APRIL 9, 2008
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The day of Eliot Spitzer's ignominious resignation, I reread one of the most splenetic dissents in the recent history of the Supreme Court: the jeremiad Antonin Scalia wrote in response to the Lawrence v. Texas ruling that legalized sodomy. Scalia argued that Lawrence would release a wave of relativism that would ultimately sweep away laws banning "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." Or, as he put it: "This effectively decrees the end of all morals legislation."
Watching the end of Spitzer's political career, however, I couldn't help feeling that Scalia had it entirely wrong. Despite the best efforts of some libertarians, the days of morals legislation are hardly over. Not only do the courts seem to be in no hurry to strike down these laws--the American public refuses to rush down the slippery slope that Scalia described.
Cock-fighting, idleness, adultery, incest, polygamy: These kinds of activities have long been banned by so-called morals legislation, that is, prohibitions that can't be justified as a means of protecting health and safety but instead are vehicles for protecting the collective virtue of communities. The laws in question targeted not only the public manifestation of this conduct--such as the taverns and brothels and bowling alleys that, as Richard Epstein has noted, were shut down for promoting idleness--but also the private conduct itself. The Supreme Court recognized the power of the states and Congress to regulate public morals in 1913, when it upheld the White Slave Traffic Act, or Mann Act, which banned the transport of women across state lines "for the purpose of prostitution or debauchery, or for any other immoral purpose." In upholding the law, the Court declared the promotion of morality one of the government's most important duties.
The sexual revolution struck a blow to the very roots of this concept. In 1957, the British parliamentary Committee on Homosexual Offenses and Prostitution published the Wolfenden Report, which concluded that the function of criminal law "is to preserve public order and decency"--including safeguarding against the exploitation and corruption of the young and vulnerable--but with an important caveat: "It is not the duty of the law to concern itself with immorality as such." In response to the Wolfenden Report, the political theorist H.L.A. Hart famously insisted that law could only ban immoral acts that caused tangible harm to others. He said society could outlaw public acts of prostitution, such as streetwalking, as an affront to public decency, but it wouldn't be permissible to ban purely private acts of prostitution. Hart's arguments were countered by the social conservative Lord Devlin, who insisted that society undoubtedly had the power to ban conduct because of moral disapproval and indeed would collapse if it failed to do so under some circumstances.
In smart circles, it has long been conventional wisdom that Hart won this argument. And Anthony Kennedy's sweeping opinion in the Lawrence decision seemed to affirm his victory. "Liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex," Kennedy wrote. "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
Kennedy's opinion, of course, caused Scalia's head to explode and provoked his alarmist warnings about the impending demise of morals legislation. He seemed especially concerned not that there were masturbation laws on the books but that suddenly they seemed imperiled! (In case you were wondering, these laws prohibit paying someone else to pleasure you.) After Lawrence, there were all sorts of defendants who tried to test the constitutionality of other morals laws. In 2004, a streetwalker in Peoria who unwisely agreed to perform oral sex on an undercover police officer challenged her conviction for prostitution. After Lawrence, she insisted, private sexual conduct between consenting adults was constitutionally protected. But an Illinois appeals court rejected her argument, emphasizing that commercial sex could be distinguished from private consensual sex. Other civil libertarians tried to challenge an Alabama ban on the distribution of sex toys. If there is a constitutional right to engage in private sexual conduct, they argued, there should be a right to use (and buy) sex toys. But, in 2001, a federal appeals court rejected their argument, holding that the state has a legitimate interest in promoting "public morality"--even if that only involves being offended by someone else's private conduct.
It's now obvious, in short, that Scalia's predictions were alarmist. Morals legislation is alive and well. The problem with sodomy laws wasn't that they were based on moral disapproval; the problem was that the public consensus about the immorality of sodomy had collapsed. By contrast, the reaction to the Spitzer scandal shows how intense the moral disapproval of prostitution remains. On talk shows and in op-eds, Spitzer was denounced not for victimizing Ashley Dupré--the standard feminist argument for banning prostitution--but for showing contempt for his wife and daughters. His disrespect for his family was exacerbated by his flamboyant hypocrisy.
