Morality: Is It the Business of Government?
Women for America, July 16, 2003
1015 Fifteenth St. N.W., Suite 1100, Washington, D.C. 20005
Phone: (202) 488-7000, Fax: (202) 488-0806
By Robert Peters
It is often said (at least by some) that in the United States, “You
can’t legislate morality.”
As defined in Webster’s New World Dictionary (3rd College Edition 1988),
morality is defined as “rightness or wrongness, as of an action.” For
example, in the U.S. it is considered wrong to:
someone’s wallet, laptop computer or car;
in heroin or crack cocaine;
someone a job because of his or her race, ethnic origin, religion or
or threaten someone;
products with dangerous defects;
streams, rivers and lakes;
in “insider trading.”
The list could go on and on. Despite what some may say, therefore, as a
general principle we can and do make moral judgments about certain
behaviors—and we do legislate against them.
Perhaps then, what the nay-sayers mean is that we can’t legislate sexual
But if that were true, then we could no longer enact or enforce laws
(including laws pertaining to adoption, child custody and divorce) pertaining
to sexual behaviors such as adultery, bestiality, bigamy, child pornography,
fornication, “gay marriage,” incest, obscenity, polygamy, the distribution
of pornography to children, prostitution, public lewdness (as in two adults
copulating in the middle of a public park at 12 noon), rape, sexual
molestation of children, sexual harassment on the job, and the opening of a
strip joint adjacent to an elementary or high school.
Perhaps then, what is really meant is that we can’t legislate sexual
morality in the bedroom.
But if that were true, we could no longer apply any laws (including laws
pertaining to adoption, child custody and divorce) pertaining to sexual
behaviors—such as adultery, bestiality, bigamy, fornication, “gay
marriage,” incest, polygamy, prostitution, date or statutory rape, sexual
molestation of children, or sexual behaviors that endanger the lives of
participants—when the conduct takes place in the bedroom.
Perhaps then, what is really, really meant is that we can’t legislate
sexual morality in the bedroom when it involves consenting adults only.
But if that were true, we could no longer apply any laws (including laws
pertaining to adoption, child custody and divorce) pertaining to sexual
behaviors (such as adultery, bigamy, possession of child pornography,
fornication, “gay marriage,” incest, polygamy, prostitution, or sexual
behaviors that endanger the lives of participants) when the behavior takes
place in the bedroom and involves consenting adults only.
Lawrence v. Texas
In June 2003, the United States Supreme Court in Lawrence v. Texas
held that the Texas sodomy law was unconstitutional as applied to “adult
sexual intimacy in the home” (2003 U.S. LEXIS 5013, at *11). In so holding,
the Court extended the “right of privacy” (LEXIS 5013, at *12)—which
cannot be found in the text of the Constitution—to a sexual behavior,
sodomy, which has been a crime for centuries and that in 1986 was found by the
Supreme Court in Hardwick v. Bowers [sic],
478 U.S. 186 (1986), to be unprotected by the Constitution.
Writing for the majority, Justice Kennedy said that Lawrence was
about whether “petitioners were free as adults to engage in private conduct
in the exercise of their liberty under the Due Process Clause of the
Fourteenth Amendment” (LEXIS 5013, at *11). Later, Justice Kennedy said the
Texas law touched upon “the most private human conduct, sexual behavior, and
in the most private of places, the home” (LEXIS 5013, at *16). Later still,
Justice Kennedy said the case involves “two adults who, with full and mutual
consent from each other, engaged in sexual practices common to a homosexual
lifestyle” (LEXIS 5013, at *36).
At one point Justice Kennedy opined (LEXIS 5013, at 23-24*):
[F]or centuries there have been powerful voices to condemn homosexual
conduct as immoral. The condemnation has been shaped by religious beliefs,
conceptions of right and acceptable behavior, and respect for the traditional
family. …The issue is whether the majority may use the power of the State to
enforce these views on the whole society through operation of the criminal
law. "Our obligation is to define the liberty of all, not to mandate our
own moral code.”
Justice Kennedy quoted Justice Stevens in an earlier case for the
proposition that “the fact that the governing majority in a State has
traditionally viewed a particular practice as immoral is not a sufficient
reason for upholding a law prohibiting a practice” (LEXIS 5013, at *35).
Justice Kennedy then concluded that the Texas statute “furthers no
legitimate state interest which can justify its intrusion into the personal
and private life of the individual” (LEXIS 5013, at *36).
