Bowers: Argument 1

Justice White argues that the Georgia statute did not violate any of Michael Hardwick's fundamental rights, given the accounts of fundamental rights that the Court had previously endorsed. The first, from Palko v. Connecticut, includes those rights “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist [if] they were sacrificed.”Footnote ³⁴ The second, from Moore v. East Cleveland, requires fundamental rights, if not explicit in the Constitution, to be “deeply rooted in the Nation's history and tradition.”Footnote ³⁵ Interestingly, in arguing that the Georgia statute violated no fundamental right of Hardwick's, Justice White focuses exclusively on the claim that a fundamental right to homosexual sodomy fails to satisfy the “deeply rooted” requirement of Moore while nearly completely ignoring the claim about ordered liberty in Palko. He cites “ancient roots” against homosexual sodomy and the fact that sodomy's criminalization goes back a long way in U.S. law. Rather amazingly, Justice White then claims that this demonstrates not only that Hardwick's claim fails to satisfy the “deeply rooted” criterion; its failure to do so shows that it fails the “ordered liberty” test as well. But of course such a claim is ludicrous; it is perfectly conceivable that a society's legal and other traditions would include a plank that denies a fundamental liberty of this sort to a segment of its population. Moreover, as Justice Kennedy points out in his argument in Lawrence, the roots of statutes explicitly and exclusively condemning homosexual sodomy are hardly deep at all.Footnote ³⁶

But the merits of the argument aside, my main concern is with whether this argument is best understood as invoking or relying on legal moralism. While it could be construed as an attempt to enforce conventional morality (hence a species of conventional legal moralism), it remains open that certain rights that form part of society's conventional morality fail to satisfy the Court's “deeply rooted” requirement. And as far as the epistemic versions of realist legal moralism are concerned, the “deeply rooted” requirement is neither necessary nor sufficient for justifying legal sanctions and indicates a closer link to moral conservatism. As such, only the least plausible (i.e., conventionalist) versions of legal moralism would endorse it.

Bowers: Argument 2

Justice Burger, echoing and elaborating on a similar point made by Justice White, argues that proscriptions against sodomy have “ancient roots” in the “history of Western civilization, Judeo-Christian moral and ethical standards and English common law” (citing even Blackstone's description of sodomy as a “crime against nature” “not fit to be named”) and therefore to hold that there is a fundamental right to sodomy is to “cast aside millennia of moral teaching.”Footnote ³⁷ Again, we have an argument that is an instance of either moral conservatism or conventionalist legal moralism. But even applying Dworkin's relatively loose defeasibility conditions, this represents either a set of fallacious appeals to moral authority or a blind, uncritical appeal to history, since there is no attempt to provide any reasons, let alone rationally defensible grounds, for the prohibitions to which Justice Burger refers. As such, the argument would pass muster according to only the least plausible versions of legal moralism that implement conventional morality uncritically.

Bowers: Argument 3

Justice White argues that the “presumed belief of the Georgia electorate that homosexuality is immoral provides a rational basis for the statute.” But as Lawrence Tribe points out, there are hardly conclusive grounds for even that presumption; since the statute was passed by legislators, not the electorate itself, it hardly provides conclusive grounds for the presumption, and Tribe provides good reason to doubt that such a consensus existed within the Georgia electorate.Footnote ³⁸ Leaving that issue aside, even though such a belief on the part of the electorate would provide grounds for the statute according to conventionalist legal moralism, it would fail to provide adequate grounds for any other version of legal moralism. Indeed, what would need to be shown in order to satisfy realist legal moralism, or even a Dworkinian moral conservative, is not simply that the statute bears a rational relation to the beliefs of the electorate. Instead, the Dworkinian moral conservative would require the Court to provide some possible minimally rational basis for the beliefs of the electorate, and realist legal moralism would require showing that the beliefs of the electorate are consistent with rationally defensible moral positions. And Justice White does no such thing. So once again, there is little legal-moralist thought in Justice White's argument.

On the other hand, consider Justice Blackmun's dissent. He begins by asserting that no matter how “natural and familiar” the moral judgments expressed by the Georgia statute may be:

In essence, he is insisting that a society's moral consensus, whether the grounds for enforcing it derive from moral conservatism or legal moralism, be backed up by some kind of reasons. And he finds that in the case of the Georgia statute, no such reasons have been given, nor are any likely to be found.

