Justices and judges of all different courts are fond of making sweeping generalizations in their written opinions that sound so pithy and “final” that they make for good quotes for TV commentators and newspaper summaries. In the hands of agenda-driven lawyers and other judges, however, these sweeping generalizations end up in new lawsuits trying to push the law to new places that the original statement was never intended to reach.
Judge Vaughn Walker reminded us of this phenomenon with a couple of different quotes in his Prop 8 opinion lifted directly from Supreme Court decisions. However, if there’s a fantasy football game for overused quotes, then this one should be your starting quarterback:
“Moral disapproval, without any other asserted state interest, has never been a rational basis for legislation.” Lawrence v. Texas, 2003.
You would probably not believe how many pornographers, public-park flashers, incestuous lovers, polygamists and others have cited this same statement as a “get-out-of-jail-free” card in order to avoid a conviction under laws prohibiting some type of “immoral conduct” that has a public, as opposed to private, component. With few exceptions, the cases from around the country all reject the Lawrence “moral disapproval” quote as applicable to laws containing some kind of a public component.
For instance, here’s the 11th Circuit in 2007 discussing the Lawrence holding and, specifically, the quote about morals-based legislation:
“Accordingly, we find that public morality survives as a rational basis for legislation even after Lawrence, and we find that in this case the State’s interest in the preservation of public morality remains a rational basis for the challenged statute.”
The Supreme Court did not accept that case on appeal, leaving the 11th Circuit’s holding in place. Could that be a hint as to the Supreme Court’s view on the issue?
So, then, is marriage a public or a private relationship? The answer to that question may help decide the case upon appeal. You can’t read Walker’s Prop 8 opinion without coming to the conclusion that it is the public status of marriage that same-sex couples are seeking, including the societal and, yes, public moral approval that comes with it.
A fair reading of Justice Kennedy’s opinion in Lawrence lends itself to the conclusion that the “right” identified and protected with that decision ends at the bedroom door. That’s what the subsequent case law strongly suggests. Of course, you never know what the Supreme Court might do with the Lawrence language in the Prop 8 appeal, but at this point it looks like a distinct possibility that marriage laws can survive as morals-based legislation.*
(*I don’t mean to suggest that morality is the only, or even primary, basis for the marriage amendment at issue in the Prop 8 case, but it is a huge issue nonetheless.)
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