Reason and the rule of law: Should bare assertions of “public morality” qualify as legitimate government interests for the purposes of equal protection review?
Cicchino, Peter M
PETER M. CICCHINO*
In his discussion of human law in the Summa Theologica, St. Thomas Aquinas argues:[T]he force of a law depends on the extent of its justice. Now in human affairs a thing is said to be just, from being right, according to the rule of reason.1 St. Thomas is by no means alone in his sentiments about the law. For a wide variety of thinkers throughout history from Plato2 to Martin Luther King, Jr.,3 a law opposed to justice, a law that inflicts harm on human beings without sufficient justification, is unworthy of the name “law.” It has no claim on our obedience. As Aquinas quoted approvingly from Augustine, “That which is not just seems to be no law at all.”4
This idea also finds expression in American constitutional law, especially in the equal protection guarantees of the Fifth and Fourteenth Amendments.5 The constitutional guarantee of equal protection of the laws, as interpreted by the Supreme Court, requires that the differing treatment laws give to various classes of people be rationally justified in light of the state interests the laws serve and of the burdens the laws impose. In enforcing this requirement, courts utilize a complex and frequently confusing analysis that involves tiers of review based to some degree on the characteristics that define the legislative classification in question and the burdens that classification imposes. Despite this fractured approach, constitutional legitimacy-a law’s standing as a law-is ultimately rooted in some minimal level of rationality.
This article will discuss a particular aspect of the relationship between reason and the rule of law. Specifically, the article poses the question: Should a “bare” assertion of public morality-an assertion of public morality without any observable, empirical connection to the public welfare-serve as a legitimate government interest for the purpose of equal protection review?
Throughout this article, arguments based on bare assertions of “public morality” are contrasted with arguments based on “public welfare.” It could be argued that, logically, public morality is inseparable from public welfare, and therefore, setting the two concepts in opposition is untenable. On that view, the thesis of this article could, itself, be characterized as a “public morality” argument that it is wrong to use the law to further interests other than those that have some empirical connection to the public welfare.
This article, however, uses the terms “public morality” and “public welfare” as a kind of shorthand. “Bare public morality” arguments defend a law by asserting a legitimate government interest in prohibiting or encouraging certain human behavior without any empirical connection to goods other than the alleged good of eliminating or increasing, as the case may be, the behavior at issue. “Public welfare” arguments, in contrast, defend a law by asserting that the law avoids harms or realizes goods other than the good of eliminating or increasing the behavior or characteristic that defines the classification the law creates-for example, health, safety, or economic prosperity.
It is important, however, that the functional manner in which this article distinguishes bare public morality arguments from public welfare arguments not create the impression that this article is an argument against a public morality per se. Quite the contrary. As should become clearer as it progresses, this article argues for a certain kind of public morality, a morality that conditions the legitimacy of government interests on their observable connection to the public welfare.
To that extent, it should be noted that this argument does not treat as illegitimate all of what might be termed widely held moral intuitions. Indeed, the strength of this argument depends on the notion that there are some value judgments-for example, that physical health is an integral part of human flourishing6-that must be accepted and shared in order to have a rational discussion about what is good for human beings in the world in which we live. Such shared values are to ethical discourse about human beings what the principle of noncontradiction is to logical discourse: not strictly provable, but still the condition of possibility for any rational discourse to take place.
As will be argued later, the central criticism this argument levies against bare public morality arguments is that they are not “public” at all. Instead, such arguments, because they are not rooted in human experience commonly accessible to any rational person, are “private” in that they are intelligible to and command the assent of only those who share certain assumptions about reality, assumptions that are impervious either to examination or to refutation by reference to human experience. “Private,” in this context, is therefore more closely akin to “sectarian,” meaning truths accessible only to those who have already made an assent of faith. The relationship between public morality and public welfare implicates one of the most famous philosophical debates in Anglo-American jurisprudence, the argument between H.L.A. Hart and Patrick Devlin over the legal enforcement of morality.7 Indeed, it would not be unfair to say that in many ways the discussion that follows of legitimate government interests and the equal protection of the laws is a contemporary application and elaboration of the position J.S. Mill articulated in 1859:[T]he sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is selfprotection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.8
The approach, analysis, and conclusions in this discussion, however, differ in several important ways from the modern debate that Mill initiated, and Hart and Devlin continued.
First, this discussion uses the current legal debate over governmental acts9 that discriminate against people on the basis of sexual orientation to situate the constitutional status of bare assertions of public morality. Its implications, however, go well beyond the debate over so-called “gay rights.” The position one takes in response to the central question of this article will determine the sorts of government interests that qualify as “legitimate,” and as justifying laws that often place severe burdens on certain classes of people. That position will, in turn, determine the specific outcome of countless cases, and more generally affect the moral and political legitimacy of law.
Second, the position defended herein is that while it is entirely appropriate, and indeed unavoidable, that legitimate government interests reflect judgments about what is good for the political community and for individual citizens, for equal protection analysis, the only value judgments that qualify as legitimate government interests are those that are observably connected to the public welfare. A bare assertion of public morality, divorced from any empirical effect on the public welfare, cannot constitute a legitimate government interest for equal protection review. In the current terminology of equal protection jurisprudence, a bare assertion of public morality provides no “rational basis” for a law because such assertions, unsupported by any observable connection to the public welfare, are not themselves rational.
In order to defend that thesis, the argument is divided into three parts. Part I explains the contest of reasons that is involved in adjudicating every equal protection challenge. A specific illustration of that contest of reasons is then offered based on cases challenging laws that discriminate on the basis of sexual orientation.
Part II brings into sharper focus the argument that a bare assertion of public morality, independent of any observable connection to public welfare, can provide a rational basis for a government act or legislative classification that burdens certain groups of people. Here, again, the focus is on the constitutionality of laws that impose burdens on people based upon their sexual orientation. Two sources for the public morality argument are closely examined: the article Law, Morality, and “Sexual Orientation “10 by the natural law philosopher John M. Finnis; and the dissenting opinion of Justice Scalia in Romer v. Evans,”1 the case in which the Court found a Colorado state constitutional amendment prohibiting any state or local laws from banning discrimination on the basis of sexual orientation to violate the Equal Protection Clause.
Part III undertakes a critique of the public morality arguments of Finnis and Justice Scalia, and argues that a bare assertion of public morality, apart from any empirical connection to the public welfare, fails to meet a minimal level of rationality for the purpose of equal protection review, and would have disastrous consequences in practice if accepted as a legitimate government interest. The critical scope of Part III, however, is not confined to the views of Finnis and Justice Scalia. Rather, the position defended herein is given critical scrutiny and defended from what are admittedly serious objections.
The article concludes with some final remarks on reason and the rule of law and why the minimal standard of rational judicial scrutiny advocated by this article is ultimately consistent with a profoundly conservative legal ideal.
While the specific questions addressed by this article deal with the status of bare assertions of public morality in the context of equal protection challenges, the broader reach of the argument should not be obscured. The underlying thesis here is that proponents of laws that discriminate on the basis of sexual orientation are running out of arguments. They may have only one argument left, an argument whose greatest strength is its greatest weakness; it is immune from empirical refutation because it is utterly disconnected from human experience.
If that last remaining argument-the argument from bare assertions of public morality-can be shown to be “irrational” for the purpose of equal protection rational basis review, then the constitutional validity of all laws that discriminate on the basis of sexual orientation will be fatally undermined.Iz
1. ADJUDICATION OF EQUAL PROTECTION CLAIMS AS A CONTEST OF REASONS
Every equal protection case is a contest of reasons.l3 On one side is a plaintiff claiming that a law places an unjustified burden on a class to which he or she belongs. On the other side is the state claiming that the legitimate governmental interests furthered by the classification the law in question creates justify the alleged burden imposed by the challenged classification. For concision and clarity, cases and commentary speak of a “statute” or “law” being challenged, but the real point contested is some classification created by the challenged law.’4 “Classification” means no more than treating one identifiable group of people differently than other people.ls
A. EQUAL PROTECTION JURISPRUDENCE: TIERS OF REVIEW AND COMMON ANALYTIC STRUCTURE
Every law, it goes without saying, treats some people differently than others-if only in that laws treat those who obey them differently from those who disobey them.16 More generally, almost every law is bound to disadvantage some and advantage others. In credible equal protection challenges, however, the classifications at issue base differential treatment on characteristics that the plaintiff alleges are inadequately related to a sufficiently important government interest.
In determining whether a challenged classification is appropriately related to a sufficient government interest, the Supreme Court appears to use more than one standard of review, depending upon the alleged harm inflicted by the classification and the characteristics of the classification. So much has been written on those standards of review-strict scrutiny, intermediate scrutiny, and rational basis-that it does not seem worth revisiting that matter here.17 For the purposes of this discussion, what seems relevant is that, depending upon the harm inflicted and the characteristics of the classification at issue, the Court inquires into: (1) the importance of the alleged or, in the case of the rational basis test, conceivable government interest realized by the classification (“compelling,” “substantial,” or “legitimate” Is); and (2) whether and how the classification at issue is likely to realize that interest (that is, strict scrutiny requires the statute be narrowly tailored and essential to achieving a compelling government interest;l9 intermediate scrutiny requires that the statute substantially advance an important government interest;20 and rational basis review requires that the statute be rationally related to some conceivable legitimate government interest.21). What distinguishes the various standards of review from each other is the level of deference accorded to the government’s rationale to justify the statute under the Equal Protection Clause.
Every law must be, at a minimum, rationally related to some legitimate government purpose.22 Because the rational basis standard is most deferential to the government, it follows that any statute that fails to meet this standard will fail to meet more stringent standards as well. In most cases, equal protection challenges to laws that discriminate on the basis of sexual orientation have been reviewed under the rational basis standard.23 This argument therefore directs its attention to the rational basis standard.
What is important to keep in mind, however, is that whatever the standard of review, the ultimate justificatory reasons behind why a certain level of deference is accorded to the government or why a certain party must bear the burden of justification, the basic structure of equal protection challenges is a contest of reasons in which justifications for a statute clash with arguments against those justifications. Thus, regardless of whether he was correct as a matter of judicial history, Justice Stevens’ concurrence in City of Cleburne v. Cleburne Living Center4 accurately describes the basic logic the courts use to decide equal protection disputes:
I have always asked myself whether I could find a “rational basis” for the classification at issue.
The term “rational,” of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class. Thus, the word ‘rational’ . . . includes elements of legitimacy and neutrality that must always characterize the performance of the sovereign’s duty to govern impartially.25
What must not be missed, however, is that “rationality” in this context means more than just internal consistency. Rather, there is an essential and critical empirical component to the exercise of reason that equal protection analysis requires. Deciding equal protection claims, therefore, necessarily involves a dialogue with human experience-an inventory and assessment of the observable effects that a given act of government will likely have on human flourishing in the real world. Thus, equal protection review almost invariably involves some form of utilitarian analysis to endeavor to weigh and compare the competing interests of the government and those burdened by the classification at issue. In this way, courts decide what qualifies as “compelling,” “substantial,” or even “legitimate” government interests, and make practical judgments about whether the means by which challenged laws realize those interests are impermissibly overinclusive or underinclusive.
To examine how equal protection challenges force courts to consider competing reasons, this article uses an extended illustration from a specific, controversial, and highly prominent set of equal protection cases: those that challenge legislative classifications that impose burdens on the basis of sexual orientation.
B. EQUAL PROTECTION REVIEW IN PRACTICE
1. Justifying Discrimination on the Basis of Sexual Orientation
In the contest of reasons that occurs in deciding equal protection challenges to laws that discriminate on the basis of sexual orientation, a variety of reasons have been given both for and against such laws. From a sampling of the hundreds of cases involving acts of government that discriminate on the basis of sexual orientation in the twentieth century, eight justifying rationales emerge.26
(1) Procreation: One of the most traditional justifications, this rationale argues that discrimination on the basis of sexual orientation discourages sex acts that cannot produce children and thus promotes a legitimate state interest in sustaining population growth.27
(2) Security: Used prominently in cases involving discrimination against gay and lesbian people in the military,28 in the Federal Bureau of Investigation,29 and in activities directly affecting national security,30 this rationale argues that gay and lesbian people are more susceptible to blackmail and, therefore, more likely to betray their country. Accordingly, excluding gay people from certain forms of sensitive government employment enhances the governmental interest in national security.
(3) Disease: Especially prominent in the early years of the Acquired Immune Deficiency Syndrome (AIDS) crisis, this rationale argues that same-sex activity is more likely to communicate sexually transmitted diseases, especially the human immunodeficiency virus (HIV).31 Besides harming gay people, these diseases can be spread to the general population through bisexual activity. Accordingly, discouraging same-sex relations yields a public health benefit.32
(4) Child Safety: Gay people, this rationale alleges, are more likely to harm children by actual molestation or by increasing the likelihood, through example, that the child will grow up to be gay him or herself. Through prohibitions on gay people serving as teachers, coaches, foster or adoptive parents, the state acts to minimize contact between gay people and children and thereby protect the safety of children.33
(5) Protecting (Heterosexual) Marriage and the (Heterosexual) Family: This rationale begins with the premise that the heterosexual nuclear family is of overwhelming social importance. Indeed, this type of family is the basis of social stability. Homosexuality is, by definition, incompatible with such a familial arrangement. Moreover, tolerance or affirmation of homosexuality or same-sex unions offers citizens a way of evading heterosexual marriage. Therefore, laws that discourage same-sex conduct and laws that prohibit same-sex marriage serve to bolster the stability and enhance the appeal of the heterosexual family.34
(6) Preserving Public Order: Advanced frequently and forcefully during the debate over “gays in the military,” this rationale argues from the perception that most people dislike or are uncomfortable around openly gay and lesbian people. A corollary of that assumption is that most people are especially wary of living in close quarters with gay or lesbian people. Because of that discomfort or disapproval, openly gay people are much more likely to have difficulty living peaceably, in close quarters, with their fellow citizens and, more significantly, will have extreme difficulty acting effectively in positions of authority over nongay citizens. The gay person’s very presence may cause anger, anxiety, discomfort, or even violent outbursts by nongay citizens. Governmental policies that discriminate against gay and lesbian people are, on this view, justified because they realize the legitimate government interest in public order. That interest is only magnified when the good order being preserved involves the armed forces or specialized organizations on which the social order depends.35
(7) Conserving Public Resources: This rationale has been used to justify laws that prohibit statutes banning discrimination on the basis of sexual orientation. The argument is that local, state, and federal governments have limited resources to enforce existing antidiscrimination laws. If discrimination on the basis of sexual orientation is banned, gay and lesbian complainants will make new demands on existing agencies charged with enforcing antidiscrimination provisions. State resources will be drained, and the ability of government to monitor and punish other forms of invidious discrimination will be seriously undermined.36
(8) Protecting Personal, Familial, and Religious Privacy:37 This rationale argues that laws that prohibit discrimination on the basis of sexual orientation improperly intrude on the privacy of people who object to same-sex relations by forcing them to hire, rent real estate to, or transact business with gay people. A related free-exercise argument relying on this rationale claims that to compel a person with sincere religious objections to homosexuality to, for example, rent a room to a gay or lesbian person intrudes on that person’s free exercise of religion.38
For the purposes of this discussion, there are two points to be made about these eight rationales. First, each of the rationales addresses what Justice Souter, concurring in Barnes v. Glen Theatre,39 called the “secondary effects” of the prohibited activity.40 The force of each rationale derives from its purported avoidance of some harm that allegedly flows from the prohibited activity and is observable, connected to the public welfare, and relatively uncontroversial-for example, biological survival, safety of children, or containment of disease. Second, I would argue that the evidence now leans towards each of these rationales being discredited by science and history, in other words, by human experience.
At this point in the discussion, however, a problem emerges. To ask that the reader take on faith that all the historically asserted state interests served by laws that discriminate against homosexuality have been discredited seems an unfair request. To provide the evidence and argument necessary to discredit thoroughly each of those rationales would divert us from the issue at hand of whether an assertion of public morality, apart from an observable connection to the public welfare, can ever constitute a legitimate state interest. Moreover, since the various standards of equal protection review require only that some compelling, substantial, or legitimate interest be adduced by the government in defending a challenged law, the validity of the other asserted interests surveyed above has no effect on the “bare” interest in public morality under discussion here. If a bare public morality interest is taken to be a legitimate state interest for equal protection purposes, then laws that discriminate on the basis of sexual orientation will survive rational review even if all the other reasons identified here have been discredited.41
But in practical terms-for the rhetoric of the societal argument over laws that discriminate against gay and lesbian people, for the way in which equal protection cases are litigated, and for the way in which judges decide those cases-the effect is enormous. If one grants, as this article argues, that every harm to the public welfare asserted by the defenders of laws that discriminate on the basis of sexual orientation has been thoroughly discredited, then the defenders of such laws have only one argumentative and rhetorical recourse left, the resort to an interest incapable of empirical refutation precisely because it is, by definition, unconnected to any observable effect on the public welfare. If the public welfare rationales are discredited, and a bare moral interest is incapable of serving as a minimally legitimate government interest for equal protection review, then the intrinsic irrationality of such laws would be settled.
