Gay rights and Obscenity

Rick asked in an earlier post how upholding the prohibition of obscenity as constitutional can be reconciled with the invalidation of laws prohibiting consensual same sex relations on the ground that moral condemnation is insufficient. The obvious responses are not fully persuasive. Obscenity is condemned on the ground that its contribution to truth is outweighed by both the interests in order and morality. The Court in Paris Adult Theatre says that obscenity “intrudes upon us all.” Both these arguments trade on an interest in morality. At least before the Malamuth studies, the showing of a threat to order would not be sufficient to ground a prohibition of speech, at least without a belief that the speech in question was of low value. And the worry that obscenity intrudes upon us all is underwritten by moral concerns. Politically obnoxious bookstores intrude upon us all, but they are protected whatever content gives rise to offense in the absence of unprotected defamation or the like. Nonetheless, I think there is a difference. Prohibiting same sex sexual relations is to attempt a serious interference with a central part of life. Prohibiting the consumption of  obscene materials is not of the same order of harm whatever its moral status. One could easily think that interfering with the former based on a contested conception of morality could not justify the great harm, but interfering with the latter on the basis of a contested conception of morality was acceptable. I agree with the Lawrence decision, but, like Rick, I think it underestimates the role that moral judgments sometimes play in restricting liberty.