Less is moral

Courts should stay consistent in its rulings about whether to uphold all kinds of morality laws

I’m not your typical proponent of Justice Antonin Scalia’s brand of judicial conservatism. Despite my personal admiration for the old warhorse’s vociferously worded dissents, I generally consider the Constitution to be much more than a simple legal document with limited applicability to our modern society. Despite my philosophical differences with Justice Scalia, however, I have found a number of his arguments decidedly persuasive. In particular, his position on how the Court should deal with “morals legislation” is one of the most over-looked, yet potentially most cogent and influential, positions in the modern court and could have far-reaching effects on many contemporary social movements, the gay-rights movement included.

Briefly, Scalia’s position is this: the Supreme Court, bound by an unwritten duty to uphold a standard of consistency and logic in its rulings, must take an all-or-nothing stance when considering legislation that imposes the sexual morality of the majority onto the minority — gay marriage prohibitions, bigamy laws and obscenity laws, for example. Such laws are instances in which legislative majorities, enacting the will of their constituents, have deemed certain behaviors as “immoral,” and thus not permissible. In Lawrence v. Texas (2003), the Supreme Court ruled that a Texas prohibition on gay intercourse was unconstitutional, as it infringed on the privacy and freedom of action of the state’s citizens. Scalia, in his dissent, gave lucid expression to the idea that such rulings undermine the Court’s credibility:

“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… If, as the Court asserts [today], the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.”

The same logic can, and must, be applied to gay-rights legislation. It is important to note here that I’m making no argument on whether gays should be allowed to marry, nor am I taking a stance on the constitutionality of morals legislation. Such issues are valid, yet separate, issues from the one I’m addressing now. Rather, I want to focus on how the Supreme Court should deal with such disagreements. The answer, I reaffirm, is consistently: either legislatures have the constitutional right to pass laws that regulate the morality of their citizens, or they don’t.

This could mean trouble for gay-rights activists who wish to use the courts as the pathway to marriage equality. For if the courts are to be philosophically consistent in their rulings — as I think we all believe they ought to be — they will have to admit that they have always recognized the right of legislatures to enforce morals-based laws when it comes human sexuality — that is, until the last few decades. Whether or not they ought to have deemed constitutional the governmental regulation of private sexual matters is unimportant here: The point is that they have in the past, and they continue to do so by open toleration of morals based legislation. The fight for marriage equality is a clash of morals. Both camps marshal a number of arguments to their side, the vast majority of which boil down to competing conceptions and definitions of right and wrong. It’s inherently a moral issue. The courts, then, must recognize that if they are to allow the legislature to pass laws based on sexual morality, they must logically allow legislatures to decide the issue of gay marriage — or, the courts can pull an about-face and declare that all morals legislation is an unconstitutional imposition of the will of the majority, and thereby invalidate a number of existing statutes that few Americans actively protest.

The beauty of this argument is that it acknowledges that such logical rigor is not required of legislatures. Again, Scalia in his Texas dissent phrases it perfectly: “One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.” In other words, the people can decide that bigamy is illegal and gay marriage is acceptable because they are not held to the same standards as the justices. But the issue of gay marriage is fundamentally one about social morality; claims by its proponents that it is one of “civil rights,” although potentially valid, are rooted in their moral conception of acceptable behavior. As such, the battle for such rights must be played out in the sphere where it properly belongs: the legislature.

Russell Bogue’s column appears Thursdays in The Cavalier Daily. He can be reached at r.bogue@cavalierdaily.com.

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