Having spoken on my book yesterday at University of Houston and South Texas College of Law, I am in San Antonio today to speak at St. Mary’s. And speaking of Texas, on Mirror of Justice, Rick Garnett offers this criticism of a claim I make in Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas in the Cato Supreme Court Review.
Professor Randy Barnett contends that Justice Kennedy’s opinion in Lawrence v. Texas — the recent decision invalidating that State’s ban on sexual relations between persons of the same sex — holds out the promise of a “libertarian revolution” in individual-rights jurisprudence. The paper is provocative, and well worth reading.
At one point, Professor Barnett asserts that “a legislative judgment of ‘immorality’ means nothing more than that a majority of the legislature disapproves of this conduct.” And, because courts are unable to “adjudicate between the claims of a legislature that a particular exercise of liberty is ‘immoral’ from the contrary claim by a defendant that it is not,” Barnett concludes that to permit legislation to be justified “solely on the basis of morality would recognize an unlimited police power in state legislatures.”
Now — wholly and apart from the prohibition at issue in Lawrence — all three of these quoted points from Barnett’s paper strike me as “problematic.” In particular, though, I wonder what my colleagues at “Mirror of Justice” think of the first statement, i.e., that “a legislative judgment of ‘immorality’ means nothing more than that a majority of the legislature disapproves of this conduct.” In the Catholic tradition of moral realism, hasn’t a judgment of “immorality” has been thought to signaling more than (mere) disapproval. Can that tradition tell us anything about “legislative judgments of ‘immorality'”, and the extent to which they may or should serve as the basis for regulation?
Let me reassure my friend that I was not in any way questioning the objectivity of morality. Rather, I was contending that, because there was no way to legally contest the claim by a majority of the legislature that particular conduct was immoral, allowing a claim of immorality, standing alone, to justify legislation would be to give the legislature carte blanche–an unlimited unreviewable power inconsistent with limited government and the Privileges or Immunities Clause of the Fourteenth Amendment. All you would need to outlaw any conduct is a majority of the legislature to vote that an action is immoral. Assuming morality is an objective matter, majority opinion does not make something immoral.
Consider the claim that homosexuality is immoral. I strongly disagree. Now what? In a contest between a majority of state legislators and me and those who agree with me, what privileges the legislature’s judgment of morality? In what way are they experts? How does being elected to the legislature qualify them to make these judgments? Do they hold hearings on the morality of homosexuality and offer reasons for their conclusions? Or do they just press a button and register their vote? Most importantly, how can we assess the merits of their claim? If we cannot, then in reality they can prohibit whatever they want (and for whatever reason they want). No matter how objective morality may be, any such doctrine of constitutional law is recipe for tyranny.
This exact issue was discussed in the amicus brief in Lawrence that I coauthored for the Institute for Justice. You can read it here.
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