In general, moral disapproval of prostitution is stronger than of extramarital affairs, where there's at least some possible emotional rationale for cheating. That's why it tends to be easier for politicians to survive infidelity scandals than ones involving prostitution. Senator David Vitter weathered his prostitution scandal because Republicans were more interested in keeping his Senate seat than publicly shaming him; but, after using the same escort service, Randall Tobias had to resign as head of the U.S. Agency for International Development because of his hypocrisy in requiring aid recipients to take an anti-prostitution pledge. All this confirms one of Lord Devlin's insights: There are few hard and fast boundaries between criminal and moral law; instead, the boundaries shift pragmatically from case to case with the intensity of public outrage at the alleged instance of immorality.
So Hart may have won the initial debate over public morality, but Devlin has prevailed over time. Americans are infinitely tolerant of moral transgression, except where they're not. When confronted with a hypocritical whoring pol, they want an old-fashioned shaming punishment. Despite Scalia's suggestions to the contrary, politicians inclined toward adult incest, bestiality, or commercial masturbation should expect no less.
Jeffrey Rosen is The New Republic's legal affairs editor.
11 comments
Using the word "ignominious" regarding a sex scandal involving politicians is inappropriate: ignominious means "marked by shame". - Remember the GOP reaction to the personal misadventures and hypocrisy of David Vitter, Mark Foley, Ted Haggard, Larry Craig, Bob Livingston, Newt Gingrich, et al? Marked by silence. Not marked by shame.
- fougasseu
March 29, 2008 at 4:14am
The Spitzer episode raises a question: If escort agencies, such as the one he patronized, and other like-minded businesses are illegal, why do they feel free to advertise their services on the Internet, in the Yellow Pages, magazines and newspaper classifieds, and why are their ads accepted and published? I have raised this issue before on other venues and have yet to receive a reply.
- nbarry
March 29, 2008 at 9:56am
great analysis!
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March 29, 2008 at 1:28pm
Rosen's excellent essay almost gets it right: public morality as social policy. There is nothing inherently immoral about many offenses, like spitting on the sidewalk or loitering or smoking a joint or even visiting a hooker. (I disagree with Rosen: visiting a hooker, where one can honestly say "it didn't mean anything," is better than carrying on an affair, which is more often the home-wrecker.) But to varying degress it's bad social policy to permit it. The relationship between spitting on the sidewalk and loitering and turnstile hopping and window smashing are empirically (not dogmatically) related to breakdown in public order (ask Bill Bratton). Likewise, a nation of pot smokers is too much too add to a nation of drinkers. One may argue with the merits of such policy, but it's argued as social policy, not morality. Alongside Kennedy's eloquent opinion in Lawrence is the nub of the issue -- is there a compelling public interest in proscribing homosexuality? The anwser is, simply, No. Is there a compelling public interest in proscribing pot smoking? The Court has ruled that there is. I personally think that pot smoking is no more immoral than drinking, but I think it should not be legalized because legalization would be bad social policy. Is this inconsistent? I don't believe it is.
- jm_rice
March 29, 2008 at 3:20pm
My thinking is that the moralists are the ones who stake out the really radically relativist position here. Liberalism has its roots in the idea that there are absolute moral truths independent of any society---the utilitarian maxim of endorsing the greatest general "happiness" or the Kantian notion that a complete ethos can be derived from pure reason. The Scalia wing of the Court would like to derive its version of morality from the current whims of extant society, from a Burkean notion of tradition, etc. This is kind of an empty version of morality that could be twisted around in any way---for instance, prostitution is immoral simply because people think that it's immoral---and not for any reason derived from universal principles.
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March 30, 2008 at 1:03am
Er, I posted a comment more than 24 hours ago and nothing has appeared. Is someone asleep at the switch?