The importance of bare public morality arguments to defend laws that discriminate on the basis of sexual orientation is not merely a matter of academic interest. In the past six years alone, the highest courts of four states have considered bare public morality arguments advanced by the government in defense of laws that discriminate on the basis of sexual orientation.42 Moreover, as discussed at length below,43 the bare public morality argument for laws that discriminate against gay and lesbian people figured prominently in Romer v. Evans, the most significant case involving the rights of gay and lesbian people to reach the United States Supreme Court since Bowers v. Hardwick.44 The importance of that bare public morality interest is amply attested by its prominence as a legitimate government interest asserted by the state in Romer; the defense and development, following the district court trial in Romer, of the bare public morality interest by one of the most prominent contemporary philosophers of law, John Finnis; and the complete reliance of the dissent in Romer on bare public morality interests as the legitimate basis of the law at issue, a reliance that ignored completely the other interests asserted by the state in defense of the antigay law the state defended in Romer. It seems worthwhile, then, to make at least some attempt to establish the bankruptcy of public welfare arguments on behalf of laws that discriminate against gay and lesbian people before turning to a closer examination of the public morality argument on behalf of such laws.
2. A Brief Rebuttal of Public Welfare Arguments on Behalf of Laws that Discriminate on the Basis of Sexual Orientation
Both science and personal experience have provided opponents of laws that discriminate on the basis of sexual orientation with powerful, in many cases definitive, arguments against public welfare rationales for anti-gay laws. A very brief rebuttal of the public welfare arguments on behalf of anti-gay laws follows as a prelude to engaging the one remaining justification for laws that discriminate on the basis of sexual orientation: bare assertions of public morality.
(1) Procreation: The argument from procreation, that same-sex relationships will bring about the decline of the nation through underpopulation, no longer seems to be either advanced seriously by states or taken seriously by courts.45 The logic of procreation arguments, if applied consistently, would also prohibit the use of contraception by heterosexuals. Moreover, it may be observed that population control has become a practical and moral imperative for most of the world’s societies, including the United States.46 Finally, the argument from procreation ignores the fact that many gay and lesbian people, either through adoption or biological parenthood, do parent children.47
(2) Security: This argument has been undermined by a series of reports from the Department of Defense.48 Discriminating against people on the basis of sexual orientation would, if anything,. exacerbate the problem of blackmail. A rational policy to diminish national security risks among government employees would be directed toward encouraging people to be open about their sexuality in a nonthreatening work environment. Like the procreation argument, the national security argument seems to have been abandoned by its proponents. Late in the Bush administration, Secretary of Defense Richard Cheney dismissed the argument in congressional testimony as “something of an old chestnut.”49 Subsequently, in defending the exclusion of gay and lesbian personnel from the armed forces, the Department of Defense failed even to raise the issue of security threats in defending its policy.50
(3) Disease: The disease argument, particularly in light of the spread of HIV and AIDS, has special force with some segments of the general public and the judiciary. Nevertheless, the argument is flawed both logically and empirically. First, on a global basis, the majority of those becoming infected with the HIV virus are heterosexuals.51 Even in the United States, where gay men still constitute the majority of cases, in the past three years, heterosexuals have become the population with the most rapid transmission rates, usually via intravenous drug use.52 If these trends continue, heterosexuals will overtake gay men as the largest population of people with HIV in the United States.53 Second, it is not at all clear that penalizing people for same-sex orientation or
same-sex acts will discourage transmission of the disease. It seems more reasonable to conclude that discrimination on the basis of sexual orientation only makes it more difficult to disseminate medical information about sexually transmitted diseases (STDs), and further complicates the public health goal of spreading those “safe-sex” practices that are conducive to restraining and preventing the spread of STDs in general, and HIV in particular.
Third, the “disease” argument fails to take lesbians into account entirely. Center for Disease Control (CDC) studies have consistently shown that women who are non-IV drug users make up a small proportion of reported AIDS cases in the U.S. population.54 While the CDC does not track infection statistics for lesbians, AIDS researchers believe that lesbian sexual contact is a relatively low-risk activity.55 Thus, laws that discriminate on the basis of sexual orientation are impermissibly overinclusive because they apply to lesbians as well as gay men. The logic of the disease argument leads inescapably to the conclusion that lesbian relationships are the public health ideal.
(4) Child Safety: Rebutting the argument that gay people are a danger to children either as unfit guardians, child molesters, or inappropriate role models-brings to mind a sentiment once expressed by the African-American political scientist Adolph Reed. In his review of Richard Herrnstein and Charles Murray’s The Bell Curve,56 which argued that blacks, on average, have measurably lower intellectual ability than whites, Reed wrote that he resented having to respond to arguments so manifestly beneath his dignity.57 Nevertheless, given the task at hand, some response to the child safety argument is necessary.
Over the past thirty years, a mountain of evidence, much of it from state and federal law enforcement authorities, has accumulated to demonstrate that gay people present no more threat to children-as parents, guardians, or acquaintances-than do heterosexual people. Much of that literature has been reviewed in law review commentaries.58
Most recently, in the equal protection challenge to Colorado’s Amendment 2, the trial court decisively rejected the state’s contention that the antigay measure protected children.59 This finding was based largely on the testimony of Dr. Carole Jenny, “an international expert in forensic pediatrics, director of the Child Advocacy and Protection Team at Children’s Hospital [in Denver], and director of medical programs for the C. Henry Kempe National Center for the prevention and Treatment of Child Abuse and Neglect.”6 Dr. Jenny, who is also a pediatrician at the University of Colorado Health Sciences Center, conducted a study of 269 child abuse cases and found that “the chance of a child being molested by a heterosexual partner of a relative, such as a stepparent, was more than 100 times greater than the chance of being the victim of a homosexual’s abuse.”61 As the trial court observed:
If the compelling interest [of the state] relates to protecting children from pedophiles, the testimony of . . . Dr. Carole Jenny is more persuasive than anything presented by the defendants.62
As to the question of whether the presence of openly gay people will cause more children to become gay, a growing body of evidence indicates that sexual orientation may have an extremely significant, if not determinative, biological (genetic) component.63
(5) Protecting (Heterosexual) Marriage and the (Heterosexual) Family: There is absolutely no empirical evidence to support the contention that discriminating against gay and lesbian people in any way promotes or protects the heterosexual family. Indeed, the experience of those states that have laws banning discrimination on the basis of sexual orientation may be the best rebuttal to the “protecting the (heterosexual) family” argument.
In each of those states rates of divorce and family dissolution appear to have been unaffected by the passage of “gay rights” laws.64 In fact, for Wisconsin, which in 1982 enacted a state law banning discrimination on the basis of sexual orientation, rates of divorce are actually below national rates.il It can also be argued that by discouraging closeted gay people from entering ill-fated heterosexual marriages, and by presenting an egalitarian model for spousal relationships, the tolerance of homosexuality may actually support heterosexual marriage and family.66
(6) Preserving Public Order: The argument from public order is related in some ways to the bare public morality argument.67 In essence, it is an argument from popular prejudice. The United States Supreme Court confronted the public order, in a racial context, more than two decades ago. In Palmore v. Sidoti,68 in which custody of a white child was taken away from a mother because she married an African-American man, the Court unequivocally enunciated the principle that while the Constitution must live with prejudice, it cannot ratify it.69 Using popular antipathy against a group to justify policies that encourage and institutionalize that antipathy is the worst sort of vicious circle and would-if generalized to racial, gender, or religious groups-throw the country back to the days of American apartheid.
(7) Conserving Public Resources: Unlike the other stated interests, this rationale has been advanced in the narrow context of laws that prohibit government from protecting people from discrimination on the basis of sexual orientation. In evaluating this interest, the trial court in Romer v. Evans found that the state had shown no evidence to support the conclusion that the scarcity of enforcement resources required a prioritization of the rights to be protected.70 The trial court in Romer, based upon the testimony of the mayor of Denver (a city which had previously implemented a law banning discrimination on the basis of sexual orientation), the city’s compliance officer (who was charged with enforcing the city’s nondiscrimination ordinance), and a representative from the Civil Rights Bureau of the State of Wisconsin (which, since 1982, has had a state statute banning discrimination on the basis of sexual orientation) found that “the presence of a sexual orientation provision has not increased costs or impaired the enforcement of other civil rights statutes or ordinances.”71 Subsequently, the Supreme Court of Colorado and the United States Supreme Court also rejected this argument.72
(8) Protecting Personal, Familial, and Religious Privacy: As with the alleged need to conserve public resources, this rationale has been used in the narrow context of justifying laws that prohibit government from protecting people from discrimination on the basis of sexual orientation. Three points can be made in rebuttal.
First, like the previous rationale, it was expressly rejected by the United States Supreme Court in Romer.73 Second, every legislative attempt to provide equality for all citizens carries with it the price of alienating those who oppose such equality. Affording African-Americans the ability to secure decent housing or public accommodations meant that white racists were more likely to face situations in which they had to associate with people they hated. Third, in the context of gender, the Supreme Court has found that the state’s compelling interest in equality of the sexes outweighs the incidental burdens placed on the associational and expressive freedoms of those who opposed such equality.74
It is also important to note that statutes banning discrimination on the basis of sexual orientation have been crafted to deal-rightly or wrongly-with this concern. The 1989 Massachusetts gay rights law, for example, exempts religious organizations from its provisions and establishes an exemption from its housing provisions for owner-occupied dwellings of less than three units.75
The purpose of this summary review and rebuttal of the public welfare justifications for laws that discriminate on the basis of sexual orientation is to provide a context for the examination of the bare public morality argument that follows. Increasing evidence supports the contention that public welfare rationales for laws that discriminate against lesbian and gay people are bankrupt, lending new urgency to attempts to bolster bare public morality justifications by the laws’ defenders. It is to this new argumentative terrain that the discussion now turns.
II. PUBLIC MORALITY AS A “LEGITIMATE GOVERNMENT INTEREST” FOR EQUAL PROTECTION REVIEW
The argument that public morality, independent of any “secondary effect”76 or empirical connection to public welfare, can serve as a legitimate government interest for equal protection review is part of a broader argument justifying the legal enforcement of a certain morality. Two important articulations of the public morality argument emerged from the litigation surrounding Romer.77 The first, John Finnis’ Law, Morality, and “Sexual Orientation”,78 presents an elaborate philosophical defense of the legitimacy and limits of public morality as a justification for such laws. The second, Justice Scalia’s dissent in Romer, argues in a more summary fashion, but clearly advances the legitimacy of bare assertions of public morality as legitimate government interests for the purpose of equal protection review.79 At first glance, it may appear that Finnis and Justice Scalia are making different arguments. Despite that appearance, however, the arguments of Finnis and Justice Scalia are fundamentally the same.
Finnis’ Law, Morality, and “Sexual Orientation”, appeared shortly after the state district court trial of Colorado’s Amendment 2. Before trial on the merits, the district court ruled, and the Supreme Court of Colorado affirmed, that for equal protection review, Amendment 2 burdened “the fundamental right [of lesbians and gay men] to participate equally in the political process.”so Under strict scrutiny equal protection review,gl the State of Colorado bore the burden, at trial, of showing that Amendment 2 was narrowly tailored to further a compelling state interest.82 Among the issues in dispute at trial were whether the government’s interest in morality could serve as a compelling or legitimate interest.83
At trial, a “battle of the experts” ensued in which Judge Jeffrey Bayless heard testimony on a wide range of subjects including genetics, psychology, political theory, moral philosophy, and classical philology.84 Although Finnis did not personally testify in open court, he submitted a lengthy affidavit, in which he maintained that laws discouraging homosexual activity could be justified in a nonsectarian, “publicly intelligible” manner that met “the highest standards and demands of rationality.”85 Finnis’ article Law, Morality and “Sexual Orientation” is, in many ways, an elaboration of the arguments made in his affidavit.
Finnis begins his argument for the legitimacy of laws discriminating on the basis of sexual orientation with a description of what he calls the “Standard Modern European Position” (SMEP).86 As Finnis concisely describes it:
The [SMEP] has two limbs. On the one hand, the state is not authorized to, and does not, make it a punishable offense for adult consenting persons to engage, in private, in immoral sexual acts (for example, homosexual acts). On the other hand, states do have the authority to discourage, say, homosexual conduct and “orientation” (overtly manifested active willingness to engage in homosexual conduct). … That is to say, [states] maintain various criminal and administrative laws and policies which have as part of their purpose the discouraging of such conduct. Many of these laws, regulations, and policies discriminate (i.e., distinguish) between heterosexual and homosexual conduct adversely to the latter.
In endorsing the SMEP, Finnis seems to be distancing himself from a defense of sodomy statutes like the one affirmed by the Supreme Court in Bowers v. Hardwick.ss Justice Scalia’s view of public morality as a legitimate government interest would, by contrast, clearly justify Bowers-style laws.89 Finnis’ embrace of the SMEP also allows him to appear to assume, however impermanently, the compassionate high ground.
In his article, however, Finnis makes clear that the public morality interest he defends would justify laws that prohibit “advertising or marketing of homosexual services, the maintenance of places of resort for homosexual activity, or the promotion of homosexualist ‘lifestyles’ via education and public media of communication.”90 Finnis also intends his public morality argument to provide a rational basis for laws that refuse “to recognize homosexual ‘marriages’ or permit the adoption of children by homosexually active people.”91 Moreover, Finnis’ list of harms to gay and lesbian people justified by public morality is not exhaustive, for he ends his examples of the sorts of government sponsored discrimination against gay and lesbian people that his argument is meant to justify with the somewhat ominous words, “and so forth.”92 Thus, while Finnis and Justice Scalia differ about the permissibility of sodomy laws like the one in Bowers, they agree on defending a wide range of government acts that discriminate on the basis of sexual orientation.
The other way in which the two arguments differ is in degree of elaboration. Law, Morality and “Sexual Orientation”, by far the more extensive of the two, is really three arguments. The first concerns the fundamentally subsidiary nature of political community and the limits placed on state action, to promote the virtues, that flow from that nature.93 The second is about the adequacy of public morality arguments to provide a legitimate, indeed compelling, interest for the state in penalizing or discouraging homosexual conduct.94 The third, which is imbedded within and auxiliary to the second and will not pre-occupy this discussion, is that the classical western (Greco-Roman) tradition of moral philosophy, but especially Plato and Aristotle, consistently condemned homosexual conduct as immoral.os The argument that concerns this discussion, however, is the second one: that public morality can provide a nonsectarian, publicly intelligible, compelling state interest for laws that discriminate on the basis of sexual orientation.
Finnis does not, in the course of his argument, allude to the specific requirements of equal protection law in the United States. Given, however, the historical context from which Law, Morality and “Sexual Orientation” arose, and Finnis’ use of the phrase “compelling interest” to describe the moral interest he is defending, it is reasonable to assume that Finnis is attempting to engage directly in the equal protection arguments over laws that discriminate on the basis of sexual orientation. In the discussion that follows, the term “legitimate” will often be used to describe the government interest Finnis defends. This article uses “legitimate” in that manner because what concerns us is whether public morality arguments can satisfy any level of equal protection review-not only the “compelling” standard of strict scrutiny96 but even the most lenient standard for rational basis review which, when applicable, demands merely that a government interest be “legitimate.”97 Second, because this discussion aims to demonstrate that bare public morality arguments cannot serve even as legitimate government interests for the purposes of the most lenient standard of equal protection review, it therefore does Finnis no disservice to lighten his argumentative burden.98
The first premise of Finnis’ argument is that the political community, through sovereign acts of the state, may appropriately legislate in order to advance the “[t]he preservation of a social environment conducive to virtue.”99 In keeping with his earlier endorsement of the SMEP, Finnis notes that[g]overnment is precisely not presented here as dedicated to the commanding of virtue and the repressing of vice, as such, even though virtue (and vice) are of supreme constitutive importance for the well-being (or otherwise) or individual persons and the worth (or otherwise) of their associations.100
Finnis’ second premise is that homosexuality is immoral. At first glance, there is at least a suggestion that Finnis intends to defend that assertion through appeal to public welfare arguments like the eight rationales examined and criticized in Part I of this discussion. Early in his argument, Finnis speaks of the state’s “legitimate concern with public morality and the education of children and young people towards truly worthwhile and against alluring but bad forms of conduct and life.”‘0 Later, toward the conclusion of his argument that homosexuality is immoral, Finnis remarks that accepting the idea that “homosexual acts can be a humanly appropriate use of sexual capacities . . . is commonly (and in my opinion rightly) judged to be an active threat to the stability of existing and future marriages.” l02 Based on that assertion, Finnis concludes:
A political community which judges that the stability and protective and educative generosity of family life is of fundamental importance to that community’s present and future can rightly judge that it has a compelling interest in denying that homosexual conduct-a “gay lifestyle”-is a valid, humanly acceptable choice and form of life, and in doing whatever it properly can, as a community with uniquely wide but still subsidiary functions, to discourage such conduct.l03
Given Finnis’ apparent reliance on the protection of children from harm and the stability of the family-classic public welfare interests-is it appropriate to regard his argument as defending the position that a bare public morality interest can serve as a legitimate state interest in defending laws that discriminate on the basis of sexual orientation?
The answer to that question is certainly “yes.” To understand the rationale behind this answer, it is necessary to consider more carefully Finnis’ argument for the immorality of homosexuality.