In a justifiably angry dissent, Justice Scalia wrote (LEXIS 5013, at
The Texas statute undeniably seeks to further the belief of its citizens
that certain forms of sexual behavior are "immoral and
unacceptable," Bowers, supra, at 196—the same interest furthered
by criminal laws against fornication, bigamy, adultery, adult incest,
bestiality, and obscenity. Bowers held that this was a legitimate state
interest. The Court today reaches the opposite conclusion. …This effectively
decrees the end of all morals legislation. If … the promotion of
majoritarian sexual morality is not even a legitimate state interest, none of
the above-mentioned laws can survive rational basis review.
A narrower reading of the case
In Paris Adult Theatre I v. Slaton, 413 U.S. 49, the Supreme Court
recognized that there are “legitimate governmental interests at stake in
stemming the tide of commercialized obscenity, even assuming it is feasible to
enforce effective safeguards against exposure to juveniles. …” [It goes
without saying that we have failed miserably in erecting and enforcing
'safeguards against exposure to juveniles,' but that is the subject of another
The “legitimate governmental interests” alluded to by the Paris
Court include the right of the government to “maintain a decent society”
(413 U.S. at 59-60) and to protect:
- “the quality of life and total community environment” (413 U.S. at
- “public safety” (413 U.S. at 58);
- “the social interest in order and morality” (413 U.S. at 61);and
- “family life” (413 U.S. at 63). [Emphasis added.]
Lawrence will undoubtedly be cited for the proposition that
government no longer has a legitimate interest in protecting “morality” or
“family life.” Morality and family life, however, are essential for the
well-being of any society. For the Supreme Court to say that government can no
longer legislate to protect morality and family life would be suicidal.
What the Supreme Court has said is that if government passes criminal
legislation to control what goes on in the bedroom of consenting adults, it
must have a justification other than the majority’s belief that a particular
sexual behavior is morally wrong.
As noted above, the Paris Court indicated that the state could act
to protect the “social interest in order and morality” (413 U.S. at 61).
Later in its opinion, the Paris Court also had this to say:
The issue in this context goes beyond whether someone, or even the
majority, considers the [hardcore sexual] conduct "wrong" or
"sinful." The States have the power to make a morally neutral
judgment that public exhibition of obscene material, or commerce in such
material, has a tendency to injure the community as a whole, to endanger the
public safety, or to jeopardize, in Mr. Chief Justice Warren’s words, the
State’s "right to maintain a decent society.” (413 U.S. at 69)
Some will argue that the Paris Court first approved and then
disapproved of the notion that states can act to protect “morality.” I
would argue that the Court is simply making a distinction based on the
justification for protecting morality. In the first instance, government is
prohibiting the distribution of obscenity because obscenity undermines
morality, which leads to promiscuity, abortions, single-parent families,
adultery and more single-parent families, sexually transmitted diseases,
sexual abuse of children, and rape. In the second instance, government is
prohibiting the distribution of obscenity simply because a majority believe it
is “wrong” or “sinful.”
It should also be noted that in Stanley v. Georgia, 394 U.S. 557
(1969), the Supreme Court held that the “mere private possession of
obscenity cannot constitutionally be made a crime” (at 559); and in so
holding, said in part: “Whatever may be the justifications for other
statutes regulating obscenity, we do not think they reach into the privacy of
the home.” (at 565)
What about public indecency laws?
In his dissent, Justice Scalia noted that in Barnes v. Glen Theatre,
501 U.S. 560, 569 (1991), the Supreme Court concluded that Indiana’s public
indecency statute furthered a “substantial government interest in protecting
order and morality” (2003 U.S. LEXIS 5013, at *57) and was therefore called
into question by the Court’s decision in Lawrence v. Texas.
What occurs in a public place (e.g., people walking down the middle of a
busy street with no clothes on), however, often raises concerns that are not
raised when the same behavior takes place in private. While Boston Beer Co.
v. Massachusetts, 97 U.S. 25, 33 (1878), was not directly in point, it did
state a principle worth noting:
Whatever differences of opinion might exist as to the extent and boundaries
of the police power…there seems to be no doubt that it does extend to the
preservation of good order and public morals. [Emphasis added.]
In his concurring opinion in Barnes v. Glen Theatre, Justice Souter
also said that the Indiana public indecency law could constitutionally be
applied to strip joints because of the “State’s substantial interest in
combating the secondary effects of adult entertainment establishments of the
sort typified by respondents’ establishments.” (59 LW 4745, at 4751)
Interestingly, Justice Souter raised this argument even though “this
justification has not been articulated by Indiana’s legislature or its
courts” (at 4751). One is left to wonder then, why the Supreme Court in Lawrence
v. Texas didn’t look to justifications for the Texas sodomy statute
other than majority sentiments about homosexual sodomy. For example, one
amicus brief forcefully argued that the Texas law was justifiable as a public
Other ‘consenting’ behaviors?
