Published as 88 Minn. Law Rev. 1233 in May 2004.


Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.

The article develops several explanations for this avoidance of explicit morals rationales related to judicial concerns with institutional credibility and the capacity to screen morals rationales. These explanations suggest, in part, that deference to the majoritarian impulse – which is one option for courts faced with evaluating a morals rationale – does not permit courts to distinguish credibly between “legitimate” moral concerns and the use of morality as a benign-sounding mask for impermissible bias. In addition, courts that reject proffered morals justifications for government action risk appearing to displace majoritarian moral norms with their own. Because moral codes tend to be highly contested, it becomes difficult, if not impossible, for courts to demonstrate convincingly that reliance on nonmajoritarian moral standards for evaluating morals rationales represents anything more than an individual judge’s personal views. To escape this unpalatable bind, the Supreme Court has consistently avoided relaying exclusively on explicit morals rationales to sustain government action.

Still, moral sentiment has not been banished entirely from American law, as a wide range of cases (e.g. adult entertainment cases) demonstrate. The question then becomes how, if at all, can we reconcile the entangling of moral judgments and lawmaking with the challenges for courts in distinguishing between moral judgments and impermissible bias masquerading as morality? I conclude that only by steering clear of abstract, philosophical justifications for government action and relying instead on fact-based, utilitarian rationales can courts limit their exposure to this double-edged predicament. This factual-grounding requirement, I suggest, is not only helpful but also compelled by the institutional competence concerns reflected in the Court’s current discomfort with morals rationales.


Constitutional Law | Jurisprudence | Sexuality and the Law

Date of this Version

May 2004