It seems that questions of morality are never far removed from gay rights disputes. Many opponents of lesbian, gay, bisexual, and transgender rights (“LGBT rights”) claim it is proper for the State to take morality into account when setting public policy in matters related to sexual orientation and intimate relationships. In contrast, many supporters of LGBT rights contend it is improper for the State to consider morality when setting public policy in these areas.
I have suggested elsewhere that the LGBT rights movement should explicitly incorporate notions of morality when articulating reasons for ending the State’s unequal treatment of LGBT people. I have also written that the State cannot, as a practical matter, remain morally neutral in deciding which intimate relationships merit legal recognition. In this Essay, I explore the related question of when may the State set policies based in part on moral judgments related to sexual orientation and intimate relationships. I argue that the State may do so when (1) it is expanding – rather than restricting – rights considerations at issue have empirical support; considerations are consistent with our nation’s constitutional values.
In Part II, I discuss some of the historical reasons why the LGBT rights movement has shied away from relying on moral argumentation to help achieve its political and legal goals. In Part III, I explore the impact of Lawrence v. Texas on the appropriate relationship between morality and legal regulation. In doing so, I explain that Lawrence prohibits the government from relying on morality to justify laws that target particular classes of individuals for differential treatment or that interfere with protected liberty interests. As such, Lawrence does not question the government’s authority to rely on moral considerations to justify an expansion-as opposed to a restriction-of rights and benefits. In Part IV, I use the example of same-sex marriage to explain why the State, when it relies on moral considerations to set policy, should do so only when there is empirical support for its positions. Finally, in Part V, I argue that it is proper for the State to rely on moral considerations in setting policies related to sexual orientation and intimate relationship when those considerations are grounded in constitutional values.
Almost fifty years ago, Professor Louis Henkin wrote that “[t]he relation of law to morals has been a favored preoccupation of legal philosophers for a thousand years.”‘ Scholarly interest in the intersection of law and morality has continued unabated since then.’ The purpose of this Essay, however, is not to make jurisprudential or philosophical claims about the proper relationship between law and morality in general. Instead, my goal here is the more modest one of trying to delineate when the State, in the specific context of laws and regulations related to sexual orientation and intimate relationships, may appropriately- by which I mean both constitutionally and as a matter of common sense-take into account moral considerations in setting public policy. Although some of what I say here may apply to other issues and concerns, I limit my discussion to sexuality issues.
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