Document Type

Article

Publication Date

2006

Center/Program

Center for Gender & Sexuality Law

Abstract

Forever, it seems, the power to shape public morality has been seen as central to American governance.3 As one of the morality tradition's chief promoters, the Supreme Court itself has regularly endorsed and applauded government's police power to regulate the public's morality along with the public's health and welfare.4

How, then, can we make sense of the Court's declaration in Lawrence v. Texas5 that the state's interest in preserving or promoting a particular morality among its constituents did not amount even to a legitimate interest to justify a Texas law criminalizing sexual intimacy between consenting adults?6 Has the Court unforeseeably and insupportably departed from its tradition of approving government action in the name of morality? 7

In fact, Lawrence did no such thing.8 Rather than representing a break with tradition, Lawrence reflected the Court's long-standing jurisprudential discomfort with explicit morals-based rationales for lawmaking.9 Notwithstanding its ubiquitous rhetorical endorsements of government's police power to promote morality, it turns out that the Court has almost never relied exclusively and overtly on morality to justify government action. Indeed, since the middle of the twentieth century, the Court has never relied exclusively on an explicit morals-based justification in a majority opinion that is still good law.

This Article demonstrates and then explains this dissonance between the Supreme Court's rhetorical tradition and jurisprudential reality regarding morals-based justifications for lawmaking.10 After elaborating the difficulties associated with judicial evaluation of morals rationales, I conclude that mere reference to morality should not suffice as a justification for lawmaking and propose, as a partial solution, that all justifications for government action, including those reflecting particular moral concerns, be tied to demonstrable facts.

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