Legal Bondage

by Jeffrey Rosen | April 9, 2008

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.

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