The Underappreciated First Amendment Importance of Lawrence V. Texas

I. IntroductionIn Lawrence v. Texas,1 the United States Supreme Court declared that Texas's statute criminalizing "deviant sexual intercourse" between individuals of the same sex was unconstitutional under the Due Process Clause.2 In reaching this conclusion, the Court opined that Texas's asserted interest in expressing moral disapproval of homosexual conduct was not legitimate.3 This Article discusses the potential implications of the Court's morality-based rationale in Lawrence for First Amendment jurisprudence. Taken seriously, Lawrence has a significant effect in this area, undermining certain First Amendment doctrines while strengthening others.In order to assess what Lawrence's holding might mean in the context of the First Amendment, one must first have a working definition of "morality." As Professor Michael Perry noted, "there is not just one morality in the world; there are many."4 If this is the case, one needs to have at least a basic conception of the type of "morality" the Court was concerned with in Lawrence.The morality with which the Lawrence Court was concerned appears to be the basic notion that there is a dichotomy between what is "right" and what is "wrong."5 One can glimpse this view of morality in Justice Kennedy's description of why the Texas Legislature's actions were unconstitutional:6The condemnation [of homosexuality] has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole of society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code."7Thus, for the Court, morality was a determination based on some input such as religion, tradition, or merely what one might call ethics, dictating how all people should behave.The Article has three additional sections. Part ? focuses on Lawrence itself. It first addresses what the Court said about morality and lawmaking, but also considers what the Court must have meant by what it said. It is clear from Lawrence that the Court was deeply suspicious of Texas's morality-based justification for its law. However, the Court simply could not have been serious that morality has no constitutionally permissible role in making law. It is not difficult to think of laws that have a clear moral pedigree but that certainly remain on solid constitutional ground after Lawrence. For example, one could cite the Ten Commandments for the principle that "[y]ou shall not kill"8 - a moral dictate to be sure. Yet, laws criminalizing murder are not likely to run afoul of Lawrence's interpretation of the Due Process Clause.As Part ? explains, it must be that the Court believed that morality cannot be the sole (or perhaps dominant) rationale for a given law. Seen in this light, the decision does not call die criminalization of murder into question because such laws, at a minimum, serve the non-explicitly moral goal of assuring members of society that they will be protected from violence and, therefore, need not take basic survival matters into their own hands.Yet, even if this is an accurate description of what Lawrence both said and meant, there is a second question: Does Lawrence relate only to legislative action or does it also constrain the courts in interpreting the Constitution? Part ? addresses this issue as well. It is possible to accept Lawrence's basic proposition that morality cannot be the sole (or dominant) purpose for legislative action and still conclude that certain portions of the Constitution - perhaps including the First Amendment - allow morality's use. …