MORALS LEGISLATION SINCE LAWRENCE V. TEXAS: THE ARGUMENT FOR BONOS MORES

Carman A. Leone, Villanova University School of Law

Abstract

In 2003, the Supreme Court of the United States held in Lawrence v. Texas that any law that criminalized the act of homosexual sodomy was in violation of the Due Process Clause of the Fourteenth Amendment. The result was not as shocking as the analysis the Court used to come to its decision. Justice Kennedy, writing for the majority, used an unprecedented, ambiguous and unclearly defined balancing test that worked outside the fundamental/non-fundamental framework within which the prevalent substantive due process test operated.

In order to reach its decision, the Court overturned its 1986 case, Bowers v. Hardwick, which upheld an Alabama law that criminalized homosexual sodomy under a rational basis review. In Bowers, the Court held that the perception of morality is a legitimate state interest that satisfies a rational basis challenge. The Lawrence Court, however, not only overturned the holding of Bowers, but it also explicitly rejected the state from using morality as a legitimate state interest for supporting its legislation. In his dissenting opinion, Justice Scalia warned of the demise of morals legislation that would inevitably come in the wake of Lawrence.

Several United States Circuit Courts of Appeals are now divided as to whether morality alone may serve as state interest in supporting legislation. This paper will argue that morality should satisfy a rational-basis review in light of a century’s wealth of history and tradition in case law that precedes Lawrence. Furthermore, I will argue that the Court’s increasing willingness to deviate from traditional interpretive methods of adjudication serves as an impermissible expansion of the judiciary’s role under the Constitution. I will also outline the social dangers as well as negative public policy repercussions that accompany such expansion.

To frame the issue, I will first provide background analysis to the disagreement over the exact holding in Lawrence in Part I of this paper. In Part II, I will anchor the disagreement over the role of morality as an acceptable criterion of state interest by analyzing the current split in the United States Circuit Courts of Appeals over the legality of obscenity laws stemming from the conflicting interpretations of Lawrence. In Part III, I will give an overview of the traditional role of rational-basis review, analyze criteria that have historically satisfied rational-basis challenges and show how traditional morality has served as a legitimate state interest for centuries. In Part IV, I will address the arguments for and against continuing this tradition and will attempt to identify who in our system has the authority to balance the “liberty of all” and public morality.