Moral Limits on Morals Legislation: Lessons for U.S. Constitutional Law from the Declaration on Religious Freedom

Abstract:     
A persistent American confusion regarding the proper relationship between law and morality is manifest in the opinions in Lawrence v. Texas. The Second Vatican Council's Declaration on Religious Freedom provides the foundation for an analytical framework that can bring clarity to that confusion. The heart of this framework is the moral concept of public order. This concept offers a principled explanation of both the holding in Lawrence and the limitations the Court placed on that holding. The Court could clarify the confusion manifest in Lawrence by explicitly acknowledging that a state interest only becomes legitimate for purposes of rational basis review when the asserted interest constitutes a public order concern. A constitutional jurisprudence that aspires to be faithful to the sort of limited government that is demanded by respect for human dignity should recognize that the state can only use law to restrain human freedom when that limitation serves a public order function.

Keywords: public order, public morality, morals legislation, rational basis review, legitimate state interest, limited government, Lawrence v. Texas, Catholic social thought, Second Vatican Council, John Courtney Murray, Declaration on Religious Freedom, Dignitatis Humanae, human dignity, same-sex marriage

Accepted Paper Series