- nbarry
March 30, 2008 at 10:12am
Surely there is a large category of behavior that is appropriately restrained not by law but by manners. Public opprobrium for things that "people like us just don't do" was what destroyed Spitzer, not the violation of any laws. Similar scorn constrains bestiality, polygamy, and dancing through the streets naked (even if one doesn't scare the horses). When the behavior is no longer perceived to be sufficiently rude as to merit massive public distaste and scorn, it is too late to criminalize it. Only a society with more lawyers than plumbers could possibly imagine things differently.
- AlanK
March 30, 2008 at 12:31pm
The point of Scalia's whole opinion is that the Constitution can not be used to strike down current laws based on "societies views" as made up by 5 justices. The Texas legislature kept the anti-sodomy law on the books. It was for them to remove. In Alabama which do you think there is a greater societal distaste for sex toys or homosexual sodomy? The Constitution does not adress these issues and they should have been left alone. I am much more sympathetic to the idea that the intrusion needed to enforce some of these laws might well violate written portions of the Constitution in some instances, but Scalia is right. The fact that the cases you point to came out the other way is because Courts are unwilling to follow the logic of Lawrence. If they were true to it they would have to strike down those laws. Both results are therefore horrible for the rule of law. Lawrence, because it is based on nothing than dumbed down John Stewart Mill, and the lower court decisions which refuse to follow it. That is why this sort of judging is attacked so powerfully by Scalia. It undermines the rule of law regardless of the outcome of specific cases or one's ideosyncratic sexual inclinations. I would also note that modern Britain is nearly a ruin because of who won that debate among the "smart set." Marriage is overthrown among the British, but they can not resist polygamy among immigrants, and a third of the youth population wanders around vomiting and screaming profanity three days a week.
- jjv
March 31, 2008 at 3:36pm
It seems obvious that Devlin lost and the rearguard of Scalia-like apoplectics simply refuses to admit it. The fact that the march of liberty has been delayed does not obscure the fact that it has been continuous. If your argument in favor of morals legislation is no more than the empirical fact that some such legislation still survives, while much has fallen, that would seem to be both a surrender on the principle in question, and a rather obvious exercise in whistling past the graveyard regarding the eventual outcome. Scalia's predictions, if not his politics, were correct; the only question is whether he will live long enough to see himself take his place on the dustheap of history next to Devlin.
- Kevin T. Keith
April 1, 2008 at 11:00am
Re: The Alabama toy ban, hopefully you are aware that the Fifth Circuit recently struck down an essentially identical Texas law -- explicitly extending Lawrence v. Texas to commercial transactions. Cheers...
- KipEsquire
April 3, 2008 at 11:33am
I don't understand why everyone rushes to impugn the sincerity of the Lawrence majority. If you are right about the way the Court approaches these cases then "rational basis" review means absolutely nothing. Not only would the Court be disingenuous when it strikes down a law on rational basis, but it would be equally disingenuous when it upheld laws on rational basis. Why isn't it a more plausible, and more palatable, idea that the Court _really_ did what it said -- struck down sodomy laws because there was no RATIONAL basis for them (together with the premise that subjective morality is not sufficient to form a rational basis)? The only check on the judiciary is that it justify its rulings by public reasoning. Religious/Subjective morality (as opposed to demonstrable hardship or damage) is not publicly accessible. It is therefore illegitimate for the Court to uphold laws the only basis for which is subjective morality. Scalia was wrong because only a fool would be unable to differentiate between sodomy, bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity. Some of these things have demonstrably bad results (eg. bigamy [google "bare branches"], incest [genetic defects], etc); others do not (eg. self-masturbation, non-public-obscenity); and some are debatable, depending on what science you think is credible (eg. same sex marrige [if you believe that homosexuals are inherently bad parents]. What matters isn't public stereotypes or religious biases but whether there is any plausible public reason for the legislation. In short, it is either sloppy reasoning or manipulative hyperbole that lumps these together, and you shouldn't take the bait and try to justify them all on the same grounds. Some succeed, some fail, but you have to measure each on its own merits, and simply attributing bad-faith to the Supreme Court is a cheap way out.
- Joe
April 3, 2008 at 4:58pm