To begin, it would be a mistake to view Finnis’ argument against homosexuality as grounded in empirical harms to the public welfare. The passages from Finnis cited above are essentially afterthoughts-unsupported by even a passing reference to scientific study or historical experience or even anecdotal evidence. The textual bulk and intellectual substance of Finnis’ argument for the wrongs of homosexuality is ultimately divorced from any observable connection to the public welfare and is, therefore, immune from refutation by experience. Finnis’ argument is constructed on three theses:
(1) [t]he commitment of man and woman to each other in the sexual union of marriage is intrinsically good and reasonable, and is incompatible with sexual relations outside of marriage;
(2) [h]omosexual acts are radically and peculiarly nonmarital, and for that reason intrinsically unreasonable and unnatural; and
(3) homosexual acts have a special similarity to solitary masturbation, and both types of radically nonmarital acts are manifestly unworthy of the human being and are immoral.l04
Finnis develops from those theses an argument against homosexuality that echoes, indeed is essentially the same, as that made by the Roman Catholic church,105-that same-sex acts are a form of sex (or physical intimacy directed toward orgasm) performed outside of marriage and therefore immoral.l06
For Finnis, sexual union can only be moral within heterosexual marriage since the co-equal and inextricably intertwined purposes of sex are biological union (or openness to procreation) and friendship (or emotional/affectional intimacy) between the married couple.107 Since, as a biological fact, same-sex relations cannot result in procreation, Finnis concludes that homosexual conduct is intrinsically and essentially immoral.’8
Given the emphasis Finnis places on procreation, his argument naturally encounters a problem in the sterile heterosexual couple.’09 Though apparently not one to shy away from harsh moral judgments, Finnis is at pains to avoid condemning the sex lives of sterile heterosexual couples whose sexual activity, by definition, cannot result in procreation. Finnis attempts to save the morality of these sex acts by assigning determinative moral significance to the anatomical mechanics of penile-vaginal penetration. Having defined “biological union,” one of the two indispensable goods of sexual intercourse, as “[t]he inseminatory union of male genital organ with female genital organ,” llo Finnis argues that when a husband and wife
unite their reproductive organs in an act of sexual intercourse which, so far as they then can make it, is of a kind suitable for generation, [the couple] do[es] function as a biological (and thus personal) unit and thus can be actualizing and experience the two-in-one-flesh common good and reality of marriage, even when some biological condition happens to prevent that unity [from] resulting in generation of a child.lll
Finnis thus distinguishes the sterile heterosexual couple whose biological limitations prevent their sexual union from producing children, from the same-sex couple, whose biological limitations prevent their sexual union from producing children on the grounds that were their sexual organs in full working order the heterosexual sterile couple could produce children through intercourse, while the same-sex couple (at least at the present state of medical science) never can.
The substantive conclusions of Finnis’ argument have been attacked in many ways.ll2 As Finnis, himself, acknowledges, his argument against homosexual acts also encompasses all sex acts outside of marriage; and contracepted sex acts inside marriage.’l3 The interest here, however, is in noting the kind of argument Finnis uses to reach his conclusions.
The contention of this discussion is that Finnis’ chief argument against homosexuality-for all its apparent erudition, references to classical sources, terminological sophistication, and apparent argumentative complexity-is utterly disconnected from human experience. It adduces no evidence, appeals to no effects on the public welfare, offers no reasoning that either science or history can verify. It is precisely the kind of “bare” public morality argument at issue in the controversy over whether laws that discriminate on the basis of sexual orientation have a rational basis for the purposes of equal protection review.
In effect, Finnis’ argument relies on a kind of “organ teleology,” the belief that the penis and vagina are somehow uniquely and exclusively intended for human sexual intercourse. If one believes in a Creator God who arranges the physical design of his creatures with the specific intent that the aspects of that design be used in a certain way (and the first idea, a Creator God, does not necessarily entail the second idea), then Finnis’ organ teleology makes a certain sense. But that, of course, is theology and is outside the realm of publicly accessible discourse in a pluralistic democracy. Finnis offers no argumentsperhaps because there are none-to justify his contention that penile-vaginal penetration is the only good form, or even best form, of sexual activity. If one imagines a rational group of interlocutors who, though friendly toward one another, share a variety of conflicting and sometimes mutually exclusive beliefs about the existence of God or the ultimate end of human existence, how would such a group of interlocutors evaluate Finnis’ claims about the unique moral value of penile-vaginal penetration? Presumably, those interlocutors who disagreed with Finnis would offer examples of other forms of. sexual activity-oral sex for example-that bring pleasure to human beings, enhance intimacy, avoid the risk of unwanted pregnancy, and do no harm to others. Finnis would presumably have two replies: (1) such activities cannot be procreative; and (2) such activities violate the “unitive” purpose for which the penis and vagina are uniquely suited. The first reply returns Finnis to a position he wants to avoid, because it entangles him in the problem of the sterile heterosexual couple. The second reply is just a bald assertion. It is unsupported except by Finnis’ metaphysical assumptions.
Finally, the disconnection between the sort of argument Finnis is making and arguments based on observable effects on the public welfare is most evident in Finnis’ assessment of the illusory nature of same-sex acts: [T]he common good of friends who are not and cannot be married (for example, man and man, man and boy, woman and woman) has nothing to do with their having children by each other, and their reproductive organs cannot make them a biological (and therefore personal) unit. So their sexual acts together cannot do what they may hope and imagine….[W]hatever the generous hopes and dreams and thoughts of giving with which some same-sex partners may surround their sexual acts, those acts cannot express or do more than is expressed or done if two strangers engage in such activity to give each other pleasure, or a prostitute pleasures a client to give him pleasure in return for money, or (say) a man masturbates to give himself pleasure and a fantasy of more human relationships after a grueling day on the assembly line.ll4
For Finnis, then, the sexual relationship of a devoted same-sex couple, involved in a monogamous relationship for their entire adult lives, characterized by all the indicia of familial stability, understanding themselves to be united for life, and evincing every sign of human flourishing, is no different morally from an anonymous one night stand, a commercial sex act with a prostitute, or solitary masturbation.
That Finnis’ position will strike many reasonable people as intuitively outrageous and reprehensible is not really at issue here. Rather, what is important for this discussion is that Finnis’ conclusion is immunized from refutation by human experience because it pays experience no heed. The self-understanding of the people involved, the goodness of their intentions, the absence of any evidence that their relationship does any harm are all irrelevant to Finnis’ moral argument against homosexuality. No amount of research showing that societies that approved of same-sex unions evidenced no diminishment in family stability, that the children of such societies were safe and healthy, or that the people in such societies continued to flourish would alter Finnis’ conclusion.
The same can be said of the second bare public morality argument to be considered here: the one made in Justice Scalia’s dissent in Romer.5 As was noted earlier, in Romer the Supreme Court invalidated Colorado’s Amendment 2 as a violation of the Equal Protection Clause of the Fourteenth Amendment. 6 Amendment 2 was a state constitutional amendment that read:
No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This section of the Constitution shall be in all respects self-executing.lt7
Amendment 2 invalidated several local ordinances banning discrimination on the basis of sexual orientation, as well as a Colorado state executive order prohibiting discrimination in state hiring on the basis of sexual orientation. The Amendment also prohibited any similar ordinances or policies from being adopted in the future.ls Rejecting the State of Colorado’s contention that Amendment 2 put “gays and lesbians in the same position as all other persons” 19 and did “no more than deny homosexuals special rights,” 120 the Court in Romer, based on its reading of the interpretation of Amendment 2 by the Colorado Supreme Court, found that it was “a fair if not necessary inference from the broad language of the amendment that it deprive[d] gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings.” 121 Rejecting the argument that antidiscrimination laws that protect gays and lesbians constituted some form of “special rights,” 122 Justice Kennedy, writing for a six person majority, 123 summarized the effect of Amendment 2:
Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State’s view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury.l24
The Court, however, found that Amendment 2 violated the Equal Protection Clause of the Fourteenth Amendment for reasons different from those the Colorado Supreme Court gave for coming to the same conclusion.
The Colorado Supreme Court had subjected the amendment to strict scrutiny on the grounds that it burdened the fundamental right of gay men, lesbians, and bisexual people to “participate equally in the political process.” 125 Because the State had failed to prove that Amendment 2 was narrowly tailored to achieve a compelling state interest, the Colorado Supreme Court found that Amendment 2 did not pass constitutional muster.l26 By contrast, the United States Supreme Court in Romer did not subject Amendment 2 to the heightened scrutiny which the Colorado Supreme Court had applied because it found that the law “fail[ed], indeed defie[d]” even the minimal standard of rational basis review.l27
The Court found that Amendment 2 imposed a “broad and undifferentiated disability on a single named group” 128 of a sort that the Court found “unprecedented” in its jurisprudence,129 and that the scope of Amendment 2 was so sweeping that it could not be rationally related as a means to any legitimate government purpose. 130 From there, the Court concluded that Amendment 2’s sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.l31
Of the interests asserted by the State of Colorado to defend Amendment 2, the Court took express notice of two: (1) the State’s interest in its “citizens’ freedom of association, and in particular for the liberties of landlords or employers who have personal or religious objections to homosexuality;”132 and (2) the State’s interest in “conserving resources to fight discrimination against other groups.”133 The Court found the breadth of the classification created in Amendment 2 “so far removed from those justifications” that the Court found it “impossible to credit them.” 134 As for any other alleged or conceivable purposes a law like Amendment 2 might serve, the Court concluded:
We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to a legitimate state interest.l35 Accordingly, the Court found Amendment 2 to violate the Fourteenth Amendment’s guarantee of equal protection of the laws.
In his dissent in Romer, Justice Scalia attacks the Court’s reasoning on several fronts, but the real gravamen of Justice Scalia’s differences with the Court in Romer is its refusal to accept the State’s bare public morality interest in expressing disapproval of homosexuality as a legitimate government interest for the purpose of equal protection review. That point is clear from the tone and structure of Justice Scalia’s dissent.
The tone of Justice Scalia’s dissent is one of not-so-subtle ridicule of the Court for imposing its own values on what is, in his view, fundamentally a dispute about public morals.l36 From the outset, Justice Scalia casts the Court as imprudently interjecting itself in a “Kulturkampf,” and improperly interfering in the ability of the citizens of Colorado to “preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through the use of the laws.” 137 In his conclusion, Justice Scalia depicts the members of the Romer Majority as “Knights Templar” in the culture wars over the morality of homosexuality, imposing their elite morality and its acceptance of homosexuality on the sort of benighted plebeians who vote for and enact laws like Amendment 2.138
Structurally, there are three important “moments” in Justice Scalia’s argument with the Court’s decision in Romer. In the first, he endeavors to demonstrate that Amendment 2 fails to create a legislative classification that burdens the plaintiffs in any constitutionally cognizable way.
In equal protection logic, preliminary to the question of state interests or tailoring of means in an equal protection challenge are the questions of whether the law in question actually creates the classification it is alleged to have created, and whether that classification actually imposes a burden on the plaintiffs challenging the law. In the first part of his dissent, Justice Scalia contends that Amendment 2 imposes no such burden.
In order to defend that contention, Justice Scalia argues at length that Amendment 2 “prohibits special treatment of homosexuals, and nothing more.” 139 Accordingly, Justice Scalia severely criticizes the Court’s conclusion that Amendment 2 would affect laws of general application.l40 Thus the only denial of equal treatment that homosexuals suffer under Amendment 2 is that “[t]hey may not obtain preferential treatment without amending the state constitution.”141 For Justice Scalia, that cannot possibly be a constitutionally cognizable deprivation of equal protection of the laws. To illustrate his point, Justice Scalia presents the following hypothetical:[C]onsider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature-unlike all other citizens, who only need to persuade the municipality.’42
Justice Scalia concludes that it would be “ridiculous” to consider the case he has posed as a denial of equal protection, but asserts that that is precisely the result to which the Court’s analysis in Romer leads.143 After posing the hypothetical, Justice Scalia’s dissent reaches a pivotal point, which is the second of the three critical moments of his argument. As if pausing to take a breath from the polemic in which he has been engaged, Justice Scalia imagines a reply that the Court might give to his hypothetical example. In the process of this imagined reply, he eviscerates his first major argument against the Court’s holding and introduces his second major argument. Justice Scalia muses that, to his hypothetical[t]he Court might reply that the example I have given is not a denial of equal protection only because the same “rational basis” (avoidance of corruption) which renders constitutional the substantive discrimination against relatives (i.e., the fact that they alone cannot obtain city contracts) also automatically suffices to sustain what might be called the electoral-procedural discrimination (i.e., the fact that they must go to the state level to get this changed). This is of course a perfectly reasonable response, and would explain why “electoralprocedural discrimination” has not hitherto been heard of: a law that is valid in its substance is automatically valid in its level of enactment.l44
The significance of this moment in the dissent should not be overlooked. For all the intensity of his criticism of the Court’s perception of the equal protection denial in Romer, Justice Scalia in his imaginary reply of the Court has answered his own argument. More importantly, for this discussion, Justice Scalia has identified the point on which everything hinges: whether a legitimate state interest can be found for laws like Amendment 2. Not one to give up easily, Justice Scalia is confident that “there is no doubt a rational basis for the prohibition at issue” in Romer.145 That interest is “moral disapproval of homosexual conduct,” 146 unconnected to any empirical effect on the public welfare. In order to make that point, Justice Scalia relies primarily on two cases that deeply implicated public morals: Bowers v. Hardwick147 and Davis v. Beason.l48
Before turning to either of those cases, it may be helpful to consider a decision not cited in Justice Scalia’s dissent: his concurrence in Barnes v. Glen Theatre,149 a case in which the Court upheld an Indiana law prohibiting nude dancing in certain commercial establishments. In Barnes, the owners of a group of “adult” bookstores and entertainment establishments challenged an Indiana law that forbade totally nude dancing and required that dancers wear at least “pasties” and “a G-string.”lso Chief Justice Rehnquist, joined by Justices O’Connor and Kennedy, wrote the opinion for the Court. Justices Souter and Scalia filed separate opinions concurring in the judgment.151
In Chief Justice Rehnquist’s opinion in Barnes, the state’s interest in promoting public morality is mentioned several times, but always in conjunction with the public welfare interest in societal or public order.l52 Justice Souter’s concurrence, for its part, is expressly focused “not on the possible sufficiency of society’s moral views to justify the limitations at issue, but on the State’s substantial interest in combating the secondary effects of adult entertainment establishments.”153 Justice Souter’s “secondary effects,” for example, of sexual assault or criminal activity,lsa are precisely the kinds of empirical effects on the public welfare to which Justice Scalia’s and John Finnis’ public morality arguments are unrelated.
What is particularly interesting about Justice Scalia’s separate concurrence in Barnes is that he asserts, in a First Amendment context, essentially the same position he takes in his Romer dissent: namely, that moral disapproval, unconnected to any empirical effects on the public welfare, constitutes a legitimate state interest and provides a rational basis for legislative acts.lss Justice Scalia makes that point unmistakably in a passage that is worth quoting at length: [T]here is no basis for thinking that our society has ever shared that Thoreauvian `you-may-do-what-you-like-so-long-as-it-does-not-injure-someone-else’ beau ideal-much less for thinking that it was written into the Constitution. The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional sense, `contra bonos mores,’ i.e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them), there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate `morality.’ 156
In support of that contention, Justice Scalia concludes the passage above with a citation to Bowers.l57 Not surprisingly, Bowers also figures prominently in Justice Scalia’s dissent in Romer. One reason for that prominence is the role Bowers plays in a simple, but compelling argument Justice Scalia makes against the Court’s invalidation of Amendment 2. Justice Scalia’s complex syllogism runs this way:
Premise 1: If a state may constitutionally impose some burden, X, on a given class of persons, it may certainly impose burdens less onerous than X. (This principle is sometimes referred to as “the lesser is included in the greater.”)
Premise 2: Criminalization is the greatest burden that can be imposed by the state.
Premise 3: In Bowers, the Court upheld the constitutionality of a state’s criminalization of the conduct that defines lesbians and gay men, i.e., samesex relations.
Conclusion: Therefore, since Romer involved a far less onerous burden than the one imposed in Bowers, the Court ought to have upheld the law at issue in Romer. ss
It is possible to dispute these premises, for example, by asking whether Bowers penalizes only acts and not orientation (as, arguably, Amendment 2 did); whether the harms of Amendment 2 (exclusion from the political process) were, in fact, greater than the criminal penalties at issue in Bowers. It is also possible to argue about the degree to which the due process analysis of Bowers is determinative for the equal protection claims under review in Romer,159 though the rational basis test, for equal protection and due process claims, is essentially the same.160 Neither of those arguments reaches the issue of how the Court could strike down Amendment 2 without overruling Bowers. 161 Whatever the ultimate answer one gives to that question, more germane to this discussion is the way in which Justice Scalia uses Bowers to support his public morality argument. For Justice Scalia, Bowers stands unequivocally for the proposition that moral opposition alone provides a rational basis for laws that express disapproval of homosexuality.162 Accordingly, what the Court in Romer viewed as “animus,” Justice Scalia interprets as “moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that [the Court] held constitutional in Bowers.” 163 On this view, the people of Colorado in adopting Amendment 2 were “entitled to be hostile toward homosexual conduct”’64 as they are entitled to be hostile toward other forms of life they find immoral. Moreover, there is, in Justice Scalia’s view, no constitutional prohibition on a state’s enactment of such moral hostility into law.
