David Atchison
Pol. S. 421
Supposition:
“Moral beliefs are not a rational basis-let alone a compelling state interest- that can justify restrictions on fundamental rights”.
Moral beliefs, as deeply held important facets of the human mind cannot be used on their own to justify state restrictions on fundamental rights, quite simply because they are not affected by rationality. The statement is not meant to indicate that moral beliefs are unimportant, or even that they have no part in consideration of law, but rather that moral beliefs by themselves are not sufficient justification for laws that restrict fundamental rights. The reason for this is that moral beliefs are matters of faith, matters of personal conviction: they are beliefs, and as such, they differ from person to person. They are deep-seated parts of who people are, not usually subject to change by argument.
One might perhaps challenge this definition by stating that moral beliefs are in fact inherently rationed judgments the people make after much consideration. This is not true in all cases and this invalidates it for legal judgment; people are often given their values by their upbringing, by custom, by religious institutions, by any number of individual factors and circumstances. They are thus concrete beliefs that are also almost wholly individual, different from one another, and therefore not a fair standard to use in the judgment of laws that affect all people. A different standard must be used, and logical argument has been the standard used by the Court since its outset. The reason behind this is that logical argument either stands or falls on its own merits, and is subject to modification, invalidation, strengthening, indeed, any number of changes effected by exposure to different perspectives; this separates it from beliefs, and therefore allows its use in judgment. This is not to say it has no place in the creation of law. For instance, it is a moral statement to declare that killing other human beings is wrong. However, it is not merely on the moral stance against killing that laws against murder are based. It is the fact that killing itself harms the state by depriving it of human potential; it physically and factually harms the state. There are other interests and facts that fully justify the creation of laws against murder.
The first point of support for this thesis is provided by two cases that address a morally charged issue, abortion. Justice Blackmun’s opinion in Roe v. Wade (833) purposefully distinguishes logical reasons for a compelling state interest in prenatal life from a simple statement of belief, “Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception…” (835, emphasis added). The court expresses no opinion on the belief itself, because it is not its function to decide morality. In deciding this case, the court relies on logical thought, scientific and medical information to determine a balancing point between rights of the woman and the compelling state interest in the preservation of life. With reference to the question of this paper, the compelling state interest here is the preservation of life, an objective logically connected to the continued existence of the state. It is expressly not the preservation of the moral belief in life at conception, because no medical or scientific evidence for that belief is extant. Therefore, the court rejects moral beliefs as a compelling state interest and a rational basis. Planned Parenthood v. Casey (845) provides further support and clarification on this point while defining the Court’s roll in defining “liberty” as it appears in the 14th amendment to the Constitution. The court is defined as having traditionally exercised “reasoned judgment”, and furthermore defines the court as having an “obligation (is) to define the liberty of all, not to mandate our own moral code” (847). This gets at the nature of moral belief and the reason it cannot be a compelling state interest or a rational basis for sustaining law standing on its own: these beliefs differ from person to person precisely because they are beliefs, and it is not the Court’s place to define these things, therefore, it cannot use moral codes as a rational basis for its decisions and must rely on verifiable facts, and logical argument.
The case Griswold v. Connecticut addresses a similarly morally active issue, contraception. The moral consideration of this question comes from the fact of contraception providing easier means for extramarital affairs. In finding the existence of a penumbral fundamental right of privacy in the confines of marriage, the court does not in fact even mention the moral considerations in preventing access to contraception. Rather, the argument centers entirely upon the inherent invasion of privacy that would be allowable under the law. The law forbid the use of contraceptives rather than regulating their manufacture or sale (825), and therefore was too broad in its sweep. The act of enforcing the law would be inherently invasive of a traditionally private space. The possible moral inspirations for the law are here so irrelevant that they’re not even mentioned in the opinion of the judges. Here the rational enforcement of the law and the effect its existence has upon the private space of a marital bedroom is at issue, and the law is decided upon this basis.
I come to Bowers v Hardwick because it provides an opportunity to demonstrate misapplication of moral principles, and the vigorous dissent offered by Justice Blackmun does much to explain this opinion as objectionable. The majority opinion makes the judgment entirely a case of moral belief by framing it as providing for a right to homosexual sodomy. Furthermore it makes the claim that “law, however, is constantly based upon notions of morality” and goes on to make a slippery slope claim regarding the number of laws that would be invalidated by a different opinion. The problems with this argument boil down to an essential misunderstanding of the reasons behind previous decisions. The counter argument to their decision is NOT in fact that no law has a moral basis, or that any law with a moral basis cannot stand, as the majority claims, but rather that a moral belief is not a sufficient reason to make laws that restrict a fundamental right to privacy previously identified in Roe, in Skinner, and certainly in Griswold.
The following statement from the dissent applies to the question, “The legitimacy of secular legislation depends instead upon whether the state can advance some justification for its law beyond its conformity to religious doctrine” (876). Religion, a major factor informing moral beliefs, cannot be the sole justification of secular laws because the beliefs of different religions are inherently different, not necessarily common to all, just as moral beliefs in general are not necessarily common to all, and therefore, not good enough to be the sole factor of consideration in questions of law.
Similar proof is found in Romer v. Evans. In his dissent, Justice Scalia, (as always) makes his position floridly clear, and in so doing gives voice to moral judgment, stating that moral disapproval has acted as inspiration for laws of long standing. This dissenting opinion is incorrect again because the case is not a moral issue at all. The morality of homosexuality is not at issue. Rather, it is the unfair treatment of a specified group of people that is questionable. The majority opinion focuses on the factual effects of the amendment and the essentially blatant targeting of a specific group of people for unfairly different legal treatment. The morality of homosexuality is not even close to being the issue, and it’s telling that the dissent makes much of the law as “a rather modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores” (881), which is not at all why the court declared the amendment unconstitutional. What comes out of this decision is again, not that morals are not a factor in law, or that they are not important, but rather that they, as privately held deep seated elements of humanity, cannot be the deciding factor, a compelling state interest or function as a rational basis when it comes to public law that applies in common to all.
Rotunda, Ronald D. Modern Constitusional Law: Cases And Notes, Seventh Edition. St. Paul, MN: West Group, 2003.
