The false dichotomy between tangible and intangible harm as a constitutional restriction on legislative power

My colleague Kelly Strader recently had an op-ed piece published in the L.A. Times. He proposes that the Supreme Court in the 2003 Texas homosexual sodomy case, Lawrence v. Texas, eliminated majoritarian morality as a legitimate basis for legislative action. The Court there struck down the law in the face of the argument that the law furthered social notions of morality. He then asserts that many lower state and federal courts have not got the Supreme Court’s message and continue to uphold legislation grounded on nothing more than community-wide notions of morality. He says that legislation has to be premised on some notion of tangible harm and concludes that taking the Lawrence case seriously would require governments to remove criminal laws that punish any (adult) sodomy, non-marital cohabitation, fornication, and adultery. He might have added laws that punish obscenity, prostitution, desecration of corpses and, indeed, potentially the entire canon of criminal law that might be described as male in se actions or that are directed at protecting the actor from himself out of some paternalistic sense that we have a moral duty to do so.

Let it be assumed that there are still jurisdictions that actively enforce criminal non-marital cohabitation laws and such. Professor Strader asserts that the state may not make criminal law on the basis of majoritarian morality. It may do so only if it can show “tangible” harm. This goes against the centuries-old definition of the state police (regulatory) power as the power to act for the community’s health, safety, welfare, and morals. We are asked to assume, then, that the Lawrence court, without much ado, intended to overturn an ancient aspect of the community’s power to legislate for the common good.

Let us assume, though, that Professor Strader is correct. The Lawrence court talked about a liberty to determine for oneself one’s private sexual life. But Professor Strader quite properly does not limit the potential reach of Lawrence that way. There is absolutely no way other than by unreasoned judicial ukase to distinguish between the use of majoritarian morality to pass laws relating to sexual conduct and to other behaviors. Hard as this may be to understand in this age of flagrant sexualization and with a Supreme Court whose envious members passed their family-building years during the sexual revolution of the 1960s, sexuality is not the entirety of human self-definition.

To require demonstration of a tangible harm as a presumed alternative to morality raises some questions, though. One of those is why that should be. The Constitution does not enact John Stuart Mill’s On Liberty. Community morality is just a collection of generally accepted standards of behavior that provide a lubricant for harmonious social coexistence. Obviously, those standards can change. Moreover, in a society as large and impersonal as ours, many such traditional social lubricants may lose effectiveness over time. Legislatures take those factors into account as they opt to withdraw community control over certain personal behaviors. But that is a far cry from a proposition that, based on a judicially-announced constitutional requirement, all morality is always off-limits as a basis for community control over personal choices.

Another question is whether considerations arising out of morality still can be the basis of legal sanctions outside the criminal law. For example, could the state refuse to enforce contracts for sexual favors? Could there be actions to abate public nuisances, such as strip joints near schools or churches? Could the state decline to give formal recognition to a bigamous relationship? In his Lawrence dissent, Justice Scalia argued “no.” It is not immediately obvious why there should be a principled difference, unless one argues that principles of majoritarian morality more generally inhere in the essential purpose of the criminal law, while non-criminal legal norms are directed more to other interests. Such an argument ultimately is unhelpful for Professor Strader. 

Yet another question is what Professor Strader means by “tangible harm.” A physical injury, no doubt. Property damage, most likely. What about purely economic harm, such as criminal fraud laws? Emotional injury, such as from threats? What if the harm is only to the actor, such as a law against cocaine possession? Or is the harm in such a case only to the actor, if his family’s welfare is threatened by his drug addiction? What if the harm is not to an identifiable individual, but to society in its very form, such as a treason law? Or not to an identifiable individual, but to society’s broad public policy interests, such as an anti-tax evasion law? What if the harm to others is aesthetic, such as a nude dancing law? Or emotional, such as a law against animal cruelty?

As to several of these, how would such a “tangible harm” differ from an expression of majoritarian morality that disapproves of certain acts simply because they are contra bonos mores? A public nudity law would be such an example. It will not suffice to respond that public nudity exposes an unwilling viewer to another’s assets. What’s the big deal? Unless the term includes emotional distaste, there is no tangible harm. If emotional distaste is sufficient, that checkmates the argument against many of the laws that Professor Strader finds unacceptable. Moreover, what is such distaste based on other than majoritarian morality that public nudity is, well, just not done. A different morality may well prevail in certain European locales, and it cannot be due just to a more aesthetically pleasing quality of assets. 

