Moralism and the Law

1. Moralism and the Law Devlin versus Hart The Right to Privacy Liberty as Freedom from Moralism

2. Weakening the social fabric? • Do immoral acts weaken the cohesion of society by encouraging deviation from widely and deeply held norms? (Lord Devlin) • Is there empirical support for such an effect? (Hart) • Can immorality be seen as intrinsically harmful to society? To the perpetrator?

3. Indirect Harms • Increased danger to others, through damage to one's own character? Does violation of one social norm make violation of others more likely? • Increased burden on the charity of others, through damage to one's capacity to support oneself (e.g., through drug addiction, alcoholism)?

4. Right to Privacy (after Griswold) • Stanley v. Georgia (1969): right to privacy protects the individual’s viewing of pornography in his own home. • Roe v. Wade (1973): right to privacy includes a woman’s (even a minor woman’s) right to terminate her pregnancy -- not a joint right, held by the couple involved.

5. Problems with extending a privacy right to abortion • Abortions typically take place in clinics, open to the public. Often, no long-term relationship between doctor and patient. • Medical privacy is far from absolute -- Medicare regulations, FDA rules. • If privacy enables the Court to avoid the question of when life begins, why does the point of viability affect the right?

6. More problems • In the third trimester, abortions may be prohibited except where necessary for the “life or health of the mother”. What does this rule have to do with privacy? • The appeal to privacy is supposed to enable the Court to evade the question of when life begins. Does it really do so? If the fetus is a living human being, how can abortion be a “private” transaction between a woman and a doctor?

7. Bowers v. Hardwick (1986) • Majority decided to uphold a Georgia statute making sodomy a crime. • Majority opinion: J. White • Dissenting: Blackmun

8. Is the freedom to commit sodomy a fundamental right? • A fundamental right must be “deeply rooted in this Nation’s history and tradition.” (Moore v. E. Cleveland, 1977) • Proscriptions of sodomy have ancient roots: common law. • Forbidden by all 13 original states, by all but 3 of 37 states at time of the ratification of the 14th amendment.

9. Protected by privacy? • Otherwise illegal conduct is not immunized by occurring in the home: illegal drugs, firearms, stolen goods. • A rational basis (minimal scrutiny)? • Georgia holds that sodomy is immoral. • If this is not a rational basis, then all laws representing moral choices would be invalidated.

10. Blackmun’s Dissent • Right to privacy is the key. • Privacy does not protect only the traditional nuclear family. • Privacy is protected, not for a social good, but because it includes a central part of an individual’s life. • Individuals define themselves through intimate sexual relationships.

11. Is White’s Position Consistent? • In Griswold, White accepted that the state must not insist that all sex be procreative. • What can be the rational moral objection to sodomy, once the sex/procreation link is severed?

12. Planned Parenthood v. Casey (1992) • The reasoning of Roe is not defended -- there is no appeal to any supposed right of privacy. • In addition, Roe’s trimester system is rejected. Instead, viability becomes central: after viability, “the independent essence of the second life can now be the object of state protection.”

13. Liberty replaces privacy • Importance of precedent (stare decisis): “an entire generation has come of age free to assume Roe’s concept of liberty.” • Court must generate a specific rule: “it falls to us to give some real substance to the woman’s liberty to determine whether to carry the pregnancy to full term.”

14. Limitations to liberty • State may encourage philosophical and social arguments, adoption, state assistance to pregnant women. • May inform a woman’s free choice -- but must not hinder it (before viability). No undue burden = “substantial obstacle”. • After viability, reaffirms Roe: may prohibit abortion except where necessary for the life or health of the mother.

15. Scalia’s Dissent • What makes this liberty Constitutionally protected? Nothing to do with whether it concerns my “concept of existence, of meaning, of the universe, and of the mystery of human life.” (Kennedy) • Not protected, for the same reason bigamy is not: • Not mentioned in Constitution. • Longstanding tradition of prohibition.

16. Scalia’s Dissent, cont. • Begs the question: is the fetus a living human being, or merely “potential life”. By what “reasoned judgment” does the Court reach this conclusion? • Many decisions that are “basic”, “intimate”, “deeply personal” can be criminalized: sodomy, bigamy, incest, suicide.

17. Lawrence v. Texas (2003) • Overturns Bowers. Kennedy writing the majority opinion, O’Connor concurring. • Sodomy is a liberty protected by due process in 14th amendment: • Tradition: “emerging awareness that liberty gives substantial protection to adults in deciding…in matters pertaining to sex.” • Appeal to European Court of Human Rights. • Stare decisis is not an “inexorable command”.

18. The “Mystery” passage from Planned Parenthood v. Casey • At the heart of liberty is the right to define one’s concept of existence, of the meaning of the universe, and of the mystery of human life.

19. Rights to privacy and equal protection also involved • Privacy progression: Griswold, Eisenstadt, Roe, Carey v. Population Services (1977) -- invalidated a law barring the distribution of contraceptives to persons under 16. • Also, the equal protection clause is relevant, as ruled in Romer v. Evans (1996).

20. Sodomy is not defined as a fundamental liberty • Kennedy nowhere asserts (contrary to Bowers) that there is a fundamental liberty to commit sodomy. • Consequently, the Texas law must pass only minimal scrutiny: a rational relation to a legitimate purpose.

21. Enforcing morality is no longer legitimate • “Our obligation is to define the liberty of all, not to mandate our own moral code.” • This is a radical step: the rejection of all moralism in the law.

22. O’Connor’s opinion • O’Connor stands by the reasoning in Bowers -- sodomy is not a fundamental liberty. • However, the Texas statute violates the equal protection clause: the conduct (sodomy) is “closely correlated with being homosexual”. The act is “directed toward gay persons as a class.”

23. No legitimate purpose • O’Connor does not claim that the classification of homosexual/ heterosexual is suspect. So, minimal scrutiny? • “Moral disapproval of a group cannot be a legitimate governmental interest… because legal classifications must not be drawn for the purpose of disadvantaging the group…”

24. Scalia’s Dissent • Nowhere does the Court in Lawrence declare sodomy to be a fundamental liberty, or subject the Texas law to strict scrutiny. • This effectively decrees the end of all moral legislation: “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity…”

25. The role of social dissent • In Planned Parenthood v. Casey, widespread social discontent with Roe was given as a reason for upholding Roe: to overrule under fire would subvert the Court’s legitimacy. • In Lawrence, social dissent from Bowers is given as reason for overturning it. No consistency!

26. Against O’Connor • Every law prohibiting any conduct whatsoever is directed against a class, namely, those more likely than average to engage in the forbidden act. • A law against public nudity targets conduct that is “closely correlated” with being a nudist.

27. Same Sex Marriage? • The Court claims the present case “does not involve whether the government must give formal recognition to any relationship that homosexual person seek to enter.” • Scalia: “Do not believe it.”