The second case on which Justice Scalia strongly relies to make this point is Davis v. Beason, an 1890 case that upheld criminal and civil sanctions on those who practiced polygamy in the Idaho Territory.165 For Justice Scalia, polygamy presents a perfect analogy to homosexuality; both are seemingly “victimless” crimes involving consenting adults which the law prohibits purely on basis of society’s moral disapproval. By citing Beason, in support of his position in Romer, Scalia forces the Court to confront what he views as a slippery slope. The journey down that logical slide begins with invalidating laws that prohibit or discourage homosexuality and ends in invalidating laws that prohibit or discourage “sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution” 166 and polygamy.
III. A CRITIQUE OF BARE ASSERTIONS OF PUBLIC MORALITY AS LEGITIMATE GOVERNMENT INTERESTS
What response can be made to the public morality arguments of John Finnis and Justice Scalia? This discussion focuses on the types of reasons the arguments of Finnis and Justice Scalia offer to justify laws that discriminate on the basis of sexual orientation, laws which frequently inflict heavy burdens in the form of dismissal from employment, refusal of housing and public accommodation, denial of adoption and child custody, and the infliction of a persistent sense of subordination and inequality.
The sorts of morality arguments advanced by Finnis and Justice Scalia cannot justify laws that discriminate on the basis of sexual orientation because those morality arguments fail to establish a rational basis for such laws. That failure is rooted in the rational inadequacy of what the arguments of Finnis and Justice Scalia offer as a legitimate government interest: assertions of public morality apart from any empirical connection to the public welfare. To return to a metaphor with which this discussion began, in the contest of reasons that defines equal protection adjudication, the moral interest offered by Finnis and Justice Scalia does not qualify as a reason for discourse in a democracy like ours, namely, a pluralistic democracy, one in which, for any foreseeable future, the citizens will have significant and irreconcilable differences on matters of conscience, including but not limited to such issues as the existence and nature of God, and an exhaustive list of the constitutive elements of a good human life.
A. THREE CRITICISMS OF BARE PUBLIC MORALITY INTERESTS AS LEGITIMATE GOVERNMENT INTERESTS
In developing the critique of Finnis and Justice Scalia, three points will be made. First, moral interests unrelated to an empirical effect on public welfare are not, in principle, distinguishable from irrational prejudice and private bias. Second, bare moral interests are, for the purposes of discourse in a pluralistic democracy, analytically and practically indistinguishable from theological or sectarian assertions. Therefore, third, such bare moral interests are irremediably unsuited to the public discourse of those who make and interpret the law.
When used as justifications for enacting a law, there is no principled way to distinguish bare moral interests from invidious prejudice. Without the requirement that a moral interest be reasonably connected to some empirical effect on the public welfare, what Finnis and Justice Scalia call society’s “moral interest” is nothing more than an aggregation of private biases dressed up in righteous rhetoric. The most compelling and perhaps obvious illustration of this point is found in the “miscegenation” laws that once existed in many states.167 Those laws were a reflection of deeply held beliefs about the immorality of interracial sexual relationships. Often, those moral beliefs were cast in theological terms.l68 In Loving v. Virginia, however, the Supreme Court, unanimously and definitively repudiated any legitimate government interest in such laws.l69
At issue in Loving was a Virginia statute that prohibited so-called interracial marriages.l70 The plaintiffs in Loving were Mildred Jeter, an African-American woman, and Richard Loving, a white man, who were married in the District of Columbia and then returned to reside in Virginia.171 Subsequently, Jeter and Loving were charged and convicted of violating Virginia’s ban on intermarriage. In considering Jeter and Loving’s challenge to Virginia’s statutory ban on intermarriage, the Court found that there “was patently no legitimate overriding purpose” for the classification at issue.172 Because of the invidious nature of the classification, the Virginia statute was struck down.
The question for defenders of bare assertions of public morality as legitimate state interests is how to distinguish the moral disapproval that justifies laws discriminating on the basis of sexual orientation from laws, like the one in Loving, that discriminate on the basis of race. The instinctive response of defenders of the public morality argument may be that discrimination on the basis of race is irrational while discrimination on the basis of sexual orientation is not. That response, however, begs the question. The point at issue is why racial discrimination is irrational, even when supported by centuries of the strongest and most intensely felt moral convictions of a large majority of the public, but discrimination on the basis of sexual orientation is rational. In fact, the reason why racial discrimination is generally considered irrational and invidious is that laws that discriminate on the basis of race inflict considerable harm and realize no discernible benefit to the public welfare. In other words, while such laws would easily meet the “bare public morality” standard of Finnis and Justice Scalia for legitimate government interests, they could not meet the standard articulated here, a standard that requires government interests to have some empirical connection to the public welfare.
By accepting bare assertions of public morality as legitimate state interests, Finnis and Justice Scalia deprive the courts of their ability to invalidate laws that deploy the power of the state to enforce the most invidious forms of prejudice. In effect, the position of Finnis and Justice Scalia stands the principle of Palmore v. Sidoti’73 on its head. In that case, a white mother who had married an African-American man was stripped of the custody of her children, based upon the harm state officials believed would come to the children from societal disapproval of interracial marriages.174 The Supreme Court, without disputing that children of interracial marriages might suffer social prejudice, unequivocally refused to permit that prejudice to be used as a reason for removing the children from their mother’s custody.’75 The now famous maxim of Palmore is that “[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” 176
To embrace the position of Finnis and Justice Scalia, to permit majoritarian morality unconnected to the public welfare to serve as a legitimate government interest, is to assign to the law the role of giving effect, directly or indirectly, to private biases. Judges are thereby deprived of the ability to distinguish between the sort of irrational prejudice that can never be a legitimate state interest and those public welfare objectives that are the appropriate goals of government.
From this conclusion follows a second objection to the bare public morality arguments of Finnis and Justice Scalia. Their arguments are, for the purposes of civil discourse in a democratic society, practically and analytically indistinguishable from sectarian or theological arguments. This does not necessarily mean that laws that are justified only on the basis of bare public morality interests violate the Establishment Clause of the First Amendment.l77 Rather, the more modest claim made here is that the kind of reasons defended by Justice Scalia and Finnis have exactly the same logical status and deleterious effect on the public discourse of those who make, interpret, and vote for laws, as do sectarian or theological assertions.
As in law, many of the commands of the world’s various religions have a moral component.l78 The moral commands of a religion may be regarded, by its adherents, as the product of divine revelation, but still supportable by an appeal to common human experience and human reason. Such was the position of St. Thomas Aquinas: the commands of morality can be known both through revelation and through human reason unaided by revelation.179 For that reason, believers and nonbelievers can engage in dialogue. So, for example, while legal prohibitions on homicide may have their equivalents in divine commands, it is possible for believers and nonbelievers to discuss the merits of such legal prohibitions without resorting to appeals to revelation or, more broadly, religion.
The same cannot be said for the metaphysical beliefs and what might be termed the purely cultic commands of a religion. Should people face Mecca while praying? Should the Sabbath fall on Saturday or Sunday? Should Jesus be worshipped as God? Should certain foods be banned from consumption? Disputes over questions such as these are, in principle, unadjudicatable by rational means and are, therefore, interminable because there are no commonly accessible reasons that can be offered for or against each side. In such disputes we all become, to paraphrase the Trappist Monk Thomas Merton, pontiffs hurling anathemas at one another.so
That is why appeals to revelation or religious authority have such a deadening effect on public discourse. If someone declares that he or she is speaking on behalf of God or doing God’s will,. what more can be said? It is, of course, possible that one could try to persuade the speaker that he or she is in error, and co-religionists frequently argue about the correct interpretation of canonical texts or religious authorities. But to the true believer, the person who is convinced that he or she knows God’s will, there are only two responses: acceptance by faith, or rejection through unbelief. In other words, for those who do have faith, no argument is necessary. For those who do not have faith, no argument is sufficient.
The bare public morality arguments made by Finnis and Justice Scalia have precisely the same kind of effect on civic discourse. Admittedly, the imagery and vocabulary of such public morality arguments is different from theological assertions. No overt references are made to religious truth or divine revelation. That, however, is not a distinction that makes a difference. The effect on civic discourse of bare assertions of public morality is identical to that of sectarian or theological assertions: rational dialogue comes to a halt. Consider by way of analogy, the following dialogues:
Alpha: Homosexuality is wrong.
Beta: Why do you say that?
Alpha: Because God says so.
Alpha: Homosexuality is wrong.
Beta: Why do you say that?
Alpha: Because I say so.
In each dialogue, Alpha offers a reason of sorts to answer the question, “Why do you say that?” The response provides us additional information about what caused Alpha to make the statement, “Homosexuality is wrong.” But on the level of understanding Alpha’s justification of why homosexuality is wrong, Alpha’s response tells us nothing. It is not open to anything but raw denial or acceptance. It does not invite dialogue. It is no reason at all. That is true in both dialogues, whether Alpha explains her objection to homosexuality in terms of “because God says so” or “because I say so.” In each case, one is left with a raw assertion of belief, from the standpoint of rational dialogue, functionally indistinguishable from a raw assertion of the will.
To the comparison of his argument against homosexuality with a sectarian theological assertion, Finnis might object that he has provided reasons for why he believes homosexuality is immoral. The reasons, however, are unsupported. According to Finnis, homosexuality is wrong because it is radically nonmarital; it is radically nonmarital because it is not open to procreation; and it is not open to procreation because, even when belonging to a sterile couple, the penis and vagina are uniquely suited to accomplish biological union.lsl The last of those assertions about the intrinsic teleology of the penis and vagina is, as has already been argued, indistinguishable from a theological assertion.l82 It simply cannot endure rational examination in the light of human experience. Finnis has merely given a patina of intellectual respectability to the brute assertion of will that Justice Scalia articulates more concisely.
This leads to the third criticism to be leveled against bare assertions of public morality as legitimate state interests. John Rawls, in discussing the requirements of civil disobedience in a democracy, noted:[C]ivil disobedience is a political act not only in the sense that it is addressed to the majority that holds political power, but also because it is an act guided and justified by political principles, that is, by the principles of justice which regulate the constitution and social institutions generally. In justifying civil disobedience one does not appeal to principles of personal morality or to religious doctrines, though these may coincide with and support one’s claims; and it goes without saying that civil disobedience cannot be grounded solely on group or self-interest.l83
In the years since those words were written, Rawls has gone on to elaborate a well developed concept of “public reason.” 184 Rawls’ concept of public reason is consistent with the position advocated here. In a democracy like our own, Rawls finds it essential that[citizens realize that they cannot reach agreement or even approach mutual understanding on the basis of their irreconcilable comprehensive doctrines. In view of this, they need to consider what kinds of reasons they may reasonably give one another when fundamental political questions are at stake.Iss
Bare assertions of public morality, like sectarian theological assertions, fail the test of public reasonability precisely because they are unrelated to human experience and are independent of any observable effects on public welfare.
Defenders of the constitutional legitimacy of bare assertions of public morality accuse their detractors of “relativism” and “nihilism.” 186 This accusation is ironic because, as has been argued above, bare public morality arguments support the legal enforcement of private bias, casting lawmaking as a kind of Nietzschean struggle of will, with various moral interest groups trying to gain legal enforcement of their beliefs without having to give reasons for those beliefs other than saying, “we believe it.”
In fact, to defend bare assertions of public morality as legitimate government interests requires a relativistic view of constitutional morality. By contrast, the requirement that all public morality interests be empirically related to the public welfare establishes a universal, publicly accessible, and rationally intelligible limit on the sorts of moral interests that can serve as the legitimate objectives of law.
B. OBJECTIONS TO THE REQUIREMENT THAT MORAL INTERESTS BE EMPIRICALLY CONNECTED TO PUBLIC WELFARE
The position defended here is not, of course, without its own difficulties. The five most serious objections to this position are summarized below.
1. The Relativity of Values
The first objection focuses on the central dichotomy on which this whole argument rests, the division between bare moral interests and empirical or observable effects on the public welfare. The essence of the objection is that the values that are used to decide which empirical effects are to be sought and which are to be avoided are, themselves, as much “bare” assertions of morality as the moral interests defended by Finnis and Justice Scalia.
Throughout this discussion, bare moral interests have been defined as those that have no empirical connection to or observable effect upon the public welfare. By way of example, the sorts of “secondary effects” that Justice Souter identified in his concurrence in Barnes were offered as illustrations of the kind of empirical consequences or observable effects lacking in bare moral interests.
The word “empirical” is used here in its etymologically most fundamental sense, derived from the Greek empeiria or “experience. st 187 Thus, assertions of public morality can qualify as legitimate government interest only when they are rooted in human experience. Their effects on the public welfare must be “observable” in human experience that anyone can discern.
Such effects certainly include, but are not limited to, physical harms such as death and disease. Economic and ecological harms would also be among the class of effects this discussion terms “empirical.” Additionally, psychological harms also come well within the parameters of the class of empirical effects that this discussion defends as the sorts of harms a state may have a legitimate interest in avoiding. The class of such effects might also include, if it could be plausibly demonstrated, the increase in violent or aggressive behavior in children, or even adults, from exposure to certain kinds of images.
Why, though, is a state interest based upon the avoidance or promotion of these sorts of effects legitimate as a basis for state action when a bare morality interest is not? Is not the state’s interest in avoiding disease or preserving life or protecting wetlands ultimately rooted in value judgments as arbitrary as the value judgments represented by the “bare moral interests” criticized in this article?
This discussion answers that final question in the negative for two reasons. First, the kinds of effects described here as “empirical” have a public quality about them. That is to say, because they are observable from human experience they are open to examination by any rational person, regardless of the stand that person takes on questions of ultimate meaning or the definition of a good human life. So, for example, the fact that the presence of lead in paint or in household products will harm children who ingest it is not a matter of personal opinion. By the generally accepted standards of empirical science, the effect of lead on developing minds and bodies can be verified.
Because of this public quality, the empirical effects of government action can be discussed and debated even in a pluralistic democracy like our own, in a manner that is both rational and capable of resolution. The same cannot be said for bare assertions of morality.
Second, the values that are used to choose between public welfare interests share a level of agreement in our society that is nearly universal and certainly far broader than the agreement found on the moral interests promoted by Finnis and Scalia.
Almost no one will dispute that preserving life, preventing disease, ending hunger, eliminating poverty, or any of the other empirical effects on the public welfare treated as legitimate state interests by this discussion are good things. Accordingly, even the most ardent opponent of homosexuality would grant that being fired from a job or losing custody of a child are evils for those who experience those things. The point in dispute is whether those evils, especially when inflicted by the state, are justified evils.
Finnis and Justice Scalia would maintain that such harms are justified in the service of realizing certain bare moral interests such as the discouragement of homosexuality. In contrast, the thesis defended here is that the infliction of such harms can only be justified by the realization of other, greater, similarly empirical goods.
Thus if a school board discovers that a grade school teacher has a long history of criminally violent behavior, the termination of that teacher could be justified, not by some bare moral assertion that “bad” people should not be teachers, but by the interest in the physical and psychological safety of the children. This argument does not depend upon a conventionalism that treats values as ultimately defined by agreement within a society. The position defended here would be consistent with a variety of moral theories, including forms of what might be termed “moral realism.” 188 Indeed, the sorts of publicly intelligible goods in which this discussion has grounded the legitimacy of state interests are the transculturally necessary conditions for human flourishing. No rational person could deny that the absence of physical safety, education, and material well-being are serious impediments to the survival, prospering, and happiness of a human life. Moreover, without those things, no human life can realize its fullest potential. The great advantage of relying on effects that are open to examination and verification through human experience, and on values that are practically universal because they are indispensable to the flourishing of any human life, is that disputes over legitimate state interests are thereby given a public, rational, nonsectarian, and ultimately adjudicatable quality. Without that quality, there can be no fruitful discourse about law in a pluralistic democracy.
2. The Empirical Effect of Moral Disapproval
Granting, then, that the requirement that the empirical effects of a given state action will be the touchstone for any analysis of the legitimacy of state interests, should any weight be given to the empirical effect, for example, the psychological effect on the believers in a particular moral code, when a law embodying that moral code is struck down? In the most concise terms, this objection argues that by invalidating all laws that enforce bare moral interests the position defended herein inflicts real, observable psychological harms on those who share the moral interests promoted by those laws.l89
One response to this argument is to challenge whether the harm identified, the displeasure that someone acts on beliefs different from one’s own, is really any harm at all. Consider two hypothetical examples. In the first, a supporter of pending legislation to prevent domestic violence experiences profound anxiety and concern when she sees her neighbor being battered by her husband. In the second example, a white supremacist and supporter of his state’s recently invalidated miscegenation law, experiences frustration and moral outrage when an interracial couple moves into the house next door.