Citing cases such as Thornburgh v. American College of Obstetrics and Gynecology and Griswold v. Connecticut, he argues that the right to privacy encompasses a set of decisions that are an important part of one's way of life and that embody the “moral fact that a person belongs to himself and not to society as a whole.”Footnote ⁴⁰ Moreover, a “way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.”Footnote ⁴¹ And he argues further that neither “the length of time [n]or the passions with which it defends” its moral convictions can justify blind implementation of a society's moral judgments.Footnote ⁴² Nor does it matter if religious doctrine condemns the conduct, because “[a] State can no more punish private behavior because of religious intolerance than it can punish such behavior because of racial animus.”Footnote ⁴³ Moreover, Justice Blackmun points out that “[r]easonable people may differ about whether particular sexual acts are moral or immoral.”Footnote ⁴⁴

What Justice Blackmun seems to be asserting in those passages is that beyond the mere expression of moral disapproval, there are no reasons given in support of the Georgia statute, and that on the issue of moral disapproval of consensual adult homosexual sodomy, there is nothing even approaching an overwhelming consensus (let alone unanimity) to be found among reasonable moral positions. Also noteworthy is Justice Blackmun's reference to the “moral fact” (not a feeling or even a belief, but a fact) that establishes a right to personal autonomy that is more than broad enough to include the type of conduct that Georgia seeks to criminalize. So I conclude that the only defensible arguments of a legal-moralist stripe to be found in the opinions in Bowers entail that the Georgia statute should be overturned and that if the holding in Bowers should be viewed as mistaken, it is not the result of the Court's reliance on legal moralism.Footnote ⁴⁵

Let us now turn to Barnes. In this case, the Justices were split five to four in favor of upholding the statute, but there were three separate concurring opinions (as well as two dissents). As one would expect, the arguments are all over the map. The concurring opinions contain three arguments that have legal-moralist overtones.

Barnes: Argument 1

Three times Justice Rehnquist argues that the purpose of the statute is to “protect public order and morality” (although he once refers to “societal order and morality”).Footnote ⁴⁶ Unfortunately, he never specifies which aspects of public order need protecting, what they need to be protected from, or what might happen if this protection were not extended. Thus it is difficult to determine whether what he has in mind is conventional legal moralism (here the emphasis would be on enforcing public morality), the disintegration thesis (hinted at in “protecting public order”—but how seriously can that be taken? “Totally nude” bars threaten complete erosion of all moral restraint?), or moral conservatism (some drastic change in the way of life in Indiana). But there is nothing resembling realist legal moralism in his argument.

Barnes: Argument 2

Justice Rehnquist asserts that the statute “reflects moral disapproval” of public nudity, which is “the evil the State seeks to prevent,” and that the governmental interest served by the statute is “societal disapproval of nudity in public places and among strangers.”Footnote ⁴⁷ Justice Scalia is even more forthcoming, stating that “moral opposition to nudity supplies a rational basis for its prohibition.”Footnote ⁴⁸ These arguments reveal unabashed endorsement of conventional legal moralism: mere disapproval alone provides a compelling reason for legal sanctions. And here we see clearly an important difference between conventional legal moralism on the one hand and both Dworkin's view and realist legal moralism on the other: where conventional legal moralism holds that moral disapproval provides a rational basis for legal sanctions, Dworkin's view and realist legal moralism both hold that one must provide a rational basis for backing up moral disapproval with legal sanctions. Neither Justice Rehnquist nor Justice Scalia does any such thing.Footnote ⁴⁹

Barnes Argument 3

Justice Souter argues that the statute is justified on the basis of “the State's substantial interest in combating the secondary effects of adult entertainment.”Footnote ⁵⁰ Among these secondary effects Justice Souter lists the encouragement of prostitution, increased sexual assaults, and attracting “other criminal activity.”Footnote ⁵¹ My guess is that Justice Souter would agree that the harm principle would cover sexual assaults and that prostitution might fall under the heading of either moral conservatism (a malignant “way of life” change) or conventional legal moralism. But the problem is not only that he never bothers to establish any causal link between the presence of these establishments and the alleged secondary effects, he argues straightforwardly that no such causal link needs to be substantiated. He insists that correlation is sufficient, and that anecdotal evidence is sufficient to establish correlation. To say the least, this is a rather loose set of requirements for establishing a causal link between the restricted activities and the alleged secondary “effects” that justify the restrictions.Footnote ⁵² Hume's difficulties with causation seem trivial by comparison. So Justice Souter's argument fails to meet the criteria for even impure legal moralism.Footnote ⁵³

