizens do not need

constitutional ideals or constitutional text to pursue their preferred views.

Perhaps their own ideals will do the trick.” 144

139. McConnell, supra note 115, at 1537. 140. MARMOR, supra note 99, at 99. 141. Id. at 109-10. 142. Id. at 101. 143. Id. at 100. 144. Cass R. Sunstein, Second Order Perfectionism, 75 FORDHAM L. REV. 2867, 2870 (2007).

166 PENN STATE LAW REVIEW [Vol. 117:1

The benefits of moral diversity and the perils of judicial moralizing

suggest that courts should treat the expression of morality as a legitimate

government interest to foster such diversity and limit judicial

centralization. This idea dovetails with the well-known rational basis

scrutiny standard, the default level of scrutiny for reviewing government

action, under which courts will uphold a law unless its challenger can

show that it is not rationally related to some legitimate government

interest.

Two difficulties are now left to discuss. First, how will courts know

when a law is an expression of morality sufficient to trigger this

deferential review? Second, how will this rule prevent the oppression of

minorities? As to the first question, the glib answer might be that courts

will know it when they see it. To cite an extreme example, an ordinance

imposing weight limits on trucks obviously does not have the same

moral content as a law forbidding polygamy. Generally, judges and

citizens will be able to distinguish a morals law from another type of law.

When the distinction is less clear, the risk of error is minimal. Absent

some clear legal defect, such as discrimination against a legally protected

class, 145

these instances are likely to involve laws in which reasonable

people might differ. Withholding judicial action still leaves open the

safety valve of further democratic action. If citizens demand a more

precise accounting, the purpose of the law can be discerned in several

other ways, consistent with current legal practices. One method would

be to examine the legislative history, which may reveal evidence of

legislative intent. 146

Another would be to rely on inferences drawn from

the plain language of the statute as to its actual purpose. A third method

would be to look to any plausible purpose that can be derived from the

face of the law or the arguments of counsel, which is the most common

practice in cases under rational basis review. 147

At any rate, the courts

have experience dealing with questions of purpose, whether that purpose

is a moral one or something else.

A more pressing question, though, is what to do when faced with a

situation like Romer: a law that relies on ostensibly moral concerns as a

cover for animus against a disadvantaged group that society might wish

to protect. The next section will discuss some potential solutions.

C. The Protection of Minorities

This article proposes that rational basis review is and should remain

the default standard of review, even in cases of morality-based state

145. See infra Part V.C. 146. See, e.g., U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). 147. See, e.g., U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 167

action. 148

However, there should be three exceptions that would justify

heightened review: (1) the law on its face violates “a specific prohibition

of the Constitution, such as those of the first ten amendments,” (2) the

law “restricts the political process which can ordinarily be expected to

bring about repeal of undesirable legislation,” or (3) the law is directed at

particular “religious,” “national,” “racial,” or “discrete and insular”

minorities. 149

This article will not discuss the first category in detail

because that category is more easily identified than the second two.

Moreover, the second concept, that of political disenfranchisement, has

been well explored by John Hart Ely, among others. 150

Thus, the

remainder of this article will focus on the third category: laws directed at

minorities of various kinds.

The first three types of minorities are readily identified: racial,

religious, and national, which may be taken to mean “ethnic.” One

might quibble about whether a group or a person is actually of a

particular ethnicity or race, 151

or whether a particular belief system truly

qualifies as a “religion,” 152

but it seems an uncontroversial proposition to

say that generally such minorities should be protected. It is part of our

“constitutional tradition” to do so. 153

In terms of the present discussion, however, it seems evident that

some morality-based state action could be used to improperly

disadvantage certain minorities. Which groups should receive extra

protection? That is, which groups are “discrete and insular,” and what do

those terms mean? The New Oxford American Dictionary defines

“discrete” as “individually separate and distinct.” 154

The American

Heritage Dictionary describes it as “constituting a separate thing.” 155

Note that these definitions are not terribly helpful. Taking “distinct” as a

synonym, one could argue that almost any identifiable minority could

claim the title. Child molesters and Ponzi schemers are “distinct” from

most people, but no one would suggest giving them special protections.

