The Hidden Dichotomy in the Law of Morality

Campbell Law Review, Vol 31, p. 591, 2009

22 Pages Posted: 2 Jun 2010  

J.P. Nichols

affiliation not provided to SSRN

Date Written: May 18, 2009

Abstract

A careful reading of American jurisprudence reveals that hidden within the states’ so-called interest in protecting morality, there is a dichotomy between the unconstitutional imposition of religious morality and the proper and necessary protection of the civil morality. Rather than annihilating the states’ right to enforce laws on the basis of any form of morality, Justice Kennedy’s opinion in Lawrence v. Texas carefully excised and prohibited statutes based merely on religious morality, while leaving the states’ ability to enforce laws based on civil morality untouched.

This Comment begins by exploring the dichotomy itself, and then carefully distinguishing civil and religious morality. The analysis then examines Lawrence v. Texas and clarifies how the opinion affected the dichotomy. Next, this Comment applies the post-Lawrence understanding of the rational basis test to several issues of concern raised by opponents of the decision. Finally, this Comment speculates as to the possible implications of Lawrence for moral issues lying
on the horizon.

Keywords: Same-Sex Marriage, Bestiality, Same-Sex Adoption, Gay Marriage, Polygamy, Abortion, Lawrence, Lawrence v. Texas, Scalia, Privacy

Suggested Citation

Nichols, J.P., The Hidden Dichotomy in the Law of Morality (May 18, 2009). Campbell Law Review, Vol 31, p. 591, 2009. Available at SSRN: https://ssrn.com/abstract=1555737

Justin Nichols (Contact Author)

affiliation not provided to SSRN ( email )

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