The dissenting opinion in Barnes centers on criticism of the concurring opinions' takes on whether topless dancing is speech at all, let alone protected speech, the alleged connections between topless bars and negative secondary effects, as well as whether one can outlaw topless dancing as a means toward combating those secondary effects (arguing for the need to employ more specific measures when protected speech is the issue).

However, a portion of Justice White's dissent includes a discussion of Justice Scalia's concurring opinion's seeming commitment to the claim that the Indiana “law is directed against nudity” and that “the purpose of the Indiana statute, as both its text and the manner of its enforcement demonstrate, is to enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified.”Footnote ⁵⁴ The criticism (at least in part) runs as follows: the statute does not apply to nudity in the home nor does it apply to plays, ballets, or operas that include nudity, so it seems dubious at best that the statute is directed at nudity, or even public nudity, per se.Footnote ⁵⁵ And that looks very much like what a Dworkinian criticism of a legal-moralist argument might look like: the alleged moral judgment that is alleged to justify this statute would require that this prohibition be extended to these cases that you are obviously unwilling extend it to. But then that moral judgment cannot be the real reason for enacting this statute. So although, as one might expect, no Justice was prepared to offer a defense of “totally nude” dancing in public on moral grounds, the dissenting argument does employ a strategy that resembles in important ways the line of argument that one would expect from the more plausible versions of legal moralism.

Next I would like to consider the arguments made by the Court in deciding Loving. This case is important both because of how the Court did decide the case, and on what grounds it refused to decide the case. The lower-court trial judge who upheld the statute argues as follows: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. . . . The fact that he separated the races shows that he did not intend for them to mix.”Footnote ⁵⁶ And the Petitioner's Brief relies on the Old and New Testaments as well as the writings of Aquinas to show that “traditional Judeo-Christian values proscribe such conduct.”

As Justice Blackmun notes in his dissent in Bowers, the parallel between Bowers and Loving is “almost uncanny.” If the arguments based on tradition and history that the Court used to argue that Georgia's antisodomy statute passes muster were employed by the Court in Loving, Virginia's antimiscegenation statute would have been upheld as well. Instead, the Court argues that (1) religious beliefs and traditions, no matter how long held, deeply felt, or widely believed do not provide a rational basis for employing legal sanctions; and (2) any rationally defensible conception of ordered liberty will entail that the race of a person's choice of a marital partner is not a legitimate ground for legal interference. More specifically, Justice Warren argues that “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Marriage is also claimed to be “one of the basic civil rights of man” and a “fundamental freedom.”Footnote ⁵⁷ The application of rational standards to a society's moral convictions (dismissing blind appeals to religious traditions) and the appeal to “any reasonable conception of ordered liberty,” while not unique to the type of reasoning suggested by realist legal moralism, are certainly consistent with it. So Loving provides a case in which legal moralism is not only not the enemy but actually provides support for the decisive argument that enabled the Court to strike down a patently unjustifiable statute.

The Court's decision in Lawrence arguably inspired more heated controversy than any decision since Roe v. Wade. Despite its reputation among those deeply involved in the “culture wars” as a watershed moment in the fight over the legal enforcement of moral standards, careful analysis of the opinions reveals the presence of very little legal-moralist thought in the Court's arguments. Justice Kennedy's majority opinion is primarily concerned with providing grounds for overturning Bowers, and the bulk of his argument is actually an endorsement of the dissents of Justices Blackmun and Stevens in that case. At one point he simply asserts that Justice Stevens's argument should have prevailed in Bowers.Footnote ⁵⁸ More specifically, Justice Kennedy maintains that the alleged historical grounds for the condemnation of homosexual sodomy offered by Justices White and (especially) Burger are actually shaky at best,Footnote ⁵⁹ and further, no matter how deeply entrenched a majority's moral convictions may be, that by itself would not justify using the coercive power of the State to enforce those convictions.

