Legislative Moralism

In his working paper, "Justice Kennedy's Libertarian Revolution," my friend 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" (p. 15). 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" (p. 15), Barnett concludes that to permit legislation to be justified "solely on the basis of morality would recognize an unlimited police power in state legislatures" (p. 15).

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" (p. 15). 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?

Rick