The Constraint of Dignity: Lawrence V. Texas and Public Morality

INTRODUCTION The modern American political arena has sometimes resembled a battlefield in which rival factions perennially war over so-called "social issues." These conflicts typically arise over activities viewed as innately immoral by a portion of the population, encompassing issues like abortion, homosexual acts, prostitution, polygamy, gambling, pornography, drug use, euthanasia, and even animal cruelty. (1) Often, the very legitimacy of prohibiting those activities is in question. One side of the conflict asserts that morality cannot and should not be legislated, while the other side contends that the enforcement of morality is a democratic prerogative. Such disputes are framed in terms of enforcing "public morality" or of championing "legal moralism." Public morality is defined as "an ethic of decency or civility (not simply rights and liberties) which is public in the sense that it is generally acknowledged as a requisite to the well-being of the community as such--and is therefore recognized in public policy, and (periodically at least) supported by the law." (2) Legal moralism is the belief that it is "morally legitimate to prohibit conduct on the ground that it is inherently immoral, even though it causes neither harm nor offense to the actor or to others." (3) As such, legal moralism is the jurisprudential mechanism through which public morality is enforced. The Supreme Court seemingly resolved this dispute in Lawrence v. Texas, (4) a case adjudicating the constitutionality of a Texas statute criminalizing consensual homosexual sodomy. (5) Many commentators interpreted the opinion as adopting a libertarian approach to morals legislation, essentially extending the constitutional rights of privacy and liberty to encompass all "victimless" crimes. (6) In his dissent, Justice Scalia echoed this belief, asserting that precluding states from legislating on the basis of morality would potentially invalidate "laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." (7) For the most part, Justice Scalia's vision of hedonistic bliss did not become a reality, (8) However, as the tenth anniversary of Lawrence passes, it is important to examine the case's impact on the enforcement of morality in order to discern its true meaning. This Note will proceed in four parts. Part I will catalogue the jurisprudential and philosophical conflict over the legitimacy of morals legislation. Part II will examine the Supreme Court's jurisprudence regarding reproductive and sexual liberty, noting the trend towards conflating liberty with autonomy that culminated in Lawrence v. Texas. Part III will closely scrutinize the characterization of liberty in Lawrence, demonstrating that it is restricted by associational and spatial limitations. Part IV will connect those limitations to the description of dignity Justice Kennedy employed in Lawrence and in other cases. This conception of dignity embodies substantive values concerning the appropriate context of sexual liberty. Indeed, though not a doctrinally perfect match, Justice Kennedy's depiction of dignity resembles the Catholic conception of sexual dignity: one that recognizes the worth of sexual relations in advancing love and intimacy, but one that does not embrace total autonomy. Consequently, the liberty interest Justice Kennedy identifies should not be interpreted as a rejection of public morality, because his conception of liberty is premised on a substantive dignity that refuses to divorce itself from morality. I. THE GREAT DEBATE Although such early thinkers as Aristotle and Saint Thomas Aquinas advocated the idea that the law could be used to create a social environment conducive to human virtue, (9) scholarly consensus suggests that the modern debate over legal moralism began in the mid-nineteenth century. This debate was sparked by the publication of On Liberty, a defense of liberalism written by the utilitarian philosopher John Stuart Mill. …