Granting the reality and intensity of the psychological distress of the bigot in seeing relationships of which he does not approve, it hardly seems rational to remedy that distress by forcing others to behave in a manner that comports with the bigot’s beliefs. That insight is at the heart of the oft-quoted words from Palmore v. Sidoti: “The Constitution cannot control such prejudices but neither can it tolerate them.” 19
A second response to the objection looks to the kinds of values that must be vindicated if a viable democracy, and with it a peaceful and stable order, is to be maintained. Almost no one enjoys being contradicted. Many people experience real distress at the knowledge that others do not share their way of life, their moral beliefs, their views on how to raise children or conduct relationships. In a pluralistic democracy, where disagreement about the most profound issues of personal values is a fact of experience and a practical inevitability, that distress is unavoidable. Learning to manage one’s distress at the fact that others do not always agree with one’s views is a moral and political necessity for citizens in a democracy. It is a prerequisite for learning to be tolerant. It is one of the central virtues of human life in a democracy. Accordingly, perhaps the best response to this objection is that while the distress that people might feel at seeing their moral or religious beliefs rejected by others certainly has an empirically observable quality, in order to sustain democracy that harm cannot be judicially cognizable.
3. Sliding Down the Slippery Slope
The third objection to the position defended here is the classic “slippery slope.” If the standard advocated here is adopted, if public morality alone ceases to serve as a legitimate state interest, will not the state be disabled from passing laws that prohibit or discourage activities similar to the parade of horribles that Justice Scalia identified in Barnes: “sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution”?’9′
The simple answer to that question is “No,” or at least, “Not necessarily.” It should be observed, from the outset, that most of the activities that Justice Scalia identifies have just the sort of “secondary effects” that are the focus of the standard advocated by this article. So, for example, sadomasochism would, on the standard defended here, be a legitimate target of legal regulation whenever the behaviors it involved, even where consensual, result in death or serious bodily injury to one or both of the participants. Similarly, laws against prostitution might be defended on the grounds that they work to discourage the spread of sexually transmitted diseases and other secondary effects of commercial sex.
The economic, medical, and social effects of drug use are well documented and supply ample empirical reasons to provide a rational basis for regulation. The secondary effects of cockfighting and bestiality may be less obvious. The state’s traditional interest in preventing cruelty to animals192 could be defended both on the grounds that participation in such cruelty encourages antisocial acts against human beings, and that the state has an interest in protecting nature from gratuitous injury and destruction.
Public welfare arguments might likewise be given for prohibitions on polygamy. While not endorsing those arguments-and in full recognition of the religious bigotry that fueled much of the animus toward Mormon practitioners of polygamous family arrangements-it is nevertheless reasonable to suggest that to the extent marriage is a state regulated contractual arrangement, from which flow various rights and obligations that have observable effects on the public welfare, an argument could be made that important public welfare benefits flow from limiting the number of parties who may enter into the marriage contract. Especially given that various economic benefits flow from the marital relationship, including in most cases automatic coverage for health insurance purposes, a plausible public welfare argument could be made for limiting the marriage contract to two parties. It should be noted, however, that similar public welfare arguments are not available for limiting marriage to other aspects of the identities of the parties (such as race, religion, sex, national origin).
Even the use of legal compulsion to prevent or discourage suicide could be justified under the standard advocated here. Traditionally, positions similar to the one defended in this article have been thought to be inconsistent with paternalism. Whether expressed by Mill93 or Thoreau194 or Hart,’95 the limits of legal coercion have generally been placed at the point where the activity of a person harms someone else. That limit was an extension of the classic formulation of utilitarian jurisprudence: “The right to swing my arm ends where your nose begins.” 196 What a person does to him or herself is, on this view, beyond the scope of law.
The emphasis on empirical or observable effects defended here certainly encompasses all those harms that affect other people. But it also encompasses empirical harms to self, including, most obviously, suicide. To the extent that the political community has an interest in the flourishing of each of its members, and to the extent that the termination of life necessarily ends all possibility for such flourishing, it is not unreasonable to find that the state has a legitimate interest in deterring the physical self-destruction of its citizens.
As for the issue in Barnes, nude dancing, there may be no ready answer. Candidly, when confronted by the hypothetical posed by Justice Scalia-60,OOO fully consenting adult Hoosiers exposing their genitals to one another without an offended innocent in the crowd-it may be best to admit that for the standard articulated here the only response may be: let the nudists congregate. The more difficult cases concern laws that protect aesthetic interests, for example in zoning,’97 and laws against obscenity. Zoning law is particularly problematic for the standard advocated here because it implicates not only aesthetic interests but also moral interests in a community’s desire to preserve the public welfare. As the Supreme Court noted in Berman v. Parker:198
The concept of public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community would be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.199
The standard advocated by this article would require that aesthetic and moral interests justifying zoning laws be connected to public welfare effects such as reducing noise and congestion; control of population density and demand on municipal infrastructure such as roads, sewage, water, and electricity; reducing traffic and pollution from automobile use; preventing crime and increasing public safety; protecting property values, regulation of commerce; environmental protection; and other secondary effects that result from land use regulation. While that requirement is not unproblematic, it nevertheless allows a wide variety of aesthetic interests to be justified by recourse to such secondary goods.
The latter example, laws which prohibit obscenity, is a still more difficult case. Would, for example, a law prohibiting the exhibition of a billboard in the town square depicting full frontal nudity and graphic sex acts survive the “empirical” standard defended here? More generally, could obscenity laws, that have traditionally been found to realize the state’s interest in maintaining a “decent” society,2 be justified in terms of a more empirically observable state interest?
It does not seem unreasonable to suggest that they could.
The standard advocated here defines only the type of interests and, by extension, their connection to the public welfare, for purposes of equal protection review. Once the interests have been shown to be related to a public welfare objective, the comparative weight to be given to competing interests is still a matter for the legislature to decide and one to which the courts should give all reasonable deference.
Hence, if credible evidence suggested that children would suffer emotional or psychological injury from exposure to the images described in the billboard example above or that rates of sexual assault would increase as a result of the images being displayed, then the state would have, under the standard articulated here, a legitimate interest in regulating the display of such images. The same reasoning would apply to the regulation of obscenity more generally, presuming that in matters relating to prohibiting obscenity the independent protections the Supreme Court has given to speech would be unchanged.2m
In this regard it should be noted that the obscenity jurisprudence of the Supreme Court has never rested entirely on the sort of bare moral interest identified and criticized here. As the Court noted in Paris, at stake in the regulation of obscenity are “[r]ights and interests `other than those of the advocates [of obscene material] involved.’ 202
These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.203
The Court then proceeded to cite the Hill-Link Minority Report of the Commission on Obscenity and Pornography documenting “at least an arguable correlation between obscene material and crime.”24 Thus the sort of standard for determining legitimate state interests advocated here, a standard focused on empirical effects other than the bare moral beliefs of the majority, is not as alien to the Court’s obscenity jurisprudence as it first might appear.
The point in responding to the slippery slope objection is not to decide the possible secondary effects of the activities cited by Justice Scalia. Such decisions can only be made by recourse to science and history, that is to say, to human experience. The point, however, is that the standard advocated here-a standard that demands that state interests be grounded in the empirical effects on the public welfare-would not automatically unleash a torrent of abominable behavior on the public.
4. Judicial Activism Run Rampant
The fourth objection questions whether the empirical standard advocated here frustrates democracy and invites judicial activism to run rampant forcing every judge who presides over an equal protection challenge to be a social scientist expert. Something akin to this objection was articulated by then-Judge Bork in a 1984 lecture on tradition, morality, and the Constitution:[J]udges have no mandate to govern in the name of contractarian or utilitarian or what-have-you philosophy rather than according to the historical Constitution. Judges of this generation, and much more, of the next generation, are being educated to engage in really heroic adventures in policy making.
Though the arguments are, as you might suspect, cast in terms of expanding individual freedom, that is not their result. One of the freedoms, the major freedom, of our kind of society is the freedom to choose to have a public morality. As Chesterton put it, `What is the good of telling a community that it has every liberty except the liberty to make laws?’205
Bork’s criticism of judges as grand policymakers trampling over the citizenry’s right to political self-determination, should not be dismissed as one more formulation of the standard complaint about judicial activism. It is perfectly reasonable that this debate should raise concerns about the degree to which judges will duplicate factfinding processes more appropriate to the legislative process, and regularly invalidate laws supported by a majority of legislators and of the citizens who elected them.
The tension between judicial review under a written constitution and majoritarian rule in a democracy will probably never be resolved. If the standard advocated here needs to be defended from the allegation that it will unleash activist judges to impose their own values on the law, then the public morality standard it rejects must defend itself against the charge that it justifies judges in giving legal effect to the most invidious forms of prejudice.
The fear of judicial activism under the standard advocated here may, however, be overstated. The standard defended here simply requires that, in defending a legislative classification under equal protection review, a bare public morality interest, independent of any empirical connection to the public welfare, cannot constitute a legitimate government interest.
As is argued above, that standard has, in effect, been applied each time the Court struck down laws based on irrational prejudice or private bias.206 The consideration of the slippery slope argument was meant to demonstrate that, in many cases of activities proscribed because they are regarded to be immoral, the secondary effects of such activities would provide a sufficient basis for upholding the laws that prohibit such activities even under the standard advocated here.
The fear that this standard will turn every equal protection review into a searching empirical inquiry also seems unfounded. Judges constantly make decisions about past, present, and future effects in the real world. Whether on issues of causality in tort or criminal law, or the likelihood of imminent and irreparable harm for the granting of injunctive relief,207 judges are constantly involved in investigating and making decisions about the empirical effects of given actions.
Indeed, under the standard advocated here, a judge would do no more than what the Supreme Court has done at times in its rational basis jurisprudence. In Cleburne, for example, the Court examined and rejected an alleged rational basis for a zoning ordinance prohibiting the operation of a group home for mentally retarded people.28 In that case, the level of empirical inquiry by the Court certainly seems to have been as great as or greater than that which might on occasion be required by the standard advanced here. In short, the empirical standard proposed here is consistent with much of what is already done in equal protection jurisprudence. It requires judges to do no more than conduct the kind of commonplace empirical inquiry that is almost daily fare in most courtrooms.
Moreover, the standard defended here retains all of the deference that rational basis review now accords to duly enacted laws. The only difference with the standard advocated here is that bare assertions of public morality, if they were ever sufficient as a legitimate government interest, will no longer be. Instead, states will have to allege an interest plausibly connected to some empirical effect on public welfare. That hardly constitutes an onerous burden of justification on the state.
It is also worth noting, in response to the “judicial tyranny” objection, that proponents of public morality as a legitimate state interest present their own severe problems for limiting judicial discretion. The problem arises in the question of how judges weigh moral interests.
In the preceding examination of the bare public morality arguments of Finnis and Justice Scalia, the discussion did not focus on the weight of the moral interest for the purposes of equal protection review. The assumed standard was the standard most deferential to the government, namely, a rational connection between the classification at issue and the realization of some conceivable legitimate state interest.
Justice Scalia only speaks in terms of a state’s rational interest in public morality, and it is unclear whether he believes that morality could rise to the level of a “compelling” interest for equal protection review. Finnis, as noted earlier however, believes the sort of bare moral interest he articulated to be compelling, sufficient to satisfy even the most rigorous equal protection standard, that is, the standard applied when fundamental rights or suspect classifications are implicated.29 Under present equal protection jurisprudence, Finnis’ position would mean that laws that classify according to gender or race, or burden freedoms of speech and association, for example, could survive equal protection challenges if they are narrowly tailored to advance the state’s moral interests. That inference is completely consistent with the specific examples Finnis gives of the sorts of prohibitions he believes are justified by the state’s moral interest in discouraging homosexuality.210
The acceptance of bare public morality arguments as constitutionally valid state interests thus creates its own opportunities for abuse of judicial discretion. So, for example, on the standard advocated by Finnis and Justice Scalia, a judge might have to decide if a state’s moral interest in the modesty of women justifies laws requiring women to cover their heads in public.
To this argument it is no answer to reply, as then-Judge Bork did to a similar criticism of morality as the basis of legislation, that “[t]he Constitution has provisions that create specific rights. These protect, among others, racial, ethnic, and religious minorities.”21l None of those rights, however, is absolute. By that I mean that even those rights we consider most precious and fundamental can be infringed, even abrogated, if a sufficiently compelling interest is at stake. To test that contention, one can engage in a thought experiment: What if it were established beyond any doubt that the life of every person in the United States depended on an act of government that treated some people differently than others on the basis of gender, race, religion, or some other characteristic we take as a fundamental right? Is there any doubt that a court would sustain such a law in the face of equal protection challenge? To use a more realistic illustration, the Supreme Court in Goldman v. Weinberger212 upheld under equal protection challenge a military regulation that prohibited an Orthodox Jewish soldier from wearing indoors his religiously prescribed head covering or yarmulke. That regulation, as one legal commentator has observed, “as a formal matter. . . did not exclude Jews from the military. But it prevented them from practicing their religion openly. And for those Jewish men who could not, in good conscience, refrain from wearing the yarmulke, it was a de facto Jewish exclusion.”213 Moreover, on this point it is important to note that the strict standard of equal protection review to which the Court subjects laws that burden fundamental rights and legislative classifications based on, inter alia, race, by no means guarantees that the law under scrutiny will be held unconstitutional.214 That is why, for equal protection analysis, courts inquire into the relative importance of the state interest served by a challenged classification.
Accepting bare moral judgments as valid state interests inescapably entangles judges in deciding the relative merit of those interests. A judge may be forced to decide, for example, if a government interest in expressing moral disapproval of homosexuality is sufficiently important to justify barring gay people from certain public professions like teaching and the military, but insufficient to justify laws that prohibit spoken advocacy for same-sex marriage. Accepting the premise of the advocates of bare public morality interests, by what principled means could one possibly decide such a question?
Judges would invariably find themselves substituting their own values for those of the legislators that enact such laws. This is enough to make perhaps even the most conservative Justice blanche at the enforcement of some of the more extreme civil and criminal liabilities that might be visited upon gay and lesbian people in certain American jurisdictions. More likely, even under a system of adjudication that treats bare moral judgments as valid state interests, judges would turn to what this discussion has called “empirical effects” to guide the process of evaluation.
5. The Problem of Liberal Values
A final objection arises from a different ideological perspective. Might the empirical standard proposed and defended here prove to be a two-edged sword? That is to say, how would so-called “progressive” values fare under this standard? Might not some of the most cherished moral values of American progressives, for example, freedom from sexual discrimination or harassment, and “diversity”-the increased representation of women, disabled people, racial and sexual minorities in political office, educational institutions, places of employment, the arts, and positions of authority (what once might have been termed “integration” in the broadest sense of the word)-fail to meet the empirical test as legitimate state interests?
In the abstract, it is difficult to answer those questions. A tentative, plausible answer might, however, be assayed.
In discussing the implications of the standard advocated here on the law of sex discrimination and sexual harassment it is important to distinguish the easy case: the case in which the sex discrimination either results in clear empirical effects (e.g., loss of job, promotion, benefits, sexual assault) or consists in threats of such reprisals. Such cases would clearly involve the kind of empirical effect standard advocated by this article. More difficult are those cases where no such clear effects seem to be present, where there was no suggestion of a quid pro quo. Chief Justice Rehnquist, while recognizing that such distinctions should not be controlling, wrote in a recent case that:
Cases based on threats [of retaliation] which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive as to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility.215
Expanding the jurisprudence of sex discrimination the Court began in Meritor Savings Bank v. Vinson,216 the Supreme Court in Ellerth made clear that a hostile work environment violates the protections of Title VII even when no tangible job related adverse consequences result from the unwanted sexual advances or threats that constituted the hostility on the basis of gender.2l7 The standard advocated here has stressed empirical effects, the consequences in the world that are publicly available for examination by rational people. The Court’s holding in Ellerth, indeed the whole concept of hostile work environment, seems to violate that standard by finding cognizable harm, sex discrimination, in the absence of any tangible effect.
There is no doubt that the example of Ellerth presents a challenge to the standard advocated here. One can imagine an employer guilty of the sort of sex discrimination at issue in Ellerth claiming protection under the standard advocated here because his behaviors did not have any “empirical” effect on his victim. But that is the premise that must be interrogated: is it the case that “unwelcome and threatening sexual advances” or bothersome attentions or sexual remarks that are sufficiently severe or pervasive as to create a hostile work environment have no empirical effect on the well-being of their victims? That question, I would argue, must be answered in the negative. In order to understand why, I would invite a small thought experiment.218
What is so bad about being degraded or insulted or threatened or subjected to unwanted sexual advances because of one’s gender? One response, a response that would be most undermining of the standard advocated here, is that what is so bad about such experiences is not that they have any deleterious effect on the victim, but that the majority of people believe such experiences to be wrong. That response strikes me as untrue to the experience of victims and completely inaccurate as an explanation of what is so bad about working in a sexually hostile environment. An alternative response, a response consistent with the standard advocated here, is that what is so bad about being degraded or insulted or threatened or subjected to unwanted sexual advances is that such experiences create a sense of subordination, impede happiness and fulfillment at work, and subject the victim to stresses that are entirely unjustified. In other words, it is wrong to identify the Supreme Court’s decision that a plaintiff may pursue a cause of action for sex discrimination without showing a tangible effect on her or his job, with the notion that the Court has concluded that there are no deleterious effects to such sex discrimination whatsoever, or that laws against such sex discrimination are purely a matter of majoritarian morality apart from any effect on the public welfare. On this point it is important to take note that in its discussion of employer liability in Ellerth the Court borrows concepts of fault from tort law and expressly uses the language of “harm” to the plaintiff.219 Moreover, the Court expressly acknowledges that the absence of tangible adverse effects on the plaintiff will affect the plaintiff’s ability to recover damages.zzo
As for the value of “diversity,” whether one can prove that a value such as diversity has real, observable effects on the public welfare is an open question. What seems indisputable, however, is that the various legal burdens imposed upon people because of differences that harm no one, are irrelevant to character, and are immaterial to the public welfare, will surely fail the test of the standard proposed here. That, of course, is an indirect way of saying that the harms inflicted by the sorts of laws that have penalized people, for example, on the basis of race, gender, religion, or sexual orientation, are precisely the kind of empirical, observable effects the avoidance of which the standard advocated here holds to be the paradigmatic example of a legitimate government interest. “Progressive” values would therefore generally be upheld under the standard of review advocated here.
