Michael Patrick Allen (Stetson University – College of Law) has posted The Underappreciated First Amendment Importance of Lawrence V. Texas (Washington and Lee Law Review, Vol. 65, No. 3, 2008) on SSRN. Here is the abstract:
In Lawrence v. Texas, the Supreme Court declared that Texas’s statute criminalizing deviant sexual intercourse between individuals of the same sex was unconstitutional. The Court opined that Texas’s asserted interest in expressing moral disapproval of homosexual conduct was illegitimate. This paper discusses the First Amendment implications of the Court’s morality-based rationale. Taken seriously, Lawrence has a significant effect in this area, undermining certain First Amendment doctrines while strengthening others.
The Article first addresses what the Court said about morality and lawmaking and also what it must have meant. It concludes that the Court held that morality can still play a role in lawmaking but it cannot be the sole or dominant rationale for a law. The Article next turns to Lawrence’s implications for First Amendment doctrine focusing in particular on obscenity and its hate speech.
While not universally accepted, it is conventional wisdom that the Court’s decisions allowing the regulation of obscene material are largely based on moral disapproval of that type of expression. If that is the case, a faithful application of Lawrence would at a minimum require a reexamination of current doctrine. Thus, considering the Court’s obscenity jurisprudence illustrates Lawrence’s potential to undermine certain aspects of First Amendment doctrine.
Conversely, consideration of hate speech restrictions demonstrates how Lawrence could strengthen existing doctrine in other contexts. The Court has generally not been favorably disposed to hate speech legislation when the speech at issue did not amount to fighting words or their equivalent. The Article suggests that the Court’s position as to this issue will be strengthened when Lawrence’s prohibition on primarily morality-based legislation is added to the mix.
I must confess utter incomprehension of the interpretaton of Lawrence offered by Professor Allen. I just don’t have a clue as to what Allen means by "morality." If legislative decisions may not be predicated primarily on judgments about right and wrong, then what possible basis could there be for such judgments? Legislation based on the prevention of harm or of rights violations is moral in this sense. Legislation that aims to produce a public good or maximize welfare is moral in this sense. The only legislation that would not be invalidated by this criteria would be that which is aimed at a purely private good or which is motivated by rent seeking.
I do believe it is possible to make sense of Kennedy in a variety of ways. In my opinion, the two most promising are (1) that Kennedy is adopting some version of MIll’s "harm prnciple" (a radical interpretation), or (2) that Kennedy was articulating a principle of public reason (a much more modest interpretation). But I just cannot fathom any interpretation of Kennedy’s opinion that takes seriously the notion that "morality" is per se not a sufficient reason for legislative action.
Of course, I am assuming a conventional philosophical understanding of what "morality" means. On that understanding, utilitarianism, welfarism, Kantian deontology, and virtue-ethics are all "moral" theories. I assume that Allen has a narrower understanding of morality, but I could not discern what it might be.