In-Depth Notes on Morality as a Legitimate Government Interest

The article contends that enforcing morality can be seen as a legitimate government interest, supporting the argument through several key points:

  1. Historical Context of Morality Legislation

    • For much of American history, courts upheld morals legislation without question, suggesting societal support for moral enforcement.

    • The gradual questioning of public morality's validity reflects changes in societal attitudes but does not negate the historical precedence for morality as a government concern.

  2. Defining Morality

    • Morality, defined as the principles of right and wrong behavior, serves as a foundational element for laws that protect societal interests.

    • Influential definitions by scholars like Richard Posner and Michael Perry highlight morality's role in guiding both individual and government behaviors.

  3. Key Cases Supporting Morality in Law

    • Cases like Gonzales v. Carhart upholding laws based on moral considerations demonstrate judicial support for enforcing moral standards, thus reinforcing the argument that such enforcement is a legitimate government interest.

    • The Supreme Court's historically permissive approach towards obscenity laws illustrates a recognition of morality as a valid basis for legislation.

  4. Judicial Substitution

    • Instances where the Court imposes its moral framework over state laws (e.g., Griswold v. Connecticut) reflect an acknowledgment that morality can guide judicial decision-making, suggesting a structured approach to moral enforcement.

  5. Proposal for Judicial Review

    • Advocating for a position where morality is treated as a legitimate interest under rational basis review emphasizes the importance of balancing moral legislation with protections for individual rights.

    • The proposed heightened scrutiny for laws violating constitutional prohibitions or targeting minorities ensures that moral enforcement does not infringe upon fundamental rights while still allowing for community expression of moral values.

  6. Benefits of Moral Diversity

    • The article argues that moral diversity can enhance democratic engagement and protect against the tyranny of the majority, supporting the notion that a framework for enforcing morality can coexist with individual rights.

    • Engaging in moral discourse fosters respect and understanding, thus promoting a society where moral values are upheld while respecting diversity.