In the main reading room of the Langdell Library at Harvard Law School are inscribed the words, “non sub homine sed sub lege”-not under man, but under law. That maxim captures an ideal long treasured by American legal conservatives, the rule of law. But what does that maxim mean? Granting that the words “law” and “man” are metaphors in the maxim “not under man, but under law,” just what do those metaphors signify?
One candidate, admittedly a rather literal candidate, for the meaning of the maxim is that “law” stands for all those duly enacted commands of the sovereign, and “man” stands for any exercise of state power that does not emerge from such a process. That definition, or something close to it, was held by a whole generation of legal positivists.22 The experience of National Socialism in Germany, and the Holocaust in particular, precipitated an intellectual and moral crisis from which that sort of legal positivism has never fully recovered.222
To return to the words of St. Thomas Aquinas with which this article began, the normative authority of law-not its ability to coerce compliance through threats of violence, but its capacity for obtaining the genuine consent and voluntary obedience of the citizenry because it is deserving of obedienceseems inevitably rooted in the reasonability of the contents of law’s commands. Thus, state actions that embody bigotry against Jewish people or enshrine bizarre and cruel eugenic practices against people with disabilities cannot rightly be termed “law,” regardless of whether those state actions were based on duly enacted legislation or how precisely those state actions conformed to procedural formalities. The formal enactments of the state that embody the irrational animosities of human beings are so lacking in justice, so lacking in rationality, as not to be “law” at all.
If the “rule of law” means anything it must mean that the word “man” in the maxim “not under man, but under law” is a metaphor for all that is irrational and arbitrary-the private biases and invidious prejudices that cannot be justified by reason. “Law,” in turn, must stand for those duly enacted or formally recognized commands of a democratically chosen sovereign that are consistent with justice, whose burdens imposed or harms inflicted are outweighed by the public goods the laws are plausibly crafted to achieve.
Accordingly, laws that enshrine irrational prejudice, such as the miscegenation laws at issue in Loving,223 or the racial bias reinforced by the initial custody decision in Palmore,224 or the irrational animus toward gay people manifest in the state constitutional amendment at issue in Romer,225 are not laws at all. A standard of judicial deference that refuses to subject such laws to rational scrutiny, and refuses to invalidate those laws as failing such scrutiny, should not be praised, especially not by legal conservatives, as a prudent exercise of judicial restraint. Judicial deference to such state-approved irrationality and injustice only undermines the rule of law, decreases law’s normative authority, encourages disrespect for the legal system, and destabilizes the civic order that conservatives hold dear. As Justice Kennedy remarked in Romer:[E]ven in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority.226 The question, of course, remains as to how courts are to determine whether a given objective of the state is legitimate, and whether the classification under review is rationally related to realizing that objective.
This discussion has responded that in order to determine whether a government interest is legitimate, the courts must look to empirical effects on the public welfare. Where the interest in question is unrelated to such effects, or the legislative classification designed as a means of achieving that interest does not realize such effects, the law is rationally unrelated to a legitimate government purpose.
The underlying thesis of this discussion has been that laws that discriminate against people on the basis of sexual orientation cannot pass that test. Defenders of such laws, lacking any other argument, must resort to bare assertions that homosexuality is wrong. Depriving that bare moral argument of its constitutional legitimacy brings the controversy over homosexuality closer to concluding that laws that burden lesbian and gay people violate the guarantee of equal protection because they have no rational relationship to a legitimate government interest. Such laws are no more than an expression of private bias.
The broader implication of this discussion, an implication that cannot be defended adequately within the confines of this article, is that to the extent there is a constitutional morality it is thoroughly anthropocentric. The ultimate justifications it recognizes take human flourishing as their final end, and human experience as their source and guide, and return to human experience in a never ending process of refinement and revision.
A statute or government policy whose end is not rooted in human flourishing, and is not accessible through human experience, lacks the minimum degree of reasonableness required by the Equal Protection Clause and represents a radical departure from the rule of law.
1. THOMAS AQUINAs, SUMMA THEOLOGICA I-II, Q. 95, art. 2 (Fathers of the English Dominican Province trans., Benzinger Bros., 1948). Although I use the quotation from Aquinas only to illustrate a view shared by diverse thinkers throughout history, the next sentence of the passage I quoted goes on to say that, “the first rule of reason is the law of nature.” Id.
2. The hallmark of Plato’s Socrates is a single-minded pursuit of justice, regardless of the will of the majority. In the Apology, in which Socrates stands on trial for his life, Plato depicts Socrates as unyielding in his obedience to his daimonion or inner voice, even when the promptings of that inner voice contradict the will of the majority as expressed in law. See e.g., APOLOGY 29d, 32b-c (W.R.M. Lamb trans., 1986) (explaining Socrates’ refusal to cooperate with actions of the city he believed to be unjust). The pseudo Platonic dialogue Minos depicts Socrates defending the thesis that “[a]n evil resolution, you see, cannot properly be called law,” id. at 314e, and “[w]hatever is not right we shall decline to call lawful,” id. at 317c.
3. See e.g., Letter from a Birmingham Jail, in A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS AND SPEECHES OF MARTIN LUTHER KING, JR. 289, 293 (James M. Washington ed., HarperCollins, 1991) (drawing on St. Augustine to argue in support of civil disobedience).
4. AQUINAs, supra note 2, at Q. 95, art. 2 (quoting AUGUSTINE, DE LIBERO ARBITRIO, I, 5. PL 32, 1227). Similar sentiments have been expressed by late l9th century American commentators about laws deemed to be unconstitutional: “[T]he term unconstitutional law, as employed in American jurisprudence, is a misnomer, and implies a contradiction; that enactment which is opposed to the constitution being in fact no law at all.” T. COOLEY CONSTITUTIONAL LIMITATIONS 4 (Sth ed. 1883) (quoted in LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 27 (2d ed. 1988)). “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, 118 U.S. 425, 442 (1886) (Field, J.) (quoted in TRIBE, supra, at 27).
5. The Equal Protection Clause of Section 1 of the Fourteenth Amendment reads: “[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. VIX. A substantively identical guarantee, as against the federal government, has been located in the Due Process Clause of the Fifth Amendment, id. amend. V, to provide “norms of equal treatment indistinguishable from those of the equal protection clause” of the Fourteenth Amendment. TRIBE, supra note 4, at 1437. See also Buckley v. Valeo, 424 U.S. 1, 93 (1976) (stating that “[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment”).
6. “Human flourishing,” as used here, is an attempt to capture what Plato and Aristotle meant by eudaimonia. Following Martha Nussbaum, I use “human flourishing” instead of the more common translation of eudaimonia as “happiness.” See, e.g., HENRY GEORGE LIDDELL & ROBERT SCOTT, A GREEK-ENGLISH LEXICON 596 (1897) (defining eudaimonia in Plato and Aristotle as “complete happiness”). Allan Bloom in his classic translation of Plato’s Republic consistently renders eudaimonia as “happiness.” THE REPUBLIC OF PLATO (Allan Bloom trans., 1968) (see index under eudaimonia for numerous examples). My reasons for this are two. First, as noted by Nussbaum, “happiness” in contemporary English is generally associated with a state of mind or emotion, and misses the sense of eudaimonia both as an activity and as a description of a complete human life. Second, “happiness” in English is easily conflated with pleasure, inviting a reader unfamiliar with the philosophical literature on the topic to confuse a focus on eudaimonia with hedonism. Accordingly, I have adopted Nussbaum’s use of “human flourishing” to describe those activities and state of being in which human physical, emotional, and intellectual capacities are realized to their fullest. See MARTHA NUSSBAUM, THE THERAPY oF DESIRE 15 n.5 (Ist ed. 1994). As should become clear as the article progresses, what I consider legitimate government interests are those that are empirically connected to creating the conditions under which human flourishing for citizens (at the least) can take place.
7. See PATRICK DEVLIN, THE ENFORCEMENT OF MORALS (1965); H.L.A. HART, LAW, LIBERTY AND MoRALITY (1963).
8. J.S. MILL, ON LIBERTY 16 (Prometheus Books ed., 1986).
9. The Equal Protection Clause applies to acts of government including statutes, policies, regulations, and decisions of administrative agencies. See NORMAN REDLICH ET AL., UNDERSTANDING CONSTITUTIONAL LAW 217 (1995). The distinction between statutes, policies, regulations, and acts of administrative agencies is not significant for the analysis that follows. The discussion that follows will focus on statutes. Accordingly, the words “law” or “laws” will be used to designate acts of government under equal protection challenge.
10. 69 NOTRE DAME L. REv. 1049 (1994).
II. 517 U.S. 620 (1996). Justice Scalia filed a dissenting opinion. Id. at 636 (arguing that Amendment 2 is a rational and constitutionally permissible attempt to uphold public morality).
12. Apart from the critical role that public morality arguments played in Romer, see infra Part II, 116-67 and accompanying text, public morality arguments have been advanced to defend several state laws discriminating against gay and lesbian people from equal protection challenge. See e.g., Gryczan v. Montana, 942 P.2d 112, 123 (Mont. 1997) (rejecting contention that state had compelling interest in “protecting public morals” as basis for state deviant sexual conduct statute); Campbell v. Sundquist, 926 S.W.2d 250, 264 (Tenn. App. 1996) (rejecting contention that state had compelling interest in
“advanc[ing] the morals” of citizens as basis for state sodomy statute); Christensen v. State, 468 S.E.2d 188, 190 (Ga. 1996) (upholding Georgia sodomy statute against equal protection challenge based upon legitimate state interest in moral welfare of the public); Kentucky v. Wasson, 842 S.W.2d 487 passim (Ky. 1992) (rejecting public morality justification for state sodomy statute and holding that the statute violated state constitutional guarantee of equal protection of the laws); New York v. Onofre, 415 N.E.2d 936, 940-43 (N.Y. 1980) (rejecting asserted state interest in public morality as basis for sodomy statute).
13. This discussion focuses on federal equal protection jurisprudence. For state constitutions, every state has developed its own equal protection jurisprudence, usually a multitiered analysis similar to the federal analysis.
14. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (using rational basis review to invalidate zoning ordinance prohibiting home for mentally retarded).
15. See id.
16. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 30-31 (1980).
17. See generally Daniel J. Garfield, Comment, Don’t Box Me In: The Unconstitutionality of Amendment 2 and English-Only Amendments, 89 Nw. U. L. REv. 690, 705ff (1995) (providing concise discussion of equal protection tiers of review with appropriate case citation).
18. See id.
19. See id.; see also Plyler v. Doe, 457 U.S. 202, 217 (1982) (discussing strict scrutiny).
20. See Garfield, supra note 17, at 705ff; see also Craig v. Boren, 429 U.S. 190, 210 (1976) (Powell, J., concurring) (discussing intermediate scrutiny).
21. See Garfield, supra note 17, at 705ff; see also Romer, 517 U.S. at 631 (discussing rational basis review).
22. See Romer, 517 U.S. at 631.
23. See, e.g., id. at 639.
24. 473 U.S. 432 (1985) (invalidating on equal protection grounds zoning ordinance prohibiting home for mentally retarded people).
25. Id. at 452 (Stevens, J., concurring).
26. In compiling this list of state interests allegedly served by laws that discriminate on the basis of sexual orientation, a diligent effort has been made to be comprehensive. Nevertheless, certain rationales were omitted because they were either (1) so patently implausible or so constitutionally suspect that there were no published decisions showing the rationale had been taken seriously; or because they were (2) generalized and in no way connected to the activity (in this case, homosexuality) being discouraged or prohibited. So, for example, the list of rationales compiled here omits several interests asserted by the state of Colorado throughout the litigation over Colorado’s Amendment 2, a state constitutional amendment banning the state or any of its subdivisions from prohibiting discrimination on the basis of sexual orientation. In that litigation, Colorado maintained, inter alia, that Amendment 2 was rationally connected to the legitimate state interests of (1) discouraging factionalism, (2) preservation of the state’s political functions, and (3) prevention of the government from subsidizing special interest groups. See Evans v. Romer, 882 P.2d 1335, 1347, 1348 (Colo. 1994) [hereinafter Evans ll]. Those interests, rejected by every court that considered Amendment 2, are not treated here.
27. See e.g., Gay Lesbian Bisexual Alliance v. Sessions, 917 F. Supp. 1548, 1557 (M.D. Ala. 1996) (considering state claim that refusal to fund gay student group justified by compelling interest in, inter alia, procreation of children); Baker v. Wade, 553 F. Supp. 1121, 1142 (N.D. Tex. 1982), rev’d, 769 F.2d 289 (Sth Cir. 1985) (en banc); State v. Elliot, 88 N.M. 187, 192-93 (1975) (rejecting state sodomy
statute on, inter alia, equal protection grounds and opining that “[l]egislative prohibitions in this country against sodomy arose from the eighteenth century belief that any sexual act not leading to procreation was sinful”); Baker v. Nelson, 291 Minn. 310, 312 (1971) (upholding denial of same-sex marriage license based, inter alia, on state’s legitimate interest in marriage as “union of man and woman uniquely involving procreation”); Singer v. Hara, 11 Wash. App. 247, 260 (1974) (upholding denial of marriage to same-sex couples since such couples do not “offer the possibility of the birth of children by their union” and state’s interest in marriage as “a legal institution . . . associated with propagation of the human race”).
28. See, e.g., Dronenberg v. Zech, 741 E2d 1388, 1397 (D.C. Cir. 1984) (holding that military’s homosexual exclusion served legitimate purpose of “prevent[ing] breaches of security”); Cammermeyer v. Aspin, 850 F. Supp. 910, 921 (W.D. Wash. 1994) (citing 32 C.ER. pt. 41.13 which states that the presence of homosexuals in the armed forces, inter alia, “seriously impairs military’s ability to prevent breaches of security”).
29. See, e.g., Padula v. Webster, 822 F2d 97, 104 (D.C. Cir. 1987) (upholding FBI’s refusal to hire otherwise qualified lesbian applicant on grounds that, inter alia, it is not irrational for FBI to conclude that discrimination against homosexuality may make homosexuals more susceptible to blackmail). 30. See, e.g., High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 574-76 (9th Cir. 1990) (upholding stricter security clearance requirements for homosexual employees based upon DOD’s rational interest in security).
31. In discussing the “disease” objection against homosexuality, the focus has been on physical ailments like HIV/AIDS. Accordingly, mental illness has been omitted. It should be noted, however, that homosexuality in the late nineteenth and twentieth centuries was long treated as a form of mental illness, an assertion that emerges in certain cases affecting the rights of lesbian and gay people. See, e.g., Baker, 553 F. Supp. at 1129 (finding, in context of equal protection challenge to state sodomy statute, that “homosexuality is not a ‘disease’ and is not, in itself, a mental disorder”). 32. See, e.g., Steffan v. Cheney, 780 F. Supp. 1, 13-15 (D.C. Cir. 1991) (upholding dismissal of gay cadet from naval academy on grounds of government’s public health interest in preventing spread of HIV/AIDS in military); Missouri v. Walsh, 713 S.W.2d 508, 511 (Mo. 1986) (upholding state sodomy statute based, inter alia, on “state’s concededly legitimate interest in protecting the public health” through inhibiting the spread of diseases like AIDS); Gryczan v. Montana, 942 P.2d 112, 123 (Mont. 1997) (criticizing state’s assertion that sodomy statute “protects public health by containing the spread of AIDS”); Campbell v. Sundquist, 926 S.W.2d 250, 263 (Tenn. App. 1996) (discussing State’s assertion that sodomy statute prevents the spread of sexually transmitted disease).
33. See, e.g., Evans v. Romer, No. 92-CV-7223, 1993 WL 518586, at *2 (Colo. Dist. Ct. Dec. 14, 1993) (enumerating state’s asserted compelling interests in state constitutional amendment invalidating all existing and future gay rights ordinances as, inter alia, “promoting the physical and psychological well-being of our children”); In re Opinion of the Justices, 530 A.2d 21 (N.H. 1987) (opining that blanket exclusion of homosexuals from foster or adoptive parenthood rationally related to state interest in providing a healthy environment, role models, and positive nurturing to children); Gaylord v. Tacoma Sch. Dist., .559 P.2d 1340, 1346 (Wash. 1977) (upholding dismissal of gay teacher whose sexual orientation became known on grounds that teacher’s continued employment impairs ability to teach morality and “creates danger” of “approval and of imitation” on part of students).