With regard to adultery and bigamy, we are not talking just about
consenting adults. Rarely does an innocent spouse consent to a marriage
partner’s infidelity, and children are also typically involved. Women’s
groups can also be expected to set forth valid reasons why polygamy is
properly prohibited in the United States. Marriage is also a public
With regard to bestiality, we are not talking at all about consenting
adults. Animal rights groups will also argue forcefully that bestiality is
rightly a crime, whether the conduct takes place in the woods, the field, the
barn, the zoo, or the bedroom.
With regard to fornication, it is difficult to imagine the High Court
holding that adult homosexuals have a right to have sex in private, but not
heterosexual adults. The Court’s privacy right concerns notwithstanding,
however, it is nevertheless clear that since the outbreak of the so-called
sexual revolution, heterosexual promiscuity and homosexual sodomy have caused
an incalculable amount of harm to society in terms of abortions, divorce,
single-parent families, sexually transmitted diseases (including AIDS), sexual
abuse of children and rape.
Even assuming the Constitution should protect the right of adults to engage
in sodomy in private, it does not follow that the State should also be
required to formally recognize that private conduct as a “marriage.” While
the cases are not directly in point, it should also be noted that the Supreme
Court rejected the argument that the right to possess obscenity in the home
gives rise to a correlative right to obtain it in the marketplace. See, United
States v. Thirty-Seven Photographs, 402 U.S. 363 (1971) and State v.
Burgin, 178 S.E.2nd 325 (S. Car. Sup. Ct. 1970), rev’d, (other grounds)
404 US. 806 (1971). Consider also what may be next if the High Court holds in
a future case that adults in the privacy of the home have a right to bugger
Incest may prove to be a difficult case, especially where same-sex couples
are involved. Historically, incest has been prohibited in large measure
because of concerns about genetics.
Prostitution, like distribution of obscenity, is a commercial enterprise
with a public dimension. Furthermore, law enforcement agencies rarely if ever
attempt to get a search warrant to enter the home or hotel room of the
What prompted me to write this article was not my disagreement with the
holding in Lawrence but rather my concern that morally blind proponents
of the hellish sexual revolution, both on the Court and off, will try to make
more of this case than they should.
Narrowly read, Lawrence v. Texas stands for the proposition that
majority views about right and wrong—especially, if religious
based—standing alone, are not a sufficient basis to prohibit consenting
adult homosexuals from engaging privately in sexual conduct.
Presumably, private means private. Private does not mean conduct that takes
place in public places. Private also does not mean public recognition—as in
requiring states to bestow upon homosexual relationships the same status as
heterosexual marriages. In his majority opinion, Justice Kennedy was careful
to point out that Lawrence (2003 U.S. LEXIS 5013, at *36):
… does not involve minors. It does not involve persons who might be
injured or coerced or are situated in relationships where consent might not
easily be refused. It does not involve public conduct or prostitution. It does
not involve whether the government must give formal recognition to any
relationship that homosexual persons seek to enter.
I would add that our nation’s Founding Fathers also believed in the right
of privacy. That is why we have the Fourth Amendment that protects the
“right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.”
As is often the case, however, when the plain limits of the Constitution do
not fit with the private notions of Supreme Court justices, they simply bypass
the American people and in effect “amend” the Constitution by creating
rights that do not exist in the text of the Constitution or by interpreting
provisions to mean what they were never intended to mean. Either Supreme
justices (like other federal officials) are under the Constitution—or they
are the Constitution.
Now, it should be said that many people who believe that homosexual
behavior is morally wrong and that the “gay rights” movement is in general
a destructive movement also believed that laws prohibiting acts of sodomy
between consenting adults in the private places were unwise and should have
been repealed by the various legislatures.
That is the subject for another article. But I will add my voice to those
who say that in Lawrence v. Texas the Supreme Court once again entered
the legislative realm of policy making. As Justice Scalia put it in his
dissent, the Supreme Court has:
… largely signed on to the so-called homosexual agenda, by which I mean
the agenda promoted by homosexual activists directed at eliminating the moral
opprobrium that has traditionally attached to homosexual conduct. … It is
clear … that the Court has taken sides in the cultural war, departing from
its role as a neutral observer.
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