There is also the dubious proposition that such laws are only based on majoritarian morality. In the famous case of Griswold v. Connecticut, which “found” a general right of privacy in the penumbras and emanations of the Bill of Rights, the concurring Justice White implied that the state could have made a better argument had they sought to defend the anti-contraceptive use law as a means to promote population expansion. In similar vein, an anti-sodomy law could be based on an argument to promote sexual conduct most likely to lead to reproduction. Now, that might not sit well with today’s sexual choice paradigm, but it certainly is an argument in defense of such laws that would not be based on unadorned majoritarian morality. Again, we may opt legislatively against such laws, but they do not violate some imagined constitutional proscription against laws based on majoritarian morality. A reasonable argument could be made (and for centuries has been made) that sex is to be constrained within marriage, not purely out of irrational moralism, but because a stable male-female relationship is the best way to raise children with the least disruption to society. That would be a powerful argument against adultery and adult incest, which have the disturbing tendency to undermine the family structure, the essential building block of stable human societies and a necessary political and psychological cushion between the autonomous individual and a suffocating state.

Indeed, even tangible harms may be harms for the criminal law only because of majoritarian morality. Why is murder criminalized? Only because our sense of morality says so. I have never heard an argument that murder should be criminally punished because the killer has deprived the state of a taxpayer, though I have read that the Romans criminalized abortion because the woman deprived the father of an heir. Murder is “wrong” because it violates our sense of morality, a difficult-to-define sense that something deep inside us has been attacked. As Kant might say, such laws appeal to our nature of ethical beings. Same for theft. It is “wrong” to take that which belongs to another. We can leave it to tort law to recompense the victim for his loss. And it is majoritarian morality that thoroughly enfuses the criminal law, for the quite sensible reason that generally accepted norms of conduct based on broad majoritarian morality are most easily known by the public. And law directed against a mere minority that refuses to conform to well-known and accepted standards is the kind of criminal law most easily enforced.

The example I usually pose to my students is the afore-mentioned animal cruelty law. I propose a horrible hypothetical that I have borrowed in part from the late Yale law professor Alexander Bickel. Suppose I own a property in the middle of the desert, with no one near me for a mile. I capture two feral dogs, let them mate, and proceed to torture the puppies to death. I dispose of their bodies in an environmentally friendly manner. Due to my geographic isolation, no one can hear the howls of pain. Information only gets out because I let it slip when talking one day at the local Lattebuck’s. People are outraged, and I am prosecuted under an animal cruelty statute.

But, why? I have violated no principle of tangible physical harm to another. I have violated no one’s property interest. I have not violated any environmental interest of the broader community. Really the only harm is a sense of unease. That unease could be that someone who will do this to animals will soon do it to humans. That is analogous to the argument that murder laws protect against the unease that the community suffers from knowing there is a murderer loose, which may change the community’s behavior in ways that damage commercial intercourse and our innate human sociality. As to murder, if such unease is the only basis, would there have to be an exception if the killer can prove that the victim “needed to be killed,” and that the community actually was happy he was gone? Some notorious gang leader, perhaps? As to the unease from the animal torture, can the community feel similar unease about a woman who aborts a child and therefore prohibit abortion? After all, she has already killed a human being by the abortion, whereas the hypothetical “I” have limited myself to killing a brute.

The real reason we prohibit animal torture is that it revolts us. Something deep inside us is repelled by the ugliness of the act. We cannot quite explain that unease, but we know it is there and real. The defendant has acted in a way that violates generally accepted standards of how we expect people to conduct themselves as respectable members of our civilized society. That is majoritarian morality.

Professor Strader’s focus on “tangible” harm is a policy choice, not a distinctive constitutional or readily-defined jurisprudential principle. There is no clear and hermetically distinct set of intangible harms. There is no self-evident lack of even tangible harm in actions targeted by laws rooted in nothing more than majoritarian morality, if tangible harm includes emotional injury or broader social or economic injury. On the other hand, if such injuries are not included, many more criminal and civil laws than he proposes are in trouble. Finally, even if such distinctions were plausible, there is no reason to claim that an affront to the social bonds based on a broadly common morality is not a harm worth preventing as much as laws against petty theft or parking violations.

It may turn out that the Supreme Court agrees that its opinion in Lawrence is as conceptually hapless as Professor Strader makes out, and as Justice Scalia’s dissent acidly concludes. Until then, however, the lower courts may be excused for not reading into the decision any more than how Justice Scalia also characterized it, as a thumb on the scale of justice in favor of a politically popular (among the right-thinking elite) interest group. I seriously doubt that polygamists, adulterers, pornographers, prostitutes, or practitioners of bestiality will be similarly welcomed by our robed readers of constitutional tea leaves. Rather, the Court is likely to follow the example of the Ohio appellate court in State v. Lowe and find some rational basis to uphold laws against adult step-relations incest by finding a “harm” that, when examined closely, is majoritarian morality in another form.