Defining “insular” does not provide any further clarification. The New

Oxford American Dictionary defines “insular” as “ignorant of or

148. Much of what follows is drawn from the famous footnote four in United States v. Carolene Products Co. See United States v. Carolene Products. Co., 304 U.S. 144, 152 n.4 (1938). The author must also acknowledge the influence of Wojciech Sadurski’s book, Moral Pluralism and Legal Neutrality, particularly chapter five. See WOJCIECH SADURSKI, MORAL PLURALISM AND LEGAL NEUTRALITY 133-48 (1990). 149. Carolene Products, 304 U.S. at 152 n.4. 150. JOHN HART ELY, DEMOCRACY AND DISTRUST (1980). 151. See, e.g., Rice v. Cayetano, 528 U.S. 495 (2000). 152. United States v. Seeger, 380 U.S. 163 (1965). 153. Romer v. Evans, 517 U.S. 620, 633-34 (1996). 154. THE NEW OXFORD AMERICAN DICTIONARY, supra note 9, at 483. 155. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 516 (4th ed. 2006).

168 PENN STATE LAW REVIEW [Vol. 117:1

uninterested in cultures, ideas or peoples outside one’s own

experience,” 156

while the American Heritage Dictionary defines the word

as “suggestive of the isolated life of an island.” 157

If one takes Justice

Harlan’s words literally, then, “discrete and insular” means distinct,

willfully ignorant, or provincial groups. This interpretation hardly seems

helpful in determining who should receive constitutional protection.

Something more metaphorical is therefore required, and here one

should consider the spirit of footnote four in United States v. Carolene

Products. 158

Footnote four states:

There may be narrower scope for operation of the presumption of

constitutionality when legislation appears on its face to be within a

specific prohibition of the Constitution, such as those of the first ten

amendments, which are deemed equally specific when held to be

embraced within the Fourteenth. . . . It is unnecessary to consider

now whether legislation which restricts those political processes

which can ordinarily be expected to bring about repeal of undesirable

legislation, is to be subjected to more exacting judicial scrutiny under

the general prohibitions of the Fourteenth Amendment than are most

other types of legislation. . . . Nor need we inquire whether similar

considerations enter into the review of statutes directed at particular

religious . . . or national . . . or racial minorities . . . whether prejudice

against discrete and insular minorities may be a special condition,

which tends seriously to curtail the operation of those political

processes ordinarily to be relied upon to protect minorities, and

which may call for a correspondingly more searching judicial

inquiry. 159

It may be that the words “discrete and insular” were not chosen with

dictionary precision, but are instead meant to designate powerlessness: a

propensity for being taken advantage of in ways that are inimical to our

liberal respect for alternative behaviors, characteristics, and visions of

the world. The idea of insularity also implies an inability or

unwillingness to muster popular support for a group’s own cause,

thereby leading to easier victimization by the majority.

Such a reading of footnote four suggests that “discrete and insular”

is synonymous with “respectable and powerless.” In this context, then,

“respectable” means deserving of the respect we accord others in our

liberal, morally diverse society. For example, such a reading would

156. NEW OXFORD AMERICAN DICTIONARY, supra note 9, at 875. 157. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, supra note 155, at 909. 158. United States. v. Carolene Prod. Co., 304 U.S. 144, 152 n.4 (1938) (emphasis added). 159. Id.

2012] MORALITY AS A LEGITIMATE GOVERNMENT INTEREST 169

exclude child molesters and Ponzi schemers, but would include Nazis,

Communists, and the mentally disabled. 160

The author does not suggest

that these things are equivalent, but rather that they are all deserving of

some respect and tolerance if society is to be truly pluralistic and

protective. 161

The point is not to render an undisputable list of protected

categories. Instead, it is to suggest that there is warrant in the law, and in

a system of liberal morality, for constitutionalizing the treatment of

certain groups, provided that courts can determine exactly what those

groups are to be. Thus, the regime that the author proposes will not give

entirely free play to majorities, though it might tend to do so in the

“normal” case. In this view, the result in Romer was correct because

gays and lesbian are a “discrete and insular minority,” whereas the result

in Roe was incorrect because women are not a minority, much less a

“discrete and insular” one.

VI. CONCLUSION

As discussed above, moral diversity yields numerous moral benefits

to individuals and to the society that they constitute. To resist the

proliferation of moral diversity is to deny that we are a pluralistic

society. If we are to remain true to our liberal commitments, we must

acknowledge—and accept—that the world is full of matters on which

people of reason and good will are apt to disagree. A productive moral

diversity then may flourish, to the betterment of each of us and our

society.

The law, however, has trod a more dangerous road, threatening to

suppress diverse responses to moral issues through a homogenizing

constitutionalism. If society is to retain the social and personal benefits

of moral diversity, society will need to be attentive to the points at which

the law impedes it, as well as to the opportunities in law for sustaining it.

The author hopes that this article provides at least a starting point for

further dialogue on this important issue.

160. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). 161. Perhaps more controversially, the author thinks this logic would also rule with respect to gays, lesbians, and transsexuals. However, this subject is worthy of another article.