The Forbidden While Inescapable Law-Morality Relation
Abstract
In the middle of the twentieth century, the United States Supreme Court initiated a turn away from the law’s inherent ordination to the objective moral order of the community. The Court thereafter promoted a replacement legal framework of agnostic proceduralism to facilitate and superintend the self-defining choices of individuals. This essay, presented at a festschrift conference honoring Notre Dame law professor Gerard Bradley, explores this sea change in outlook with particular critical attention to the Court’s jurisprudence on sex and family regulations, and on the freedom of speech. Taking cues from Professor Bradley’s scholarship, the essay then challenges the modern turn in the Court’s jurisprudence and advocates the law’s obligation to preserve its systemic moral coherence and, thereby, its continuing ability to serve its historic, vital purposes.
If there is any fixed star in our constitutional constellation, it is that no 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.[i]
—West Virginia v. Barnette (1943)
Professor Gerard Bradley observes that with the Supreme Court’s famous “no-orthodoxy” declaration in Barnette, “though inert at first, a new way of mapping the world came to be.”[ii] Indeed, “the liberal ‘procedural republic had arrived.’”[iii] Its innovative take on American constitutional liberty has developed into a government posture feigning to stand for not much, substantively, while assiduously enforcing procedural standards that purport to leave most of that substance to individual choice. Arguably, the Mystery Passage in Planned Parenthood v. Casey (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life”)[iv] aimed to modernize the description of our constitutional “fixed star,” helpfully clarifying an implication of mandatory state moral vacancy.
The Supreme Court has aptly enlisted the Mystery Passage into rhetorical service in rulings condemning state laws against abortion and sodomy, as well as those codifying the definition of marriage, thereby showcasing, as Bradley describes, “the collapse of any tenable conception of a critically justified public morality in its jurisprudence, and elsewhere in constitutional law.”[v] This collapse has delivered upheaval, perhaps most prominently, to family law and the free-speech arena. To these two affected realms, this essay will give attention, considering how the Court’s feigned privatization of morality is both incoherent and a deceit that affects an inversion of law and the society it pretends to liberate.
May Law Be Moral?
In view of long centuries of recognition in Anglo-American jurisprudence of state authority to legislate in furtherance of public morality, recent doubts as to this authority are curious. As for the traditional rule on moral regulation, the following nineteenth-century judicial description of states’ police power authority is typical.
[It is the] power to preserve the peace, promote good morals, restrain vice, and protect the property and health of the people. That the several State governments have exercised these and kindred powers to the very amplest extent, from the earliest period of their existence, is a matter of history.[vi]
Indeed, “social organization” itself “requires the protection of law against the evils which menace the health, safety, morals and welfare of the people.”[vii] Such state authority represents “the very purpose and framework of organized society,” one “fundamental and essential to government”; that is, “a necessary and inherent attribute of sovereignty” that “antedates all laws, and may be described as the assumption on which constitutions rest.”[viii] This venerable authority “never can be surrendered without imperiling the existence of civil society.”[ix]
Justice Harlan, in his famous dissent in Poe v. Ullman, was stating the settled obvious when observing that
the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical well-being of the community, but has traditionally concerned itself with the moral soundness of its people as well. Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal.[x]
Yet for some years, the Supreme Court’s take on whether moral judgment is a legitimate justification for legislative enactments, and for the law otherwise, has been uncertain. In various case opinions over the last several decades, the Court has cryptically (but not always cryptically) signaled that morality is now to be relieved of its venerable vocation as an explanatory feature and motive force in lawmaking. Considering the Court’s discovery of constitutional liberties to contracept and abort and engage in sodomy and to access a same-sex civil marriage status, “‘[t]he state’s rightful concern for its people’s moral welfare’ has not only failed to limit the reach of substantive due process, but since Lawrence v. Texas and Romer v. Evans, the soundness of morality as a government interest, without more, has become increasingly dubious.”[xi] . . . .
[The rest of this article may be read here.]
[i] West Virginia v. Barnette, 319 U.S. 624, 642 (1943).
[ii] Gerard V. Bradley, Missing Persons, Fugitive Families, and Big Brother, in The Thriving Society: On the Social Conditions of Human Flourishing 165 (James R. Stoner, Jr. and Harold James eds., 2015).
[iii] Id. at164, quoting Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy 54 (1996).
[iv] Planned Parenthood of Pa. v. Casey, 505 U.S. 833, 851 (1992).
[v] Gerard V. Bradley, Moral Truth and Constitutional Conservativism, 81 La. L. Rev. 1317, 1323 (2021). The Dobbs majority opinion’s criticism of the Mystery Passage was welcome, though directed to its terms and not its enacted legal-cultural monuments. “Nothing in this opinion should be understood to cast doubt on precedents” such as Lawrence and Obergefell “that do not concern abortion.” Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2277–78 (2022).
[vi] State v. Searcy, 20 Mo. 489, 490 (1855).
[vii] West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937).
[viii] State ex rel. George v. City Council of Aiken, 42 S.C. 222, 225–26 (1894).
[ix] Id. at 226.
[x] 367 U.S. 497, 545–46 (1961) (Harlan, J., dissenting).
[xi] Y. Carson Zhou, The Incest Horrible: Delimiting the Lawrence v. Texas Right to Sexual Autonomy, 23 Mich. J. of Law and Gender 187, 189 (2016).As a result, Zhou argues that the fundamental right to sexual exploration the Court ratified in Lawrence also encompasses consensual adult incest. He further concludes that “[g]iven Obergefell’s extension of the right to marry to non-traditional couples who are entitled to equal dignity under the law, the invalidation of criminal incest legislation on the basis of the right to sexual intimacy would also necessitate the lifting of consanguinity barriers to marriage.” Id. at 243.
