From Page to Practice: Morality and the LGBT Rights Movement
There are at least three different questions we can ask about the role that morality can or should play in issues related to the contemporary LGBT rights movement: First, can the government legitimately account for questions of morality when it legislates in LGBT-related matters? Second, should the LGBT rights movement rely on moral arguments when it seeks reform through the political and legislative processes? And third, should the LGBT rights movement rely on moral arguments when it litigates?
The quick answer to the first question is “it depends.” The quick answers to the second and third questions are “yes” and “no” respectively. I elaborate briefly below on each of these.
The Supreme Court held in Bowers v. Hardwick that moral judgments, as codified into law, provided a sufficient basis upon which to withstand a due process challenge to a statute that prohibits a certain conduct or practice. This “morality is enough” holding was renounced by the Court in
It is clear, then, that moral judgments or reasons are not enough to justify the criminal sanction of consensual same-sex sexual conduct engaged in by adults. But what role can morality play in other types of LGBT-related legislation? Can morality, for example, constitute a sufficient basis upon which to justify the denial of marital or adoption rights to LGBT people?
Although this question can have a due process component to it (after all, the Court, for example, has recognized a fundamental right to marry), it is more likely, in our current constitutional landscape, to be broached from an equal protection perspective. From that perspective, there are compelling arguments that can be made in support of the position that the government cannot constitutionally justify the denial of rights and benefits to some when it provides them to others based solely on considerations of morality. This was a point made by Justice O’Connor in her concurrence in Lawrence when she stated that “[m]oral disapproval . . . , like a bare desire to harm . . . , is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause (citing to Romer v. Evans).” O’Connor added that “we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.” Therefore, it would seem clear that after Lawrence v. Texas and Romer v. Evans, the government cannot rely on moral arguments as the sole justification for imposing burdens on, or withholding rights from, LGBT people.
It is interesting to note, however, that neither due process nor equal protection considerations prohibit the government from extending rights and benefits to certain groups based on considerations of morality. It would seem constitutionally appropriate, therefore, for a legislature to extend marital and adoption rights to LGBT people, for example, on the basis of a moral judgment that same-sex relationships, as well as parenting by LGBT individuals, are valuable forms of familial associations that should be encouraged. In doing so, a legislature would not be violating either due process or equal protection rights because it would not be denying rights or benefits to anyone.
What limits the ability of the government to incorporate notions of morality into legislation and regulations are the constitutional rights (such as those of due process and equal protection) of individuals. If those rights are not implicated, then the government is not precluded from relying on considerations of morality in setting policy.
The answer to the first question posed at the beginning of this Essay, namely, whether the government can legitimately account for questions of morality when it legislates in LGBT-related matters, therefore, depends on whether it is imposing burdens or withholding rights and benefits, or, alternatively, whether it is expanding rights and benefits. While the former is constitutionally problematic, the latter is not.
Since it is constitutionally permissible for the government to take into account considerations of morality in expanding rights and benefits, it is also entirely legitimate (in answering the second question posed earlier) for the LGBT rights movement to make moral arguments in seeking law-based reforms through the political and legislative processes. When it comes to relationships and sexuality, concepts such as “morality” and “values” are usually associated with the positions of those who want to restrict the rights of LGBT people. Indeed, while social conservatives enthusiastically embrace the debate as a moral one, LGBT rights supporters rarely do, assuming perhaps that raising explicitly moral arguments is always improper in the context of setting governmental policy. As I argue in my book The Morality of Gay Rights, I think LGBT rights supporters should more frequently make explicit moral arguments in the political and legislative arenas rather than (implicitly or explicitly) ceding the moral highground to their conservative opponents.
The LGBT rights movement could more frequently make the point, for example, that it is social conservatives who defend immoral governmental policies when they urge that the state should continue to refuse to recognize committed same-sex relationships. The movement could also more frequently note that it is social conservatives who take morally indefensible positions when they urge the state to prohibit LGBT people from adopting children even if doing so deprives those children of the opportunity to have legal parents.
LGBT rights controversies in our society pit two clashing values-based understandings of human relationships and sexuality and of the corresponding obligations imposed on the state. The fundamental issue in those debates is not whether the state should remain neutral. Instead, the issue is whether the state should side with conservatives who argue that only heterosexual sexual relationships and intimacy are morally acceptable (and that therefore the state should, for example, limit marriage to different-sex couples)—or, alternatively, whether the state should side with those who believe that same-sex relationships and intimacy are as good and valuable as heterosexual ones (and that therefore the state should, for example, provide LGBT individuals the opportunity to marry individuals of their choice). Whatever the state decides to do (i.e., whether it recognizes same-sex marriage or not), it has to take sides in a moral dispute. Moral neutrality on the part of the state is not an option, which is why it does not make sense for LGBT activists to argue that morality should play no role in the setting of governmental policies that affect LGBT people.
It is important, however, to distinguish between explicitly relying on moral positions and arguments on behalf of LGBT positions in the political and legislative arenas from doing the same in the judicial one. I am not sure that there is much to gain from framing litigation arguments in explicitly moral terms as opposed to doing so within the context of the concepts, such as liberty and equality, that the Constitution already codifies.
There is, of course, an interesting question of whether concepts such as liberty and equality are in fact morally neutral. It may be that when lawyers go before courts to discuss what liberty and equality require (and do not require) of the government, they are (at least implicitly) speaking in moral terms. Be that as it may, it is not at all clear that courts are institutionally (or that judges are temperamentally) equipped to weigh moral arguments or tackle moral questions related to LGBT people and their lives. Those kinds of questions are best left for debates in the political sphere and, at least in some circumstances (such as when there is a proposed expansion of rights and benefits), to the adoption of laws and regulations.
Carlos A. Ball
Professor of Law
Rutgers University School of Law (Newark)