October 2006 Vol. 105 No. 1 THE REVIEW

Evolving Objective Standards: A Developmental Approach to Constitutional Review of Morals Legislation

Christian J. Grostic

“[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . .”

With this single sweeping statement in Lawrence v. Texas, the Supreme Court threw the validity of an entire class of laws and a long line of precedents into doubt. In dissent, Justice Scalia asserted that “[t]his effectively decrees the end of all morals legislation.” “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision . . . .”

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