In one bold stroke, Justice Kennedy disallows conventionalist legal-moralist grounds for legal sanctions and at least severely restricts moral-conservative arguments as well. The closest Justice Kennedy comes to making a legal-moralist argument of his own is in his claim that the freedom to engage in homosexual sodomy falls within a class of acts of autonomy with regard to personal intimacy, among consenting adults, of course, which fall under the umbrella of the general liberty shared by all adults to self-determination absent State interference. This is central to and at the heart of liberty itself, not some particular conception of it. One way of recasting Justice Kennedy's point would be that liberty understood in this way must be acknowledged as a core moral value, especially within the political sphere, by all reasonable moral positions, an argument that closely resembles a realist legal-moralist argument, but of course he does not put it exactly that way.

Justice O'Connor's concurring opinion focuses narrowly on establishing that the Texas statute, which prohibited homosexual but not heterosexual sodomy, violates the Equal Protection Clause of the Fourteenth Amendment. One would not expect legal moralism to play much of a role in that kind of argument. But she does argue that mere moral disapproval is not sufficient to establish that homosexuals and heterosexuals can legitimately be treated differently by the law without violating equal protection concerns. She equates moral disapproval with statements of “dislike and disapproval,” “born of animosity toward the class of persons affected.”Footnote ⁶⁰ Although this may not be the most natural way to frame her argument, one could see her as arguing that what Dworkin would call mere nondiscriminatory moral positions, that is, moral judgments not backed up by reasons, do not provide grounds for legal sanctions, and hence those moral conservative and conventionalist legal-moralist arguments that simply endorse such judgments would be ruled out as well.Footnote ⁶¹

Justice Scalia's dissent is another matter entirely. His argument is at times apoplectic and highly undisciplined, but I focus on those aspects that most clearly relate to the topic at hand.

His position is that other than when “fundamental rights” (those satisfying the “deeply rooted” criterion and/or—he vacillates on thisFootnote ⁶²—those without which there would be no liberty or justice) are at stake, a State can use legal coercion to limit any liberty interest so long as its action bears a rational relation to some legitimate State objective.Footnote ⁶³ In the case of the Texas antisodomy statute, legal enforcement of the moral disapproval of the citizens of Texas supplies the legitimate State objective.Footnote ⁶⁴ Once again, it should be noted that it is one thing to say that a community's moral disapproval provides a rational basis for legal sanctions and quite another to say that a community's moral disapproval must have a rational basis in order to provide a legitimate ground for sanctions. Justice Scalia embraces the former, realist legal moralism embraces the latter. For Justice Scalia, expressing moral disapproval is a legitimate State interest and justifies the Texas statute. This argument of Justice Scalia's is a straightforward version of conventionalist legal moralism, given its reliance on the existence of a moral consensus itself as opposed to damage to valued institutions as the justification for sanctions.Footnote ⁶⁵

Another recurring theme in his dissent is that (echoing arguments made in Bowers) it is impossible to distinguish homosexual sodomy from other “morals” offenses, and since a great deal of the law is “based on notions of morality,” if legislation against homosexual sodomy is deemed illegitimate, so would be legislation against “fornication, bigamy, adultery, adult incest, bestiality and obscenity.”Footnote ⁶⁶ Justice Scalia seems oblivious to there being other grounds than mere moral disapproval for employing legal sanctions in most of these cases. Obscenity can be handled by a principle declaring profound offense to be a legitimate reason for legal sanctions (Feinberg endorses that principle), adultery and bigamy can be dealt with under contract law (provided exclusivity and fidelity are part of the agreement), bestiality can be covered under cruelty to animals. Adult incest and fornication would likely be off limits, but perhaps they should be. In clear cases of legitimate uses of legal sanctions, either there are reasons for legislating available beyond mere moral disapproval, or the moral disapproval is backed up by reasons that a reasonable person could endorse, so that it is not a case of mere moral disapproval. For Justice Scalia, “society's belief that certain forms of sexual behavior are immoral and unacceptable,” “the promotion of majoritarian sexual morality,” and “the enforcement of traditional notions of sexual morality” are all seen as individually sufficient for justifying sanctions. Whatever one may think of these arguments, they would not be condoned by the versions of realist legal moralism that I consider here.