34. See, e.g., Baker v. Nelson, 291 Minn. 310, 312-13 (1971) (holding marriage as institution between man and woman “uniquely involving procreation”); New York v. Onofre, 415 N.E.2d 936, 940 (N.Y. 1980) (discussing state contention that prohibition on consensual sodomy protects institution of marriage); cf. Walsh, 713 S.W.2d at 512 (asserting that “general promiscuity characteristic of the homosexual” is “particularly deserving of regulation”).
35. See, e.g., Dronenberg, 741 F.2d at 1397 (legitimate state interests in exclusion of homosexuals include maintenance of discipline, good order, mutual trust, confidence among service members, and system of rank and command); Cammermeyer, 850 F. Supp. at 920-21 (military regulation excluding homosexuals states that homosexuality “adversely affects the military’s ability to insure the integrity of the system of rank and command” ).
36. See, e.g., Evans, 1993 WL 518586, at *5 (describing state’s alleged interest in conserving resources to fight discrimination).
37. This rationale was posited by the state of Colorado as a compelling state interest in the litigation over Amendment 2 (prohibiting any state or local law or policy that banned discrimination on the basis of sexual orientation).
38. See, e.g., Romer, 517 U.S. at 636 (describing identical alleged interest of state); Evans, 1993 WL 518586, at *6 (describing state’s alleged interest in personal, familial, and religious privacy). 39. 501 U.S. 560 (1991) (upholding Indiana law banning nude dancing in commercial establishments).
40. Id. at 561. Justice Souter specifically identified “prostitution, sexual assaults, and other criminal activity” as cited by the state of Indiana as secondary effects of the type of nude dancing banned by the statute at issue in Barnes.
41. Presuming, of course that the reviewing court finds that the particular type of sexual orientation discrimination in question is rationally related to the government interest of expressing moral disapproval of homosexuality.
42. See, e.g., Christensen v. State, 468 S.E.2d 188, 190 (Ga. 1996) (upholding Georgia sodomy statute against equal protection challenge based upon legitimate state interest in moral welfare of the public); Kentucky v. Wasson, 842 S.W.2d 487 passim (Ky. 1992) (rejecting public morality justification for state sodomy statute and holding that the statute violated state constitutional guarantee of equal protection of the laws); Gryczan v. Montana, 942 P.2d 112, 123 (Mont. 1997) (rejecting contention that state had compelling interest in “protecting public morals” as basis for state deviant sexual conduct statute); New York v. Onofre, 415 N.E.2d 936, 940-43 (N.Y. 1980) (rejecting asserted state interest in public morality as basis for sodomy statute); Campbell v. Sundquist, 926 S.W.2d 250, 264 (Tenn. App. 1996) (rejecting contention that state had compelling interest in “advanc[ing] the morals” of citizens as basis for state sodomy statute). 43. See infra Part II. 44. 478 U.S. 186 (1986).
45. That is not to say that arguments from procreation are extinct. As a member of the plaintiff’s legal team at the district court trial of Colorado’s Amendment 2, the author personally heard Professor Harvey Mansfield, a prominent political theorist at Harvard University, testify that the state had a legitimate interest in discouraging homosexuality for, among other reasons, the fact that homosexuals abdicate or evade the responsibility of producing and rearing children.
46. See, e.g., Paul R. Ehrlich & Anne H. Ehrlich, The Population Explosion: Why We Should Care and What We Should Do About It, 27 ENVTL. L. 1187, 1187-91 (1997) (describing the projected ecological consequences of continued population growth).
47. See, e.g., Marla J. Hollandsworth, Gay Men Creating Families Through Surro-Gay Arrangements: A Paradigm for Reproductive Freedom, 3 AM. U. J. GENDER & L. 183, 200 (1995) (describing “baby boom” among gay male couples); Nancy D. Polikoff, This Child Does Have Two Mothers, 78 GEo. L.J. 447, 459 (1990) (discussing increasing phenomenon of lesbian parents). 48. See, e.g., Cammermeyer v. Aspin, 850 F. Supp. 910, 922 (W.D. Wash. 1994) (reviewing history of DOD reports from 1957 Crittenden Report to 1993 PERSEREC report, finding that homosexuals present no security risk).
49. See Jill Zuckman, US Security Ban on Gays to End: Clinton to Change Clearances Policy, BOSTON GLOBE, Aug. 4, 1995, at I (noting that Secretary of Defense under George Bush, Dick Cheney, “whose press secretary was gay,” called the idea that gays are a security risk “an old chestnut”). 50. See Able v. United States, 968 F. Supp. 850, 855 (ED.N.Y. 1997) (noting in context of equal protection challenge to exclusion of open homosexuals from military that government has now abandoned contention that gays are security risk).
51. See Steven D. Pinkerton & Paul R. Abramson, Condoms and the Prevention of AIDS, AM. SCIENTIST, July 17, 1997, at 364.
52. See Gryczan v. Montana, 942 P.2d 112, 124 (Mont. 1997) (citing NATIONAL CENTER FOR HIV, STD, AND TB PREVENTION, CENTERS FOR DISEASE CONTROL AND PREVENTION, U.S. DEP’T OF HEALTH AND HUMAN SERVICES, PUBLIC HEALTH SERVICES, HIV/AIDS SURVEILLANCE REPORT Vol. 7, No. 2 (1995)).
53. See id.
54. See U.S. DEP’T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 142 (1997).
55. See Christine A. Littleton, Double and Nothing: Lesbian as Category, 7 UCLA WOMEN’S L.J 1, 10 n.26 (1996). Rates of woman-to-woman HIV transmission are extraordinarily low. For example, as
of November 1993, only five cases of woman-to-woman HIV transmission had been documented.
Lesbians represented only 0.8% of all reported cases of adult women with AIDS, and 95% of lesbians with AIDS are believed to have contracted HIV through intravenous drug use, 5% through infected blood products. See GAY & LESBIAN STATISTICS 20, 21 (Bennet Z. Singer & David Deschamps eds., 1994) (citations omitted).
56. RICHARD HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994) (alleging correlation between ethnicity, intelligence, and economic achievement).
57. See Adolph Reed, The Bell Curve: Intelligence and Class Structure in American Life, NATION MAG., Nov. 28, 1994, at 654.
58. See, e.g., Polikoff, supra note 47, at 459; Jane S. Schacter, The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents, 29 HARV. C.R.-C.L. L. REV. 283, 287 n.29 (1993); Patrick Chang, Note, Constitutional Limits on Anti-Gay Rights Initiatives, 106 HARV. L. REV. 1905, 1915 nn.81-83 (1993).
59. See Evans, 1993 WL 518586, at *9.
60. Carol Kreck, It Was a Hard Day at the Office, THE DENVER POST MAG., Mar. 26, 1995, at 10. 61. Eva Emerson, Gays Don’t Abuse More Than Straights, U.PI. WASH. NEws, July 11, 1994.
62. See Evans, 1993 WL 518586, at *11. It should be noted that the state of Colorado dropped its child welfare argument between the trial on the merits of Amendment 2 and its appeal before the Supreme Court of Colorado.
63. See generally, CHANDLER BURR, A SEPARATE CREATION: THE SEARCH FOR THE BIOLOGICAL ORIGINS OF SEXUAL ORIENTATION (1996) (reviewing state of research on biological origins of sexual orientation and arguing for determinative biological component); DEAN HAMER & PETER COPELAND, THE SCIENCE OF DESIRE: THE SEARCH FOR THE GAY GENE AND THE BIOLOGY OF BEHAVIOR (1994) (discussing research on genetics of sexual orientation and arguing that orientation is significantly determined by genetic factors).
64. See LI.S. BUREAU OF CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 1994, at lOS tbl.146 (1994); U.S. BUREAU OF CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 1997, at 108 tbl.152 (1997).
65. See id.
66. For data on marriage and family dissolution rates, see U.S. BUREAU OF CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 1994, at lOS tbl.l45 (1994); U.S. BUREAU OF CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 1997, at 108 tbl.152 (1997).
67. But see Michael McConnell, What Would It Mean to Have a “First Amendment” for Sexual Orientation, in SEXUAL ORIENTATION AND HUMAN RIGHTS IN AMERICAN RELIGIOUS DISCOURSE 234, 242 (Saul M. Olyan & Martha C. Nussbaum eds., 1998). McConnell, drawing for illustration on Goldman v. Weinberger, 475 U.S. 503 (1986) (upholding, on strict scrutiny standard, challenged military prohibition on Jewish soldiers wearing skullcap or yarmulke), argues that the military as an institution is a society with needs and values (e.g., “instinctive obedience, unity, commitment, and esprit de corps”) markedly different from public life in a democracy. Because of the special needs of military culture, the toleration of prejudice for the sake of order might be justified for the military in situations in which it would not be justified in civilian society. McConnell, developing the analogy to a soldier who may
discretely wear a religious symbol beneath his uniform but is prevented from wearing visible religious symbols on his uniform, offers what amounts to an argument for the “don’t ask, don’t tell policy” under which openly gay and lesbian people are precluded from military service. It is impossible here fully to engage McConnell’s thoughtful argument, but four points should be noted. First, the legal basis of McConnell’s argument/analogy, Goldberg is problematic in itself (McConnell himself says he believes the case was wrongly decided) and has been repudiated by the United States Congress. Second, the experience of integrating African-Americans into the United States military gives strong reason to believe that arguments that straight soldiers will be incapable of overcoming their aversion to gay comrades are grossly overstated. Third, McConnell’s analogy between concealing a religious artifact beneath one’s clothing and concealing one’s sexual orientation is fraught with difficulty. The psychological toll on gay soldiers of hiding sexual orientation, and the institutional effects on the military itself, are enormous. Finally, McConnell’s argument seems uncritically to accept the fact that military values will be antithetical to the values of civilian society in a democracy. Granting that elections are not practical on the battlefield, it does not follow that we should easily accept a radical division between military culture and civilian culture. Indeed, given that the ostensible purpose of the military in our society is to protect our democracy, it is imperative that military officers, ordinary soldiers, and military culture as a whole be imbued with respect not only for the supremacy of civilian command, but with the values of democracy itself. Hence, for example, the military’s commendable and highly successful efforts at battling racism within its ranks can be seen not only as a means toward greater combat effectiveness, but as a way of institutionally embodying the values of the democracy the military is supposed to defend. Allowing the military to sustain policies based on irrational prejudice toward groups of citizens hardly seems an effective way of realizing that goal. Indeed, it almost surely will exacerbate the differences between our vast, standing army and the democratic society it is supposed to protect. Even after fifty years of massive militarization, giving a constitutional blessing to a widening chasm between military and democratic values seems both unnecessary to military effectiveness and dangerous to democracy. 68. 466 U.S. 429 (1984). 69. See id. at 433.
70. See Evans, 1993 WL 518586, at *5.
71. Id. at *6.
72. See Romer, 517 U.S. at 635; Evans II, 882 P.2d at 1345-46. But see Equality Found. of Greater Cincinnati v. City of Cincinnati, 128 E3d 289, 300 (6th Cir. 1997) (upholding on remand, post-Romer city charter amendment that prohibited city from enacting any ordinance or policy banning discrimination on the basis of sexual orientation on ground, inter alia, that charter amendment “would eliminate and forestall the substantial public costs that accrue from the investigation and adjudication of sexual orientation discrimination complaints”). 73. Romer, 517 U.S. at 629.
74. See New York State Club Ass’n v. City of N.Y., 487 U.S. 1 (1988); Board of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537 (1987). 75. See MASS. GEN. LAWS, ch. 151B, . 3-5; id. ch. 272, 92A, 98 (1990).
76. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 582 (1991) (Souter, J. concurring) (upholding Indiana statute prohibiting completely nude dancing in commercial establishments based on secondary effects, such as sexual assaults and criminal activity).
77. Although this article focuses on the formulations of the public morality argument that arose from Romer, the argument has also been advanced in other recent equal protection challenges to laws that discriminate against gay and lesbian people. A clear and succinct articulation of the public morality argument was provided by the Supreme Court of Kentucky in considering the state’s sodomy statute in Kentucky v. Wasson:
The Commonwealth [of Kentucky], on the other hand, presented no witnesses and offers no scientific or social science data. Succinctly stated, its position is that the majority, speaking through the General Assembly, has the right to criminalize sexual activity it deems immoral, without regard to whether the activity is conducted in private between consenting adults and is not, in and of itself, harmful to the participants and to others.
The thrust of the argument advanced by the Commonwealth as a rational basis for criminalizing consensual intercourse between persons of the same sex, when the same acts between persons of the opposite sex are not punished, is that the level of moral indignation felt by the majority of society against the sexual preference of homosexuals justifies having their legislative representatives criminalize these sexual activities. The Commonwealth believes that homosexual intercourse is immoral, and that what is beyond the pale of majoritarian morality is beyond the limits of constitutional protection. 842 S.W.2d 487, 490 (Ky. 1993). 78. See Finnis, supra note 10, at 1049. 79. See Romer, 517 U.S. at 636 (Scalia, J., dissenting). 80. See Evans v. Romer, 854 P.2d 1270, 1282 (Colo. 1993) [hereinafter Evans 1].
81. See supra notes 18-24 and accompanying text. 82. See Evans I, 854 P.2d at 1282.
83. See Opening Brief passim, Evans v. Romer, 1993 WL 518586 (Colo. Dist. Ct. Oct. 8, 1993) (No. 92-CV-7223); Plaintiff-Appellee’s Answer Brief passim, Evans v. Romer, 1993 WL 518586 (Colo. Dist. Ct. May 5, 1995) (No. 92-CV-7223).
84. Bayless has received some ridicule for the scope of the expert testimony he permitted. See, e.g., Jeffrey Rosen, Sodom and Demurrer: Should the Courts Deliver Gay Civil Rights? THE NEW REPUBLIC, Nov. 29, 1993, at 16-17 (comparing the trial court proceedings in Evans to the circus that surrounded the Scopes Monkey Trial). While it is not the place here to undertake a defense of Bayless, two points should be made. First, a wide range of asserted state interests were at issue in the trial, some empirical, some purely moral or philosophical. Under the circumstances, Bayless had severely constrained options. He could either reject the asserted state interests without even receiving evidence on them, or permit the parties sufficient latitude to develop and rebut those interests. While the introduction of philosophical expert testimony and the public morality argument was strongly and consistently resisted by the plaintiffs, Judge Bayless’s decision to allow the defendants to call expert witnesses in philosophy and other academic fields is entirely reasonable.
Second, there was ample reason to believe that the plaintiffs’ claims in the Amendment 2 litigation would ultimately be reviewed under a rational basis standard. Accordingly, every effort was made not only to rebut the State’s allegations of “compelling interests” and “narrow tailoring,” but to develop a record that would support a finding that Amendment 2 failed equal protection scrutiny even under the much more lenient rational basis standard. Therefore, it was important that plaintiffs effectively engage all the interests asserted by the State, however implausible.
85. Affidavit of John Finnis, at 15, Evans v. Romer, 1993 WL 518586 (Colo. Dist. Ct. Oct. 8, 1993) (No. 92-CV-7223).
86. Finnis, supra note 10, at 1049.
87. Id. at 1049
88. 478 U.S. 186,187 (1986).
89. See infra notes 149-162 and accompanying text.
90. Finnia, supra note 10, at 1076
93. See id at 1049-54, 1071-76.
94. See id at 1055-66. Finnis argument over classical sourves is an explicit continuation a
disagreement that began between him and the classicist/moral philosopher Martha Nussbaum at the trial of Amendment 2. The broader disagreement between Finnis and Nussbaum was over the ethical attitudes toward homosexuality of certain ancient authors, particularly Plato and Aristotle. Their particular dispute arose over the interpretation of the word “tolmema” in Plato’s last work, The Laws. That dispute spilled over into the popular press. See John Finnis & Martha Nussbaum, Is Homosexual Conduct Wrong? A Philosophical Exchange, THE NEW REPUBLIC, Nov. 15, 1993, at 12, and generated considerable scholarly attention. For a balanced treatment of the dispute and sympathetic critique of Finnis, see Ronald R. Garet, Deposing Finnis, 4 S. CAL. INTERDISC. L.J. 605, 614-19 (1995). For Nussbaum’s compelling commentary on and rebuttal of Finnis, see Martha C. Nussbaum, Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies, 80 VA. L. REv. 1515 (1994).
96. See supra note 21 and accompanying text.
97. See supra notes 24-25 and accompanying text.
98. One could, in fairness, make much of Finnis’ “compelling” standard and argue that, even if a bare public morality interest could meet the minimal standards of rational basis review, it would be inadequate for the purposes of heightened scrutiny. Because Finnis seems to envision his public morality argument as justifying laws that, among other things, burden freedom of expression and association, see Finnis, supra note 10, at 1076, such a criticism of Finnis’ argument would not be unfounded. However, because the discussion in this article assumes that, however unjustified, laws that discriminate on the basis of sexual orientation will ordinarily receive rational basis review, the whole of the argument is directed toward that standard of scrutiny.
99. Id. at 1073.
101. Id. at 1052 (emphasis added).
102. Id. at 1070. Finnis believes this is so because accepting homosexual acts leads inescapably to the conclusion that “sexual capacities, organs and acts” are “instruments for gratifying the individual ‘selves’ who have them.” Id. That view, in turn, “makes nonsense, for example, of the view that adultery is per se (and not merely because it may involve deception), and in an important way, inconsistent with conjugal love.” Id.
103. Id. at 1070.
104. Id. at 1062-63. Finnis attributes the third point about the essential similarity between homosexual acts and solitary masturbation to “Plato, if not Aristotle,” but it is clear that Finnis, himself, accepts this point and appropriates it as integral to his argument. Id. at 1062, 1067.
105. See, e.g., Pope Paul IV, Humanae Vitae, in 5 THE PAPAL ENCYCLICALS, 1958-1981 passim (Claudia Cohen Ihm ed., 1981) (papal encyclical declaring contraception immoral because it frustrates co-equal purposes of sexual union of procreation and marital love). 106. See Finnis, supra note 10, at 1065. 107. See id.
108. See id. at 1065 n.46. Finnis’ response to Steven Macedo makes this point especially clear. 109. See id. at 1065-68.
110. Id. at 1067 n.46. 111. Id. at 1068.
112. See, e.g., Finnis & Nussbaum, supra note 95, at 1515; Michael J. Perry, The Morality of Homosexual Conduct: A Response to John Finnis, 9 NOTRE DAME J.L. ETHICS & PUB. POL’Y 41 (1995) (arguing against Finnis’ conclusion that homosexuality is always immoral).
113. See Finnis supra note 11, at 1067, 1068. Finnis acknowledges that the vast sweep of his moral argument against homosexuality would encounter constitutional difficulties. After contrasting the sterile heterosexual couple with the “acts of a husband and wife whose intercourse is masturbatory, for example sodomitic or by fellatio or coitus interruptus,” Finnis adds “[o]r deliberately contracepted, which I omit from the list in the text only because it would no doubt not now be accepted by secular civil law as preventing consummation [of a marriage]-a failure in understanding.” Id. at 1068 n.50.
Id. at 1066, 1067 (citations omitted).
115. See Romer, 517 U.S. 634-51 (Scalia J dissenting.
116. See id at 634
117Id at 622
118. S 119. Id at 624
121 Id at (6440}
132. Id. at 634. 133. Id. 134. Id.
135. Id. (emphasis added).
136. Justice Scalia peppers his dissent with intemperate jibes at the Court. Commenting on what he takes to be the Court’s central thesis in Romer, he remarks: “The world has never heard of such a principle, which is why the Court’s opinion is so long on emotive utterance and so short on relevant legal citation.” Id. at 639. At other points Justice Scalia describes the Court’s reasoning as “ridiculous,” id., characterizes the Court’s concern about the effects of Amendment 2 on gay and lesbian people as “hand-wringing,” id. at 638, and insists that to accept what the Court found to be the denial of equal protection at issue in Romer reduces “our constitutional jurisprudence” to “terminal silliness,” id. at 639.
137. Id. at 635.
138. Id at 652f
191d sid at 638 Language ” spcial rights” for lesbian and hgat epole
144. Id. 145. Id.
146. Id. at 643.
147. 478 U.S. 186 (1986) (upholding Georgia sodomy statute from substantive due process challenge and concluding that federal constitution confers no fundamental right to engage in homosexual sodomy).
148. 133 U.S. 333 (1890) (upholding constitutionality of Idaho Territory law criminalizing polygamy and denying the right to vote to any person so convicted). 149. 501 U.S. 560 (1991). 150. Id.
151. See id. at 562. Justice White filed a dissenting opinion in which Justices Marshall, Blackmun, and Stevens joined.
152. See id. at 568 (“societal order and morality”); id. at 569 (“morals and public order” and “the social interest in order and morality”) (citing Roth v. United States, 354 U.S. 476, 485 (1957)). 153. Id. at 582 (Souter, J., concurring). 154. Id.
155. See id. at 574-575. Justice Scalia’s dissent in Barnes also deals extensively with the standard of review to be adopted for the Indiana statute at issue. That is not, however, germane to the present discussion.
156. Id. (Scalia, J., concurring). 157. See id.
158. See Romer, 517 U.S. at 639-40.
159. The argument over the relevance of Bowers to the adjudication of equal protection claims by gay men and lesbians was well articulated by Judges Norris and Reinhardt (in dissent) in Watkins v. United States Army, 837 F.2d 1428 (9th Cir. 1988) op. superseded, 847 F.2d 1329, op. withdrawn, 875 F.2d 699 (9th Cir. 1989) (en banc). Interestingly, Justice Scalia’s use of Bowers in his dissent in Romer is similar to the position taken by the State of Kentucky in defense of its same-sex sodomy statute in Wasson. There, the Supreme Court of Kentucky characterized the State’s use of Bowers in the following manner:
The Commonwealth maintains that the United States Supreme Court’s decision in Bowers v. Hardwick is dispositive of the right to privacy issue; . . . that “the Kentucky Constitution did not intend to confer any greater right to privacy than was afforded by the U.S. Constitution.” Turning to the equal protection argument raised by a statute which criminalizes oral or anal intercourse between persons of the same sex, but not between persons of different sexes, which was not addressed in the Bowers case, the Commonwealth argues there is “a rational basis for making such a distinction.” 842 S.W.2d at 490.
160. See D. Don Welch, Legitimate Government Purposes and State Enforcement of Morality, 1993 U. ILL. L. REv. 67, 96. 161. See Romer, 517 U.S. at 640-41.
162. See id. at 64244. See also Barnes, 501 U.S. at 580 (Scalia, J. concurring). 163. Romer, 517 U.S. at 644 (Scalia, J., dissenting). 164. Id.
165. 133 U.S. 333 (1890).
166. The list is taken from Justice Scalia’s concurrence in Barnes, 501 U.S. at 575.
167. In 1967, the year that such laws were held unconstitutional by the Supreme Court, sixteen states banned interracial marriage: Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia. See Loving v. Virginia, 388 U.S. 1, 7 n.5 (1967) (striking down Virginia miscegenation statute under Equal Protection and Due Process Clauses of Fourteenth Amendment).
168. The Court in Loving, for example, stated that the trial court judge who sentenced the interracial couple who were the appellants in Loving noted in his opinion that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” 388 U.S. at 3. 169. Id. at 1.
170. The Virginia statute read: “If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.” Id. at 5.
171 See id at 3
172 Id at Ii
173 466 U.S. 429,433 clid reason got married AfricanAmereican main not walid readon to terminate.
174. See id id
175 See id
177. U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion”). For an insightful examination of that argument, see generally Sherryl E. Michaelson, Note, Religion and Morality Legislation: A Reexamination of Establishment Clause Analysis, 59 N.Y.U. L. REv. 301 (1984).
178. To the extent that a religion teaches that obedience to God is an ethical imperative then all commands of that religion are moral (i.e., matters of right and wrong).
The same might be said about law. To the extent one views obedience to the law as a moral imperative then all laws have a moral component. For this discussion, “moral” is being used in contrast to “cultic,” i.e., moral commands of religion are those that involve the believer’s relationship to other people (believers and non-believers), cultic commands are those that involve the believer’s relationship to God (e.g., liturgical rites and observance, dietary proscriptions, manner and frequency of private and communal prayer, etc.).
179. THOMAS AQUINAS, SUMMA CONTRA GENTILES 9 (Anton C. Regis trans., 1955). See id. Bk. One, ch. 3 (“On the Way in Which Divine Truth Is to be Made Known”); id. ch. 4 (“That the Truth About God to Which the Natural Reason Reaches is Fittingly Proposed to Men for Belief”); id. ch. 7 (“That the Truth of Reason is Not Opposed to the Truth of the Christian Faith”); id. ch. 8 (“How the Human Reason is Related to the Truth of Faith”).
180. See THoMAs MERTON, CONJECTURES OF A GuiLTY BYSTANDER 40 ( 1968).
181. See Finnis, supra note 10 at 1062-63 1068
182 See supra notes 112-12 and accompanying text
183 JOHN RAWLS, A THEORY OF JUSTICE 365 (1971)
184. See eg John Rawls, The Idea of Public Reason Revisited 64 U CHI L REV 765 766-69 (1997)
185 Id at 766
186. See, e.g., ROBERT H. BORK, SLOUCHING TOWARD GOMORRAH 272-77 (1997) (criticizing liberal relativism that rejects concept of a public morality) [hereinafter BORK, SLOUCHING TowARD GOMORRAH]; ROBERT H. BORK, TRADITION AND MORALITY IN CONSTITUTIONAL LAW 6-9 (1984) (denouncing constitutional theories “growing in leading law schools” as nihilistic and based upon moral relativism) [hereinafter BORK, TRADITION AND MORALITY].
187. See LIDDELL & ScoTT, supra note 7, at 463. A related term empeirazo reveals the etymological root metaphor of “experience”: “to make a trial of.” Id.
188. See generally Michael S. Moore, Moral Reality Revisited, 90 MICH. L. REv. 2424 (1992). Moore, in explaining the moral realist thesis of natural law theory, provides a taxonomy of various “moral realisms.” Generally, moral realist theories hold that there are normative realities, moral truths, whose existence or truth is not a function of the beliefs of particular human beings; and whose broad contents are knowable, though often with extreme difficulty, by human reason. The ultimate moral authority of human law derives from its compatibility with that moral reality. The position defended in this article, in contrast to some forms of moral realism, would insist that human morality be rigorously anthropocentric, founded in, guided by, and constantly returning for correction and revision to human experience. There is, then, no human morality apart from reflection on the lived experience of human beings. The “empirical” standard defended in this article is a consequence of a commitment to a thoroughly anthropocentric, non-relativistic ethics. The development of such an ethics as mediated through Aristotle is part of the project of Martha Nussbaum. See generally Martha C. Nussbaum, THE FRAGILITY OF GOODNESS: LUCK AND ETHICS IN GREEK TRAGEDY AND PHILOSOPHY (1986); Martha C. Nussbaum, THE THERAPY OF DESIRE: THEORY AND PRACTICE IN HELLENISTIC ETHICS (1994); see, e.g., Martha C. Nussbaum, Commentary, Skepticism About Practical Reason in Literature and the Law, 107 HARV. L. REv. 714 (1994) (comparing and criticizing contemporary schools of legal thought, particularly Law & Economics, to ancient Greek and Roman Skepticism).
189. In many ways, the argument of Slouching Toward Gomorrah is based on this idea. See generally, BORK, SLOUCHNG TowARD GOMORRAH, supra note 187. See also BORK, TRADITION AND Mo.ALrrr, supra note 187, at 9. 190. Palmore, 466 U.S. at 433.
191. Barnes, 501 U.S. at 575 (Scalia, J., dissenting).
192. See Church of the Lukumi Babalu Ave. v. City of Hialeah, 508 U.S. 520, 538 (1993) (acknowledging “[t]he legitimate government interest in protecting the public health and preventing cruelty to animals”); Employment Div., Dep’t. of Human Resources v. Smith, 494 U.S. 872, 889 (1990) (citing animal cruelty as one of long list of legitimate government objectives in enacting laws of general applicability). 193. MILL, supra note 8, at 16.
194. See Barnes, 501 U.S. at 574-55 (Scalia, J., concurring) (referring to “Thoreauvian `you-may-dowhat-you-like-so-long-as-it-does-not-injure-someone-else’ beau ideal”). 195. HART, supra note 8, at 24.
196. ZECHARIAH CHAFEE, JR., FREE SPEECH IN THE UNITED STATES 31-32 (Sth ed. 1954) (Chafee’s actual formulation of the idea is “Your right to swing your arms ends just where the other man’s nose begins.”).
197. See Thomas B. Griffen, Zoning Away the Evils of Alcohol, 61 S. CAL. L.REV. 1373, 1391-94 (1988). Griffen provides a concise history of zoning regulation and its purposes, noting that courts have permitted legislatures wide discretion in zoning for the general welfare, id. at 1392-93.
198. 348 U.S. 26 (1954) (upholding District of Columbia Redevelopment Act of 1945 which included extensive zoning regulations to ameliorate substandard housing). 199. Id. at 33 (quoted by Griffen, supra note 198, at 1393, to illustrate the breadth of the concept of public welfare in zoning law).
200. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 59-60 (1973) (holding that obscene material is not speech entitled to full First Amendment protection).
201. See, e.g., Barnes, 501 U.S. at 576 (Scalia, J., concurring) (discussing heightened standard of review given government action that burdens speech protected by the first amendment). 202. Paris, 413 U.S. at 58 (quoting Breard v. Alexandria, 341 U.S. 622, 642 (1951). 203. Id.
204. Id. In treating the issue of the impact of the standard advocated here on obscenity jurisprudence, I have focused on plausible connections between the Supreme Court’s treatment of obscenity and empirical harms to persons and the political community. It should be acknowledged, as Martha
Nussbaum does in a forthcoming article, see Martha C. Nussbaum, Secret Sewers of Vice: Disgust, Bodies, and the Law, in EMOTIONS AND THE LAW (Susan Bandes, ed., forthcoming), that an important strand of the Court’s treatment of obscenity can be seen as focused on the obscene as “disgusting.” See, e.g., Miller v. California, 413 U.S. IS (1973) (modifying definition of “obscene” in Roth v. U.S., 354 U.S. IS (1957), to extend “obscenity” beyond mere appeal to prurient interest). While I do not engage the issue here, I would direct the reader’s attention to Nussbaum’s critique of disgust-as an adequate basis for both moral reasoning and legal justification-as providing one very powerful argument for grounding moral objections and legal regulation of obscenity in the subordinating effects on persons (particularly women) that obscene materials may have (if, in fact, they do have such effects), rather than in visceral reactions of disgust.
205. BORK, TRADITION AND MORALITY, supra note 187, at 7, 9.
206. See supra notes 167-76 and accompanying text. 207. See generally 42 AM. JuR. 2D Injunctions (1997). 208. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447-48 (1985).
209. See Finnis, supra note 10, at 1070. 210. See id. at 1049.
211. Dronenberg v. Zech, 741 F 2d 1388, 1397 (D.C. Cir. 1984).
212. 475 U.S. 503 (1986)
213. McConnell, supra note 67, at 241 (internal citation omitted). 214. See, e.g., Adarand Constructors v. Pena, 115 S.Ct. 2097, 2117 (1995) (explaining that strict scrutiny test is by no means always fatal to statutes under review).
215. Burlington Indus. v. Ellerth, 118 S. Ct. 2257, 2263-65 (1998) (holding that Title VII protects employees who are subjected to unwelcome and threatening sexual advances but suffer no tangible job consequences).
216. 477 U.S. 57 (1986) (holding that a hostile work environment is a form of sexual harassment under Title VII). 217. 118 S. Ct. at 2265.
218. A similar thought experiment could be conducted around the question of under what conditions a reasonable person would find that a workplace had become sexually hostile. 219. See, e.g., 118 S. Ct. 2266-69. 220. See id. at 2270.
221. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 17-22 (7th ed. 1978). Dworkin begins his description of positivism with a “skeleton,” id. at 17, of its tenets, and then proceeds to flesh out that skeleton with reference to the work of H.L.A. Hart and John Austin. As the first tenet of positivism, Dworkin notes that positivism regards law as “[The] special rules [of a community that] can be identified and distinguished by specific criteria by tests having to do not with their content but with their pedigree or the manner in which they were adopted or developed.” Id. at 17. It should also be noted that in Taking Rights Seriously, Dworkin sees positivism and utilitarianism as part of the “ruling theory of law” against which he has set himself. Id. at vii (identifying second part of ruling theory of law as “utilitarianism, which holds that law should serve the general welfare, and nothing else”). 222. For the effect of National Socialism, the Holocaust, and the Nuremberg trials on twentieth century legal positivism, see generally INGO MUELLER, HITLER’S JUSTICE: THE COURTS OF THE THIRD REICH (Deborah Lucas Schneider trans., 1991). See also Richard Primus, Note, A Brooding Omnipresence: Totalitarianism in Postwar Constitutional Thought, 106 YALE L.J. 423 (1996) (commenting on post-war Hart-Fuller debate about legal positivism and the chastening effect that Nazism had on Hart’s positivism; Primus notes that Hart came to counsel disobedience to “unjust” laws).
223. Loving v. Virginia, 388 U.S. 1, 1 (1967). 224. Palmore v. Sidoti, 466 U.S. 429, 429 (1984). 225. Romer, 517 U.S. at 624. 226. Id. at 632.
* Assistant Professor, American University Washington College of Law. J.D., Harvard Law School, 1992. The author is founder and former director of the Lesbian & Gay Youth Project of the Urban Justice Center in New York City. The author would like to thank all those who read and commented upon the paper: Jonathan Springer, Diane Dixon, Natalie Gomez-Velez, Cary LaCheen, Jack Marth, Andrea McArdle, Martha Nussbaum, Jamin Raskin, and Edgar Rivera; and the author’s research assistants Jared Coleman and Nina Morrison of New York University Law School. This article emerged from four talks on the Evans v. Romer litigation given, respectively, at Brown University with Martha Nussbaum, at the University of Notre Dame, at Florida State University Law School, and at American University’s Washington College of Law. Discussions with faculty and students proved invaluable in developing the ideas expressed in the article. For the purposes of full disclosure, the author was a representative to the plaintiffs legal team from the American Civil Liberties Union during the District Court trial in Evans u Romer.
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